DPP v Esso Australia Pty Ltd
[2001] VSC 103
•14 February 2001
| SUPREME COURT OF VICTORIA | Not Restricted |
| CRIMINAL DIVISION |
No. 1484 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESSO AUSTRALIA PTY LTD |
Reasons for Ruling No. 5
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JUDGE: | Cummins J |
WHERE HELD: | Melbourne |
DATE OF THE REASONS FOR RULING: | 14 February 2001 |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2001]VSC 103 |
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Criminal law – practice and procedure – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – presentment – competence, duplicity, prolixity and fairness – Presentment Rules (Crimes Act 1958 sixth schedule) – considerations applicable – Trotter (1982) 7 A.Crim.R 8, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 and (1988) VR 411 – R v Smart (1983) VR 266.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | R. Richter QC | Office of Public Prosecutions |
| For the Accused | M. Titshall QC with M. Hennessy | Middletons Moore & Bevins |
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Reasons for Ruling No. 5
HIS HONOUR:
The accused company was originally presented before me on a 21 count presentment filed in this court on 7 August 2000. In the absence of the jury and pursuant to the provisions of s.391A of Crimes Act 1958, on 16 August 2000 the accused, through its authorized officer, the company secretary, pleaded not guilty before me to count 1 of that 21 count presentment. As a matter of convenience, I did not require the company formally to plead to the other 20 counts.
On 8 February this year, after substantial discussion and submissions which commenced on 1 February, the prosecution sought to file over an 11 count presentment in place of the original 21 count presentment. Thus, the first question before me is whether I ought grant leave to the prosecution to file over the 11 count presentment in place of the 21 count presentment. That leave was opposed by learned senior counsel for the accused.
A separate, but nonetheless related, question is whether on the present 21 count presentment (or on the sought for 11 count presentment) one or more of the counts ought be struck out as a matter of law or as a matter of fairness. The defence submits that a number of the counts are incompetent in law either in that they display duplicity (either overt or latent) or uncertainty and vagueness and thus ought to be struck out, or alternatively that they are unfair in that they are repetitive or the presentment is overloaded or other like deficiencies and thus the counts in those respects ought be permanently stayed. There was no application on behalf of the accused that the whole presentment be quashed or permanently stayed or that it or any individual counts constituted abuse of process as in Jago v. District Court of New South Wales (1989) 168 C.L.R. 23 or R v. Glennon (1992) 173 C.L.R. 502. The defence submissions, rather, went on to duplicity, uncertainty and prolixity of individual counts.
The submissions on the filing over application by the prosecution are different from but related to the submissions on the striking out or permanent stay application by the defence, in that to a degree each raises the same or like questions as the other.
Yesterday I gave leave to the prosecution to file over the 11 count presentment and ruled that each of the 11 counts was competent in law. I said yesterday that I would this morning give my reasons, which now I do.
The accused company, Esso Australia Pty Ltd, now is charged in this court on an 11 count presentment (and previously a 21 count presentment) for various alleged breaches of sections 21 and 22 Occupational Health and Safety Act 1985. Generally, but not exclusively, the offences alleged are that the accused failed to provide and maintain at its plant at Longford, Victoria, so far as was practicable for employees, a working environment, being plant and systems, that was safe and without risks to health. The breaches, if proved, of the duties under sections 21 and 22 of the Act are indictable offences: s.47(3) of the Act.
The counts arise in the following circumstances alleged by the prosecution. The accused, at Longford, Victoria, has for some years operated a gas production and operating facility. It comprised three gas plants and a crude oil stabilisation plant, the facility being designed to process gas and oil from Bass Strait. Of the three gas plants, Gas Plant 1 (GP 1), the earliest, commenced operation in 1969 and was a refrigerated lean oil absorption plant. Gas Plants 2 and 3, which commenced operation respectively in 1976 and 1983, were not refrigerated lean oil absorption plants, but utilized a later technology, a cryogenic process, to process gas.
Gas Plant One (GP1) was a refrigerated lean oil absorption plant. By utilising low temperatures and high pressures, it used lean oil to absorb hydrocarbon components from incoming gas. Lean oil, once it absorbs hydrocarbons, becomes rich oil. By use of lower pressures and higher temperatures, the rich oil was distilled to release methane and other elements and thus became again lean oil which was then cooled and the process recommenced.
