Industrial Court of New South Wales CITATION: Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) [2007] NSWIRComm 105 PROSECUTOR: John Joseph Cahill PARTIES: DEFENDANT: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) FILE NUMBER(S): IRC 1390, 1391, 1392 of 2006 CORAM: Schmidt J CATCHWORDS: Occupational Health and Safety - evidence - expert opinion evidence - voir dire to determine admissibility of expert's report - evaluation of expert witness - evidence received LEGISLATION CITED: Evidence Act 1995 Occupational Health and Safety Act 2000 Arnott's Ltd v Trade Practices Commission (1990) 24 FCR 313 Australian Securities & Investments Commission v John David Rich & Ors [2005] NSWCA 152 Barbosa v Di Meglio [1999] NSWCA 307 Collins Thomson v Clayton [2002] NSWSC 366 Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 Fagenblat v Feingolf Partners Pty Ltd [2001] VSC 454 FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 CASES CITED: Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWCA 485 Idoport Pty Ltd & Anor v National Australia Bank Ltd & 8 ors [2001] NSWSC 123 Li v Regina; Regina v Li [2003] NSWCCA 290 Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 McMartin v Newcastle Wallsend Coal Company Pty Ltd & Ors [2003] NSWIRComm 292 Papakosmas v The Queen (1999) 196 CLR 297 R v BD (1997) 94 A Crim R 131 Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354 HEARING DATES: 14 May 2007, 15 May 2007, 16 May 2007 DATE OF JUDGMENT: 22 May 2007 PROSECUTOR: Mr B Docking of counsel SOLICITORS: WG McNally Jones Staff LEGAL REPRESENTATIVES: DEFENDANT: Mr J Phillips SC with Mrs W Thompson of counsel SOLICITORS: Crown Solicitor's Office JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 22 May 2007 Matter No IRC 1390 of 2006 JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND DEPARTMENT OF JUVENILE JUSTICE) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1391 of 2006 JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND DEPARTMENT OF JUVENILE JUSTICE) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1392 of 2006 JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND DEPARTMENT OF JUVENILE JUSTICE) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 REASONS FOR JUDGMENT [2007] NSWIRComm 105 1 These prosecutions were brought by Mr John Joseph Cahill, General Secretary of the Public Service Association ('PSA') under the Occupational, Health and Safety Act 2006 ('the Act'). Evidence was called by the prosecutor from Ms Martha Knox Haly, an occupational psychologist. The defendant objected to the tender of expert reports prepared by Ms Knox Haly. 2 Ms Knox Haly was cross examined on the voir dire. Having heard the parties, I announced that Ms Knox Haly's reports would be received and that I would later give reasons for that conclusion. 3 These are the reasons. 4 Ms Knox Haly's evidence revealed that she had been consulted by the PSA prior to the commencement of these prosecutions and had provided expert assistance in formulation of the charges to be brought, in light of the PSA's investigation of potential breaches of the Act by the defendant. At the trial she was called to give expert opinion evidence. Ms Knox Haly had also consulted with the prosecutor's counsel and solicitor, prior to the hearing. 5 Ms Knox Haly's amended report, still dated 4 May 2006, but revised during the course of the hearing, was initially prepared by reference to various identified documents, which included policies and documents of the defendant, as well as affidavits sworn by persons who have now been called to give evidence in these proceedings. The affidavits are not in evidence. 6 Prior to being called to give evidence, Ms Knox Haly had refreshed her memory by re-reading various of these documents, including the affidavits, as well as literature to which she had referred in her report. On 11 May 2007, Ms Knox Haly was asked a series of questions about her report by the prosecutor. She was asked to consider a number of documents and factual assumptions and premises provided to her, and, based only on that material, to advise whether she adhered to, clarified or changed any material opinion in her earlier report. The material put to Ms Knox Haly included documents such as exhibits and extracts taken from transcript in these proceedings. 7 On 13 May 2007, Ms Knox Haly provided a further report in response to this request. So far as her original opinions were concerned, she advised that they had not altered as the result of her consideration of the material she had been asked to consider. Ms Knox Haly also provided an amended version of her May 2006 report, deleting references to the material on which it was originally based and making a number of other changes. 8 The objections to Ms Knox Haly's reports included the complaint that she did not adhere to the relevant Expert's Code of Conduct (despite the reference in her report to 'Schedule 7 Expert Witness Code of Conduct from the Uniform Civil Procedure Rules 2005', as well as 'Expert Witnesses Rules, 3J, Supreme Court Rules'), for reasons including that her reports did not identify with particularity the assumptions of fact on which her opinions were based; and that there was no distinction drawn between the assumptions made, and the opinions expressed. It was initially put that her evidence should not be received at this stage of the hearing, because the facts in evidence had significantly changed from those on which the report was based. This was not finally pressed. It was also argued that Ms Knox Haly did not have the necessary impartiality required by an expert, as demonstrated by the assistance given by Ms Knox Haly to the prosecutor; the views she expressed as to the defendant's guilt and various other evidence which she gave in cross examination. 