Director of Public Prosecutions v Hazelwood Pacific Pty Ltd and Ors (Ruling 1)
[2019] VSC 870
•8 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 00342
S CR 2017 00343
S CR 2017 00344
S CR 2017 00345
INDICTMENT NO C 1610715
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| HAZELWOOD PACIFIC PTY LTD, AUSTRALIA POWER PARTNERS B.V, HAZELWOOD CHURCHILL PTY LTD, and NATIONAL POWER AUSTRALIA INVESTMENTS LIMITED | Accused |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2018, 15 February 2019 |
DATE OF RULING: | 8 March 2019 |
CASE MAY BE CITED AS: | DPP v Hazelwood Pacific Pty Ltd & Ors (Ruling 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 870 |
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CRIMINAL LAW – Suppression order application – Environmental prosecution in relation to mine fire – Related occupational health and safety prosecution to commence later in same year – Different elements of charges – Different accused – Reporting could affect potential jurors – Order necessary to prevent a real and substantial risk of prejudice to a fair trial – Prejudice cannot be prevented by jury direction – Proceeding suppression order granted prohibiting publication of the fact, conduct and determination of the first trial until the conclusion of the second trial by jury verdict – Open Courts Act 2013 (Vic) s 18 – Occupational Health and Safety Act 2004 (Vic) ss 21 and 23 – Environment Protection Act 1970 (Vic) ss 41(1) and 62C – John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 – News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248 – Nationwide News v Qaumi (2016) 93 NSWLR 384 – Chaarani v DPP (Cth) [2018] VSCA 299.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | D Neal SC with S Russell | John Cain, Solicitor for Public Prosecutions |
| For the Accused | I Hill QC with R O’Neill | King & Wood Mallesons |
HIS HONOUR:
The Hazelwood mine is situated in close proximity to the township of Morwell in Gippsland.
A fire or fires ignited in the mine on 9 February 2014 (‘the mine fire’). The Fire Services Commissioner declared the fire activity within the mine ‘safe’ on 25 March 2014.
The accused, Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments Ltd, were each registered proprietors of the land on which the mine is situated, and operated in partnership in the mine as Hazelwood Power Partnership (‘HPP’).
Each accused faces three charges under s 41 of the Environment Protection Act 1970 (Vic) (‘EP Act’). The charges allege that during the period 9 February to 25 March 2014, as a result of the emission of smoke and ash from the mine fire, the condition of the atmosphere over and nearby Morwell was so changed (‘the pollution’) as to make, or be reasonably expected to make, the atmosphere:
(a) noxious or poisonous or offensive to the senses of human beings (Charge 1);
(b) harmful or potentially harmful to the health, welfare or property of human beings (Charge 2); and
(c) detrimental to the beneficial use made of the atmosphere (Charge 3).
The prosecution allege the accused companies caused the pollution by failing to have in place adequate fire prevention and mitigation measures (‘the EPA prosecution’).
Hazelwood Power Corporation Pty Ltd (‘HPC’) operated the mine from 10 September 1996 onwards. As at 9 February 2014 the mine was under the management and control of HPC. In a related prosecution, HPC faces 14 charges under ss 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) which allege it failed, so far as was reasonably practicable, to provide and maintain for its employees a safe working environment, or to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of the mine. In broad terms, it is alleged the fire was an eventuation of the risk to which employees and others were unreasonably exposed by HPC (‘the OHS prosecution’).
The trial of the EPA prosecution will commence on 29 April 2019, with an estimated duration of 12 weeks. At this stage the trial in the OHS prosecution is to commence on 9 September.
The accused have applied for orders prohibiting publication of the fact, conduct and determination of the first trial until the conclusion of the second trial by jury verdict. When the application was made it was uncertain which trial would be first. The prosecution in both proceedings opposed the application, and adopted the same submissions.
The application was supported by the affidavits of Emily Heffernan, solicitor for the accused, affirmed 5 October 2017 and 16 August 2018.
Background
HPC is a wholly owned subsidiary of HPP. As at February 2014 HPC and HPP formed part of GDF SUEZ Australian Energy, and were each involved in the operation of the Hazelwood Power Station and the mine under relevant licences and approvals, including:
(a) Mining Licence 5004 (MIN5004) under the Mineral Resources Sustainable Development Act 1990 (Vic), issued to HPC; and
(b) Licence No. 46436 under the EP Act to HPP.
The prosecution openings in both proceedings focus on the operation of the mine before the fire, the history of previous fires, the risk of fire in the mine and the alleged failure of the accused to respond to that risk by putting in place adequate fire prevention and mitigation measures.
In the OHS prosecution the risk to employees of HPC and others is alleged to arise from the inhalation of smoke, fine particles and carbon monoxide emanating from fire which spread into the mine. In the EPA prosecution it is alleged smoke discharged from the fire polluted the atmosphere and made it noxious, poisonous or harmful to people.
There is substantial overlap in the deficiencies alleged in the operation of the mine in response to the risk of mine fire. The alleged operational deficiencies central to both prosecutions are:
(a) deficiencies in:
(i) vegetation management; and
(ii) reticulated fire service pipework, on worked out batters of the mine;
(b) deficiencies in back-up electricity supplied to the reticulated fire service;
(c) inadequate fire preparedness arrangements on 9 February 2014 (manning levels, pre-wetting of worked out batters, and a response to Phoenix models provided by Traralgon Incident Control Centre; and
(d) risks to CFA and MFB firefighters, mine employees and contractors, and the community associated with pollution emanating from the mine fire.
The overlap in allegations in the EPA and OHS prosecutions is evident from the indictment and prosecution openings, summarised in the schedules reproduced from Ms Heffernan’s affidavit appendixed to these reasons.
There are nine witnesses listed to give evidence in both proceedings.
To date there have been at least 245 print media articles, 370 television and radio broadcasts, and social media reports referencing the mine fire. The greatest concentration of media coverage was in the period from the date of the mine fire to early 2016. In that period two public inquiries into the mine fire were held. Both made negative findings against GDF SUEZ Australian Energy.
Relevant provisions
The application is made under the Open Courts Act 2013 (Vic) (‘Act’). Definitions in s 3 of the Act, include:
proceeding suppression order means an order made under section 17;
publish means disseminate or provide access to the public or a section of the public by any means, including by—
(a)publication in a book, newspaper, magazine or other written publication; or
(b)broadcast by radio or television; or
(c)public exhibition; or
(d)broadcast or electronic communication—
and publication must be construed accordingly;
suppression order means—
(a)a proceeding suppression order;
(b)an interim order;
(c)an order made under section 25 or 26;
(d)an order made by the Supreme Court in the exercise of its inherent jurisdiction that prohibits or restricts the publication or other disclosure of information in connection with any proceeding, whether or not the information was derived from the proceeding.