One component of GP1 was a heat exchanger, GP-905. Its function was to transfer heat from lean to rich oil. The prosecution says that immediately before its rupture on 25 September 1998, GP-905 was abnormally cold and that it was not designed for such cold. That cold was due to the loss of the heat source provided by the circulation of lean oil, which had ceased some four hours earlier that day.
The raw gas from the Bass Strait fields - Marlin, Barracouta and Snapper - was separated from liquids by means of sludgecatchers and dehydrators and, once separated, flowed in two streams into Absorbers (GP-1104A and GP-1104B). They were towers with internal valve traps which enabled gas to flow upwards and lean oil to flow downwards.
The ROD/ROF area of GP1 was designed to strip the heavier absorbed hydrocarbons from the rich oil and to recycle the resultant lean oil to the absorbers. The absorbed hydrocarbons were recovered in a three stage process. First, the rich oil flowed into the rich oil flash tank (GP-1108) at lower pressure and lower temperature. Second, it flowed to the ROD tower (GP-1109) (ROD being rich oil demethaniser or rich oil deethaniser) which operated at lower pressure but higher temperature than GP-1108. Third, it flowed to another distillation column, the rich oil fractionator (ROF), which operated at lower pressure and higher temperature than ROD. The reservoir of lean oil held at the bottom of the ROF was pumped back to the absorbers, completing the large circulation loop. The whole process involved a wide range of pressures and of temperatures, necessary to effectuate the separation and treatment of the various liquid and gas components.
On the morning of 25 September 1998 and the evening before, operators at GP 1 observed a series of deviations in process. At about 8.20 a.m. on 25 September 1998 lean oil circulation through the heat exchangers ceased when the process deviations caused the GP 1201 pump to trip. This had the consequence that the liquid flowing from the absorbers to the rich oil flash tank and then to the ROD comprised mainly cold condensate and gas. The bottom of the ROD and GP 905 progressively cooled severely. Gas flow into GP 1 was stopped at 10.50 a.m. Central to the prosecution's allegation is that there was no training or procedures provided by the accused adequately to equip its employees to deal safely with the hazardous situation which had arisen. After other attempts to resolve the process deviation, the pump GP 1201 was restarted at 12.17 p.m. circulating lean oil to GP 905. Eight minutes later, at 12.25 p.m., GP 905 failed catastrophically. That rupture released a vast volume of flammable hydrocarbons, in turn ignited by gas fired heaters some 170 metres away, in turn causing a series of explosions at GP 905, the largest and final being at 1.40 p.m. Tragically, two Esso employees, Mr Peter Wilson and Mr John Lowery were killed in the explosions. Eight other employees were injured, five seriously.
The prosecution alleges that the essential cause of the explosion was the introduction of hot lean oil into excessively cold vessels. There were related deficiencies including a compromise in GP 922, which was leaking. The prosecution alleges that from after 8 a.m. on 25 September 1989, a number of the entities in the process, in particular GP 922, GP 905 and the bottom section of the ROD, because of excessive cold, were in an inherently unstable condition and susceptible to catastrophic failure. The direct cause of the explosions and their tragic consequences, the failure of GP 905, was, so the prosecution says, caused by brittle failure in the channel section of GP 905 which in turn was caused by the application of heat stress, hot lean oil, to its embrittled state caused by extremely low temperature.
The context is, as one would expect, much more complex than this, but stripped to its linear essentials, the reasoning as to the explosion is heated liquid entered a susceptible and extremely cold vessel and caused the explosions.
The prosecution alleges that there were a number of antecedent, related failures by the company and which themselves were breaches of its obligations under the Act.
The 11 counts presently now before the court, and the 21 counts antecedently, substantially are pursuant to s.21 Occupational Health and Safety Act 1985 (one count is pursuant to s.22). The statutory requirement is that "an employer shall provide and maintain so far as practicable for employees a working environment that is safe and without risks to health". Section 4 of the Act (which is not a definition section) states that "practicable" means "practicable having regard to" the four entities there set out. The dual touchstones of the legislation are prevention and practicability.