9 The reasons why I concluded that Ms Knox Haly's reports should be received, are as follows. 10 Firstly, there is no requirement that experts who are retained to provide 'assistance in analysing and preparing the case and marshalling and formulating arguments', are not later called to give evidence of 'a relevant opinion' which is 'drawn on a witness' relevant expertise'. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171, Allsop J observed at [676] 'There is no ethical reason why' such an expert opinion 'cannot be given by the person providing assistance, so long as that person and the legal advisers understand and recognise the difference between the two tasks and keep them separate.' 11 It was the defendant's case that Ms Knox Haly was biased against it. However, in Li v Regina; Regina v Li [2003] NSWCCA 290, the Court of Criminal Appeal held at [71] that 'The risk of bias (unconscious or otherwise) is no reason not to admit evidence of an expert.' 12 Reference was there made to the judgment of the Supreme Court of Victoria in FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, where, after an extensive review of the law in Australia and overseas about the independence of expert witness, it was held at [29]: However desirable it may be, as a matter of common sense in the presentation of a party's case, that an expert witness be seen to be independent, there is therefore no authority requiring this Court to hold that an "interested" expert's evidence be rejected because of a "perception" that the witness might favour the party seeking to adduce that evidence. 13 Reference was also made to Campbell J's decision in Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWCA 485, where his Honour observed at [14]: In sections 76 to 80 of the Evidence Act 1995 there are rules relating to the reception by the Court of opinion evidence, of which expert evidence is a subspecies. There is no provision, in section 76 to section 80, for rejecting evidence on the basis on which the evidence was rejected in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) . It seems to me that the existence of any such basis for not receiving expert evidence would be inconsistent with the structure of the Evidence Act , unless the bias in the report was such as to make it not relevant. For the reasons which Pagone J gave in Fagenblat, even an expert opinion from someone with a connection with a party to the proceedings, is sometimes capable of assisting to resolve the issues. It was, presumably, because rules for admissibility of expert evidence contained in the Evidence Act did not go far enough towards having only unbiased considered and current opinions put before the court as expert evidence that Part 36 Rule 13C was inserted into the Supreme Court Rules in January 2000. In the present case, I am not persuaded that Mr Turco's report is incapable of affecting the assessment of the probability of a fact in issue in the proceedings. 14 Campbell J earlier referred to what Pagone J had observed in Fagenblat v Feingolf Partners Pty Ltd [2001] VSC 454 at [9], concerning valuation evidence produced by the brother-in-law of one of the parties: An expert witness has a special and important role in judicial proceedings to assist the Court by provision of objective and unbiased opinions about matters that bear upon the determination which the Court is called upon to make. The exclusion of an expert's evidence should only occur when the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the court's task of determining the issues in the proceedings. The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to be taken into account by a court when deciding what weight to give to the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result. 15 Similar views were expressed by Austin J in Collins Thomson v Clayton [2002] NSWSC 366. His Honour concluded at [32] that the evidence there in question 'is not inadmissible on grounds of lack of independence either wholly, or in part'. 16 It was against this background that I concluded that Ms Knox Haly's evidence was admissible, despite the views which she had expressed in cross examination as to the conduct of the defendant and its failure to have provided a safe workplace, on the material she had reviewed. What weight her expert evidence should be given, is a different matter, to be considered later in these proceedings. 17 In coming to that conclusion, I also had regard to the applicable principles summarised by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 at [85]: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]). 