Section 4 creates a presumption in favour of disclosure of information:
To strengthen and promote the principles of open justice and free communication of information, there is a presumption in favour of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order.
The Act does not limit or otherwise affect the inherent jurisdiction of the Court to prohibit or restrict the publication of information in connection with a proceeding.[1]
[1]Open Courts Act 2013 (Vic), s 5 (the ‘Act’).
The Court may make a proceeding suppression order on the grounds specified in s 18 to prohibit or restrict disclosure by a publication or otherwise of a report of the whole or any part of a proceeding, or information derived from a proceeding.[2] This application relied on s 18(1)(a):
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
[2]Ibid, s 17.
Relevant authorities
A fundamental aspect of the administration of justice is that trials take place in open court. In John Fairfax & Sons Ltd v Police Tribunal (NSW) (‘Fairfax & Sons’),[3] McHugh JA said:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule …an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do not more than is necessary to achieve the due administration of justice.[4]
[3](1986) 5 NSWLR 465 (‘Fairfax & Sons’).
[4]Ibid 476–477.
It is important that reporting of criminal trials is contemporaneous.[5]
[5]Re S (a child) (2005) 1 AC 593, 607 (Lord Steyn); Chaarani v DPP (Cth) [2018] VSCA 299 [41] (‘Chaarani’).
A proceeding suppression order may only be made if it is necessary ‘to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’.[6] The word ‘necessary’ has been said to impose ‘a high standard of satisfaction’.[7] The test of necessity is not satisfied by the order being ’convenient, reasonable or sensible, or to serve some notion of the public interest’.[8] If necessity is established, an order will only be made if the risk to the administration of justice cannot be prevented by other reasonably available means.[9] The onus is on the applicant for a suppression order.[10]
[6]The Act, s 18(1)(a).
[7]Chaarani [41]. In Hogan v Australian Crime Commission (2010) 240 CLR 651 [30] (‘Hogan’) the High Court described ‘necessary’ as ‘a strong word’.
[8] Hogan [31]; Rinehart v Welker (2011) 93 NSWLR 311 [39] (‘Rinehart’).
[9]PQR v Secretary, Department of Justice and Regulation (No 1) (2017) 53 VR 45 [62] (‘PQR’).
[10]Chaarani [41].
The administration of justice is a ‘multi-faceted concept’[11] and encompasses, as two of its fundamental principles, open justice and the right to a fair trial. These principles sometimes conflict. In Nationwide News v Qaumi (‘Qaumi’),[12] referring to Fairfax & Sons, the New South Wales Court of Appeal said:
[11]Rinehart [39].
[12](2016) 93 NSWLR 384 (‘Qaumi’).
[29] The right to a fair trial has itself been described, as Spigelman CJ identified … as “the central thesis of the administration of criminal justice”; as “the central prescript of our criminal law” and as “a fundamental element” (citations omitted).
…
[33] Spigelman CJ acknowledged, at [59], that there may be circumstances where media publicity is such that a person “will not be able to have a fair trial within a reasonable period or at all”. In such circumstances, his Honour foresaw the benefit of an “anticipatory non-publication order … to ensure fairness to the prosecution”. Again, however, his Honour referred to that as being an “exceptional case”.
…
[35] Spigelman CJ also recognised that the difficulty caused by media publicity would arise most acutely in cases where back-to-back trials had been directed.
…
[65] However, it is to be remembered that the right of an accused person to a fair trial, in the sense of a trial according to law including that the onus rests on the Crown to prove the guilt of the accused, is not merely a personal right residing in an accused person.
In News Digital Media Pty Ltd & Anor v Mokbel & Anor,[13] the Court of Appeal said, in relation to proceeding suppression orders:
Superior courts have long asserted the power to prevent the publication of proceedings or parts of proceedings before them where justice requires that this be done. Such an order brings into play two very important policy matters: the requirement that justice be administered in public; and the requirement that justice be administered. In a context such as the present, the latter principle includes a requirement that an accused person is entitled to a trial conducted in accordance with law by an impartial tribunal. The former principle, which has been described as the cornerstone of our judicial system, means that the work of the courts is to be performed under public scrutiny, this being a powerful safeguard against the risk of their abusing their power, or departing from the strictest standards of impartiality. In the modern environment, the media, as the eyes and ears of the general public, play an important part in this. By the fair and accurate reporting of court proceedings they ensure that the public, who may not be able to attend a hearing, are kept informed of the functioning of the court process. The importance of this principle is such that the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly, or to protect privacy or confidentiality of very limited kinds.[14]
[13](2010) 30 VR 248.
[14]Ibid [35] (citations omitted).
A suppression order will not be made if it is futile.[15]
[15]Chaarani [45]; Qaumi [83].
The administration of justice is not served by suppression of a jury verdict where a trial has been fully reported. In Chaarani v DPP (Cth) (‘Chaarani’),[16] the Court of Appeal said:
That the trial has been fully reported gives rise to a separate consideration, of real significance. It is that the non-publication of the verdicts in a much-publicised trial would be likely to undermine public confidence in the system of criminal justice. There being no scope for a public explanation to be given of the reason for the suppression, those who have been aware of the trial — as very many members of the Victorian community will have been — would be rightly concerned at being denied that information. After all, a jury’s verdict is the embodiment — the expression — of community participation in criminal justice. Publication of verdicts is essential to the legitimacy of our system of jury trial.[17]
[16][2018] VSCA 299.
[17]Ibid [46].
The trial judge in Qaumi referred to the charges, which led to back-to-back murder trials, as arising in the context of a turf war between two rival criminal groups and accepted media coverage of the first trial was likely to be ‘prominent, dramatic and sustained’.[18] The trial judge concluded that if a jury in the second murder trial became aware of the position and role of the accused in the criminal gang, it would be inimical to their right to a fair trial, because it would not be possible to direct a jury in such a way as to overcome the prejudice caused. His Honour was concerned that significant media publicity was likely to infect any jury pool summonsed for the second trial. The Court of Appeal agreed.
[18]Qaumi [40].
Submissions
HPP
HPP submitted first, given the overlap of issues and witnesses, it is likely evidence will be given in the first trial concerns matters the jury in the second trial will have to deal with. It is highly likely, in the absence of a suppression order, there will be extensive reporting of evidence in the first trial. Potential jurors who read or hear reports of that evidence are likely to be influenced by it.
Second, jurors hear evidence in the course of a trial in context, where issues are clearly defined for them, and challenged by cross-examination follows soon after examination in chief. By contrast, potential jurors who hear allegations in the media do not have the advantage of the trial context, and may have quite fixed views by the time they come to hear the second trial.
