District Court New South Wales Medium Neutral Citation: SafeWork NSW v BSA Limited [2021] NSWDC 710 Hearing dates: 16 December 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Grant leave to the prosecutor to amend Annexure A to the Summons filed on 9 December 2020 in respect of particulars 9(g) and 9(h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021. (2) Order the prosecutor to pay the defendant's costs thrown away by reason of vacation of the hearing on 25 November 2021, on an indemnity basis. (3) Order each party to pay its own costs of the prosecutor's Notice of Motion filed on 19 November 2021. Catchwords: CRIMINAL PROCEDURE – application to amend Summons – adequate explanation – unfair prejudice – fair trial – stage of proceedings – costs Legislation Cited: Criminal Procedure Act 1985 (NSW), ss 15, 16(2), 20, 21, 63A, 247 Work Health and Safety Act 2011 (NSW), s 19(1), 32, 155 Cases Cited: R v Basha (1989) 39 A Crim R 337 R v Lykouras [2005] NSWCCA 8 R v Sepulveda [2003] NSWCCA 131 Rajendran v R [2010] NSWCCA 322 SafeWork NSW v Solveco Pty Ltd (No. 1) [2021] NSWDC 298 Category: Procedural rulings Parties: SafeWork NSW (Prosecutor) BSA Limited (Defendant) Representation: Counsel: J Agius SC (Prosecutor) A Moses SC with M Shume (Defendant) Solicitors: SafeWork NSW (Prosecutor) Seyfarth Shaw LLP File Number(s): 2020/351444 Judgment Introduction 1. These proceedings arise out of an incident which occurred on 14 December 2018 at a private house at Malabar. The defendant BSA Limited ("BSA") was a technical services company which installed equipment for satellite television. 2. BSA was charged by a Summons filed on 9 December 2020 with a breach of its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ("the WHS Act") to ensure so far as is reasonably practicable the health and safety of workers while the workers were at work in the business or undertaking. 3. The charge alleged that BSA failed to comply with that duty and the failure to comply with that duty exposed workers, in particular Jayden Hooper and Amber McKenzie, to a risk of death or serious injury contrary to s 32 of the WHS Act. The Summons pleaded that the death of Mr Hooper on 14 December 2018 was a manifestation of the risk of death or serious injury. 4. The risk was pleaded in par 8 of the Summons as follows: "There was a risk to a worker of death, shock or other serious injury caused directly or indirectly by electricity arising from: (i) Entering and working under the house and coming into contact with energised (live) Foxtel cable, copper pipe and/or other conductive materials; and/or (ii) Coming into contact in bed room 1 of the house with the Foxtel box including the rear ports, floor mount outlets, attached cables, television including the rear ports, HDMI cable and/or socket outlet 1." 1. Paragraph 9 of the Summons pleaded particulars of the failure of BSA to comply with its duty under s 19(1) of the WHS Act. The particulars of reasonably practicable measures were set out in subpars (a)-(g) in par 9. 2. The prosecutor filed a Notice of Motion on 19 November 2021 seeking leave to amend Annexure A to the Summons filed on 9 December 2020 in respect of particulars 9(g) and (h) in the terms of Attachment A to the Notice of Motion. The prosecutor arranged for that motion to be returnable on 25 November 2021. There was already listed for hearing on that date a motion filed by BSA seeking to set aside certain subpoenas. 3. When the matter came before me on 25 November 2021 both sides recognised that there was no utility in dealing with the defendant's motion to set aside the subpoenas, as the determination of that issue should logically take place after any amendment to the Summons was finalised. BSA had not had sufficient time to absorb and deal with the Notice of Motion for amendment filed by the prosecutor and the matter was then adjourned to a directions hearing on 29 November 2021. At that directions hearing orders were made for the service of submissions and evidence and the motion for amendment was set down for hearing on 16 December 2021. Amendments Sought by the Prosecutor 1. The application by the prosecutor was to amend and expand par 9(g) of the Summons and add par 9(h) to the Summons. 2. Paragraphs 9(g) and 9(h) in the proposed Amended Summons are as follows: "g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervisions concerning the following measures such as (i) (c) mandatory requirement of isolation of power, when working under the house, (ii) (d) mandatory use of lock and/or tag when isolating power, (iii) (e) mandatory use of using a volt stick, (also known as a non-contact proximity voltage tester) and/or, (iv) to test any power outlet used to supply power to a television or to any Set top Unit (also known as a STU or Set Top Box), mandatory use of a GPO (power point) tester and/or multimeter, and/or (v) (f) conduct of an adequate risk assessment. (h) In the alternative to (g), providing Mr Hooper with a GPO (power point) tester to test any power outlet used to supply power to a television or to any STU, together with adequate information, training, instruction and/or supervision concerning the use of such a tester." 1. The proposed amendments to par 9(g)(i), (ii), (iii) and (v) really just tidy up and clarify the words used in the original sub-par (g). 2. Paragraph 9(g)(iv) and 9(h) are new. Both focus upon a device known as a GPO (power point) tester. These new allegations are that BSA should have provided a GPO (power point) tester to Mr Hooper and that it should have provided to its employees adequate information, training, instruction and/or supervision concerning the testing of any power outlet by using such a tester. Power to Amend a Summons 1. Section 20(1) of the Criminal Procedure Act 1985 (NSW) ("the CP Act") provides as follows: "(1) An indictment may not be amended after it is presented, except by the prosecutor – (a) with the leave of the court or (b) with the consent of the accused." 