The offences, if proved, are indictable offences as provided by s.45(3) of the Act.
Originally, on the 21 count presentment that was filed before me, I gave certain directions pursuant to s.6(1) Crimes (Criminal Trials) Act 1999 as to the prosecution providing certain material. That is ruling number 2 of 16 August 2000. I also made certain directions pursuant to s.7 as to the defence, those directions to be fulfilled consequent upon the fulfilment of the s.6 directions by the prosecution. In ruling number 3 given on 8 December 2000, I gave further directions to advance my original directions.
The statutory provisions as to presentments are well known, as are the criteria at common law, and do not need extensive rehearsal by me. Statutory provisions are to be found in Part 3 Division 9 Crimes Act 1958. They were designed to ensure that form did not triumph over substance, as had sometimes been the case antecedently, particularly in the 19th century and as to which Professor Maitland stated, "The forms of action we have buried but they still rule us from their graves". S.369 thus of the Crimes Act provides, in relevant part, that a presentment is sufficient if "it contains such particulars as are necessary for giving reasonable information as to the nature of the charge". Section 372(1) empowers the court to make order for amendment "as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice." S.373 provides that the inherent powers of the court are not affected by that statutory scheme.
The Presentment Rules, that is the 6th schedule of the Crimes Act 1958 in Rule 3 sub-rule 1, provide, "Particulars of the offence charged shall be set out in ordinary language in the which the use of technical terms shall not be necessary", and by Rule 9, the language shall be "ordinary language ... to indicate with reasonable clearness the place, time, thing, manner, act or omission referred to". By "clearness" in Rule 9 presumably is meant clarity.
The common law criteria as to clarity and precision are well known. In Trotter (1982) 7 ACR 8, the Court of Criminal Appeal of Victoria identified duplicity and ambiguity to be critical matters to which the trial judge should look to ensure do not exist, and if existing, are eliminated: see 16-18 per curium and the authorities cited at 16. See also DPP v. Judge G.D. Lewis & Anor (1997) 1 V.R. 391 particularly at 397-400 per Tadgell, J.A. (in whose reasons Ormiston and Charles JJ.A. agreed.) Likewise also, Chugg v. Pacific Dunlop Pty Ltd (1988) VR 411 where Fullagar, J. ruled as bad for duplicity a general count under s.21 of the Occupational Health and Safety Act 1985. Fullagar, J. followed the reasoning of the Full Court in Byrne v. Baker (1964) V.R. 443 as to s.107(1) of the Companies Act 1958.
Significantly, and I shall return to this, Chugg, particularly at appellate level, laid down what I would have thought was demonstrable in any event, that the onus of proof of practicability rests upon the prosecution: Chugg v. Pacific Dunlop Ltd (1990) 170 C.L.R. 249 at 259 per Dawson, Toohey and Gaudron JJ. (in whose reasons Brennan, J and Deane, J. substantially agreed). See also Chugg (Victorian Full Court, 5 May 1989 OR 104 of 1988 per Kaye and Beach JJ. at 19 and Ormiston J. at 6).
I proceed upon those correct and sensible requirements of the law: that charges need to be precise, not have duplicity (either overt or latent), and must not be ambiguous. Any latent ambiguity due to more offences being alleged than are charged must thus not be permitted. The joinder of more than one offence in the same count is prohibited. It is essential that the parties and the Court know precisely what is being charged, that the defence knows what it has to meet, and that the charges are neither moveable nor elastic. Further, the counts on the presentment must not be unduly numerous or complex: R v. Smart (1983) VR 266 in which there were a total of 63 counts, four of which were alternatives.
The criteria thus that I apply in relation to both the filing over and the application to strike out or stay are that, first, the offence must be known to the law; second, the count must be competent in law; third, it must not be duplicitous, overtly or latently; fourth, it must be precise and not uncertain and not capable of movement; and, finally, it must not be unfair, singly, in combination or cumulatively.