Third, there is commonality in the nature of the offences. A jury in the second trial may be aware of evidence given in the first trial, which the prosecution does not lead in the second trial. The defence cannot respond in the second trial to matters which the jury is aware of from sources other than the evidence in the trial.
In oral submissions counsel for the accused summarised the real and substantial risk of prejudice to the proper administration of justice as follows:
MR HILL: … but the cogent evidence is simply the fact that there will be publicity of overlapping issues and the evidence in the first trial at a time that is very close to the start of the second trial at a time when many of the potential jurors will have received their jury summons to attend court, albeit that they may not know what trial they may ultimately be empanelled on, but one could imagine that having received a summons to attend jury service, their interest in what is happening in the courts will be heightened. Indeed, in Mr Rapke’s submissions it is said the mine fire was a matter of significance, not only to the Latrobe Valley residents‑ ‑ ‑
HIS HONOUR: But to Victoria generally, yes.
MR HILL:But to Victoria generally.
HIS HONOUR: So it’s all double-edged.
MR HILL: And in addition to that, the verdict that will come in the WorkSafe prosecution, as the timetable currently stands, will be a matter of weeks before the trial commences and a jury is selected in the EPA proceedings.
Effectively we have two trials being run back-to-back in respect to, effectively, the same fire, the same facts, the same issues with overlapping witnesses and issues.
In relation to the possibility of preventing the risk of prejudice by directions to the jury, counsel submitted:
… It’s very difficult when Your Honour would be asked by direction to direct a jury to disregard what they have learnt only days earlier in the media, the press, regarding issues that the whole of the State of Victoria has an interest in, and which they in part will be dealing with in an overlapping fashion, knowing what the verdict in that earlier case was.
…
And a second jury, knowing that they are sitting effectively on a second case determining the same issues, will know the 12 of their number ‑ that is of the community, members of the community ‑ have already determined issues adversely if the verdict is guilty against the accused in respect to the same facts in many of the same issues.
In relation to the impact of media publicity on the minds of the potential jurors the accused submitted:
But many right-minded thinking members of the community might be appalled that citizens are either put at risk or worse, by pollution, caused or permitted or risked by the defendant company being a large community of Morwell comprising babies, children, adults and elderly people of all types of health and robustness.
The prosecution
The prosecution submitted, first, that there was a presumption in favour of disclosure of information.[19] Second, the grant of a suppression order is exceptional,[20] and can only occur in circumstances where it is necessary[21] to prevent ‘a real and substantial risk of prejudice to the fair trial of the accused and an interference in the course of justice’[22] that cannot be prevented by other reasonable means. Third, the nature of the charges, the evidence and allegations against the accused are unlikely to lead to the sort of sensational reporting which would remain in the public mind for long. Having regard to the regulatory nature of the offences it is more likely jurors will not retain the detail of the EPA trial when they come to hear the OHS trial. None of the charges on the indictment are of such a nature, nor is the accused an entity likely to generate prejudice or revulsion. The case is qualitatively different to those considered by Kaye J in R v Mokbel (‘Mokbel’)[23] and by other courts called upon to adjudicate upon adverse pre-trial publicity.
[19]The Act, s 4.
[20]News Digital Media & Anor v Mokbel & Anor (2010) 30 VR 248, 259 [35].
[21]PQR [60].
[22]Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473, 474 [6].
[23][2009] VSC 342 (‘Mokbel’).
Fourth, assertions by the accused that potential jurors for the second trial may be influenced by media reporting of the first trial are unsupportable, and rest on the assumptions the judge’s directions to determine the case on the evidence will not be heeded, and jurors will not act in accordance with their oath. It is ‘likely the trial process will supplant any pre-existing residual memories or adverse perceptions which jurors may have’.[24] Fifth, two means available to prevent prejudice are:
[24]Wells v The Queen [2017] VSCA 147 [61].
(a) tailoring the empanelment process to ensure potential jurors who have preconceived views or particular knowledge outside what they have picked up from media, are not empanelled; and
(b) jury directions.
There is a long line of judicial authority which reinforces the confidence in juries complying with directions and the integrity of the jury system.[25]
[25]Mokbel [95]–[105].
Sixth, the risk that potential jurors may be impacted by any publicity has largely been avoided by the transfer of the trial to Melbourne. Conversely, the impact on the Latrobe Valley community, many of whom have a connection to the mine and a particular interest in the trial evidence, of transferring the trial to Melbourne bears upon the appropriateness of suppressing publication of the first trial. Seventh, because there is a vast amount of information and public knowledge of the mine fire already in the public domain, including the reports of the two inquiries, the notion that potential jurors need to be shielded from knowledge of the EPA trial, which will traverse similar ground to the inquiry, is difficult to understand.
Analysis
The mine fire was a significant event which attracted substantial attention, not just in the Latrobe Valley, but across the whole of Victoria. It is evident from Ms Heffernan’s affidavits that a great deal of media reporting was directed to the two mine fire inquiries. There has been a lull in reporting since the second inquiry concluded in early 2016.
It is likely there will be a resumption of media reporting during the first trial, and extensive coverage of the jury verdict. The mine fire was a significant event in Victorian history, and remains very topical, particularly in the context of issues such as the cause, frequency and impact of bushfires; the health concerns of rural communities; coal mining; and energy production.
Given the nature of the issues raised by the EPA prosecution and the regulatory nature of the offences, it is unlikely to encourage the sort of sensational and dramatic media reporting as occurred or was likely to occur in cases such as Mokbel, Dupas,[26] or Qaumi. I accept the submission of the accused that members of the community, and therefore potential jurors, might be appalled that employees, emergency workers and families in communities proximate to the mine were put at risk or harmed by compromises or shortcomings of the companies responsible for operating the mine. However, the potential for reputational prejudice is not as great as it was in Qaumi.
[26]Dupas v The Queen (2010) 241 CLR 237.
Prejudice to HPC in the second trial will be most acute in relation to the reporting of a guilty verdict in the first trial, if that is what occurs. This is because both prosecutions are based on the same allegations, that the accused failed to put in place adequate fire prevention and mitigation measures against the risk of fire in the mine. A guilty verdict in the first trial will mean that allegation was determined by the jury adverse to the HPP companies. It is likely reporting of the trial verdict will involve reference to the findings of the first mine fire inquiry, which were similarly adverse to GDF SUEZ Australian Energy. This will act to compound or reinforce the effect of a guilty verdict, and reinforce in the minds of members of the community that allegations of deficiencies in operation of the mine, which exposed employees and the local community to harmful smoke and pollution have been determined adversely to the mine operators.
