Director of Public Prosecutions v Hazelwood Pacific Pty Ltd and Ors (Ruling 5)
[2019] VSC 874
•12 July 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, NATIONAL POWER AUSTRALIA INVESTMENTS LIMITED | Accused |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 and 12 July 2019 |
DATE OF RULING: | 12 July 2019 |
CASE MAY BE CITED AS: | DPP v Hazelwood Pacific Pty Ltd & Ors (Ruling 5) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 874 |
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CRIMINAL LAW – Evidence – Close of prosecution case – Whether particulars of causation should be removed from jury – Principles applicable to no case submission apply – Whether jury could lawfully find the accused guilty – Circumstantial case – No evidence capable of supporting conclusion on certain charges – Certain applications granted – Honest and reasonable mistake of fact – Evidentiary onus on accused to identify mistake – Accused identified opinion or judgment – Honest and reasonable mistake not to go to the jury – Environment Protection Act 1970 (Vic) ss 41(1) and 62C – Doney v The Queen (1990) 171 CLR 207 – Proudman v Dayman (1941) 67 CLR 536 – Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 – R v Lavender (2005) 22 CLR 67.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | D Neal SC with S Russell and D Porceddu | John Cain, Solicitor for Public Prosecutions |
| For the Accused | I Hill QC with M Foley and R O’Neill | King & Wood Mallesons |
HIS HONOUR:
The accused operated the Hazelwood brown coal mine in partnership. Fires ignited in the mine on 9 February 2014 and burnt for some weeks (‘the mine fire’). Smoke from the mine fire polluted the atmosphere.
Each accused is charged under s 41(1) of the Environment Protection Act 1970 (Vic) (‘EP Act’) with three offences of polluting the atmosphere. ‘Pollute’ is defined to include causing or permitting pollution. The prosecution alleges the accused caused the pollution. Particulars of causation in the indictment include that the accused caused the pollution by:
3)Failing to maintain adequate staff resourcing to prepare for and respond to fires.
4)Failing to have an adequate back-up power supply for the water reticulation system.
5)Failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire.
The prosecution case is now closed. Mr Hill QC, who appears with Ms Foley and Mr O’Neill for the accused companies, submitted I should take from the jury particulars (3), (4) and (5) on the basis that it is not open to the jury to find the charge proved on those allegations. The prosecution contests this submission.
On 6 May 2019, I ruled that s 41 of the EP Act is a strict liability offence to which the issue of honest and reasonable mistake of fact applies. The accused submitted they have discharged the evidentiary onus in relation to honest and reasonable mistake of fact. The prosecution argued the onus has not been discharged, and it is not open on the evidence for the jury to find an exculpatory honest and reasonable mistake of fact, so the issue should not go to the jury.
The prosecution rely, as an alternative to proving causation, on the operation of s 62C of the EP Act which they submitted deems the accused to have polluted the environment. The parties are at odds as to whether, and if so how, honest and reasonable mistake applies to s 62C.
In this ruling I will deal with the first two issues.
Should particulars of causation be removed from the jury?
The charges
Each charge alleges a single offence, though there are two alternative ways in which it is alleged the accused might be found guilty. Accordingly, I will need to direct the jury that to convict the accused they must be unanimous in deciding either that the accused caused the pollution, or that they are deemed to have polluted the environment, or both.
Each particular is sufficient to satisfy the element of causation, and therefore sustain the charge. Accordingly it will also be necessary, in relation to the case of causing pollution, to direct the jury that, in order to find the charge proved, they must be unanimous as to at least one of the causation particulars.
The application is not a ‘no case’ submission. However, there is no dispute that the principles which apply to such a submission equally apply to the application of the accused to remove causation particulars (3), (4) and (5) from the jury.[1]
[1]R v Fieldman (2010) 55 MVR 573.
Relevant principles
There is no dispute as to the principles which apply. In Doney v The Queen (‘Doney’)[2] the High Court said:
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[3]
[2](1990) 171 CLR 207 (‘Doney’).