In relation to that last matter, fairness, that is fundamental to the trial process. An accused should not be burdened by a presentment which satisfies all the antecedent criteria but remains unfair. It requires little imagination to know that the law can be technically satisfied and still be unfair. There is a clear residual authority in the court to preclude (either by staying or striking out) a presentment which is technically competent and does not offend the antecedent criteria of duplicity or uncertainty, but remains unfair. It may be that the presentment is simply too substantial; it may be that the presentment is onerous or burdensome; it may be that it is needlessly differential, that is to say, although technically there are distinctions between the counts, they are not substantial differences. In discussion with Mr Richter I counselled against both hindsight and perfection - that is, not to pursue every possible or minor matter which later investigation revealed. Mr Richter agreed with that consideration.
Beyond the question of fairness to the accused is, of course, the integrity of the trial process, that is to say that the jury must be able properly and fairly, both with understanding and without prejudice, to give a true verdict according to the evidence. An overloaded presentment does not militate towards that vital function.
My ruling, of course, does not decide whether there is proof of the crimes charged. I have not heard the evidence and a jury has not been empanelled. A jury will decide if the evidence proves the charges and does so beyond reasonable doubt.
The original 21 count presentment, in my view, was unnecessarily substantial. It may be that an argument, as indeed Mr Richter sought to maintain, could have been made out to justify each of the counts and their totality, but my firm instinct was that it was unnecessarily lengthy and complex, and very properly and fairly the prosecution did not press the matter. Indeed the accused had been committed (by way of hand-up brief) on 1 February 2000 in the Melbourne Magistrates' Court on 45 charges, which properly were reduced by the prosecution to 21 counts. The prosecution, following submissions and discussion in this Court since 1 February 2000, now seeks to proceed by an 11 count presentment.
The defence maintains that the 11 count presentment is still too substantial and involves duplicity and uncertainty and involves repetition and oppression, and I will deal with those arguments in turn as I address the presentment. Having considered those submissions I concluded, subject to some qualifications I shall state as to individual counts, that the 11 count presentment as proposed by the prosecution is competent and is not excessive or unfair and I thus, yesterday, granted leave for it to be filed over.
Mr Titshall, in most helpful and comprehensive submissions, reviewed the original 21 count presentment and submitted that, at the most, four counts should remain, the balance being stayed or struck out. Those counts were one under s.21(2)(1) of the Act (failure to provide and maintain safe plant and systems), one under s.21(2)(b) (failing to make arrangements for safety and absence of risks), one under s.21(2)(d) (failing to provide facilities) and one under s.21(2)(e) (failing to provide information etc.). Upon the prosecution propounding the 11 count presentment, Mr Titshall submitted that thereto there should remain, at the most, three counts: one from counts 1 and 2, one from counts 3 and 10, and one from counts 4 to 8.
A considerable number of matters which Mr Titshall reviewed in his submissions go to the viability of evidence rather than to the presentment. Those matters doubtless will later be the subject of evidentiary disputation. I shall refer to them now only insofar as they bear upon the competence (as I have defined it) of the counts on the presentment.
I turn thus to the counts on the presentment now sought to be filed, being the 11 counts. As I have said, the character of the counts largely derives from s.21 of the Act and marginally s.22. The structure of the 11 counts is, on its face, logical and chronological, that is to say, certain categories are dealt with and progressively so in terms of time. The first count and the second count relate to a much greater period of time than the other counts and I shall address those first.
The first count is that "the accused, between 1 January 1993 and 25 September 1998, being an employer, failed to provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health by failing to made arrangements for ensuring so far as was practicable safety and absence of risks to health in that it failed to conduct any adequate hazard identification at GP 1".
I shall not with each count repeat them in full, and even in that recitation I have left out part of the verbiage of count 1.
The nature of that count, as is evident from its face, is that it is a longitudinal count, that is, between 1 January 1993 and 25 September 1998. The failure essentially that it proscribes is the failure to undertake an adequate process of hazard identification. Under s.21 an employer is obliged, in a hazardous situation such as a gas plant, to identify potential hazards, and in this case the prosecution says those hazards were the hazards associated with development of cold temperatures in the ROD/ROF area, specifically GP 905, GP 922 and the bottom section of the ROD. The unsafety is, according to the prosecution, the susceptibility of those items to catastrophic failure at cold temperatures. The prosecution says that no such adequate hazard identification was carried out by the accused between those dates, 1 January 1993 and 25 September 1998, and that it was practicable, bearing in mind the criteria in s.4 of the Act, for the accused to have done so.