Of course, there are matters which distinguish the two prosecutions. First, the elements of the offences charged are different. In the EPA proceeding the prosecution must prove pollution emitted by the fire was caused by the accused companies, or successfully rely on the deeming provision in s 62(C) of the EP Act. The OHS charges are risk based, and do not require proof that the risk eventuated and caused the fire. However, the difference in elements of the offences does not change the fact that the central allegations on which both prosecutions are based are substantially the same or, at least, from the perspective of a potential juror, difficult to distinguish.
Second, the accused in the second trial is not an accused in the first trial. However, given the close connection between the accused in terms of their name and operation of the mine, and corporate structure, this might be thought by potential jurors to be a distinction without a difference.
I do not accept the prosecution’s submission that, given the regulatory nature of the offences, it is unlikely potential jurors will retain the detail of the EPA trial when they come to hear the OHS trial. The critical publicity will occur at the end of the EPA trial, only seven weeks before the OHS trial commences. Reporting of the result of the first trial is likely to continue for some time, and may be reinforced by further reporting around the time of and during the OHS trial.
As in Qaumi, the pool of potential jurors summonsed for the OHS trial is likely to be infected by significant media publicity of the outcome of the EPA trial. I do not agree that that risk is of similar magnitude to the risk associated with potential jurors being aware of earlier publicity about the mine fire and the two public inquiries. By the time the OHS trial commences, over three years will have elapsed since the final report of the second public inquiry was published. There has been a lull in media publicity since that time. Any risk of a potential juror being familiar with the findings of the public inquiries can be dealt with by the empanelment process. By contrast, media reporting of the outcome of the first trial will be proximate to the second trial. If there is a guilty verdict in the first trial it is likely, absent a suppression order, that a large proportion of the public will become aware that it has been determined the operators of the mine did not take the steps set out in paragraph [12] above to prevent or mitigate the risk of fire in the mine, and that that failure exposed employees, emergency workers, and members of the community to harmful pollution from a mine fire.
I conclude there is a real and substantial risk of prejudice to a fair trial in the OHS proceeding.
The remaining question is whether that risk can be prevented by reasonably available means. The outcome of the first trial is likely to be reported by major print, television, radio and online media across Victoria. In my view, tailoring the empanelment process is unlikely to be effective in preventing the risk of prejudice.
The real question is whether the risk can be prevented by jury directions. The two trials are being run effectively back-to-back and involve the same fire, the same facts, the same or similar issues and allegations, and a number of the same witnesses. If there is a guilty verdict in the EPA prosecution, absent a suppression order, the jury in the OHS trial are likely to know they are being asked to determine issues which have already been determined adversely to the accused by a jury in the first trial, and at the two public inquiries.
In oral submissions prosecution counsel in the EPA proceeding discussed the option of suppressing only the verdict of the first trial:
DR NEAL: In listening to you Honour’s discussion with our learned friends in relation to the option of suppressing the verdict, we would say there probably is some attraction in that because it may be that a jury thinks well look, what are we doing here? That’s already been decided.
HIS HONOUR: That’s already been dealt with.
DR NEAL: I do think that sort of feeling would be difficult to overcome.
The parties now agree, following the decision in Chaarani, that the administration of justice is not served by suppressing only the jury verdict. However, the discussion does illustrate the difficulty. In my view, in the particular circumstances of the two prosecutions, it would not be possible to fashion directions to a jury to overcome the prejudice to a fair trial in the OHS prosecution of media publicity of the trial and verdict in the EPA prosecution. I conclude a proceeding suppression order is necessary to prevent the real and substantial risk to the proper administration of justice which cannot be prevented by jury direction or other means.
I will grant the application for a proceeding suppression order.
APPENDIX
Vegetation management:
(a) Indictments
EPA Proceedings
Indictment dated 19 November 2017
WorkSafe Proceeding
Indictment dated 8 September 2017
Charge 1: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere noxious or poisonous or offensive to the senses of human beings.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power, Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(1): Failing to adequately control vegetation in the worked out areas of the mine.
…
Charge 2: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere harmful or potentially harmful to the health, welfare, safety or property of human beings.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(2): Failing to adequately control vegetation in the worked out areas of the mine.
…
Charge 3: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere detrimental to any beneficial use made of the atmosphere.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(2): Failing to adequately control vegetation in the worked out areas of the mine.
…
Charge 3: Failure, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health.
Particulars:
…
(f) HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to slash vegetation on the northern batters so that vegetation should consist primarily of scattered, tall, clean barked trees that have firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that are kept short by grazing or mechanical means during those periods of high rural fire risk so as:
(i) to reduce vegetation and therefore the chance for fire to take hold and
(ii) to allow access to the source of the fire for those fighting any fire.
(g) It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by slashing of the northern batters so that as at 9 February 2014 there was a vegetation coverage consistent with that which applied to the verge on the top of the northern batters which was to ensure that vegetation should consist primarily of scattered, tall, clean barked trees that have firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that are kept short by grazing or mechanical means during those periods of high rural fire risk.
…
Charge 8: Failure, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
Particulars:
…
(e) The risk arose from the failure of HPC to ensure that it slashed vegetation on the northern batters so that the northern batters had a ground growth where vegetation should consist primarily of scattered, tall, clean barked trees that have firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that are kept short by grazing or mechanical means during those periods of high rural fire risk
(f) It was reasonably practicable for HPC to have eliminated or reduced the risk to persons other than its employees arising from the conduct of its undertaking by ensuring slashing of the northern batters so that as at 9 February 2014 there was a vegetation coverage consistent with that which applied to the verge on the top of the northern batters which was to ensure that vegetation should consist primarily of scattered, tall, clean barked trees that have firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that are kept short by grazing or mechanical means during those periods of high rural fire risk.
(b) Summary of prosecution openings
EPA Proceedings
Summary of Prosecution Opening dated 18 June 2018
WorkSafe Proceeding
Summary of Prosecution Opening dated 18 May 2018
[32] Pursuant to the requirements of a mining licence, the operation of the Mine also involved the ongoing management of the entire Mine site, including worked out areas. This included:
• Management vegetation.
…
[41] …
• Large parts of the batters in the worked out areas of the Mine (in particular, in the northern part of the Mine) were extensively covered with vegetation. Leaf litter and pine needles provided further ignition sites and embers to spread the fire. They also made it more difficult to extinguish any fires ignited by burning embers and to access areas for fire-fighting purposes. Coal dust settling on foliage further increased the possibility of ignition.
