Director of Public Prosecutions v Hazelwood Power Corporation
[2017] VSC 662
•27 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0214
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAZELWOOD POWER CORPORATION PTY LTD |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2017 |
DATE OF RULING: | 27 October 2017 |
CASE MAY BE CITED AS: | DPP v Hazelwood Power Corporation |
MEDIUM NEUTRAL CITATION: | [2017] VSC 662 |
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CRIMINAL LAW – Trial venue – Trial fixed for hearing in locality where the alleged offences took place – Application for change of trial venue from Morwell to Melbourne – Criminal Procedure Act 2009 (Vic) ss 169, 192 – DPP v Bennett (2004) 10 VR 355 – R v Vjestica [2008] VSCA 47 (28 March 2008).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Pillay | |
| For the Accused | Mr I Hill QC and Mr R O’Neill | King & Wood Mallesons |
HIS HONOUR:
Hazelwood Power Corporation Pty Ltd (the applicant) is charged with 10 offences under ss 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) (the OH&S Act). The trial of those charges has been listed to commence before this Court sitting in Morwell on 4 April 2018 on an estimate of eight weeks. The applicant now applies for orders that:
(a) pursuant to s 192 of the Criminal Procedure Act 2009 (Vic) (the Act) the trial in this proceeding be held in Melbourne; and
(b) the trial in this proceeding be listed to commence on a date not before Monday 2 July 2018.
Both applications are consented to by the Crown and, in respect of the trial date, the Crown actively joins in the application.
Background
The applicant was at relevant times, together with other entities, the owner and operator of the Hazelwood mine and its related power station. The mine and power station are situated adjacent to the township of Morwell and to the Princes Freeway, which connects the Latrobe Valley with Melbourne (to the west) and central and east Gippsland (to the east).
A fire ignited in the mine on 9 February 2014 and remained active for some weeks. The mine fire was declared ‘safe’ by the CFA on 25 March 2014, and on that basis has been characterised as a 45-day event.
The charges faced by the applicant relate to the mine fire. Five charges under s 21 of the OH&S Act allege that as an employer the applicant failed, so far as was reasonably practicable, to provide and maintain for its employees a workplace under its management and control that was safe and without risks to health. A further five charges under s 23 of the OH&S Act allege that the applicant did not, as far as was reasonably practicable, ensure that persons other than its employees were not exposed to risks to their health and safety arising from their conduct in operating the mine and the power station. In general terms it is alleged that the actions or inactions of the applicant resulted in employees and other persons in the community being exposed to the inhalation of smoke, fine particles and carbon monoxide, which the mine fire released into the air.
In June 2017, the applicant was committed for trial on the 10 charges. On 13 September, Lasry J determined that the proceeding is a matter appropriate to be dealt with in this Court. On that day the trial was fixed for 4 April 2018 at the Supreme Court in Morwell.
Change of venue application
The relevant sections of the Act provide:
169 Place of hearing of criminal trial
(1)A criminal trial in the Supreme Court or the County Court is to be held in the court sitting at the place that is nearest to the place where the offence is alleged to have been committed, unless an order is made under section 192.
(2)A criminal trial is not invalid only because it was conducted at a place other than the place referred to in subsection (1).
192 Power to change place of trial
If a court considers that—
(a) a fair trial in a criminal proceeding cannot otherwise be had; or
(b) for any other reason it is appropriate to do so—
the court may order that the trial be held at any other place that the court considers appropriate.
There are good reasons for the place of the alleged offence to be the venue of the trial.[1] The community in which the alleged offence occurred will understandably be concerned to see justice done. Transferring the trial to another venue risks leaving the community feeling disenfranchised. Further, there may be issues of witness convenience and efficiency which favour a local trial. However, the practice of holding a trial locally must give way to the need to ensure a fair trial.[2] At this stage of the proceeding it is a matter of assessing the risk to a fair trial if the local venue is maintained.
[1]DPP v Bennett (2004) 10 VR 355 [6] (Cummins J).