A method - not the only method but a method - of hazard identification known to the industry was a Hazop: a hazard and operability study. The prosecution alleges that the accused's failure to conduct a Hazop constitutes count 1. That, in my view, reveals an offence known to the law and with sufficient particularity and precision to satisfy the criteria I previously have stated.
In the particulars, being the final particulars filed on 8 February concerning the 11 count presentment, in paragraph (f) the prosecution states "A Hazop was one of the available and suitable means to identify the hazards". A Hazop is a hazard identification process which the prosecution is entitled to rely upon as not being done and thus failing the statutory criteria. However, I do not consider that it is competent, because it is vague and uncertain, for the prosecution to maintain that nonfulfilment of some other unnamed method of hazard identification constitutes an offence under count 1. The onus of proof, referring again to Chugg v. Pacific Dunlop, is on the prosecution to specify the failure which it says constitutes the failure to provide so far as was practicable a safe work environment. It is impermissible to effectuate a reversal of the onus of proof, wherein once the prosecution has proved that a plant is unsafe, then it is for the defence to prove that it undertook practicable measures of prevention. On the contrary, it is for the prosecution to prove the failure to provide, so far as was practicable, the safe working environment. Central to that is the notion of practicability assisted by s.4 of the Act. The prosecution is obliged, as an inherent element in that proof and for that count, to state with particularity what it is that was the hazard identification process it says was not fulfilled. The prosecution maintains that the Hazop was one which was not fulfilled, and the case can go forward on that basis. However, the case cannot go forward on the basis that there was some other unnamed and unknown, that is to say unspecified, hazard identification process. That would simply be a shadow which the defence would have to seek to pursue. That is not the proper procedure in a criminal trial. Accordingly, count 1 is limited to the proof that no adequate Hazop was conducted between the dates alleged in count 1. If there was some other known and specified method of hazard identification that the prosecution seeks to rely upon, it can say so now. If it cannot say so now, after thorough site and systems investigations, a Royal Commission, a (hand-up) committal and preparation for a Supreme Court trial, then it cannot be specified, which means in turn it was not practicable. That is count 1.
Count 2 relates not to hazard identification, but to risk assessment. That is a separate concept. Hazard is antecedent to risk. Hazard may or may not mature into risk. The prosecution says here it did, and that the logical and chronological sequence is first hazard identification and then risk assessment. It seems to me that the notions are not only different conceptually and longitudinally, but also pick up significantly different concepts in the prophylactic system laid down by the Occupational Health and Safety Act 1985. They are not merely distinctions without difference. They are differences of substance, given the preventative nature of the legislation. The Occupational Health and Safety (Plant) Regulations 1995 (made pursuant to the power contained in s.59 of the Act) deal differentially with hazard and risk: see Regulations 702 and 703. In Regulation 105 hazard is defined as "the potential to cause injury or illness" and risk as "the likelihood of injury and illness arising from exposure to any hazard." I consider it not only to be competent but also to be fair and appropriate for count 2 to be pleaded separately and apart from count 1.
Count 2 is again a longitudinal count, one year shorter than count 1. Count 2 alleges that between 1 January 1994 and 25 September 1998 the employer failed to conduct any adequate risk assessment at GP 1.
The prosecution here again puts that there were hazards associated with the development of cold temperatures in the ROD/ROF system, particularly at GP 905 and GP 922 and the bottom section of the ROD, that those items of plant were susceptible to catastrophic failure at excessively cold temperatures, and that the accused ought to have had in place an adequate process of risk assessment thereto.