18 Ms Knox Haly's expertise was not in issue. Her reports were challenged however, on the basis that they did not identify the factual assumptions on which they were based (Idoport Pty Ltd & Anor v National Australia Bank Ltd & 8 ors [2001] NSWSC 123 at [9]). I was unable to accept that submission. 19 I took account of the approach discussed by the Full Federal Court in Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354, where Weinberg and Dowsett JJ observed at [87], in relation to the approach of Heydon J in Makita: It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process. 20 It could not be overlooked, it seemed to me, that admissibility of an expert's report does not require that all of the assumed facts on which it was based be already established, when it is received. If, by the conclusion of the trial, a fact on which a particular opinion in the report rests, is not established on the evidence, Ms Knox Haly's opinion in that regard will be given little or no weight. (See also the discussion in Uniform Evidence Law, Seventh Edition, Odgers at [1.3.432]). 21 Nor could it be overlooked that the concerns expressed by the defendant went in part to the form in which Ms Knox Haly's opinions were expressed in the reports. In Barbosa v Di Meglio [1999] NSWCA 307 at [33], Priestly J discussed an expert report in his minority judgment. Mason P agreed with this aspect of his Honour's judgment (at [15]): [33] This paragraph contained the substance of the appellant's argument in the case. Very often, experts' opinions are the conclusions they reach after a process of reasoning which, when stated, takes the form of an argument, in the sense of the statement of a reasoning process. The submissions to the trial judge never seem to have taken account of this not very subtle point. They seemed to assume that an "argument" by an expert could not be the foundation of an opinion but somehow invalidated it and turned the expert into an advocate. No doubt sometimes such an argument may be faulty, with the result that the opinion may not be accepted as well founded. Also, it may be expressed in the vernacular of the expert's own area of knowledge, which may sometimes irritate a judge who expects all evidence to be given in conformity with regular court procedure. Nevertheless, if the argument (reasoning process) is sound and supports the opinion and the opinion is one in an area within which the person expressing it is acknowledged as an expert, then the argumentative (or reasoning) aspect of the formation of the opinion cannot of itself be a reason for excluding the argument or belittling the opinion. (It will of course be a different matter if the argument is unsound.) Nor, if the way in which the expert opinion is expressed does not conform to the judge's ideas of proper form, should that by itself be a reason for not considering whether or not it has substance. 22 Since then, s 80 of the Evidence Act 1995 has been enacted. It provides: 80 Ultimate issue and common knowledge rules abolished Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue, or (b) a matter of common knowledge. 23 Expert's opinions, must, of course, always be considered with care, particularly in a trial such as this. Nevertheless, as the Full Federal Court observed in Arnott's Ltd v Trade Practices Commission (1990) 24 FCR 313 at 154: It is of course not permissible for the expert to take over the role of advocate from counsel in the case -- the law does not allow unqualified people to act as barristers, except in special courts like the industrial tribunals or the small claims courts. But the expert has a legitimate role of advocacy in that, having expounded to the tribunal the rules applicable to the case (these may not even be in dispute), his evidence may then consist of argument as to the conclusions that should be drawn from the facts, interpreted in the light of those rules. The difficulty arises because the expert often finds it difficult to distinguish between argument on the assumption that the `facts' put forward by his side are the correct ones, and telling the judge or jury which facts they should accept as true. If he makes his assumptions clear, there is no objection to his arguing what the consequences of accepting those assumptions should be; but he is not to do the jury's fact-finding for it, where this depends on accepting one or the other set of contradictory witnesses 24 In this case, complaint was also made as to the basis upon which the opinion was finally put forward, it being argued that Ms Knox Haly cannot have put out of her mind the wider material on which her opinions were originally based. That submission assumed a departure between the original material and what the opinion finally rested on. It seems to me that if the opinion comes forward in the evidence with a factual foundation for the views expressed, there can be no difficulty with its receipt, even if there was other material, not in evidence, which would also have supported the opinion. 