1. Section 15 of the CP Act provides that the word "indictment" includes "any other process or document by which criminal proceedings are commenced". Thus s 20 applies to the amendment of a summons as well as the amendment of an indictment. 2. Section 21 of the CP Act gives the power to amend an indictment if the court is of the opinion that the indictment is defective. That is not the present case, and the application has clearly been made under s 20. The power to grant leave under s 20 must be exercised "appropriately" – Rajendran v R [2010] NSWCCA 322 at [36]. 3. I have obtained assistance in determining whether or not it would be "appropriate" to grant leave to amend the Summonses by examining the approach taken by the Court of Criminal Appeal in three cases. 4. In R v Sepulveda [2003] NSWCCA 131 the Court of Criminal Appeal considered the power to grant leave to amend an indictment. At the time that power was contained in s 63A of the CP Act, but the modern day equivalent is s 20 of the CP Act. The accused had been charged with nine counts of sexual offences against one victim and three counts of sexual offences against a second victim. There had been a committal hearing which resulted in the matter going to trial. An ex officio indictment was presented at trial containing 21 counts. Six were counts of sexual offences against the first victim, two were counts of sexual offences against the second victim and 13 were counts of sexual offences against a third victim. There had been no committal hearing in respect of the charges relating to the third victim. 5. The accused opposed the grant of leave to amend the indictment, submitting that he would be unfairly prejudiced because the counts concerning the third victim had not been the subject of committal hearings and he had been denied the opportunity to cross-examine the third victim. 6. The trial judge recognised that there was some prejudice to the accused in relation to the third victim, in the absence of a committal hearing. His solution was to grant leave to present the amended indictment, but to conduct a "Basha" inquiry in respect of the counts involving the third victim. Such an inquiry is a pre-trial hearing or voir dire where the accused can cross-examine any new witness produced by the prosecution after the committal, if they would otherwise be prejudiced – R v Basha (1989) 39 A Crim R 337. 7. The Court of Criminal Appeal commented that what the trial judge was really doing was not giving leave to present an amended indictment, but granting leave to amend the first indictment on the basis that s 63A applied – at [26]. Justice Giles said that the Basha inquiry proposed by the trial "would meet any injustice to the appellant from proceeding on the new counts in the indictment without committal proceedings" – at [64]. He also discussed whether the trial could be adjourned if matters came out requiring investigation, describing such a course as "available but not ideal" – at [68]. 8. Justice Dunford agreed with Justice Giles and said at [77]: "I also agree that the grant of leave required the exercise of a judicial discretion, the primary issue in the exercise of such discretion being whether the accused would be unfairly prejudiced by the absence of committal proceedings in relation to the ex officio counts, and whether any such prejudice could be overcome by another procedure. His Honour concluded that any 'latent injustice' (as he described it) could be overcome by the holding of a 'Basha' type enquiry prior to the trial." 1. Justice Dunford said that holding a Basha inquiry prior to the trial allowed time for further investigations or an adjournment of the trial, if necessary – at [78]. 2. In R v Lykouras [2005] NSWCCA 8 a trial judge had granted leave to amend an indictment under s 20 of the CP Act. The effect of the order was to permit the prosecutor to add a further and alternative count to the indictment. The original charge was one of driving a motor vehicle causing grievous bodily harm when at the time of the impact the driver was under the influence of a drug. 3. When the accused came to trial the Crown made an application to amend the indictment to add a further count in the alternative being driving a motor vehicle and causing grievous bodily harm when at the time of the impact the driver did drive in a manner dangerous to another person or persons. 4. There was an issue concerning whether or not the Crown could prove that the driver was under the influence of a drug. For that reason the Crown decided to seek leave to add an alternative charge to the indictment. 5. The Court of Criminal Appeal said at [17]: "The real dispute between the parties is whether it was unfair for the Crown to lay the further charge in all the circumstances of this particular matter". 6. The Court of Criminal Appeal said at [21]-[22]: "21 A substantial part of the applicant's argument in this regard seems to me to be based upon an asserted right to seek to have the charge dismissed upon a technicality without the Crown frustrating that right by laying a charge that may have to be determined on its merits. In my view there is no such right. It may be that the applicant feels aggrieved by the Crown's attempts to strengthen the case against him because he believed, rightly or wrongly, that the charge initially laid by the Crown would fail at the outset because the evidence of the taking of the blood sample and its subsequent analysis would be rejected by the Court. But an accused person has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of his guilt determined by reference to a single charge. It cannot be either oppressive or unfair, in my opinion, for the Crown simply to seek to prove a charge in more than one way, or to rely upon alternative charges arising from the one set of facts. This is so regardless of whether the alternative or additional allegation is raised before or after the trial commences. 