…
[62] The fires took hold and spread in areas of the Mine where there was no or poor coverage of water, broken or non-functioning pipes and sprayers, there had been little or no ‘wetting down’ of exposed coal, absence of adequate fire-breaks, and extensive vegetation which created difficulties gaining access for firefighting purposes. Only a small number of staff were available to respond to these areas, and the fires quickly grew beyond the control of those staff.
…
[70] Subsequent to the Hazelwood Mine Fire, the accused companies have taken significant steps to improve fire prevention and mitigation measures in the worked out areas of the Mine. These are steps that could and should have been taken prior to the fire taking hold in February 2014 and would have reduced the risk of the pollution event occurring.
[71] This included:
• Extensively clearing vegetation from the batters in the worked out areas of the northern part of the Mine, and establishing a program to clear vegetation from other parts of the Mine.
…
[142] The Mine Fire Service Policy and Code of Practice for land within the mine is within the control of the mine operator and states:
“vegetation should consist primarily of scattered, tall, clean barked trees that have firm bark and an overall crown of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that are kept short by grazing or mechanical means during those periods of high rural fire risk”.
[143] Yet figures 7 and 8 show that the level of vegetation on the northern batters and along the benches does not comply with the policy. Dense vegetation provided fuel for the mine fire and it also presented difficulties in accessing embers with water sprays.
[144] “On 9 February 2014 the worked out areas of the Hazelwood Mine became the main seat of the fire which were in an abandoned, unrehabilitated condition. In particular there were steep slopes of unprotected brown coal with detritus build up (in the worked out batters). There was also opportunistic growth by a mix of floor species across the worked out batters and the worked out floors and benches. To eliminate or reduce the risk of fire the Accused needed to remove either the fuel, heat source or oxygen. It was reasonably practical to have achieved this by removing vegetation.
…
[148] Contrary to the policy, grass exceeding 100 millimetres in height as well as trees, shrubs and scrub populated the areas described as firebreak northern, north eastern, south eastern and southern batters.
…
[153] At about 1445 hours Mauger and Shane Chapman, who were in a mine fire truck arrived at the northern batters. The fire was in the middle of the batter in the scrub which made it impossible to walk on with the fire hoses. Mauger and Chapman started spraying water from above the fire but it had little effect.
Reticulated fire service pipework:
(a) Indictments
EPA Proceedings
Indictment dated 19 November 2017
WorkSafe Proceeding
Indictment dated 8 September 2017
Charge 1: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere noxious or poisonous or offensive to the senses of human beings.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(i): Failing to have adequate water reticulation systems in the worked out areas of the Hazelwood mine.
Charge 2: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere harmful or potentially harmful to the health, welfare, safety or property of human beings.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by
…
(h)(i): Failing to have adequate water reticulation systems in the worked out areas of the Hazelwood mine.
Charge 3: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere detrimental to any beneficial use made of the atmosphere.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(i): Failing to have adequate water reticulation systems in the worked out areas of the Hazelwood mine.
…
Charge 2: Failure, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health.
Particulars:
…
(f) HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to have an adequate reticulated fire water pipe system to supply water to the northern batters.
(g) It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having and maintaining an adequate reticulated fire water pipe system to supply water to the northern batters.
Charge 7: Failure, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
Particulars:
…
(e) The risk arose from the failure of HPC to ensure that it had an adequate reticulated fire water pipe system to supply water to the northern batters.
(f) It was reasonably practicable for HPC to have eliminated or reduced the risk to persons other than its employees arising from the conduct of its undertaking by having and maintaining an adequate reticulated fire water pipe system to supply water to the northern batters.
(b) Summary of prosecution openings
EPA Proceedings
Summary of Prosecution Opening dated 18 June 2018
WorkSafe Proceeding
Summary of Prosecution Opening dated 18 May 2018
[41] ...
• The reticulated fire services water system in the worked out areas (in particular, in the batters in the northern part of the Mine) did not provide coverage for significant areas of exposed coal in the batters or significant areas of the floor of the Mine. In some areas there was no pipework (e.g. the floor of the Mine) and in other areas it had been removed. In other areas, the pipework was not properly maintained. In certain areas, for example, large numbers of sprayers did not work, pipework was degraded and leaking, and valves failed. This meant that large areas of exposed brown coal could not be wet down to prevent ignition and spread of fire, and to keep areas where fires had been suppressed cool so that they did not re-ignite.
…
[59] During the morning of 9 February 2014, a number of staff were tasked with ‘wetting down’ exposed coal in the operating area of the Mine to provide fire protection. This included members of the 1x7 day operations group, who were tasked with manually turning on individual sprayers on the batters to the north and south of the operating area. In contrast, there was limited ‘wetting down’ of the worked out areas of the Mine, particularly along the south-eastern and northern batters. In many of these areas, wetting down large areas of exposed coal was not possible due to non-functioning or absent pipes and sprinklers from the reticulated fire services water system. Moreover, these sprinklers had to be activated one by one and vegetation obstructed or blocked access on some levels.
…
[69] The Hazelwood Mine Fire was ultimately able to be successfully suppressed and controlled by the application of large volumes of water to cool the exposed brown coal that was burning. The suppression of the fires required the installation and replacement of approximately 8 kilometres of additional pipes for the reticulated fire services water system, to enable additional spray coverage and to run hoses and sprinklers into areas where pipework was absent or broken. It also required the installation and replacement of large numbers of additional sprayers and hydrants. Approximately 15 kilometres of additional pipes were also installed to remove firefighting water which accumulated in the floor of the Mine, which was essential to protect the integrity and stability of the dirty water ponds, and to protect the clean and dirty water pump systems from inundation and potentially catastrophic failure. The application of water was supplemented by specialist fire-fighting equipment, including infrared cameras and compressed air foam.
[70] Subsequent to the Hazelwood Mine Fire, the accused companies have taken significant steps to improve fire prevention and mitigation measures in the worked out areas of the Mine. These are steps that could and should have been taken prior to the fire taking hold in February 2014 and would have reduced the risk of the pollution event occurring.
[71] This included:
• Significantly extending and improving the reticulated fire services water system in the worked out areas of the Mine, including maintaining the additional pipework installed during the emergency response;
[11] The second charge on the indictment charges that the Accused on or about 9 February 2014 as an employer failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health by failing to have an adequate reticulated fire water pipe system to supply water to the northern batters.
…
[114] By the 1990s the problem of corroded and failing pipes around the northern batters on the east field was well recognised. The real problem with the pipes was that the old pipes would leak or fail and water would enter the batter and cause batter movement and potential instability.
[115] Attempts to repair the older fire service pipes required welding works which caused a number of fires in areas that had otherwise low fire risk. By about the early 1990’s there was an established practice of “isolating” corroded pipes in the east field so that they would not leak. This meant that valves were closed so that water was not sitting in, or running through the pipes.