25 That was certainly the view taken by the Court of Appeal in Australian Securities & Investments Commission v John David Rich & Ors [2005] NSWCA 152 at [171] and [178]: 171 As Austin J also acknowledged, it is often the case that experts are asked to reformulate their opinions upon a different basis than when they were first formed. As Sperling J said in Elliott v Ivey (Unreported, Supreme Court of New South Wales, 23 April 1998): "It is further to be noted that expert witnesses who have provided an opinion on assumed facts are often asked to vary the assumptions, or to replace the assumptions entirely, and to state their opinion on the new assumptions as varied or substituted. That occurs frequently when the evidence as to fact of the party calling the expert has fallen short of the mark. It also occurs when expert witnesses are pressed in cross-examination for an opinion in favour of the opposite side – or at least to vary their prior opinion – on the basis of assumptions which accord with the facts as the opposite side contends the facts to be. The capacity of a professional person to give an opinion based on an exclusionary set of assumptions is implicit in this process. The implication is reasonable because professional men and women are accustomed to forming opinions on assumed facts in the course of their ordinary professional work. It is part of their stock in trade, developed by training and by experience in the practice of their profession." 172 Mr D Williams SC sought to characterise the Carter Report as involving, at least to a substantial degree, the identification and interpretation of documents which Mr Carter and his staff selected from a vast body of documentation. He placed particular reliance on the proposition that the meaning, significance and status of documents became known to Mr Carter and his staff by reason of their broader engagement, including access to the excluded information. 173 The importance of this element in the reasoning of Austin J is indicated in a number of passages of the judgment which I have already quoted above. (See esp [158] quoted in par [0]; [387] quoted in par [0]; [172] and [173] quoted in par [0] above and [367] quoted in par [78] above.) It is apparent that his Honour attached considerable weight to the fact that Mr Carter and his staff discovered the meaning and significance of many documents from One.Tel staff. 174 It is clear that the selection, by Mr Carter and his staff, of the particular documents listed in Appendix B from the vast store of One.Tel documentation was determined by their involvement in the investigation phase. I can see nothing in that fact which operates to affect the probative value of the evidence in the Carter Report. 175 Nor, in my opinion, is the fact that Mr Carter and his staff first became aware of the meaning, significance and status of documents from persons, who will not themselves be called, of such importance as to affect the probative value of the opinions expressed in the Report. Mr Carter cannot, save in the limited manner to which I have earlier referred, give evidence of that character about the documents. He can, however, act on assumptions about the meaning, significance and status of a document. The way in which he first became aware of such matters does not, in my opinion, affect to any significant degree (and possibly not at all) the probative value of his evidence as long as the meaning, significance and status of the document is otherwise established. 176 If a policeman acts on information from an informant that property - such as drugs or stolen goods - can be found in a specific location, discovery of property at that location may be evidence of the highest probative value. Such evidence does not need to be supported by evidence from the informer. 177 Evidence so gathered may not, however, speak for itself and require evidence of "meaning and significance", e.g. proof the property was stolen or laboratory tests to show that it was a prohibited drug. Unless the relevant link is established, the evidence of discovery may not be admitted or, if the inadequacy is subsequently established, may receive no weight. However, that is not because the evidence was originally discovered by reason of a tip off. 178 Where the documents speak for themselves, or their meaning and significance is established by other evidence, the historical use of excluded material may be of little, if any, significance. Indeed, where such appears to be the case the other element of the balancing exercise - unfair prejudice, confusion and waste of time - can, and should, be minimised by refusing to allow extensive cross-examination. 26 Furthermore, there the Court of Appeal noted at [153] that the expert in question had expressed opinions 'on the basis of a list of identified facts, by a reasoning process which he articulated. Austin J correctly so found ' ... many of the identified facts consist of documents ...'. That was the approach here adopted. 27 As to the claim that Ms Knox Haly's reports should not be admitted, pursuant to s 137 of the Evidence Act, because the reports contained evidence whose probative value was outweighed by the danger of unfair prejudice to the defendant, I concluded that such prejudice had not been established. I was satisfied that there could be no danger that Ms Knox Haly's report could be misused by the Court, or that its receipt would preclude a fair trial. 