Turning to the question of what was a risk assessment, the prosecution says it was a periodic risk assessment. The company's risk assessment management system, RAMS, specified a PRA, a periodic risk assessment, as a risk assessment methodology. It was a finite, known entity. The prosecution says that there was a PRA but the last one was December 1994 and it was thus not timely (being too far back in time), it was not relevant and it was not comprehensive. Thus, there was a PRA historically but not sufficient to constitute an adequate risk assessment in the time period specified in the count. Count 2 is competent, in my view, because it is not duplicitous, uncertain or vague in that it relates to a PRA. Again, if there was some other risk assessment which the prosecution can articulate and relies upon, it is competent to do so but unless it can specify it and identify it now, it cannot be said to be practicable and thus cannot be alleged against the accused. So in count 2, PRA is the risk assessment unless the prosecution can identify another at this stage. With count 2 as with count 1, I will not permit the prosecution to proceed on the basis that the accused has to chase shadows which may, late in the trial - perhaps even during addresses - take on some physical or verbal form. That is not the proper process when an indictable offence is charged.
The Hazop (in Count 1) and PRA (in Count 2) need to be shown by the prosecution to have been likely to have revealed the hazard and risk (respectively) for the prosecution to succeed on those counts. It is not necessary for the prosecution to show that the methodology would have revealed it; it is insufficient for the prosecution to show it might have revealed it. The defence can defeat the counts by showing (bearing in mind the onus of proof) that, even if it did not conduct a Hazop or PRA respectively (if it did not) it conducted a hazard identification and a risk assessment respectively, sufficient to satisfy the criteria of s.21.
So much for counts 1 and 2; each is competent if limited, in the first case, to Hazop, and in the second case, to PRA.
The balance of the counts relate to 25 September 1998, particularly the period from 8.00 a.m., and also the period immediately before it.
In count 3 is alleged that the accused failed to provide and maintain plant that was safe. Again, that refers to GP 1 in the ROD/ROF system, notably GP 905, GP 922 and the bottom of the ROD and also associated piping. The time of unsafety alleged in count 3 is from approximately 8 a.m. for some four hours on 25 September 1998.
Count 4 alleges that the accused did not have adequate procedures to enable employees to safely respond to that loss of lean oil circulation. Here, the particulars reveal that the procedures which are said by the prosecution to be the minimum necessary for adequacy were written procedures. It appears from submissions of counsel that there were procedures of one sort or another but the prosecution says given the hazardous nature of the entity, the procedures, to be adequate, needed to be written. It will, of course, be a matter of evidence whether or not it was necessary for procedures to be written for them to be adequate. The prosecution here says that the procedures needed to be written to be adequate to enable employees to safely respond to the loss of lean oil circulation, to which I have already referred and will not keep repeating; that is to say responding to loss of lean oil - whether to restore lean oil, when to restore it, how to restore it, and what actions to take if it were unsafe to restore it. They are procedures which are responsive and were not provided according to the prosecution in that there were no such written procedures.
Count 5 goes to training rather than procedures. The prosecution alleges that the accused failed to adequately train employees to enable them safely to respond to a loss of lean oil circulation.
In the original 21 count presentment, no doubt bearing in mind the proper strictures of Fullagar, J. at first instance in Chugg v. Pacific Dunlop Pty Ltd, the prosecution followed the differential conceptualization in s.21(2)(e) of the Act by pleading separately "information", "instruction" and "training". It seemed to me that although there was a difference between each, it was a case of unnecessary differentiation and consequential overloading of the presentment. In the event, the prosecution has charged the accused with failing to provide adequate training. However, in the particulars, the prosecution has said that "The accused was required to provide adequate training (which includes information and instruction)." If that is meant to be a statement of the evidence to be called and if there is evidence to say that training includes information and instruction, so be it. If that is meant to be a statement of the law, consideration may need to be given to whether training includes information and instruction. I would have thought, uneducated by the benefit of submissions of counsel, that the middle entity "instruction" (of the entities information, instruction and training) would be the most likely to cover the relevant part of the continuum. Submissions can be made later on that question if counsel wish.
Count 5, in my view, legitimately is to be differentiated from count 4. Count 5 goes to training; count 4 goes to procedures. They are different concepts. I do not consider that, given the hazardous nature of the enterprise and the preventative character of the legislation, that the differentiation is technical or artificial, but rather is a substantial one which justifies the differential pleading of the two entities in the two respective counts: count 4, procedures, and count 5, training.
