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. Relevant principles 1. A prosecutor must call all of its evidence in its case and cannot split its case by calling evidence in reply where it could have anticipated the evidence to be called by the defence: Shaw v R (1952) 85 CLR 365. 2. The Court has a discretion to allow a prosecutor to reopen that should only be exercised in very special or exceptional circumstances, which is generally not to be exercised where the occasion for calling the further evidence ought to have been foreseen: The Queen v Chin (1985) 157 CLR 671 at 676. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time in the defence case. Evidence may also be given in reply to prove a purely formal matter that was overlooked in chief: see also Wasow v R (1985) 18 A Crim R 348. 3. A prosecutor may be permitted to reopen its case at any time provided it does not result in unfairness, including after the prosecutor had commenced its closing address: Pham v R (2008) 187 A Crim R 21 and Morris v R [2010] NSWCCA 152. Consideration 1. The incident report was in the possession of the prosecutor from 13 June 2017. It was served on the defendant as part of the Brief of Evidence. The incident report is highly relevant to the knowledge of the defendant of the circumstances leading up to the incident. 2. The incident report was contained in the tender bundle but misdescribed. The defendant was denied the opportunity to object to it or to run his case on the basis that it was to be admitted and relied on. The defendant's representatives should have checked that the tender bundle contained only the documents referred to in the Index before allowing it to be received in evidence. However, taking into account all of the relevant circumstances, I am satisfied that the prosecutor failed to act fairly by including the incident report in the tender bundle without identifying it. 3. The prosecutor chose not to rely on the incident report as a source of admissions relevant to the crucial issue of knowledge. There is no explanation as to why it made that decision. The first time that the incident report was referred to was in the prosecutor's closing address. The evidence was adduced and the prosecution witnesses were cross-examined against the background of that forensic decision. 4. It is clear that this prosecution has been run without a clearly defined case theory and a plan of how the case would be proven by reference to the available evidence. It is not acceptable for a prosecutor to ask the Court and the defendant to look through the evidence at the end of the case for clues as to how the charge can be made out. 5. I have taken into account that in these summary proceedings that I could have the relevant witnesses recalled and the defendant could be called to give evidence, without prejudice to the outcome because I am the tribunal of fact. 6. I am not satisfied that there are very special or exceptional circumstances to justify allowing the prosecutor to reopen its case to tender the incident report which it has always had in its possession. 7. I am satisfied that the defendant would suffer significant unfairness if I was to allow the prosecutor to reopen because: 1. the defendant has provided the prosecutor with his written closing submissions and exposed his defence to the charge; 2. the defendant was entitled to hear all of the evidence against him before deciding how to present his defence; 3. the steps necessary to address the unfairness, in so far as it could be, will result in increased costs and inconvenience; 4. if the defendant was now to be called to give evidence, the prosecutor has been forewarned of the defence case. Orders 1. The prosecutor's application to reopen the case to tender the incident report by the defendant dated 6 March 2017 is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2021