28 In support of this submission, the defendant relied upon McMartin v Newcastle Wallsend Coal Company Pty Ltd & Ors [2003] NSWIRComm 292, where Staunton J excluded an expert's report pursuant so s 137. That conclusion was reached in circumstances where her Honour took the view that unfair prejudice to the defendants could not be excluded. The expert in question had had an involvement in the cause of the events which had led to the prosecution and had also advanced an opinion in his report in relation to the liability of the defendant charged. Her Honour concluded, in the circumstances, that the possibility that the expert would exaggerate his opinion as to the culpability of the defendant could not be excluded (at [59]). That was plainly an unusual factual circumstance, which does not arise in this case. Furthermore, it must be noted her Honour's decision was given before that of the Court of Criminal Appeal in Li v Regina, which if not binding on this Court, is of very considerable persuasive effect. 29 It was not put in issue that Ms Knox Haly's expert evidence was of relevance. For instance, the charge in IRC of 1392 of 2006, relates to a period from 10 March 2003 to 17 March 2004, during which certain incidents occurred. Ms Knox Haly's evidence goes to the question of occupational stress and the safety of the defendant's workplace, in circumstances where, on the evidence led thus far, the two employees named in the charge suffered certain psychological injuries, for which they have received medical treatment, following these events. 30 Ms Knox Haly's expert evidence was clearly of probative value, if accepted. Its probative value depends however, upon an assessment of its reliability. Ms Knox Haly has given evidence of her approach to her evidence. She has acknowledged that she understands and adheres to the expert's code of conduct, referred to in her first report and other correspondence in evidence. She has also explained that in her review of the material with which she was provided by the prosecutor, she came to the view that the defendant had not maintained a safe workplace; that it ought to be prosecuted for what had occurred and hoped that it would be convicted. The defendant accepted that experts were entitled to form and defend strong opinions, but argued that Ms Knox Haly had gone too far. 31 This submission was supported by answers given by Ms Knox Haly in cross examination, including as to her understanding of the impartiality required by the Code of an expert. Her evidence included that, for example: Q. In relation to general duties to the Court found in schedule 7, do you know what "impartial" means? A. Yes, I do. Q. What do you understand it to mean? A. What I understand it to mean is that you can have a strong opinion but you must keep on referring back to, I guess, the standards of evidence from literature, from your practical experience. Q. Do you understand it to mean you are not to take sides; do you understand that? A. Yes. Q. Do you see it is described as "overriding duty"' do you understand that to mean the duty is very important, of great importance? A. Yes, I understand that I am here to try and give the best evidence possible to serve the Court. Q. Because the next section says your paramount duty is to the Court not to any party; do you see that? A. Yes, that's right. Q. What do you understand that to mean? A. I understand that to mean I must give my evidence in the most concise and relevant manner for the benefit of Justice Schmidt. Q. The last part says you are not to be an advocate for a party; what do you understand that to mean? A. What I understand that to mean, an advocate is somebody who proceeds with everything properly; who will not make any concessions; who will selectively cite data; who will withhold documentation. Q. Looking at the three matters, it suggests that you would be indifferent to the result; would you agree with that? A. I can't say that I would be indifferent to the result because I regard this case as an important one. Q. In that regard you so strongly believe the case that you want the prosecution to win? A. I would want the right judgment to be obtained at the end of the day. I would want a judgment that is to be obtained, that will be in the public interest. I must confess, yes, that is what I would want. Q. What I put to you, you agree with? A. Well, it all depends on the value of the evidence that is presented by each side. Q. From what you understand what I put to you, you would want the prosecution to win? A. Yes, I guess I would. Q. You would want the defendant to be convicted? A. Yes. Q. You would want that to be brought to the attention, you said, of the community at large and the public interest? A. Well, yes, I guess I would. Q. When you express those views does that suggest you have lacked impartiality? A. Yes, I guess it could. Q. Having made that concession, do you agree that you can comply with the duties outlined in paragraph 1 of section 2 of schedule 7, that is the general duties to the Court? A. I can only do my best with my evidence to the Court but. Q. But what? A. Well, I can only go on the evidence that is in front of me. Q. You understand you are not the trier of facts, the Judge is that? A. Absolutely. Q. You say you cannot be impartial in these circumstances, you have a firm view what is right and wrong? A. Yes, I do. Q. You believe that the prosecution is correct in the charges it has brought against the defendant? A. Yes, I do. 32 Ms Knox Haly also said, however: Q. By the use of the word "we", could that not call into question your impartiality? A. It could if you were taking that definition of the word "we". However, another way of looking at the word "we" is that it's a way that I communicate with all of my customers. It's, you know, when I'm doing a casual e mail or response, I do tend to use the word "we", and I agree it's imprecise I shouldn't, but I do. Q. Is it because you link your same interests with the union, the Prosecutor? A. If you're suggesting that I have lost sense of my boundaries, I don't think that I have, because as far as I'm concerned I have referred back to the best evidence in my field. 