Count 6 alleges that the accused failed to provide and maintain plant and systems of work that were safe to ensure that the plant operated at safe temperatures. This is a central allegation of the prosecution: that the plant was operating below safe temperatures, and in my view is competent as an allegation of a failure of the employer alleged to provide a safe work environment, which is the foundation of s.21. The plant and systems of work, which is a rolled up concept, in my view is not bad for duplicity (overt or latent) because the prosecution says that plant and systems of work is an holistic entity and that plants and systems are here necessarily interrelated. The prosecution submits that it is not duplicity to put them together, but rather reflects the actuality of the operation at Longford. It appears to me, subject to evidence, that that concept is coherent and does not involve duplicity. The plant the prosecution refers to is yet again the ROD/ROF system, specifically GP 905, GP 902 and the bottom section of the ROD and associated piping.
In the particulars in relation to count 6, it is said that the plant and systems of work should have specified critical operating parameters. The prosecution alleges that the vessels were susceptible to rupture through operating outside the critical operating parameters. In the particulars, however, in particular (d), the instructions, unlike count 4 which is predicated upon written procedures, are "written or oral instructions". That is to say, in count 6 the prosecution contends that the instructions could have been oral. Presumably that is because instructions can be a more immediate thing than procedures. The particulars to count 6 specify that the plant and systems of work should have specified critical operating parameters; there should have been written or oral instructions not to exceed those parameters; and there should have been provision of adequate means for determining operating temperatures of those items of plant.
Count 7 alleges that the accused failed adequately to train employees regarding potential risks associated with the failure of plant at cold temperatures. The prosecution alleges that this is not co-extensive with count 5. Count 5 refers to the antecedent matter of the loss of lean oil circulation. Count 7 refers to the consequential matter of the susceptibility of the plant. The prosecution submits that the distinctions between those two counts are not academic or artificial, but are substantial. The prosecution puts that count 7 is directed to the danger of dealing with plant in its susceptible state.
Count 8 alleges failure to provide adequately trained supervisors capable of safely responding to "the events". As I have told Mr Richter in discussion, and he has acceded to this, that is an unacceptably vague phrase. The events will be specified in count 8, not simply in particulars but on the presentment, as being the loss of lean oil circulation and the operating of the plant at excessively low temperatures. Proceeding then on the basis of the presentment in count 8 specifying those two matters with particularity, the count relates to the failure to provide supervision, that is to say, persons who were both supervisors and were adequately trained to respond to the situation that morning as it arose. The count goes to supervisors who were present but who were not trained to know what to do. Again, it seems to me that this is a count which is competent; it is not duplicitous or imprecise, and it picks up a further significant layer of preventative safety contemplated by the Act and which the prosecution says was not provided.
Count 9 in its present form is that the accused failed, so far as was practicable, to monitor conditions at the workplace. The particulars provided on 8 February 2001 - "See paragraphs 140 to 156 of the summary of opening" - are inadequate. Tighter particularisation is needed than reference to 17 paragraphs of exposition appearing in paragraphs 140 to 156 of the summary of opening, or even the oral submissions of Mr Richter which, as always, were helpful and appear at page 326 of the transcript but which are not particulars as required. The prosecution says the essential particulars of failing to monitor is, first, the lack of on-site engineers (there were engineers in Melbourne available for communication, but none on-site at Longford) and, second, the lack at Longford of recording. The prosecution says there were insufficient chart records, or no chart records, at Longford of the temperature progression during those critical four hours. There was an instantaneous reading on the LCD, but no chart record - as would have been provided by the multipoint temperature recorder - which would have provided progressive data record of various temperatures in GP 1. Assuming as I do that count 9, failure to monitor, is the failure to have on-site engineers and failure to have a multipoint temperature recorder providing a chart record in a working condition and that that is specified, count 9 is competent. The record is said by the prosecution to be a necessary part of the provision of longitudinal knowledge - as distinct from merely an instantaneous read-out on the LCD - and is competent to be maintained if count 9 is tied down specifically to what it is that the prosecution alleges constituted the failure to monitor.