[116] Eventually the pipes became so degraded that they could no longer hold pressure and they would be removed and used elsewhere in the Mine as a drainage pipe.
…
[124] After the introduction of the revised 1994 Policy through to 2007, leaking and degraded pipes from worked out batters which could not hold water pressure were removed and used as drainage pipes. The Accused had the management and control of the mine in 1996. This was the case with respect to pipes in the northern batters.
…
[128] An effective, adequate and constant supply of water is essential in being able to suppress almost any fire, but certainly a fire in an open cut coal mine. On the day of the fire at the mine there was no reticulated water supply in the non-working areas of the mine to enable fire fighters to establish a sustained extinguishment operation. The use of recycled water posed particular problems in terms of occupational health and safety issues.
…
[131] Effective cover of the exposed coal surfaces with water sprays requires a reticulation system capable of delivering water in volumes required for wetting down of the exposed coal in all sectors of the mine
[132] The fire service water reticulation network shown in the Mining Licence schedule of conditions 1996 (figure 3) indicates that water at that time was supplied to the northern batters
…
[135] The reduction of water supply to this key area and the fact that batter length exceeded 500meters (as seen in Figure 5 below) were contributing factors to the community impact of the 2014 fire on Morwell that ought to have been reasonably foreseeable by the Accused
Back-up electricity supplies:
(a) Indictments
EPA Proceedings
Indictment dated 19 November 2017
WorkSafe Proceeding
Indictment dated 8 September 2017
Charge 1: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere noxious or poisonous or offensive to the senses of human beings.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by
…
(h)(iv): Failing to have an adequate back-up power supply for the water reticulation system.
…Charge 2: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere harmful or potentially harmful to the health, welfare, safety or property of human beings.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by
…
(h)(iv): Failing to have an adequate back-up power supply for the water reticulation system.
…
Charge 3: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere detrimental to any beneficial use made of the atmosphere.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power, Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by
…
(h)(iv): Failing to have an adequate back-up power supply for the water reticulation system.
Charge 5: Failure, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health.
Particulars:
…
(f) HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to install an alternate power supply to the mine, particularly to enable the powering of the mine fire water system, in the event that the poles carrying power into the mine situated atop the northern batters failed
(g) it was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having:
i. installed an alternate supply of external power into the mine by means of the routing of the alternate cables to the south west of the mine;
ii. by means of having the existing cables atop the northern batters laid underground;
iii. by means of having generator and/or diesel pumps as alternate systems to power the mine fire water system
Charge 10: Failure, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
Particulars:
…
(e) The risk arose from the failure of HPC to install an alternate power supply to the mine, particularly to enable the powering of the mine fire water system, in the event that the poles carrying power into the mine situated atop the northern batters failed
(f) It was reasonably practicable for HPC to have eliminated or reduced the risk to persons other than its employees arising from the conduct of its undertaking:
i. by ensuring the installation of an alternate supply of external power into the mine by means of the routing of the alternate cables to the south west of the mine;
ii. by means of having the existing cables atop the northern batters laid underground;
iii. by means of having generator and/or diesel pumps as alternate systems to power the mine fire water system.
(b) Summary of prosecution openings
EPA Proceedings
Summary of Prosecution Opening dated 18 June 2018
WorkSafe Proceeding
Summary of Prosecution Opening dated 18 May 2018
[41] The external power supply into the Mine, which provided power for fire-fighting purposes (including the pumps which pressurised the reticulated fire services water system), was vulnerable to fire attack. For example, wooden poles which were vulnerable to fire were used for the 66kV power lines which ran down the batters in the northern part of the Mine. There was a failure to clear vegetation around the power poles. There was also limited or no backup in the event that this power supply failed. This meant that power to relevant plant, equipment and other resources could be lost during any fire-fighting activity
[65] The fire in the northern batters caused damage to the two SP AusNet 66kV power lines that run parallel across the northern batters from MWN substation down to the two major pumping stations (the dirty water and clean water pump systems). As a result, those pumping systems lost power sometime between 5.00 and 7.00pm. The fire damage to these power lines also resulted in a power loss to the MWW substation, and subsequently Pumphouse 53. Fire damage to other power infrastructure near the Hazelwood Ash Retention Area (HARA) pond during the afternoon/evening also caused power outages to Pumphouse 50. There was no back-up power supply available to those pumps. This caused a significant decrease in water pressure through reticulated fire services water system. This in turn significantly hampered fire-fighting efforts (including making it difficult to refill tankers or other fire-fighting appliances). It also resulted in loss of power to the Emergency Command Centre, meaning staff were unable to use lighting or other electronic equipment (e.g. CCTV monitors, computers, etc.).
[70] Subsequent to the Hazelwood Mine Fire, the accused companies have taken significant steps to improve fire prevention and mitigation measures in the worked out areas of the Mine. These are steps that could and should have been taken prior to the fire taking hold in February 2014 and would have reduced the risk of the pollution event occurring.
[71] This included establishing enhanced backup power supply arrangements for the Mine to protect against the loss of power to the reticulated fire services water system and other key fire-fighting infrastructure
[14] The fifth charge on the indictment charges that the Accused as an employer on or about 9 February 2014 failed so far as was reasonably practicable to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide and maintain a workplace that was under its management and control that was safe and without risks to health by failing to install an alternate power supply to the mine, so as, in particular, to enable the powering of the mine fire water system in the event that the poles carrying power into the mine situated on top of the northern batters failed.
…
[53] By 1455 hours the fire in the northern batters had spread from level 5 to level 3 and possibly level 1. The fires in the south-eastern batters and on the floor of the mine grew during the day and later merged to become one fire. At about 1802 hours Shanahan drove to the southern batters to turn on the water sprays only to find that water would not come out through the pipes. The lack of water Shanahan discovered, was due to a power outage caused by the power lines being damaged by the fire. Between 1700 hours and 1900 the mine lost power. The fire had burnt some of the poles for the SP Ausnet 66 KV power lines that ran down the northern batters and supplied the mine’s power from the external grid. There was no back-up power supply within the mine. The loss of power also meant that coal could not be mined or conveyed to the Hazelwood power station. Power was restored during the morning of 10 February. The loss of power also reduced the flow in the fire service water system to just a trickle.
…
[162] During the fire on 9 February 2014 only a single power supply was in place for a number of pumps in the network. The ability to keep the pumps operating was essential to maintain water flows. During the fire on 9 February the power supply failed when power lines were destroyed by fire.