22 If during the course of a trial, the Crown seeks to prove that the accused committed the offence charged in some way other than was opened to the jury or other than is set out in the particulars, the question that arises is whether the new allegation has caused the trial to become unfair because, for example, the accused has been deprived of the opportunity of meeting it by the late raising of the new allegation. If the unfairness cannot be addressed by, for example, witnesses being recalled or a short adjournment being granted to the accused, the trial judge will abort the trial and discharge the jury." 1. At [23] the Court of Criminal Appeal said: "23 There is, of course, a rule of practice that precludes the Crown from raising an alternative count late in a criminal trial. But this rule is concerned with ensuring a fair trial and not with limiting the manner in which the Crown can proceed against an accused." 1. The Court of Criminal appeal said at [25]-[27]: "25 The point is that both the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest. I know of no occasion where a Court has refused to allow the Crown to rely upon an alternative count or an alternative way of proving the offence charged simply because to do so might deprive the accused of the chance of a complete acquittal. I do not believe that a court has such a power. 26 In the present case all that has happened is that, albeit very late in the proceedings, the Crown has sought to rely upon a further and alternative allegation of a criminal charge arising from the same facts and circumstances as that which gave rise to the initial charge brought against the applicant. As the Crown can rely upon an alternative count raised for the first time during a trial where to do so would cause no prejudice to the accused, I have difficulty in understanding how the Court can refuse to allow it to do so before the trial commences. Of course, the earlier the alternative allegation is raised, the less likely is it that the new allegation will prejudice the right of an accused to a fair trial. 27 In so far as the applicant contends that it was unfair or oppressive for the Crown to seek to frustrate his chance of being acquitted on the charge as initially laid by bringing an alternative count, the application is completely without merit. In my view it would be a very rare case indeed where a court would refuse to allow the Crown to amend an indictment before the trial commences in order to add an alternative count unless the Court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended indictment." (Emphasis added) 1. In Rajendran v R [2010] NSWCCA 322 the Court of Criminal Appeal was considering an order made by a trial judge, during the running of the trial, granting leave to amend an indictment. 2. The accused had been charged with sexual intercourse without consent. Part of the charge was that there were circumstances of aggravation. The relevant section gave three alternatives for such circumstances of aggravation: intentionally or recklessly inflicting actual bodily harm on the alleged victim "at the time of, or immediately before or after, the commission of the offence". 3. The original form of the indictment was that the accused had inflicted actual bodily harm on the victim during the act of sexual intercourse without consent. 4. During the running of the trial it became apparent that while the accused had inflicted bodily harm upon the victim, the harm had not been done at the time of the commission of the offence, but immediately before sexual intercourse had taken place. 5. Upon this evidence emerging the Crown sought leave to amend the indictment to change the allegation from inflicting actual bodily harm during the commission of the offence to inflicting actual bodily harm immediately before the commission of the offence. Such application was refused. The Crown then applied to amend the indictment to remove the allegation of inflicting actual bodily harm, which removed the allegation of circumstances of aggravation. 6. At [36] the court said: "36 Section 20 and s 21 have different purposes. Although s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment. The circumstances in which the leave may be granted are not confined by the section, although, obviously, the discretion must be exercised appropriately. It is worth noting here that s 20(2) expressly states that s 20 does not affect the powers of the court under s 21. One common circumstance in which amendment is allowed is where the evidence, as it emerges, is not entirely consistent with what is alleged in the indictment, for example, as to the date of an offence." 1. At [45] the Court of Criminal Appeal recorded that the trial judge had rejected the application to amend the indictment by alleging that the circumstance of aggravation occurred "immediately before" the offence and not during the offence. This was because the trial judge "accepted defence counsel's claim that, had the words been in the indictment initially, he might have cross-examined differently". 