In count 9 the monitoring may involve an overlap with part of the particulars in count 6, paragraph d, namely "the provision of adequate means for determining the operating temperatures of those items of plant". I will receive, if counsel wish, further submissions as to whether count 9 is included in that part of count 6 or whether it is separate from it, because in considering the matter further overnight, it seems to me that there is a potential overlap and if so that overlap ought to be eliminated. A proper means of eliminating it can be the subject of submission. Assuming there is not an overlap between count 9 and count 6 particular d, count 9 is a competent count.
I turn to Count 10.
Count 10 is a qualitatively different count from the other counts. It is that on 25 September 1998 the accused failed to maintain a workplace in a condition that was safe. It is this count which the prosecution says refers to the state and time immediately prior to the rupture and explosion - not the antecedent matters of failure to train, failure to provide systems, failure to provide safe plant. It is immediately linked to the catastrophic failure itself. Essentially the count goes to the failure to prevent the rupture and explosion, given the antecedent (Counts 1 to 8) conditions.
In its original form, Count 20 (on the 21 count presentment) was that Esso "on or about 25 September 1998... failed to provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health by failing to maintain a workplace which was under its control and management in a condition that was safe and without risks to health." The present Count 10 is in like form. Count 20 appeared to me to be vague and, insofar as its content was ascertainable, was circular and repetitive of the original Counts 3 to 19. Considerable discussion and submission ensued, as a consequence of which the particulars of Count 21 (now Count 10) underwent substantial transmogrification. Initially, a particular was provided (of count 10) on 9 February which said, "It was practicable for the accused to prevent the rupture and fire by taking those measures identified in counts 1 to 9 and in addition by provision of a safe mechanism for the prevention of thermal shock to GP 905 by preventing the introduction of lot lean oil into it". I considered, when that further particular was provided, that that still had unacceptable imprecision in it. On 12 February 2001 the following was provided as an additional particularization of count 10: "By referring to a 'safe mechanism' the prosecution contends that it was practicable for the accused to install an automatic low temperature shutdown device preventing the flow of lean oil into GP 905; such shutdown to be activated by the temperature of GP 905 falling below its safe operating temperature."
The prosecution submits that count 10 differs from counts to 1 to 9 in point of time as well as in the content of the allegation. Count 3 alleges that for a period of hours before the rupture the plant was unsafe because of susceptibility to failure, whereas count 10 attaches to the failure to prevent the immediate cause of the rupture, namely the introduction of hot oil into GP 905.
Mr Titshall, in a submission which had the attraction of formal logic, put that the unsafety alleged in count 10, that is to say the lack of a fall back position or shutdown device, conceptually lies within counts 3 to 9 because for the workplace to be safe, such a device, if it were valid in count 10, would be logically equally valid in counts 3 to 9. I agree with that submission as a matter of logic. However, I consider that the prosecution properly is entitled to have a count which is directly tied to the immediate cause of the rupture as distinct from the antecedent period, either four years (count 1) or four hours (count 3) before the rupture. Further, it appears to me that it is proper for the prosecution to be able to direct a count to the actuality and immediacy of the ultimate lack of retrieval, that is to say, a safety device which could have avoided the thermal shock. I consider the prosecution is entitled to lay a count gong to the need, in a safe workplace, of preventing a fault or mistake leading to a disaster. Accordingly, I consider that count 10 is competent and does not inhere in or duplicate the antecedent counts including Count 3. Count 10 is differentiated from the antecedent counts by the provision of the particular of the failure to have an automatic low temperature shutdown device to be activated by the falling temperature.
Count 11 goes to the obligation of the accused to a separate class, that is to say, members of the public and emergency services. It is not predicated upon actual presence, but goes to the obligation to care for a class. It is precise and competent in law and accordingly I do not propose to intervene to exclude it.
For those reasons I consider that the 11 counts as presently filed are competent, proper and fair to proceed. I am not persuaded that the counts should be reduced, as contended by Mr Titshall, to 3 counts. Accordingly I so ruled yesterday.
Of course, as to each one of these counts, the evidence will say whether the count is sustained or not. That is a matter for the trial.
Some little consideration will need to be given to whether there is an overlap between counts 9 and in particular paragraph d of count 6. There will need to be
drafting consequences as to tying down "the events" in count 8 to loss of lean oil circulation and not operating at safe temperatures, and that can be done. Other minor matters of expression also can be effected.
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