SafeWork NSW v Scharfe

[2021] NSWDC 216

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:

Work Health and Safety Act 2011

Cases Cited:

Morris v R [2010] NSWCCA 152

Pham v R (2008) 187 A Crim R 21

Shaw v R (1952) 85 CLR 365

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)
J Alderson (Defendant)

Solicitors: Legal, Department of Customer Service (Prosecutor)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2019/47368

Publication restriction:

None

Judgment

1. 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

2. 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.

3. 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.

4. 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.

5. 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.

6. The evidence in the case has been heard over 24 and 25 May 2021 and was adjourned to 27 May 2021 for closing addresses.

7. 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…