2. The actual challenges on appeal to the rulings of the trial judge are not relevant to the present dispute, but what is recorded in [45] of the judgment is a recognition that in considering an application for leave to amend a charge, the court must take into account whether some prejudice has been occasioned to the defendant. 3. From the above cases I draw the following principles: 1. The primary issue in the exercise of the discretion to grant leave to amend a charge is whether the defendant would be unfairly prejudiced. 2. The court should consider whether any such prejudice could be overcome by another procedure. 3. A defendant has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of guilt determined by reference to a single charge. 4. The earlier an allegation is raised, the less likely it is that the new allegation will prejudice the right of an accused to a fair trial. 5. It would be a very rare case indeed where a court would refuse to allow the prosecutor to amend an indictment before the trial commences unless the court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended charge. 6. While s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment. 7. The circumstances in which the leave may be granted are not confined by the section, although the discretion must be exercised appropriately. Procedural History of the Proceedings 1. The procedural history is as follows: 1. On 9 December 2020 the Summons was filed. 2. On 8 February 2021 the matter first came before the court. It was stood over to 19 April 2021 for directions. 3. On 19 April 2021 the proceedings were adjourned by consent to 15 June 2021 to allow the prosecution to review and respond to the defendant's request for further and better particulars. 4. On 15 June 2021 the matter was stood over by consent to 12 July 2021. 5. On 12 July 2021 a plea of not guilty was entered. The prosecutor was ordered to provide all material required pursuant to par 29 of Practice Note 16 by 23 August 2021. The proceedings were stood over for directions on 30 August 2021. 6. On 30 August 2021 orders were made in accordance with Short Minutes of Order as follows: 1. The prosecutor to serve any expert report on or before 27 September 2021. 2. The prosecutor to serve any further notice of the prosecution case under s 247E of the Criminal Procedure Act on or before 27 September 2021. 3. The defendant to provide notice of the defence response in accordance with s 247F of the Criminal Procedure Act by 22 November 2021. 4. Proceedings adjourned to 29 November 2021. 1. On 23 September 2021 Judge Scotting made Consent Orders in relation to service of evidence and submissions relevant to a Notice of Motion filed by the defendant on 22 September 2021 to set aside certain subpoenas issued by the prosecution to the defendant. The hearing of the motion to set aside the subpoenas was listed before Judge Scotting at 2.00pm on 11 November 2021. 2. On 27 October 2021 the listing of 11 November 2021 was vacated and the subpoena argument was listed for hearing before me on 25 November 2021 at 2.00pm. 3. On 25 November 2021 the parties appeared before me on the defendant's motion to set aside the prosecution subpoenas. As previously recited, the prosecutor had filed its own Notice of Motion, returnable on 25 November 2021, seeking to amend the Summons. I adjourned the prosecutor's Notice of Motion filed on 19 November 2021 to a date to be fixed and reserved the question of whether the prosecutor should pay the defendant's costs thrown away by the adjournment. I confirmed the directions hearing still listed for 29 November 2021 and directed the parties to bring in Short Minutes of Order to prepare for the hearing of the prosecutor's Notice of Motion for amendment. 4. On 29 November 2021 orders were made in accordance with Short Minutes of Order for the filing and service of evidence and submissions in relation to the motion to amend. The matter was fixed for hearing before me on 16 December 2021. 5. On 15 December 2021 the parties appeared before me on short notice in relation to subpoenas issued by the defendant seeking documents relating to legal advice given to the prosecutor. I made no order and directed that this matter be dealt with on 16 December 2021. 6. On 16 December 2021 the parties appeared before me and argued the Notice of Motion for amendment. I made an order setting aside the subpoenas issued by the defendant to Helen Williams and the Proper Officer, SafeWork NSW. I reserved the costs of the motion to set aside the subpoenas. Judgment on the prosecutor's motion filed on 19 November 2021 for leave to amend the Summons was reserved. The matter was stood over for directions before me at 9.30am on 1 February 2022. Evidence in Support of the Motion 1. The prosecutor relied upon the affidavit of Ms Helen Williams dated 6 December 2021 (PX 2). Ms Williams is a solicitor with the Department of Customer Service which acts for the prosecutor SafeWork NSW. In par 5 of her affidavit Ms Williams set out the three issues to which the affidavit was directed: 1. Confirmation of notice previously given to the defendant that, for the purpose of particular 9(f) in the Summons, part of the prosecutor's case was that conducting and documenting an adequate risk assessment concerning the Foxtel work at the Malabar house should have "identified the most appropriate control measures that should be implemented to eliminate or minimise the general risk and specific electrical risk" to include use of a GPO (power point) tester. 2. Confirmation of notice previously given to the defendant that, for the purposes of particular 9(g) to the Summons, the prosecutor would rely upon s 16(2)(b) of the Criminal Procedure Act 1986 (NSW) to argue that there was at most a variance between the charge and the evidence adduced in relation to that charge. 