McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd - [2023] NSWDC 255

District Court

New South Wales

Amendment notes

Medium Neutral Citation: McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255
Hearing dates: 11, 17-20, 23-27, 30-31 August 2021; 1, 7-8, 15-17 September 2021; 19- 22 October 2021; 1-2, 8-10, 29-30 November 2021, 1-2, 9 December 2021; 14-15 July 2022
Date of orders: 13 July 2023
Decision date: 13 July 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
2 I find the defendant not guilty.
3 The Second Amended Summons is dismissed.
4 I order that the prosecutor is to pay the defendant’s costs of the proceedings as agreed or assessed pursuant to s257G Criminal Procedure Act 1986.
5 Exhibits are returned.
NOTATION
1 The Court notes this was an appropriate matter for the retention of senior and junior counsel by both parties given the length and complexity of the proceedings.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury

Legislation Cited:
Explosives Act 2003
Explosives Regulation 2013
Occupational Health and Safety Act 2000
Work Health and Safety Act 2011
Work Health and Safety (Mines and Petroleum Sites) Regulation 2014

Cases Cited:
Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bulga Underground Operations v Nash [2016] NSWCCA 37
Camden v McKenzie [2008] 1 Qd R 39
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Coote v Kelly [2016] NSWSC 1447
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Fox v Percy (2003) 214 CLR 118
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560
Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
Hughes v Barbara Mines Ltd (No 4) [2010] WASC 160
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
McGraddie v McGraddie [2013] 1 WLR 2477.
New South Wales v Hunt (2014) 86 NSWLR 226
Onassis v Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
Royall v The Queen (1991) 172 CLR 378
Shepherd v The Queen (1990) 170 CLR 573
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
Watson v Foxman (1995) 49 NSWLR 315
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85

Texts Cited:
AS 2187.2 - 2006 Explosives – Storage and use Part 2: Use of Explosives

Category: Principal judgment
Parties: McColm (NSW Department of Planning and Environment) (Prosecutor)
Moolarben Coal Operations Pty Ltd (Defendant)
Representation:
Counsel:
P McDonald SC/W Thompson (Prosecutor)
A Moses SC/J Alderson (Defendant)
Solicitors:
Lander & Rogers (Prosecutor)
Seyfarth Shaw Australia (Defendant)

File Number(s): 2019/154712
Publication restriction: None

Judgment

Introduction
Facts
General background
The organisation of drill and blast activities at the Mine
The process of firing a shot
Blast Design
Drilling
Delineation of the blast area
Priming
Charging
Stemming
Tying up
Guarding the blast
Firing
Inspection for misfires

The safety procedures at the Mine
The Safety Management System
Training
Induction
The Communication and Consultation Procedure
The Safety Observation Procedure
The Blast Guard Duties Procedure

Events prior to the incident
The appointment of Deon Fisher to the position of Drill and Blast Superintendent
Explosives System Audit
Training on the CFE-SWP
The STAC Consulting Pty Ltd Risk Assessment
The Explosives Principal Control Plan
The Charging and Firing of Explosives Procedure
Training on the CFE Procedure

Events of 17 May 2017
Factual issues
Events prior to the incident
The primary firing location
The secondary firing location
The blast
Findings relevant to the conversation on the video recording
Events after the incident

Events following 17 May 2017
Disciplinary actions
MCO’s Internal Incident Investigation

Evidence about the applicability of the PEZ to shotfirers
Appendix L to AS 2187
Orica training course documents
Was there a common practice at the Mine of firing shots from within the PEZ? (the common practice issue)
Introduction
The relevant legal principles to be applied in assessing the oral evidence
The oral evidence on the common practice issue
Evidence of Cameron Clarke
Evidence of Jarrod Toohey
Evidence of Darren Kelly
Evidence of Ian Gorman
Evidence of Nathan Walsh
Evidence of Brendan Large
Evidence of Peter Sinnett
Evidence of Brett Fitzgerald
Evidence of Darren Price
Evidence of Deon Fisher
Evidence of Michael Chaplin
Evidence of Nicholas Craig
Evidence of Tim Oliphant
Evidence of Grant Arnold
Evidence of Inspector Hanlon
The pleaded case on the common practice
The prosecutor’s closing argument on the common practice issue
Findings on the common practice issue

