Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/as Transfield Maintenance [2000] NSWIRComm 190 PROSECUTOR WorkCover Authority of New South Wales (Inspector Steven Finlay McMartin) PARTIES : DEFENDANT Transfield Pty Limited t/as Transfield Maintenance FILE NUMBER: IRC 4586 and 4587 of 1999 CORAM: Hungerford J CATCHWORDS : Evidence - Recall of a witness during prosecution's case - Leave required - Whether statutory provisions apply - Availability of general power in the Court - Circumstances giving rise to the application - Order in which witnesses called - Whether prejudicial to defendant - Ends of justice and the proper administration thereof - Exercise of a discretion - Leave granted to recall witness. LEGISLATION CITED : Evidence Act 1995 s 38(4) s 46 s 192 Occupational Health and Safety Act 1983 s 15(1) s 16(1) CASES CITED : No cases were cited HEARING DATES: 09/07/2000 EXTEMPORE JUDGMENT DATE : 09/07/2000 PROSECUTOR Ms P McDonald of counsel Solicitor: Mr G McCann WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson of counsel Solicitor: Mr M O'Dea Carroll & O'Dea JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMI SSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Thursday, 7 September 2000 Matter No IRC 4586 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEVEN FINLAY McMARTIN) v TRANSFIELD PTY LIMITED t/as TRANSFIELD MAINTENANCE Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. Matter No IRC 4587 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEVEN FINLAY McMARTIN) v TRANSFIELD PTY LIMITED t/as TRANSFIELD MAINTENANCE Prosecution under section 15(1) of the Occupational Health and Safety Act 1983. RULING ON EVIDENCE (extempore) [2000] NSWIRComm 190 1 During the course of her case, counsel for the prosecutor made an application to re-call the prosecutor to give evidence concerning an issue as to the removal of cutting equipment and associated hoses from a steelmaking ladle during its maintenance on 26 March 1998. The application was opposed by counsel for the defendant. The application was made in the hearing of prosecutions of the defendant for breaches of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983 occurring at the Newcastle steelworks at Port Waratah in the State on 25 March 1998. 2 The issue arose in this way. During the course of the prosecutor's evidence, a factual inspection report prepared by him as to his observations on 26 March 1998 of the scene and circumstances where the subject incident occurred at about 9.00 pm on 25 March 1998 was admitted into evidence as Exhibit 1. It appears from that report that the prosecutor attended the site on 26 March 1998, when various other persons were present also, and he directed the removal from the ladle of all items. Paragraph 16 of the report included the following statement as to such removal of the two sets of the oxy-LP gas cutting equipment and associated hoses : Both sets were removed with ease requiring no undue force to avoid catching. 3 The sets were then subject, it seems, to testing in the prosecutor's presence by certain persons. Evidence as to the result of the testing is yet to be given. However, after the prosecutor's evidence-in-chief, he was cross-examined and, although some general questions were directed to him concerning paragraph 16 of the report, he was not challenged on the sentence I have just quoted. The prosecution's counsel later called evidence from Geoffrey Edman, who at the time of the incident was employed by the defendant as its project co-ordinator and who had the responsibility for the day-to-day operations on the site for the defendant, including the maintenance work performed to the steelmaking ladle. Mr Edman was present also when the cutting equipment was removed from the ladle on 26 March 1998 - he did not give evidence-in-chief about the removal of the equipment from the ladle. But, in cross-examination he was asked a series of questions about the circumstances under which the work was performed and what the equipment was subject to in the course of its removal from the ladle (see transcript from pp 170 to 174); he was re-examined on this aspect (see transcript from pp 187 to 190). 4 In respect of this evidence from Mr Edman, counsel for the prosecutor obtained by consent a short adjournment to enable her to take instructions because, as she said, "part of this witness's evidence has caught me by surprise. I would like to check something with the Inspector". 5 Shortly stated, it is fair to say that Mr Edman's evidence as to the removal of the equipment from the ladle was inconsistent with that given earlier by the prosecutor as it was to the effect that the removal involved the equipment being less "than easily removed and subject to what I might generally describe as "rough" treatment. The implication, of course, is obvious as such rough treatment may well be said to be reflected in any subsequent leak testing. The prosecution has said such evidence is to be called. The importance of this aspect, therefore, will be obvious. 6 In support of re-calling the prosecutor to give evidence on this aspect, counsel relied on s 46 of the Evidence Act 1995, which is in the following terms: 46 Leave to recall witnesses (1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) it contradicts evidence about the matter given by the witness in examination in chief, or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence. 7 Counsel for the defendant made a number of points against the application. Primarily, counsel said s 46 was not relevant because it should be read as limited to the re-call of a witness to give evidence about a matter raised in the other party's case; the defendant here had not gone into evidence, and may not do so, so s 46 had no application. Nevertheless, counsel conceded, quite properly and fairly in my view, that the Court had a general discretion otherwise than by s 46 to permit the re-call of a witness - I agree. However, it may be said that as the specific matter is dealt with by s 46 then that would be of importance in deciding how any discretion otherwise should be exercised. In substance, counsel for the prosecution maintained that s 46 was not so limited. 