33 Ms Knox Haly also gave evidence that: Q. At this point you're emphatic in your view in relation to how this case would be successfully run? A. Yes. Can I just raise a point? Q. Is it in answer to my question? A. Yes, I think it will be. Q. Okay, please do. A. Okay. This line of questioning is implying that I didn't have these kinds of views before I became involved with this case. I'd like to emphasise that I have very strong views on the need for employers to provide psychologically safe work environments. After many, many years of doing stress investigation assessments, you get very, very tired of seeing the stuff that's utterly avoidable. So it's not necessarily the PSA's view that I'm taking on. These are my own independent views that I developed a long, long time before getting involved with this case. Q. What, you see yourself as an advocate for these sort of matters? A. I would like to see myself as a risk mitigation specialist who basically deals with these situations and returns workplaces to functionality. That is my area of work, so I feel very strongly when I see a workplace that's gone so pear shaped. Q. Can you answer my question, please. A. Yes, sure. Q. Do you remember what it was? A. I think we were up to, "Wow, this is so foreseeable." Q. No, you've missed it. A. Sorry. Q. No, it was a question to which that last answer was given. Do you want me to ask it again? A. Yes, please. Q. Do you see yourself as an advocate for these sort of issues? A. Yes, I do. Q. Do you see yourself as a strong advocate for these sort of issues? A. Yes, I do. Q. You would like this defendant to be made an example of? A. I don't know that it's that vindictive. I would like to see attention being directed to the real causes of stress claims so that we have employers thinking about ways in which stress claims can be reduced in the future, because they are a huge burden of expense to the workers compensation scheme and they are rising. That's where I see sorry. Q. I'm sorry. A. Yeah, that's where I see myself being an advocate, so it's not so much being an advocate for a union or an employer. It is about being an advocate for functional workplaces. I believe very strongly in that area. Q. So you said you may not want to be that vindictive but you might be? A. Unfortunately, where it is an environment such as court, where one party must be found guilty or not, then somebody is going to be found guilty or not. Q. So my question was: you said you may not want to be that vindictive but you may have to be? A. "Vindictive" suggests that you would emotionally go after people just for the sake of going after them. It's not like that with me. What I am after is basically a restoration of functional workplaces and I believe in that very strongly. Q. But would you go after someone if you believed they were guilty? A. Yes, I would. Q. And you believe the defendant in this case is guilty? A. Yeah, I do. 34 Having considered that evidence I came to the conclusion that these views would not necessarily result in Ms Knox Haly's report containing flaws in reasoning, or the factual basis on which her opinions rested. While she has strong views about workplace safety, on the evidence she has no relationship with either party. I was satisfied that it did not follow from Ms Knox Haly's evidence that the Court would be misled by her opinions. 35 The views which Ms Knox Haly expressed in her reports will, no doubt, require careful consideration as to the weight which they should be given, once all of the evidence has been received in these proceedings. I was satisfied, however, that it could not be concluded that Ms Knox Haly's report could not rationally effect the assessment of the probability of a fact in issue in these proceedings, despite her views of the defendant's failures. 36 That receipt of the evidence might make it more likely that the defendant will be convicted, is not a proper basis for excluding the evidence. That requires a conclusion that the evidence will be misused in some way. See Papakosmas v The Queen (1999) 196 CLR 297 at [91], approving Hunt CJ in CL in R v BD (1997) 94 A Crim R 131 at 139: Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD (1997) 94 A Crim R 131 at 139, Hunt CJ at CL pointed out: "The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." (Footnote omitted.) 37 I was not satisfied that the necessary danger of such misuse was here established. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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