[163] This reduced the supply of water to the main header tanks to that only available from the pumps located on Brodribb Road proximate to the Hazelwood cooling pondage. The flows from these pumps were insufficient to provide the required water flows for tanker filling, sprinkler operation and other firefighting activities to occur.
[164] As there was no other power supply there was no ability for the tactical response of switching power supply.
Fire preparedness arrangements
(a) Indictments
EPA Proceedings
Indictment dated 19 November 2017
WorkSafe Proceeding
Indictment dated 8 September 2017
Charge 1: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere noxious or poisonous or offensive to the senses of human beings
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(3): Failing to maintain adequate staff resourcing to prepare for and respond to fires.
…
(h)(5): Failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire.
…
Charge 2: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere harmful or potentially harmful to the health, welfare, safety or property of human beings
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(3): Failing to maintain adequate staff resourcing to prepare for and respond to fires.
…
(h)(5): Failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire.
…
Charge 3: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere detrimental to any beneficial use made of the atmosphere.
Particulars:
Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
…
(h)(3): Failing to maintain adequate staff resourcing to prepare for and respond to fires.
…
(h)(5): Failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire.
…
Charge 4: Failure, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health.
Particulars:
(f) HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to begin wetting down the northern batters with water from about 1140 hours on 9 February 2014 given the declared total fire ban for 9 February 2014 given:
(i) The declared total fire ban for 9 February 2014;
(ii) The predicted temperature of about 40 degrees on 9 February 2014.
(iii) The weather forecast on 8 February 2014 for 9 February 2014 which predicted strong north-westerly winds ahead of a south-westerly change at lunchtime.
(iv) The fire danger rating of extreme for 9 February 2014.
(v) The humidity reading of 8 February 2014 and for 9 February 2014 up to 1400 hours.
(vi) The Phoenix Rapidfire modelling performed by the Incident Control Centre provided to Mr. Alan Roach and Mr. Steven Harkins by email on 8 February 2014.
(vii) The presence of the Hernes Oak fire and the Driffield fire near to the mine boundaries.
(g) It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having begun the wetting of the northern batters with water by about 1145 hours on 9 February 2014.
Charge 9: Failure, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
Particulars:
(f) The risk arose from the failure of HPC to ensure that it began wetting down the northern batters with water from about 1140 hours on 9 February 2014 given the declared total fire ban for 9 February 2014 given:
(i) The declared total fire ban for 9 February 2014;
(ii) The predicted temperature of about 40 degrees on 9 February 2014.
(iii) The weather forecast on 8 February 2014 for 9 February 2014 which predicted strong north-westerly winds ahead of a south-westerly change at lunchtime.
(iv) The fire danger rating of extreme for 9 February 2014.
(v) The Phoenix Rapidfire modelling performed by the Incident Control Centre provided to Mr. Alan Roach and Mr. Steven Harkins by email on 8 February 2014.
(vi) The presence of the Hernes Oak fire and the Driffield fire near to the mine boundaries.
(g) It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having begun the wetting of the northern batters with water by about 1145 hours on 9 February 2014.
(b) Summary of prosecution openings
EPA Proceedings
Summary of Prosecution Opening dated 18 June 2018
WorkSafe Proceeding
Summary of Prosecution Opening dated 18 May 2018
[10] The Mine had clear knowledge of the risks associated with and the likelihood of fires taking hold in the worked out areas of the Mine, but failed to adhere to its own documented procedures or to take notice of warnings regarding the weather conditions and risk from the nearby bushfires.
…
[41] The available fire prevention and mitigation measures were substantially focused on protecting the operational areas of the Mine, including the continued production of electricity and the prevention of fatalities to Mine staff. This left the worked out areas of the Mine critically exposed and under-protected and did not adequately focus on the risk of fire in those areas or the possible harm to persons outside of the Mine from smoke and ash in the event of a fire there.
…
[42] ...
• Normal operational shift manning at the Mine included approximately 30-35 staff in total, a number which was insufficient to respond to multiple fires igniting in different parts of the Mine at the same time while maintaining the production of brown coal necessary to operate the Power Station.
• …
[56] During the afternoon of 8 February 2014, emergency services personnel responsible for managing the Hernes Oak fire sent ‘Phoenix’ fire prediction model (the Phoenix model) to the Chair of the Central Gippsland Essential Industries Groups (CGEIG). The Phoenix model suggested a risk that the Hernes Oak fire could spread into the northern part of the Mine by the early hours of 10 February 2018. Senior staff at the Mine received the Phoenix model by email late in the afternoon on 8 February 2014, but did not immediately take any action to increase the fire protection resources at the Mine (in the northern part of the Mine or at all).
…
[58] At this time, there were no more than 35 Mine employees and contractors staffing the Mine, including:
- 8 Mine employees from the 1x7 services day operations group whose responsibility included the operation and maintenance of the reticulated fire services water system, patrolling for fire, conducting wetting down of exposed brown coal, and for emergency response in the event of a fire;
- 18 Mine employees from the 2 x 12 operations group whose responsibility included the day to day operation of the Mine;
- 3 contractors from Diamond Protection who were located at the gatehouse whose responsibility included security, first-aid services and back up emergency/fire response; and
- 2 contractors from RTL Mining and Earthworks Pty Ltd who were tasked with wetting down and patrolling for fire.
…
[62] The fires took hold and spread in areas of the Mine where there was no or poor coverage of water, broken or non-functioning pipes and sprayers, there had been little or no ‘wetting down’ of exposed coal, absence of adequate fire-breaks, and extensive vegetation which created difficulties gaining access for fire-fighting purposes. Only a small number of staff were available to respond to these areas, and the fires quickly grew beyond the control of those staff.
[63] In comparison, despite there also being expansive areas of exposed brown coal, fires did not take hold in the operational part of the Mine. These areas had extensive reticulated fire service systems, had been substantially ‘wetted down’, were largely clear of vegetation, and were adequately staffed. This allowed spot fires in these areas to be quickly extinguished and prevent fires taking hold.
