SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd [2020] NSWDC 330

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd [2020] NSWDC 330 Hearing dates: 23 June 2020 Date of orders: 25 June 2020 Decision date: 25 June 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Direct pursuant to the Evidence (Audio and Audio Visual Links) Act 1988 that the evidence of any interstate witness be taken by audio visual link using Microsoft Teams software. (2) Direct that the evidence of each interstate witness be taken at the capital city office of Norton Rose Fulbright. (3) Note that Norton Rose Fulbright will provide a room from which the evidence will be taken by audio visual link and any necessary IT support. (4) Direct that whenever a witness is giving evidence from another State, the only other person who may be in the room is an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Law Society of that State. (5) Direct that the prosecutor and the defendant supply to that legal practitioner indexed and paginated folders of documents to be shown to the witness; the defendant's folder is to only be provided to the witness upon the request of counsel for the defendant. (6) Direct that the expert witnesses engaged by the prosecutor and the defendant hold a conclave meeting and produce a written conclave report specifying matters agreed and matters not agreed and the reasons for any disagreement. (7) Direct that the evidence of the expert witnesses be taken concurrently by audio visual link and that directions 2-5 above do not apply to expert evidence. (8) Grant liberty to apply to my Associate to re-list the matter to amend these directions or make any further directions necessary for the conduct of the trial. Catchwords: EVIDENCE – taking evidence of interstate witnesses via audio visual link during COVID-19 pandemic – whether evidence should be taken from the home or workplace of each witness – whether an independent lawyer should be present when interstate witnesses are giving evidence – documents to be shown to witnesses – manner of taking expert evidence from experts located in different states Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 3, s 7(1) Evidence (Miscellaneous Provisions) Act 1958 (VIC), s 42E Evidence Act 1977 (QLD), s 39E Evidence Act 1986 (WA), s 121 Work Health and Safety Act 2011 (NSW) Category: Procedural and other rulings Parties: SafeWork NSW (Prosecutor) McConnell Dowell Constructors (Aust) Pty Ltd (Defendant) Representation: Counsel: J Agius SC with M Cahill (Prosecutor) B Hodgkinson SC (Defendant)