[3]Ibid 214–215.
The test is whether, on the evidence as it stands, a jury could lawfully find the accused guilty on the basis that they caused the pollution by the acts set out in the impugned particulars.[4]
[4]May v O’Sullivan (1955) 92 CLR 654, 658.
There is no direct evidence that the acts set out in the impugned particulars caused the pollution. In a circumstantial case the jury must consider all of the circumstances together to determine what inference or inferences might be drawn.[5] The drawing of inferences is a matter fundamentally for the jury.[6]
[5]Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 534 (Gibbs CJ and Mason J); R v Martin [2005] VSC 121 [44] (15 March 2005) (‘Martin’).
[6]Doney (1990) 171 CLR 207; Martin [2005] VSC 121 [49], [50] (15 March 2005).
In R v Fieldman[7] Kaye J summarised the position as follows:
[7](2010) 55 MVR 573.
… the judge should only take a case based on inferences from the jury if the jury could not rationally conclude:
(a)that the guilty inference contended for by the prosecution was reasonably open; and
(b)that that inference is the only reasonable inference available on the evidence. (See decision of South Australian Full Court in Case Stated by Director of Public Prosecutions No.2 of 1993).[8]
In R v Cengiz,[9] Harper AJA stated:
It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.
[8]Ibid [12] (citations omitted).
[9](1998) 3 VR 720, 721.
Submissions
Accused
The accused submitted that each particular of causation involves an alleged failure on their part to ‘adequately’ do something which caused the pollution. Accordingly, the prosecution must prove:
(a) the accused failed to maintain or perform the relevant act in an ‘adequate’ manner; and
(b) that failure ‘caused’ the pollution.
In relation to the staff resourcing allegation, the accused submitted there is no evidence:
(a) as to what an adequate level of staff resourcing comprised, or that the staff resourcing on 9 February 2014 was not adequate; or
(b) that any inadequacy in staff resourcing in fact caused the pollution.
In relation to the backup power supply for the water reticulation system, the accused submitted there is no evidence:
(a) as to what power arrangements were in place as at 9 February 2014 (and it is not possible for the jury to assess whether the backup power supply was adequate without knowing what the power set up was);
(b) that the accused did not have backup power arrangements in place, or that any further measures were required;
(c) as to what caused the loss of power to the various elements of the reticulation system; or
(d) that loss of power to the reticulation system was a cause of the pollution.
In relation to mine emergency management arrangements, the accused submitted there is no evidence:
(a) as to what the prosecution contends were adequate mine emergency management arrangements, or that the accused failed to employ adequate arrangements; or
(b) that the mine emergency arrangements in place were a cause of the pollution.
Prosecution
The prosecution submitted in relation to staff resourcing that, had more staff been rostered on duty on the day of the fires, the sprays on the reticulation system would have been operated on the morning to wet down exposed coal in the non-operational areas of the mine, as was done in the operational areas. Further, when the mine was hit by ember attack from the Hernes Oak and Driffield bushfires, resulting in spot fires, sufficient staff would have been available to attack each spot fire hard and fast, to prevent any small fires from taking hold and becoming large fires. It was submitted there was evidence that was the system adopted in the operating areas of the mine, and that it was successful on the day in preventing any fires from taking hold.
In relation to power supply, the prosecution conceded it was not open on the evidence to say what power supply system was in place, or whether there was any, and if so what, backup power supply. For the prosecution, Dr Neal SC submitted had there been an adequate backup system it would have been turned on and operated, and power would not have been lost. He conceded it was not open on the evidence to say how or why the power supply failed.
The prosecution submitted that subsequent arrangements made for backup power supply demonstrated it was possible to implement a system which would not have failed. There was evidence of witnesses which left it open to the jury to conclude that the inability to put water on the fires for a period of hours from around 6:00pm on 9 February hampered firefighting, resulting in the fires not being contained. It was axiomatic that in the absence of water application the fires would spread rapidly, resulting in the atmosphere being polluted.