[2]R v Vjestica [2008] VSCA 47 (28 March 2008) [3] (Maxwell P with whom Buchanan and Whelan JJA agreed).
The applicant submits that a fair trial cannot be held in Morwell given:
(a) the nature of the mine fire, the subject of the 10 charges on the Indictment, and the extent to which persons in the relevant jury district for Morwell may have had direct or indirect personal experience of the mine fire or otherwise been directly or indirectly affected by it;
(b) extensive and continuing pre-trial publicity and media coverage of the mine fire in Morwell and the broader Latrobe Valley region; and
(c) continued prominence of the mine fire in the public consciousness in the Latrobe Valley area.
I take the consent of the Crown to the change of venue application as acknowledgement that transfer of the trial to Melbourne is justified.
The Court has been provided with a comprehensive affidavit affirmed by solicitor, Ms Heffernan, in support of the application. Given the Crown’s consent to the application, it is not necessary that I traverse in this ruling all of the material relied on by the applicant. For the purposes of this application only I accept the contents of Ms Heffernan’s affidavit. For reasons which I will briefly outline, I conclude there is a risk to a fair trial being held in Morwell, which justifies transfer of the trial to Melbourne.
During the period it was active, the mine fire caused smoke which spread across the Latrobe Valley. There was, during that time, a response to the perceived risk to local communities associated with smoke exposure from the fire. A community respite centre was established in Moe on 19 February 2014 and a health assessment centre in Morwell on 21 February 2014. Ms Heffernan deposes that 2,072 individuals were seen at the health assessment centre during its operation. A notice was issued by the Department of Health on 28 February 2014 through the then Chief Health Officer, Dr Rosemary Lester, advising that classes of ‘vulnerable persons’ should consider temporary relocation from certain areas in Morwell. Various schools and early learning centres in southern Morwell were temporarily relocated. In late February 2014, the Department of Human Services administered hardship, respite and relocation payments to eligible households. Ms Heffernan deposes that approximately 65 per cent of Morwell households received at least one financial assistance payment for respite or relocation purposes during the period of the mine fire.
Ms Heffernan deposes that the following has occurred since the mine fire:
(a) Recovery efforts following the mine fire include very regular newsletters issued by the Latrobe City Council letterboxed to Morwell properties and doorknock surveys conducted by the council, most recently in March 2016, the report of which was published in August 2016. That report contains comments of community members in relation to the mine fire and risks to health caused by exposure to smoke from the fire.
(b) The 2014 Hazelwood Mine Fire Inquiry was instigated in late March and reported in late August 2014. The 2014 inquiry involved a significant level of community consultation, including delivery of 6,000 flyers to mailboxes in Morwell, community consultations in Morwell and other Latrobe Valley towns, receipt of numerous public submissions, and a community group providing a health study described as having been completed by 650 community members.
(c) A Victorian government media release in January 2015 announcing regulation reform in response to the 2014 Hazelwood Mine Fire Inquiry, which included the following quotes attributed to the Premier for the State of Victoria, Mr Daniel Andrews:
What happened at Hazelwood must never be allowed to happen again.
Now the mine operators will have to do more to be prepared and keep the mine safe.
(d) Controversy surrounding an invoice from the CFA to the operators of the Hazelwood mine for the cost of attendance of brigades at the mine fire, which included significant community group response, with media releases and protests in respect of non-payment of the CFA invoice, and an online petition which has over 8,000 signatures to date. The following statement appears on the petition website:
You may remember that last year, the Hazelwood open cut mine burned for 45 days, smothering the Latrobe Valley community in toxic smoke and ash, and causing devastating effects to people’s health.
(e) Terms of reference for a further Hazelwood mine fire inquiry were released in May 2015, and the report of that inquiry was tabled on various dates until April 2016. Public hearings and forums were conducted in the course of that inquiry. Terms of reference of the inquiry included:
Whether the Hazelwood Coal Mine Fire contributed to an increase in deaths, having regard to any relevant evidence for the period 2009 to 2014;
Short, medium and long term measures to improve the health of the Latrobe Valley communities having regard to any health impacts identified by the Board as being associated with the Hazelwood Coal Mine Fire.