3. The application for leave to amend the Summons in relation to particulars 9(g) and 9(h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021. 1. The affidavit of Ms Williams then set out the material already served in support of the prosecution case and relevant to the particulars in the Summons. 2. Annexure C to the Williams affidavit was a copy of the prosecutor's Summary of its case, served pursuant to Practice Note 16 and to ss 247E and 247F of the Criminal Procedure Act 1986 (NSW). That Summary was further summarised in pars 11-14 of the Williams affidavit. 3. Paragraphs 15-18 of the Williams affidavit dealt with expanded particulars already provided in relation to the risk assessment pleaded in par 9(f) of the Summons. One of the control measures particularised was "testing… with a GPO power point tester" – see Annexures B and E to the Williams affidavit, summarised in pars 16 and 18 of that affidavit. 4. Paragraphs 19-21 of the Williams affidavit set out the parts of the Statement of Facts attached to the Summons, where reference was made to the use of a GPO power point tester. Such a device was referred to specifically in pars 76, 78, 95 and 96 of the Statement of Facts. 5. Paragraphs 22-26 of the Williams affidavit referred to evidence of the defendant's systems to be adduced at trial, relating to the GPO tester. These paragraphs identified the following: 1. Annexure F was a copy of the defendant's SafeWork Instruction Work Electrical Isolations. 2. Annexure G was a copy of a Record of Interview with Ms McKenzie, who also attended the Malabar property on 14 December 2018 and who helped the late Mr Hooper perform some of the work. 3. Annexure H was a copy of the Foxtel Cable to Satellite Transition Technical Training document which specifically refers to a GPO power point tester. 4. Annexure I was a copy of a post-incident HSE Management Plan Contract/Client Foxtel document. 1. Paragraphs 27-29 of the Williams affidavit referred to other evidence to be adduced at the trial relating to the GPO tester. This additional material comprised: 1. Annexure J which was a copy of the expert report of Neil Roberts dated 24 September 2021. This was served on 27 September 2021 in accordance with the orders made on 30 August 2021 which are referred to above. The expert report deals with a GPO tester at pp 7, 9, 10, 13, 36, 37, 40, 41, 44, 45, 49, 50 and 51. 2. Annexure K was a copy of witness statement of Mr Mark Hooper which, inter alia, says that technicians such as the late Mr Jayden Hooper were not issued with GPO power point testers and therefore could not follow the procedure set out in the Foxtel Cable to Satellite Transition Technical Training document referred to above. 3. Annexure L was a copy of an email chain showing that the cost of a GPO power point tester in 2018 was about $48 plus GST. 1. Ms Williams annexed a copy of a letter dated 28 September 2021 which she sent to the solicitors for the defendant (Annexure D). That letter set out a proposed amendment to particular (g) in the Summons and asked whether the defendant consented to such an amendment. It is noted that the amendment set out in Annexure D is different to, and less extensive than, the amendments now proposed. 2. In paragraphs 30-36 of the Williams affidavit, copies of correspondence are annexed which show that after the letter dated 28 September 2021 with its request for consent to amendment was sent, no response was received until 22 October 2021, when an email confirmed that the defendant did not consent to the prosecutor's proposed amendment. There was no reason advanced for this approach and no reference to any prejudice that the amendment would cause the defendant. 3. Paragraphs 37 and 38 of the Williams affidavit were the focus of cross-examination by senior counsel for the defendant. Those paragraphs are as follows: "37 On 25 October 2021, I sent a letter to Chris Deckers via email (Annexure P) consenting to the request by Scotting DCJ, forwarded to the prosecution by the defendant, to move the subpoena argument to 25 November 2021 at 2.00pm. The letter also informed the defendant that the prosecution was in the process of drafting a Notice of Motion requesting the Court amend the filed summons in this matter, proposing to have this Notice of Motion heard on the same date, being 25 November 2021. The prosecution informed the defendant that they would be copied in on the email correspondence to the Court when the yet-to-be-finalised Notice of Motion was filed. 38 No client legal privilege is waived by the prosecution. A process then occurred of receiving legal advice from senior and junior counsel and communicating to the client legal advice concerning amending particulars in paragraph 9 of Annexure A to the Summons. This process was required because of the need to seek the leave of the Court for one of the three options, as referred to in paragraph 5(c) above." 1. Ms Williams was cross-examined by Mr Moses SC. This judgment has been prepared during court vacation without the benefit of a transcript. My notes of the cross-examination are as follows: 1. Annexure "D" is the letter dated 28 September 2021. The trigger for that proposed amendment was the expert report and the Foxtel document of 1 February 2018. This was received prior to the retention of the expert Mr Roberts. Mr Hooper's statement was obtained on 24 September 2021 (in re-examination it was pointed out that the handwritten date on it was 27 September 2021). 2. When was Mr Hooper first approached? Do not know. 3. When was Mr Roberts first approached? 3 September 2021. 