In relation to emergency management, the prosecution submitted there is evidence on which the jury could conclude that a staffed Emergency Control Centre should or could have been set up on the morning of 9 February 2014 and, had this been done, emergency managers whose minds were directed to the risk of fire would have directed staff to wet down areas of exposed coal, and would have directed the response to ember attack and spot fires, so as to prevent the pollution.
Analysis
There is direct evidence of the following:
(a) exposed brown coal ignites readily and is highly flammable;
(b) there were large areas of exposed brown coal in the worked out batters of the Hazelwood mine;
(c) fires frequently ignited in the mine;
(d) the risk of fire increased with hot windy weather;
(e) the risk included fires lit by embers from bushfires;
(f) there was increased risk of fire in the mine, including from bushfire embers, on 8 and 9 February 2014 because of the weather conditions, the contained Hernes Oak bushfire northwest of the mine, and the available fuel including plantations between the bushfire and the mine. Mr Suares said because of its proximity to the mine, if the Hernes Oak fire flared up and the wind blew in the wrong direction they could be under ember attack. Mr Mauger said the purpose of monitoring the Hernes Oak fire was because it was 7 km away with plantations and forestry between it and the mine, fires can change, wind conditions were unfavourable, and if the fire came closer it would be dramatically increasing in size and could change the environment in which they were operating;
(g) applying water to exposed brown coal reduces the risk of fire, aides containment of fire that does catch on the coal, and is a major tool used to extinguish brown coal fires; and
(h) to contain and extinguish brown coal fires it is important to have personnel and resources to attack the fire quickly.
The Hazelwood mine is large.
The prosecution case is that had more staff been rostered on duty at the mine on 9 February 2014, they would have been available to operate sprays to wet down exposed coal in the non-operational areas of the mine, and that fire in the northern batters and south-eastern batters took hold and was not contained because this was not done.
There is evidence that on the morning of 9 February one team, possibly with the assistance of Mr Shaw, was operating sprays in the operating west field of the mine, wetting exposed coal. There is evidence no sprays were being operated in the non-operational areas.
There is evidence that on the afternoon of 9 February there were two spot fires in the operating west field, which were contained and extinguished.
Mine fire instructions issued on 7 January 2016 include the instruction that on total fire ban days manning levels for the 1 x 7 crew are to increase between 0700 hours and 1900 hours to perform the following tasks:
- 3x spray teams for operational areas;
- 2x spray teams for non-operational/worked out areas;
- old fire service office attendance/lookout;
- additional CCA nominated;
- 1x mobile patrol; and
- personnel for equipment checks.
The accused argued this fire instruction was developed and implemented as a consequence of and in response to the extraordinary events which occurred on 9 February 2014 which could not then have been foreseen. However, it is a question for the jury whether or not that argument is accepted. The mine fire instruction is evidence the jury might accept to conclude it was possible to implement those increased manning levels on 9 February 2014.
The accused argued it is no more than speculation or guesswork, and not a matter of available inference, for the jury to conclude that had increased staff been available they would have been allocated to spraying exposed coal in the non-operational areas or, had they done so, fires in the northern batters and south-eastern batters would have been extinguished or contained.
Mr Prezioso said preparation for the risk of fire on Black Saturday involved continuous wetting down of the coal starting the previous night, which included the northern batters and other worked out areas of the mine, and having an additional 20 to 30 people on site. Mr Shanahan said he heard that on the weekend of 8 and 9 February 2014 there was going to be the worst day since Black Saturday, the Sunday was going to be the peak of those days and was forecast to be windy with a change coming through. On 9 February 2014 the 1 x 7 crew was reduced to 8 because, Mr Suares said, two members of the crew were on sick leave and three were on recreational leave.