[27] During Saturday 8 February, the Incident Management (IMT) team for the Hernes Oak fire discussed the possibility that the fire might spread to the Yallourn and Hazelwood open cut mines. The IMT’s planning officer, Peter McHugh, provided at least one Phoenix prediction map to Nick Demetrios, the chair of the Central Gippsland Essential Industries Group (CGEIG). At 1629 hours on Saturday 8 February, Demetrios forwarded a Phoenix prediction map to Alan Roach the security and emergency services manager at the Hazelwood Mine and Mark Nash from Energy Australia. That map showed the fire spreading into the northern batters of the Hazelwood Mine by 0200 hours on Monday 10 February. The email sent at 1629 hours read — “Team — This is the latest mapping from Phoenix model at 0100 hours tomorrow night worst case scenario this may be the fire prediction”. The forecast by the Bureau of Meteorology warned of worsening conditions for the following day. By 16:00 hours on 8 February, there were 25 fires listed as burning across Victoria, and Sunday 9 February was listed as a critical fire weather day. Phoenix Rapidfire is a bushfire simulator and risk assessment tool, developed at Melbourne University to enable predictions to be made and therefore preparations to take place for a possible bushfire. The computer modelling takes into account many factors in formulating its predictions including the weather and wind conditions, the fuel loading and the moisture in the fuel in the area being modelled, the local topography as well as many other considerations. It is a useful tool in predicting the course, and severity of a bushfire, but is merely one tool available to assist in the battle against bushfires
…
[34] During the day there were several meetings at the Incident Centre which had been established in nearby Traralgon to discuss scenario planning which included the fire spreading towards the Hazelwood Mine. Based on computer generated Phoenix modelling, for the Hernes Oak McDonalds Track fire for that day, the likelihood of the fire breaking through containment lines was rated as a low risk but the consequences were assessed as high to catastrophic because of the proximity of the fire to the Latrobe Valley mines, the Princes Highway, the Gippsland railway and the township of Morwell.
[35] Phoenix Models are images which are computer generated and are used to predict the path that a fire will take if it is not contained or supressed. These images help the Incident Controller determine which areas are most at risk. The models can be used to decide where firefighting resources should be deployed for the greatest effect.
[36] Late on Saturday 8 February, Jeremiah was provided with copies of the Phoenix Model for the Hernes Oak-McDonalds Track fire for Sunday 9 February. The forecast, based on the Phoenix Model, showed the likely spread of fire at various times of the day, based on it breaking through the containment lines.
[37] One of the later Phoenix Models showed potential outcomes if the Hernes Oak-McDonald Track fire broke containment lines, including spotting into the Yallourn and Hazelwood Mines. The Yallourn Mine is north of the Hazelwood Mine and is about a 20-minute drive from the Hazelwood Mine. (see map below).
…
[54] The following three images are Phoenix Models made for 0900 hours 9 February; 1100 hours for 9 February and 1300 hours, 10 February which were received by Jeremiah. The third image is the one emailed by Demetrios to Alan Roach, Hazelwood Mine on 8 February at 4.29pm who then forwarded it to Steven Harkins, Hazelwood Mine.
…
[154] It is the prosecution case that the wetting down of the northern batters should have commenced a lot earlier than it did given that the mine operators were aware as early as 7 February 2014 that 8 and 9 February 2014 had been declared a day of total fire ban and the forecast was for extreme temperatures. The Phoenix prediction had also been supplied prior to 9 February 2014 indicating the path of the fire was directly towards the mine.
Pollution emanating from the mine fire
(a) Indictments
EPA Proceedings
Indictment dated 19 November 2017
WorkSafe Proceeding
Indictment dated 8 September 2017
Charge 1: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere noxious or poisonous or offensive to the senses of human beings.
Particulars:
…
(f): The burning brown coal caused various particles, vapours and gases to be produced (the smoke), including particulate matter which had a diameter of less than 2.5 microns (PM2.5 matter)
Charge 2: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonable expected to make, the atmosphere harmful or potentially harmful to the health, welfare, safety or property of human beings.
Particulars:
…
(f): The burning brown coal caused various particles, vapours and gases to be produced (the smoke), including particulate matter which had a diameter of less than 2.5 microns (PM2.5 matter)
Charge 3: Polluting the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere detrimental to any beneficial use made of the atmosphere.
Particulars:
…
(f): The burning brown coal caused various particles, vapours and gases to be produced (the smoke), including particulate matter which had a diameter of less than 2.5 microns (PM2.5 matter)
Charge 1: Failure, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health.
Particulars:
…
(e): The risk to which employees were exposed is that posed by spread of fire into the mine which ignited the coal in the northern batters contributing to smoke, fine particles and carbon monoxide to be released into the air around them such that they were exposed to and inhaled the smoke, fine particles and carbon monoxide emanating from the fire in the mine on and after 9 February 2014.
…
Charge 2: As per Charge 1 above
Charge 3: As per Charge 1 above
Charge 4: As per Charge 1 above
Charge 5: As per Charge 1 above
Charge 6: Failure, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety from the conduct of its undertaking.
Particulars:
…
(d): The risk to which persons were exposed is that posed by spread of fire into the mine which ignited the coal in the norther [sic] batters contributing to smoke, fine particles and carbon monoxide to be released into the air around Tracie Melinda Lund such that she was exposed to and inhaled the smoke, fine particles and carbon monoxide emanating from the fire in the mine on and after 9 February 2014.
Charge 7: As per Charge 6 above
Charge 8: As per Charge 6 above
Charge 9: As per Charge 6 above
Charge 10: As per Charge 6 above
(b) Summary of prosecution openings
EPA Proceedings
Summary of Prosecution Opening dated 18 June 2018
WorkSafe Proceeding
Summary of Prosecution Opening dated 18 May 2018
[4] The fire and the resulting emission of smoke and ash into the environment, continued for a period of 45 days until 25 March 2014, when the fire was declared safe.
[5] The fire at the Mine caused large volumes of smoke and ash to be discharged or emitted into the atmosphere over and nearby to Morwell, including:
• Particulate matter (small particles of solid matter suspended in air);
• Carbon monoxide; and
• Other particles, vapours and gases.
[8] Persons exposed to the polluted atmosphere resulting from the Hazelwood Mine Fire included staff at the Mine, fire-fighters, residents of Morwell and surrounding areas (particularly persons located in the southern part of Morwell), other emergency services staff (including staff from EPA) and other persons who worked in, visited or were otherwise present in the area.
[9] At various times during the period of the Hazelwood Mine Fire, smoke and particulate matter from other sources (including bushfires) were also present in the atmosphere over Morwell and surrounding areas.
[6] A coal-mine is little more than a huge collection of briquettes. If heat or flame or sparks from a fire enter the mine, there is a substantial and obvious risk that the mine or a part of it will catch fire and burn, emitting smoke containing pollutants and ash which are detrimental to the health of anyone who breathes in the smoke and to the environment, generally. And because of the enormous quantity of coal in an open-cut mine, it is likely and foreseeable that such a fire would burn for a very long time, unless it is extinguished quickly and effectively…
…
[56] Of particular concern was the amount of carbon monoxide and other hazardous material (sometimes called “Hazmat”) emitted by the fire and its implications for the health and safety of firefighters and the community. Brown coal fires are notorious for emitting carbon monoxide, the harmful effects of which are well known ad other air-borne pollutants.
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