4. Did you seek legal advice in relation to the amendment set out on p 5 of "D"? Yes. 5. Between 28 September and 22 October 2021 did you seek further advice from counsel in relation to the amendment? Yes 6. Is that further advice referred to in par 38? Yes. However later the witness said that par 38 was speaking about the position after 22 October 2021. 7. In relation to particular 9(h) what was the trigger for that? I do not know. 8. The expert was engaged on 3 September 2021. The letter to the expert was dated 20 August 2021. Prior to the expert being retained was consideration given to amending the Summons as per the letter dated 28 September 2021? I do not know. 9. Was there a trigger for sending the letter engaging the expert? Yes, but the reason is privileged. 10. When was the decision made to engage the expert? Early August. 11. Do you remember a telephone conversation with Mr Deckers on 26 August 2021? Yes. Did you make a file note? Generally I do, but there is no file note of that conversation. 12. PX 3, par 17 – did you say anything about "our policy"? No. 13. Was there a practice that briefs were served without reports being obtained prior to briefing counsel? No. 1. I found Ms Williams to be a witness who was direct and frank in her answers (then again, nothing less would be expected from an officer of the court). I deal below with the submissions made in relation to her evidence. Evidence in Opposition to the Motion 1. The defendant relied upon two affidavits by its solicitor Mr Deckers dated 14 December 2021 (DX 2) and 25 November 2021 (DX 3). 2. In DX 2 Mr Deckers referred to a telephone conversation which he had with Ms Williams on 26 August 2021. He asked Ms Williams why, since the prosecution brief had been served months ago, the prosecutor was only now seeking to engage an expert. He deposed that Ms Williams said words to the effect: "It is not our policy to obtain expert evidence before the brief is served". 3. Ms Williams did answer this by her affidavit of 16 December 2021 (PX 3). She did not agree that she made a statement in relation to "our policy". Ms Williams also deposed that there was no such policy and that SafeWork briefs were often served with expert reports. I do not regard this as an important issue in the case, and I do not need to make a finding one way or another about the words which were said. I find them to be immaterial. 4. DX 3 was a short affidavit by Mr Deckers about the lead-up to the aborted hearing on 19 November 2021. He annexed all of the relevant correspondence. Those matters are relevant to the reserved costs issue. Submissions for the Prosecutor 1. Senior counsel for the prosecutor made the following submissions: 1. The principles in relation to amendment are set out in the judgment in SafeWork NSW v Solveco Pty Ltd (No. 1) [2021] NSWDC 298. This is the starting point. 2. There is no trial date. The defendant has not committed itself to a course of action. There is no evidence of prejudice beyond the fact of delay. There is no evidence how delay has impacted the defendant. 3. No decision was made by the prosecutor to retain the expert until July 2021. Judge Strathdee granted an extension of time to obtain the expert report. The defendant does not say that it cannot retain its own expert. 4. The amendments formalise what was telegraphed in the letter dated 28 September 2021. The prosecution could still have led this evidence, as it falls within the original Summons. After 28 September the defendant knew it had to meet a case involving a GPO power point tester – its training and use. 5. A decision was made by the prosecutor to amend the Summons and formalise the case involving the GPO power point tester. 6. Both the defendant and Foxtel described the use of a GPO tester but they had not supplied such a tester to Mr Hooper. It would have identified the error that led to his death. The defendant must know why a GPO tester was not issued to technicians. The defendant chose not to enforce one of its own policies and a policy of its client. 7. The application to amend can be made even during the course of a trial. 8. The defendant has not yet responded to the schedule served. They have not said whether there was any objection to evidence or to s 155 responses made by staff members of the defendant. 9. The defendant cannot say that it is prejudiced. It had notice of amendment in the letter dated 28 September 2021. For a month it did not respond. When it did respond it did not suggest any prejudice. It will be many months before this matter is listed for hearing. 10. The amendment formalises a course of action available under s 16(2) of the Civil Procedure Act. 11. This is not a "rare case" referred to in the authorities. In relation to why the expert was not retained earlier, SafeWork had no policy not to retain an expert before a plea of not guilty was entered. 12. The written submissions cover the s 16(2) argument. We are not suggesting that there is an error in the pleadings, but a variance. The amendment formalises the prosecution case as it would have been run in any event. Submissions for the Defendant 1. Senior counsel for the defendant made the following submissions: 1. The prosecution is suggesting that there is an onus on a criminal defendant to show prejudice. That is not correct. 2. The gateway to obtaining an amendment is to provide an explanation as to why the prosecution has chosen to seek to amend at this point. 3. The prosecution sought the indulgence of the court for an extension of time to file the expert's report, without telling the court that it may amend. The prosecution should have given that explanation. 