It is open for the jury to infer, on the basis of the evidence to which I have referred, that increased manning levels for the 1 x 7 crew would have resulted in spray teams operating in the non-operational areas of the mine, and had this occurred, the fires in the south-east and northern batters would have been contained or extinguished. On this basis, I will not remove from the jury’s consideration of causation particular (3).
The prosecution also sought to maintain particular (3) on the basis that additional rostered staff would have resulted in a quicker response to the fires which occurred on the northern batters, south-eastern batters and the floor of the mine. Mr Prezioso said on Black Saturday there were patrols. The 2016 fire instructions include staffing for one mobile patrol and a lookout, and contemplates two additional spray teams stationed in the worked out areas of the mine. Mr Dugan said if you don’t hit a coal fire hard and fast with water the combustible resource will take hold. Mr Suares said on the afternoon of 9 February there were two spot fires in the operating west field, there was no difficulty dealing with those fires because the 2 x 12 were on the spot and responded, and he sent Mr Shaw over. There is evidence that, once the mine was threatened by fire the members of available staff in the northern and south-eastern batters was limited by the need to work to stop the fire fronts entering the mine. It is open to the jury to infer, had staff members been increased, that there would have been a quicker and more effective response to fires in the mine.
The evidence in relation to particular (4) is unsatisfactory. There is no evidence of what the power supply system to the reticulation pumps was on 9 February 2014, what backup power supply was included in the system, or why the power failed.
The prosecution submitted:
Given the criticality of the pump stations for firefighting, the failure of power to both pump stations is evidence enough to satisfy the test in Doney that the evidence is capable of supporting particular (4). The particular says that there was a failure to have adequate backup power supply, and the facts on the night established that the power failed.
In effect, this amounts to a submission that what was required was a fail-proof system of power supply, and that the accused should be held responsible for the pollution no matter what caused the power failure, or what provision they had in place to guard against power failure.
The prosecution relied on evidence of new power supply arrangements put in place sometime after the mine fire. There is no evidence that all of those arrangements could have been in place in February 2014 or that the arrangements are fail-proof. The new arrangements included provision to supply pumps 50 and 53 direct from the Hazelwood Power Station internal power supplies. Pumps 50 and 53 supplied tanks which gravity fed the water reticulation system. Power was lost to those pumps for some hours during the night on 9 February 2014. It is tempting to conclude that it would be open for the jury to decide that the accused caused the pollution by not having that system in place in February 2014. However this reasoning papers over the gaps in the evidence to which I have referred. Given there is no evidence as to the power supply system in place in February 2014, what redundancy or backup systems were incorporated into it, or why power failed, it is not open to the jury to conclude the accused caused the pollution by failing to have an adequate backup power supply for the water reticulation system.
I will remove particular (4) from consideration of the jury.
In relation to particular (5), the prosecution again rely on the January 2016 fire instructions which provide that on days of total fire ban a functional and manned Emergency Command Centre is to operate from 0800 to 1900 hours, and from 1900 to 0800 hours the Centre is to remain open and functional with the day shift emergency commander to determine whether the centre is manned. The prosecution submitted:
It would be open to a jury to conclude that the level of organisation and pre-planning [in February 2014] was inadequate against the standard. The [2016] arrangements had they been in place in February 2014, would have provided far better focus on the risk confronted on the day. It might, for example, have directed the 1 x 7 crew to work on spraying the worked out batters, rather than working on a bore which was essential but not urgent. Further, it would have at its disposal organisational arrangements to more quickly deploy additional staff rather than reacting to the Herne’s Oak fire when it had already reached the grass perimeter of the mine.
Failure to have these arrangements in place, at that start of the shift on 9/2/14 would have provided more focus on the fact that the Hernes Oak fire was burning, and that the forecast wind shifts were a serious risk. Instead of focusing on spraying, half the 1 x 7 group worked on fixing a bore.
The prosecution submitted the jury could conclude that inadequate emergency management procedures delayed an immediate vigorous response to the fires in the northern batters, the south-eastern batters and the floor of the mine, and that lack of organisation led to delay which meant that the fire spread more quickly than it would otherwise have, and the pollution lasted longer than it otherwise would have.