8 Although I have been unable to find any authority directly in point, and I observe that notwithstanding counsels' research in this respect they too are in a similar position, in my view s 46 in enabling the exercise of a discretion for a witness to be re-called is not limited in the manner suggested by counsel for the defendant. I consider the section is directly applicable to the present application in that when it speaks of "a matter raised by evidence adduced by another party" it comprehends such evidence obtained from cross-examination and not necessarily adduced only during that party's case. 9 Counsel's opposition also contended that the prosecution was seeking to cross-examine its own witness, Mr Edman, and in circumstances where his evidence-in-chief did not deal with it. It was added that the defendant would be prejudiced, in effect, by the admissibility of further evidence from the prosecutor and the prosecution should be held to the evidence it had led. If the application were granted then it should be on terms pursuant to s 192 of the Evidence Act , namely: 1. The prosecutor serve a statement of the proposed evidence to enable consideration to be given to it and for the purposes of cross-examination. 2. The prosecutor not be allowed to remain in Court to hear other evidence from witnesses until he has given the additional evidence concerned to finality. 10 I propose to grant leave to the prosecution to re-call the prosecutor but subject to terms which I will outline. 11 In exercising my discretion in this respect, I have been guided by the overall proposition that the duty of the Court, as I see it, is to ensure the ends of justice and the proper administration thereof. In a real sense, to me that means getting at the truth of the matter and that, in terms of the system, is by evidence. Of course, here, the prosecution is required to make out the charges to the requisite criminal standard and the defendant need say nothing. So too, the defendant in a procedural sense is to be afforded fair and due process free from prejudice and, in that respect, the rules of evidence - including, I emphasise, the Evidence Act and s 46 thereof - have a real part to play. I observe, however, that, in my view, s 46 expressly contemplates a situation as it has arisen here and enables discretion, on terms or otherwise, to be exercised to allow a witness to be re-called. To me, that recognises a proper consideration of the particular circumstances to meet the ends of justice and to avoid prejudice to a party. 12 At the base of my consideration is the fact that the evidence given earlier by the prosecutor concerning the ease of removal of the equipment was not subject to challenge under cross-examination. It was not until the cross-examination of a later witness that it became an issue. The evidence, at this stage still in the prosecutor's case, therefore, may be said to be in a somewhat unsatisfactory state, but the prosecution's evidence has not yet closed. I cannot accept that the ends of justice would be served in endeavouring to determine the true situation as it was as to the removal of the equipment by dealing with it according to the order in which witnesses are called. If Mr Edman had given evidence first, then, I apprehend, the situation could have been addressed in the later evidence of the prosecutor and as to which he had dealt with it in his factual report being Exhibit 1, para 16. 13 The proposed evidence, contrary to what was submitted by the defendant's counsel, is not new evidence but rather an amplification or explanation of that given earlier by the prosecutor and not challenged. 14 There was some debate before me that the prosecution should not be permitted to re-call the prosecutor because of a failure to have Mr Edman declared a hostile or unfavourable witness under s 38 of the Evidence Act . In view of my approach to this matter, it is unnecessary to further this aspect and, in any event, I have in mind sub-s (4) of s 38 which says, in effect, that the questioning of an unfavourable witness occurs in the evidence-in-chief before the other party cross-examines the witness. Here, of course, this issue did not arise as an issue until the cross-examination of Mr Edman. 15 I should add the observation that, as I understand it, the prosecution has the duty to call all relevant evidence touching upon issues in the case. This is not a civil case where a plaintiff may elect to call the evidence it chooses in making out its case. Counsel for the prosecutor here has acknowledged this duty and says she seeks to give effect to it in making the present application. 16 Accordingly, for those reasons, I grant the prosecution's application but on terms that a statement of the proposed evidence be served on the defendant to enable consideration to be given to that evidence by it and for the purposes of cross-examination. I defer consideration at this stage of the other term sought by the defendant concerning the presence of the prosecutor in Court during the evidence of other witnesses. I will hear the parties as to the future timing of these proceedings in light of my ruling. _____________ 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.