The Elements of the Offence
The Relevant Law
Causation

consideration

Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [28]-[30] of the Summons?
The pleaded risk
The likelihood of the risk occurring
The degree of harm
The defendant’s knowledge of the risk
Cost of the particularised measures
The common practice issue
The particulars of breach of duty
28 The defendant failed to provide and maintain a safe system of work at the Moolarben Coal Complex for its open cut operations in that it did not provide:
28.1.1 an express direction in the CFE Procedure that no person, including a shotfirer, was to remain inside the Personnel Exclusion Zone of 500m during an open cut blast; and or ……………………………………………………………………………………..
29 The Defendant failed to provide adequate training and instruction for its open cut blasting operations conducted at the Moolarben Coal Complex in that it did not provide an express instruction to its blast crews that:
29.1 under no circumstances were they to be present within the Personnel Exclusion Zone during a blast; and/or
29.2 the CFE Procedure applied without exception
Express direction and training on it
28 The defendant failed to provide and maintain a safe system of work at the Moolarben Coal Complex for its open cut operations in that it did not provide:
…
28.1.2 adequate monitoring of compliance with the CFE Procedure by the blast crews and in particular, compliance with the Personnel Exclusion Zone in that the CFE Procedure did not require a shotfirer to log the location from which a shot was fired; and/or ……………………………………………………………………………………..
28.1.3 provide to the blast crews a mechanism or device such as a range finder or GPS to assist blast crews to determine whether they were outside the Personnel Exclusion Zone before initiating a blast; and/or
28.1.4 ensure that the maps attached to the Blast Control Plans and Blast Control Communications documentation were clear and could be readily interpreted by the blast crews to locate the Personnel Exclusion Zone.
Adequate monitoring of compliance with the PEZ by requiring post-blast logging of the firing location
Provision of a measuring device
Map quality
30 The Defendant failed to provide adequate supervision for its open cut blasting operations that were conducted at the Moolarben Coal Complex in that:
30.1 it failed to ensure that the person appointed to the position of Drill and Blast Superintendent had suitable qualifications and appropriate experience for the position or alternatively was provided with appropriate training; and/or
30.2 it failed to monitor adequately Deon Fisher in the role of Drill and Blast Superintendent through observation and assessment to ensure he was sufficiently competent for the role and understood his responsibilities to blast crews.

Conclusion on Element 3

Element 4 - Did the defendant’s breach of duty expose the Blast Crew to a risk of death or serious injury?
Conclusion on Element 4

Conclusion and Orders

Judgment

Introduction

Moolarben Coal Operations Pty Ltd (MCO or the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Brett Fitzgerald, Deon Fisher, Peter Sinnett, Brendan Large, David Morris and Michael Chaplin (collectively the blast crew), workers at work in the business or undertaking, to a risk of death or serious injury contrary to s 32 of the Act.
At about 12.07pm on 17 May 2017, Mr Fitzgerald, a shotfirer employed by MCO, detonated a blast at the open cut mine operated by MCO in Ulan, New South Wales (the Mine). The blast crew were observing the blast from a position about 246m south of where the explosives were set (the blast area), and within a 500m personnel exclusion zone (PEZ) and a 300m equipment exclusion zone (EEZ) specified in the Charging and Firing of Explosives Procedure issued in about February 2017 (the CFE Procedure). A piece of clay about the size of a football (flyrock), projected by the blast struck one of the vehicles being used by the blast crew, causing it to be damaged and forcing the workers to take evasive action. Immediately afterwards, the fumes from the blast travelled in the direction of the blast crew requiring them to get into the vehicles and move further away until the fumes dissipated. At this time, the blast crew were within the Fume Management Zone (FMZ), which was identified and marked on a map created during the planning of the blast.
MCO admitted Elements 1 and 2 of the charge, which are set out at [436] below. The legal issues in the case are:

Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [28]-[30] of the Second Amended Summons (the Summons)? (Element 3)

Did the defendant’s breach of duty expose the Blast Crew to a risk of death or serious injury? (Element 4)

MCO knew of the dangers to personnel posed by flyrock and fumes. Flyrock was defined in MCO’s Blast Management Plan (BMP) as any material ejected from a blast site by the force of a blast. The BMP stated that flyrock had the potential to damage buildings and infrastructure and was a safety hazard to personnel. Post-blast fume (fumes) was defined in MCO’s Blast Fume Management Strategy (BFMS) as a product of the combustion of explosives. The BFMS stated that:

fumes are composed of toxic gases including nitrogen oxide which has a reddish-brown colour and others that are not visible,

fumes may be released in significant quantities from a blast, and

exposure to even quite low concentrations of these gases could pose a serious health risk to personnel.

The factual issue in this case is whether shotfirers were permitted by MCO to detonate a blast from a firing location that was within the PEZ. It was common ground that the blast crew knew that the CFE Procedure stated that the PEZ was 500m and was expressed to apply to “all personnel”. The prosecution case was that a common practice had developed at the Mine that shotfirers would regularly detonate a blast from a firing location inside the PEZ because, based on the shotfirer’s experience at the Mine and their external training on the content of Appendix L of the (Appendix L and AS 2187), the shotfirers believed that the PEZ did not apply to them or to persons authorised by them to be at the firing location (authorised persons). MCO’s case was that the CFE Procedure was explicit in that it prohibited “all personnel” from being within the PEZ and that it otherwise took all reasonably practicable steps to ensure that the PEZ was complied with.
For the reasons that follow, I am not satisfied beyond reasonable doubt that the prosecutor has proved all of the elements of the offence.

