District Court New South Wales Medium Neutral Citation: Orr v Cobar Management Pty Ltd [2018] NSWDC 396 Hearing dates: 11 December 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) MFI F is admitted as Exhibit 93. (2) MFI PP is admitted as Exhibit 94. (3) MFI QQ is admitted as Exhibit 95. (4) MFI VV is admitted as Exhibit 96. (5) MFI QQQ is admitted as Exhibit 97. (6) The tender of MFI RRR is rejected. Catchwords: EVIDENCE — Documentary evidence — Tender of documents Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Stephen Orr (Prosecutor) Cobar Management Pty Limited (Defendant) Representation: Counsel: Mr D Jordan/Mr C Magee (Prosecution) Mr A Moses SC/Ms J Alderson (Defendant) Solicitors: SafeWork NSW (Prosecution) Seyfarth Shaw (Defendant) File Number(s): 2016/174236 Publication restriction: None Judgment 1. This is an evidentiary ruling in the trial. 2. The parties have provided a schedule of documents that were referred to in the hearing and are sought to be tendered. The parties' arguments as to the admissibility of each document are set out in the schedule. I will deal with each tender separately. 3. MFI F is the notes taken by Inspector Richards during the investigation. I will admit the parts of MFI F to which the witnesses were taken during the course of the evidence as Exhibit 93. Those extracts are admissible as the truth of the matters contained in them because both parties to the conversation were called as witnesses. 4. MFI PP is a folder of training records for selected workers at the mine. Some of those documents were separately tendered. I will admit the balance as Exhibit 94. 5. MFI QQ is a folder of documents relevant to the publication of the Information Release by the mining regulator relating to the incident involving Mr Hern. The prosecutor objects to the material on the basis that it will lead to an undue waste of time pursuant to section 135(c) Evidence Act 1995. The defendant contends that the evidence is relevant to a failure to comply with the prosecutor's duty of disclosure and the reasonable practicability of a number of the measures that the prosecution allege could have been taken in the Information Release. There was a considerable amount of evidence about the iterations of the Information Release adduced in cross-examination of the Inspectors. In my view, that evidence will be extremely difficult to understand without reference to the documents in MFI QQ. In my view, the iterations of the Information Release are at best a tangential issue, but they are relevant. In those circumstances, I will admit MFI QQ as Exhibit 95. 6. MFI VV is a folder containing the section 155 notice issued to the defendant on 20 January 2015 and responded to on 6 March 2015. The defendant contends that these documents prove that the investigators had knowledge of certain policies of the defendant that were not adequately investigated. I will allow the tender of MFI VV on the limited basis that it contains applicable policies of the defendant and that the investigators knew of the policies by reason of the defendant's response to the section 155 notice. On that basis MFI VV will be admitted as Exhibit 96. 7. MFI QQQ is a folder of documents relating to the Situation Reports prepared by Inspector Newey. I would make the same comments as I made relating to MFI QQ, in that the evidence will be extremely difficult to understand without those documents, but the issue is relevant and to some extent tangential. I will admit MFI QQQ as Exhibit 97. 8. MFI RRR is a folder of documents provided pursuant to the prosecutor's duty of disclosure on 26 February 2018. In my view, it is established from what occurred during the trial and in the course of my earlier rulings that there were deficiencies in the disclosure of material by the prosecutor which led to the adjournment of the proceedings and the making of specific directions. I do not think that I will be assisted by having regard to the actual matters disclosed. I would reject the tender of Exhibit RRR. 9. I order that: 1. MFI F is admitted as Exhibit 93. 2. MFI PP is admitted as Exhibit 94. 3. MFI QQ is admitted as Exhibit 95. 4. MFI VV is admitted as Exhibit 96. 5. MFI QQQ is admitted as Exhibit 97. 6. The tender of MFI RRR is rejected. ********** 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: 14 December 2018