(f) In April 2014, the Victorian government announced a long-term ‘Hazelwood health study’ following the 2014 Hazelwood Mine Fire Inquiry with the stated aim to ‘identify potential health outcomes for people who may have been impacted by smoke from the mine fire’. That study is currently being undertaken and has a number of streams, including a Smoke Exposure Assessment. Steps have been taken by the researchers to encourage participation by members of the Morwell community, and by members of the township of Sale acting as a comparison community. Materials indicate over 3,000 Morwell residents have participated in the adult survey related to the study.
(g) Modelling of the dispersal of smoke undertaken by researchers from the CSIRO, University of Tasmania and Menzies Institute for Medical Research predicts varying concentrations of smoke will have dispersed to a number of townships within the broader Latrobe Valley region, including Moe, Traralgon, Morwell and Trafalgar.
(h) EPA Victoria has commenced prosecution proceedings against four other entities involved with operation of the Hazelwood mine, alleging breaches of various sections of the Environment Protection Act 1970. The committal hearing in respect of those proceedings commenced in the Latrobe Valley Magistrates’ Court on 7 August, and is scheduled to conclude after two further days of hearing in mid-November.
(i) A large number of people, relative to the size of the Morwell community and the broader Latrobe Valley, had involvement with the mine fire or association with the mine, including:
(a) volunteers in the local CFA brigade who fought the fire; and
(b) employees and formers employees of Hazelwood mine.
(j) Community association, Voices of the Valley, formed in response to the mine fire has been active in Morwell and the broader Latrobe Valley community, including in relation to the 2014 and the 2015/2016 Hazelwood mine fire inquiries, and by maintaining social media accounts on Facebook and Twitter.
(k) There has been significant and ongoing media coverage of the mine fire which to date includes more than 150 published news media articles and more than 370 TV and radio broadcasts. According to Ms Heffernan’s affidavit the greatest concentration of media coverage has been in the Latrobe Valley region.
There are safeguards used in the system of jury trials which in most cases are sufficient to eliminate the risk of unfairness.[3] The evidence on this application demonstrates that those safeguards will not be sufficient to eliminate the risk of unfairness if a jury trial is held locally in Morwell. The 10 charges on which the applicant is to be tried relate to the exposure to risks to the health and safety of employees of the applicant and non-employees from inhalation of smoke, fine particles and carbon monoxide released into the air by the mine fire. The unusual features of this case are a combination of the following factors:
[3]Ibid [5].
(a) the mine fire caused smoke to be dispersed in the geographic area around the mine;
(b) the short and long term health risks from exposure to inhalation of smoke to the community of Morwell and other communities in the Latrobe Valley has been a matter of significant community interest and concern, and a focus of two mine fire inquiries, official health warnings, an ongoing health study, and significant media reporting;
(c) the steps taken within the community in response to the mine fire since February 2014, the inquiries undertaken, and the continuing extensive media coverage all serve to maintain memory of the fire and its impact and consequences in the public consciousness; and
(d) the prospect that jurors selected from the local community having had direct or indirect personal experience of the mine fire or otherwise having been directly or indirectly affected by it, including by exposure to smoke, will be difficult to avoid.
Because of the matters to which I have referred, I conclude that it is necessary, in order to ensure a fair trial, that the venue of the trial be changed to Melbourne.
Trial date
The applicant and the Crown join in applying for a trial date not before 2 July 2018. I accept that it was originally the anticipation of the applicant and the Crown that the trial of these charges would not commence until sometime in late 2018. Both the applicant and the Crown agree that given the size and complexity of this trial it would be difficult for the necessary preparation to be completed to allow the trial to commence in early April 2018. In addition, the Crown states that at least one critical witness will be unavailable for the whole of the trial period if the trial were to commence on 4 April 2018.
Conclusion
This trial will be re-listed to commence in Melbourne on 6 August 2018.
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