SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 835

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 835 Hearing dates: 2 December 2020 Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The new evidence proposed to be led by the prosecutor from Marc Dessens, Barry Ramm and Adam Hamburger is excluded. (2) I reserve the costs of this application. Catchwords: EVIDENCE – advance ruling Legislation Cited: Criminal Procedure Regulation 2017 District Court Criminal Practice Note 16 Evidence Act 1995 Work Health and Safety Act 2011 Cases Cited: S v The Queen (1989) 168 CLR 266 SafeWork NSW v Investa Asset Management Pty Ltd [2018] NSWDC 173 Veysey v R (2011) 33 VR 277 Category: Procedural rulings Parties: SafeWork NSW (Prosecutor) HD Projects Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) R Reitano/M Baroni (Defendant)

Solicitors: NSW Department of Customer Service (Prosecutor) Leigh Virtue & Associates (Defendant) File Number(s): 2019/391940 Publication restriction: None

Judgment

Introduction 1. HD Projects Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Ken Graff and Soane Sitauti to a risk of death or serious injury contrary to section 32 of the Act. 2. At the commencement of the trial the defendant sought an advance ruling pursuant to s 192A Evidence Act 1995, to exclude evidence sought to be adduced by the prosecutor that has only recently been disclosed to the defendant (the new evidence). The defendant's position is that it cannot receive a fair trial, because it cannot meet the new evidence if it is admitted and the trial proceeds. 3. The defendant sought the advance ruling to decide if in the light of the new evidence that the concessions that it made during the case readiness procedure, set out at [15] below, were still appropriate. I am satisfied that this is a sufficient reason to provide an advance ruling if the application to exclude the evidence is successful.