4. Ms Williams really couldn't answer questions about the explanation for delay. Particular (h) is new and the prosecution solicitor cannot say what triggered it. 5. The prosecution has not complied with the Practice Note. Case management is at the forefront of that Practice Note. 6. Ms Williams could not explain what the three options were referred to in par 37 of her affidavit. It appears that there was a continuous process of obtaining legal advice, but the affidavit did not disclose this. 7. The court could grant the amendment to (g), but not (h). 8. The defendant does not have to demonstrate prejudice. If there is no reason advanced for delay in seeking to amend, we don't get to the next stage. The solicitor couldn't say if an amendment was considered prior to obtaining the expert's report. 9. Costs thrown away on the last occasion should be paid by the prosecutor. That adjournment should never have happened. The court could not deal with the defendant's Notice of Motion to set aside the prosecution subpoenas, as there had to be clarity about what issues were raised by the pleadings. 10. In relation to costs of today, the court cannot rely on the solicitor's affidavit. She does not really know the explanation for delay. Submissions in Reply for the Prosecutor 1. Senior counsel for the prosecutor made the following submissions in reply: 1. In relation to costs, there is no reason why costs thrown away should be increased to be on an indemnity basis. 2. The prosecution submission was not that the defendant needed to prove prejudice, it was simply that there was no evidence that the defendant had suffered any prejudice. 3. The expert report covered many matters, and only two small portions of it dealt with the GPO tester – questions 11, 28 and 29. 4. The fact that SafeWork NSW was seeking legal advice between 28 September and 25 November cannot be used against SafeWork. Submissions in Reply for the Defendant 1. Senior counsel for the defendant submitted that the court should read the transcript for 25 November 2021 to examine the reasons put forward on that occasion in relation to the amendment. Mr Moses SC submitted that the prosecutor had indicated to the court that it was the expert report that triggered the desire of the prosecutor to amend. Consideration 1. It is necessary for any party coming to court to seek an indulgence, in this case an amendment to the pleadings, to explain any delay in making the application. The submissions of Mr Moses SC were to the effect that a satisfactory explanation had not been provided, and thus the indulgence of an amendment should not be granted. 2. I do not accept that submission. The Summons was filed on 9 December 2020 and first came before the court for directions on 8 February 2021. There were consent adjournments until 12 July 2021 when a plea of not guilty was entered. On 30 August 2021 the prosecutor was ordered to serve any expert report by 27 September 2021 and to serve any further notice of the prosecution case by that same date. The prosecution did so. 3. Well prior to the obtaining and service of the expert report the prosecution had made allegations in the Statement of Facts attached to the Summons concerning a GPO power point tester. It had also served documentary material relating to such a device. All that was missing was a direct reference to such a device in the Summons. I do not propose to deal with the submission advanced by the prosecutor that, even if there was no amendment, the material served could have been adduced at the hearing in relation to the GPO power point tester. In my view the prosecution took the prudent course of seeking a formal amendment to the Summons to make it plain beyond argument that this was part of the prosecution case. 4. It is clear from the affidavit of Ms Williams that it was the expert report which led the prosecution to focus upon that part of its case which related to a GPO power point tester, and to the need to formalise an amendment in that regard. I do not accept that the expert report was the only "trigger" for seeking the amendment. I was urged by Mr Moses SC to look at the Transcript for 25 November 2021. At Tcpt p 4/40 - 5/5 Mr Agius SC said: "It became relevant to us when we received the expert's report and that was the catalyst for obtaining I think the statement of Mr Hooper(?) at least that part of the statement from Mr Hooper that dealt with the GPO, if I am correct. We had a document from Foxtel which was the installation manual for the type of work that was being done by the deceased which referred to a GPO. We had denials from the defendant in response to s 155 notices that they or it had not issued the deceased with a GPO - sorry, I'll withdraw that. I'm sorry. They didn't deal with the GPO, no. I withdraw that. We have no denials from the defendant about whether they issued a GPO or not to the deceased. We actually have evidence from Mr Hooper Senior the substance of which is that it is unlikely that a GPO was issued to the deceased by they defendant. He was a senior manager of the defendant at the time. So we have that material and that supports the application to amend. There is no possible prejudice to the defendant because all of that material had already been served. The only difference is we are now adding it as a measure in the proceedings." 1. Thus it was not just the expert's report (although that was the main trigger) but it was also obtaining the statement of Mr Hooper senior which led to the wish of the prosecution to amend. 