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 1. 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. 2. 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. 3. 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. 4. 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. 5. The evidence in the case has been heard over 24 and 25 May 2021 and was adjourned to 27 May 2021 for closing addresses. 6. 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 serious injury. In fact, tab 10 contained that document as well as a handwritten incident report prepared by the defendant dated 6 March 2017 and a typewritten transcript of the incident report (collectively the incident report). 7. In the correspondence between the parties leading up to the trial, the prosecutor provided a copy of the Index to Exhibit 2 to allow the defendant to take objection to the documents to be tendered. The only document listed to be tendered behind tab 10 of the bundle was the incident report of Mr Goedsir. The defendant notified the prosecutor that it did not object to the incident report of Mr Goedsir. No reference was made in the Index to Exhibit 2 to the incident report. 8. Mr Blackman's oral evidence was that he could not recall the extent of any relevant conversations between the defendant and himself in the period leading up to the incident. He could also not recall if the defendant saw him use the brake cleaner prior to the incident. 9. Peter Lester, another worker in the workshop, also gave scant oral evidence about what occurred on the day of the incident, in particular as to what he saw the defendant do or heard him say. 10. In the course of his closing address, counsel for the prosecutor took me to the incident report behind tab 10 of Exhibit 2. The defendant took objection to that document on the basis that he did not know that it had come into evidence behind tab 10, because it was not referred to in the Index. I rejected the tender on the basis of that misdescription. 11. The prosecutor now seeks leave to reopen its case to tender the incident report. The prosecutor contends that the incident report contains admissions by the defendant that he knew on the day of the incident that Mr Blackman was spraying brake cleaner on the gearbox housing that he was dismantling and that he intended to use the rattle gun after doing so. 12. It is common ground that the incident report was provided to SafeWork by Hubtex in answer to a s 171 Notice issued by Inspector Jelley on 13 June 2017, that it was disclosed in the Brief of Evidence and that the incident report is admissible. 13. The case was not run by the prosecutor featuring the incident report as a crucial piece of evidence to establish the defendant's knowledge. In this regard: 1. counsel for the prosecutor did not open on the incident report. 2. in the course of adducing evidence in the prosecution case, counsel for the prosecutor sought to adduce evidence from a number of the witnesses to impute knowledge of the circumstances of the incident to the defendant. It was open to the prosecutor in reliance on the incident report to proceed on the basis that the defendant admitted that he had some crucial knowledge of the circumstances of the incident. 3. at the commencement of the prosecutor's closing address, counsel for the prosecutor handed up written submissions with references to the evidence. Those written submissions did not contain any reference to the incident report. 1. Counsel for the defendant did not ask any witness called by the prosecutor any questions relating to the incident report. She clearly had instructions that coincided some of the content of the incident report. The defendant submits that he would have run the case differently if he was aware that the prosecutor was tendering and relying on the incident report. I accept counsel for the defendant's submission that she would have made, or at least could have made different forensic decisions if the prosecutor had made plain that it was relying on the incident report. I am satisfied, for example, that the defendant would probably have been called to give evidence.