The prosecution relied on evidence of high-risk management consultant Mr Incoll who said:
Well, the emergency management centre should have been set up whether there was a fire or not with the emergency management staff in place. That’s been found to be the only effective way of organising fires that develop quickly on such days. It’s universally followed now by state departments, with some success I might add.
It is open to the jury to conclude, on the basis of the 2016 mine fire instructions, that an Emergency Command Centre could have been open and manned from 8:00am on 9 February.
The prosecution did not direct me to evidence which leaves open to the jury the inference that a person working in the operational Emergency Command Centre on the morning of 9 February would have directed the 1 x 7 crew to work on spraying the worked out batters rather than working on repairing on a bore pump.
Mr Suares was the 1 x 7 Supervisor. He did not direct any spraying to occur on the worked out batters until the early afternoon when the Hernes Oak fire had broken its containment lines.
Services Superintendent Mr Shanahan, with the assistance of Production Manager Mr Dugan, prepared a fire preparedness plan for 8 and 9 February. Mr Shanahan did not attend the mine until the afternoon of 9 February but had maintained contact with Mr Suares during that morning and on the previous day. Mr Shanahan did not instruct that the 1 x 7 crew be directed to spraying non-operational areas of the mine either in the fire preparedness plan or in conversation with Mr Suares.
There were other senior mine officers available to give such an instruction, including designated Emergency Commander Mr Wilkinson and Emergency Service Liaison Officer Mr Roach. There is no evidence such an instruction was given.
A number of senior officers of the mine were available to give instructions to the employees who were present in the early afternoon when the mine was threatened by the Hernes Oak and Driffield bushfires. There is no evidence upon which a jury could infer that a person in an operating Emergency Command Centre would have given a different instruction to workers with the result that there would have been a more rapid and effective response to fires which ignited on the northern batters, the south-eastern batters and the mine floor.
The evidence in support of particular (5) does not rise above speculation. Because there is no evidence on which a jury could lawfully find the accused guilty on the basis that they caused the pollution by failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire, I will remove that particular from consideration of the jury.
Honest and reasonable mistake
The accused seek to raise honest and reasonable mistake as a ground of exculpation.
In Proudman v Dayman,[10] Dixon J stated:
It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule, an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.[11]
[10](1941) 67 CLR 536.
[11]Ibid 540.
The accused bear an evidentiary onus in relation to this issue. It is incumbent upon the accused to identify evidence of mistake of fact which is exculpatory. That onus having been discharged, the prosecution bears the legal burden of disproving beyond reasonable doubt that the accused honestly believed on reasonable grounds a set of facts which, had they existed, would make the accused’s acts innocent.
The accused accept they must identify a mistake of fact, as distinct from a mistaken opinion or judgment,[12] or mistake of law.[13] In Strathfield MC v Elvy (‘Strathfield’),[14] the New South Wales Court of Criminal Appeal was considering the conviction of a councillor for participation in voting at a council meeting without making any disclosure of interest. Gleeson CJ said:
It is one thing (leaving aside questions of onus of proof) to accept that a member of council has made an honest and reasonable mistake about a matter of primary fact. It is another thing to treat as decisive the member’s judgment upon matters of opinion or degree which may be involved in proceeding from a premise as to the existence of certain primary facts to a conclusion as to the existence of “pecuniary interest”. Once one goes past the relevant primary facts, such questions of opinion and degree will often be closely bound up with a view as to what kind of interest one is obliged by the statute to disclose; these may be mixed questions of fact and law. Mistakes on matters of that kind would not ordinarily constitute mistakes of fact.[15]
[12]Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 (‘Strathfield’); R v Lavender (2005) 22 CLR 67.
[13]Ostrowski v Palmer (2004) 218 CLR 493.
[14](1992) 25 NSWLR 745.