2. The suggestion was made by Mr Moses SC, at least by the form of his questions, that somehow Ms Williams was not being frank with the court when par 38 of her affidavit dealt with the receipt of legal advice, which covered the period only between 22 October 2021 and 19 November 2021. I reject that suggestion. When Ms Williams was asked whether, at various points prior to that period, the prosecutor had sought and obtained advice from counsel concerning the breadth of the prosecution case and whether any amendment was required, she frankly said that such advice had been received from time to time. I would be shocked if it were otherwise. This is a criminal prosecution. The prosecution has certain well-known obligations and must lay all of its cards on the table so that the defendant can know the case it has to meet. To do that, in an area which is highly technical, the prosecutor was prudent to obtain legal advice and expert advice. The formal questions asked of the expert, and answered in his report, are a clear indication to me that legal minds were brought to bear on the evidence required to be given by the expert, to accord with the prosecution case. 3. I find that the material in the affidavit of Ms Williams provides a satisfactory explanation, for a relatively short period of time (speaking in lawyer's terms) between the plea of guilty in July 2021, the extension of time for an expert report obtained on 30 August 2021, the service of the expert report on 25 September 2021 and the filing of the motion for amendment on 19 November 2021. One month of that time was spent waiting for the defendant to respond to a simple request. I reject the submission of senior counsel for the defendant that the prosecutor has not put forward material to explain the delay in making the application for amendment. 4. By the form of the proposed amendment the prosecutor has put forward a clear and definite case which the defendant would have to meet. 5. There is no evidence of unfair prejudice to the defendant if the amendment were granted. There is no evidence of prejudice in the material put forward by the prosecutor or the defendant. As senior counsel for the prosecutor acknowledged, there is no onus upon a defendant to show prejudice, and the court must discern whether there is prejudice from all of the evidence before it, as well as from inferences that can be drawn. The only possible inference is that there might be presumed prejudice from the fact of delay. However, I think that most unlikely, when the matter is nowhere near being set down for trial, and when the defendant has not had to commit itself to a statement of its case. 6. The raising of the allegation at this stage, which as I have said is really the formalisation of a case which was always there, makes it most unlikely that there will be any prejudice to the defendant in having a fair trial. 7. The fact that the trial has not been commenced, and is nowhere near commencing, is an important matter which I take into account in deciding whether or not to allow the amendment. 8. In the light of those findings and reasons, I propose to allow the amendment in the form sought by the prosecutor in the Notice of Motion filed on 19 November 2021. Costs 1. The costs thrown away by reason of the adjournment of the hearing listed for 25 November 2021 were reserved on that day, so that submissions could be made as to whether there was any power to order costs. The written submissions filed by the prosecutor now acknowledge that there is a power to make an order for costs. 2. The appropriate order in my view is that the prosecutor should be ordered to pay the defendant's costs thrown away, on an indemnity basis. 3. The prosecutor's motion for amendment was made returnable on 25 November 2021 without any grant of leave to do so. It was filed on 19 November 2021. The prosecution could have had the matter relisted before me, on short notice, to obtain such leave and to apply to vacate the hearing date of 25 November 2021. Instead, the prosecution turned up on that date and simply assumed that their motion could go ahead, on little or no notice being given to the defendant. In the end result the costs of the defendant of 25 November 2021 were entirely wasted. Parties should not file motions, without appropriate notice to the other side, and make the assumption that their motion will somehow displace the time set aside for the other party's motion which has been set down for hearing. 4. In the circumstances I think it appropriate that I should order indemnity costs against the prosecutor. 5. There is also the question of the costs of the prosecutor's Notice of Motion for amendment. The prosecutor came to court seeking an indulgence and should normally pay any costs of the other side incurred as a result of seeking the indulgence. However, the case in favour of an amendment is, in my view, so strong that the defendant should have consented to the application. In my view the appropriate order is that each party pay its own costs of the application to amend. Delivery of Judgment 1. Both parties accepted the court's suggestion that judgment be delivered in the court vacation by orders being made in chambers and the judgment being published on the Caselaw website. Orders 1. The orders of the court are: 1. Grant leave to the prosecutor to amend Annexure A to the Summons filed on 9 December 2020 in respect of particulars 9(g) and 9(h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021. 2. Order the prosecutor to pay the defendant's costs thrown away by reason of vacation of the hearing on 25 November 2021, on an indemnity basis. 3. Order each party to pay its own costs of the prosecutor's Notice of Motion filed on 19 November 2021. ********** Amendments 03 January 2022 - Typographical error pars 7 and 38(6)(c) 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: 03 January 2022