District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Scharfe [2021] NSWDC 216 Hearing dates: 24, 25, 27 May 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1. The prosecutor’s application to reopen the case to tender the incident report by the defendant dated 6 March 2017 is refused.
Catchwords: JUDGMENT – application to reopen case
Legislation Cited: Cases Cited: Pham v R (2008) 187 A Crim R 21
The Queen v Chin (1985) 157 CLR 671
Wasow v R (1985) 18 A Crim R 348
Category: Procedural rulings Parties: SafeWork NSW (Prosecutor)
Glenn Scharfe (Defendant)Representation: Counsel: M Moir (Prosecutor)
Solicitors: Legal, Department of Customer Service (Prosecutor)
J Alderson (Defendant)
Sparke Helmore Lawyers (Defendant)
File Number(s): 2019/47368 Publication restriction: None
Judgment
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The prosecutor seeks to reopen its case, during its closing submissions, to tender an incident report prepared by the defendant dated 6 March 2017 (the incident report) containing admissions as to relevant factual matters.
Background
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The defendant is charged with an offence under s 32 Work Health and Safety Act 2011 (the Act), alleging that he breached the health and safety duty that he owed to other workers pursuant to s 28(b) of the Act and thereby exposed them to a risk of death or serious injury.
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On 2 March 2017 the prosecutor alleges that the defendant breached his health and safety duty by failing to warn a junior worker, Mr Blackman, that the use of a flammable liquid (brake cleaner) and a battery operated Impact Wrench (rattle gun) could cause an explosion or fire, or alternatively by failing to confiscate the flammable liquid and/or the rattle gun to prevent such an incident occurring.
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The evidence is that Mr Blackman sprayed a gearbox housing that he was asked to dismantle with brake cleaner intending to use it as a degreaser. When he depressed the trigger on the rattle gun to undo a bolt, the rattle gun generated a spark that ignited the brake cleaner and caused injury to Mr Blackman.
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The duty owed by a worker under s 28(b) of the Act is a duty to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons. The extent of the defendant’s knowledge of the activities of Mr Blackman on the day of the incident, and the extent to which the defendant supervised him are significant issues in the case.
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The evidence in the case has been heard over 24 and 25 May 2021 and was adjourned to 27 May 2021 for closing addresses.
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The prosecutor tendered a bundle of documents in its case identified in an Index (Exhibit 2). The document behind tab 10 was described as an incident report prepared by Peter Goedsir, one of the workers allegedly exposed to a risk of death or…
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- AGLC
- SafeWork NSW v Scharfe [2021] NSWDC 216
- Case
- [2021] NSWDC 216
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing the reopening of cases, emphasising the importance of maintaining procedural fairness and preventing undue delay. It was noted that the application was made well after the trial had commenced, and there was no satisfactory explanation for the delay in producing the report. The court was also mindful of the need to balance the interests of both parties and the potential for prejudice to Scharfe if the report was admitted at this stage. Ultimately, the court determined that the application did not meet the threshold for reopening the case, as there was insufficient justification for the delay and no clear demonstration that the report would have a decisive impact on the case. The application was dismissed, and the case remained closed.
Orders
Orders of the court
1. The prosecutor’s application to reopen the case to tender the incident report by the defendant dated 6 March 2017 is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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