[15]Ibid 751.
R v Lavender[16] involved alleged criminal negligence by the respondent in the driving of a front-end loader which ran over and killed a 13-year-old boy. The trial judge declined an invitation by counsel for the accused to direct the jury as to what was said to be an honest and reasonable belief by the accused that it was safe to proceed. The plurality stated:
The second reason is that the principle on which counsel based his argument, which applies in other contexts, is a principle relating to honest and reasonable mistake of fact. The principle was recently discussed in this Court in Ostrowski v Palmer. As the decision in that case illustrates, the principle concerns mistakes of fact. The belief concerning which counsel sought a direction was a (supposed) ‘belief that it was safe to proceed’. Such a state of mind involves an opinion. It might be based upon certain factual inferences or hypotheses (the respondent did not give evidence, so the jury were not told by him exactly what facts or circumstances were operating in his mind), but it necessarily involves an element of judgment. Indeed, it involves a conclusion by the respondent that his conduct was reasonable. The direction sought would be inconsistent with what has been described as the objectivity of the test for involuntary manslaughter. The respondent’s opinion that it was safe to act as he did was not a relevant matter. If there had been some particular fact or circumstance which the respondent knew, or thought he knew and which contributed to that opinion, and the jury had been informed of that, and counsel had asked for a direction about it, then it may have been appropriate to invite the jury to take that into account.[17]
[16](2005) 22 CLR 67.
[17]Ibid [59].
The accused formulated the mistake of fact as follows:
A mistaken belief was held on the part of each of Hazelwood Asset Manager George Graham, and senior managers Steve Harkins, Robert Dugan and David Shanahan (who reported to Graham, and upon whose judgement and advice he relied), that on 9 February 2014, by reason of:
(a)infrastructure (fixed and mobile) in accordance with the Mine Fire Services Policy and Code of Practice;
(b)the additional preparedness measures under the Mine Fire Preparedness and Mitigation Plan issued for 8 and 9 February 2014;
(c)their knowledge of the status of external bushfire activity; and
(d)the Hazelwood Mine’s history in relation to bushfire,
there were staff and resources in place to deal with the risk of bushfire to the mine, and therefore to prevent pollution by reason of the discharge/emission of smoke and ash from any coal which might be ignited by bushfires.
The accused do not allege any mistake as to the facts they set out in sub-paragraphs (a) to (d) above. Rather the mistake is that, given all of those facts, the measures in place would deal with the risk and prevent pollution.
Evidence of the belief was given by Mr Harkins:
Up until the time that the Hernes Oak fire broke its containment lines at approximately 1pm, followed closely by the lighting of the fires at Driffield – prior to those times, did you believe that, having regard all of the factors in your knowledge which you’ve learned prior to that from the CFA and from, um, the preparedness of the mine for the possibility of fire, that the mine was as well-protected as, ah, it could be at the time?---Yes, I believe that’s the case.
Mr Shanahan and Mr Graham gave evidence to a similar effect.
The accused have not identified a mistake of fact. The belief set out in the formulation of mistake, and in the evidence of Mr Harkins, Mr Graham and Mr Shanahan, is quintessentially an opinion or judgement. Based on a set of facts about which the accused say he was not mistaken, Mr Harkins’ opinion or judgement was that the mine was as well protected as it could be against the risk of fire.
An example of a mistake of fact which might have allowed this issue to go to the jury is as follows: Messrs Harkins, Graham and Shanahan might have given evidence that they believed sprays were operating on all of the northern batters from the morning of 9 February. A case that depended on the jury determining that a cause of the fire was that no sprays had been operated on the northern batters on the morning of 9 February would invite consideration of honest and reasonable mistake. However, that is not the nature of the case put by the accused. The accused put forward as the mistake a conclusion based on facts which should be found, not facts in respect of which they were mistaken.
The accused have not identified evidence of an exculpatory mistake of fact. In the circumstances honest and reasonable mistake will not go to the jury.
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