Facts

General background

The defendant is the operator of the Mine which is known as the Moolarben Coal Complex. The Mine is located east of Ulan and approximately 40 kilometres north of Mudgee in the Western Coalfields of New South Wales. The Mine is located between the Ulan and Wilpinjong Coal Mines and occupies an area of about 11,000 hectares.
MCO is a wholly owned subsidiary of Yancoal Australia Ltd (Yancoal) that operates seven coal mines in New South Wales and Queensland.
The Mine comprised of four open cut mining areas (OC1, OC2, OC3 and OC4) and three underground mining areas (UG1, UG2 and UG4). The incident occurred in OC4.
At the time of the incident, coal was extracted from the ground in OC4 using a drill and blast method. OC4 was set out in a grid pattern and blasts were conducted in strips. Holes were drilled into the ground which were then filled with explosives and detonated to move dirt (overburden) and rock (cast) to allow excavators to get access to the coal seam underneath.
Drill and blast activities were carefully planned and executed to control the dangers associated with the use of explosives, including flyrock and fumes, and to maximise the benefits to production that could be obtained from blasting, for example, the movement of dirt in a certain direction and the shape and looseness of the “muckpile”, which affected its suitability for the planned method of extraction.
The detonation of a blast was referred to at the Mine and in the industry as “firing a shot”.

The organisation of drill and blast activities at the Mine

Drill and blast activities took place at the Mine seven days per week, but blasts were not permitted to be detonated on Sundays. OC4 had two blast crews (support A crew and support B crew), each consisting of personnel including appointed shotfirers, bench hands and dippers.
Shotfirers were required to hold a Blasting Explosives Users Licence (BEUL) issued by SafeWork NSW. In order to qualify for a BEUL, a shotfirer was required to complete a recognised training course, have relevant experience, have a security clearance known as an Unsupervised Handling Licence (UHL) and to pass written and oral examinations conducted by the New South Wales Resources Regulator (the Regulator). A BEUL entitled a shotfirer to use and prepare for use an explosive or explosive precursor: ss 3 and 6 Explosives Act 2003. The recognised training course completed by all but one of the shotfirers in this case was conducted by Orica Limited (Orica). The content of that training course is relevant and I will return to it later.
MCO had an additional process of “appointing” shotfirers, which was an acknowledgement by Mine management that the person was suitable to perform the duties of a shotfirer at the Mine. The appointment set out the duties and responsibilities of a shotfirer, which were acknowledged by the appointee signing the appointment document (appointment) in the course of an interview with the statutory Mine Manager where it was established on behalf of MCO that the appointee understood the requirements of the role. MCO also applied this process to other positions held by members of the blast crew, such as blast guards, magazine keeper and the blast controller.
Shotfirers were responsible for a blast area from the time that it was delineated until after the blast was detonated and the shotfirer had inspected the blast area for misfires (undetonated explosives) and gave the all-clear. During the course of preparation of the shot, only persons authorised by the shotfirer could enter the blast area.
Bench hands acted as assistants to the shotfirers in completing the work necessary to fire a shot. MCO had a requirement that all members of the blast crews hold a UHL. A number of the bench hands at MCO were qualified shotfirers but did not hold an appointment to act as a shotfirer from MCO.
Dippers measured the depth of the drill holes to determine the amount of explosives required for each hole. Dippers also gathered relevant information about the hole which may affect the blast, including the amount of water in the hole, if the sides of the hole were damp, if the hole was blocked or short as well as any hazardous ground conditions.
The holes were loaded with explosives by workers employed by Orica, the Mine’s explosives supplier at the time of the incident.
The blast crews worked alternately on a roster of 14 x 12-hour day shifts per month. The day-to-day work of the blast crews was supervised by the Drill and Blast Co-ordinator, Darren Price. Mr Price was responsible for conducting the daily pre-start meetings for the blast crews. Mr Price reported to the Drill and Blast Superintendent, Mr Fisher. On the weekends, the designated shotfirer supervised the blast crew and reported to the Open Cut Examiner (OCE).
Mr Price also held the position of Blast Controller. The Blast Controller was responsible for clearing the PEZ prior to the shot being fired. This involved the following actions:

appointing blast guards and deciding where to position them;

holding a blast guard meeting about 30 minutes before a blast to explain where he wanted them positioned;

taking control of radio communication immediately before a blast;

driving around the PEZ to ensure that it was clear of people; and

handing control of the shot to the shotfirer once he was satisfied that the PEZ was established and cleared of personnel.

The Drill and Blast Engineer, Mr Chaplin, was responsible for the design and planning of blasts at the Mine to ensure that they could be conducted safely and to achieve the desired production results. At the time of the incident, Mr Chaplin provided his professional services through a company operated by him, that had a contract with MCO.
At the time of the incident, the Mr Fisher and Mr Chaplin reported to the Technical Services Manager, Nick Craig.
Mr Craig reported to the statutory Mine Manager, Tim Oliphant. Steve Archinal was the General Manager and the most senior MCO employee at the Mine.

The process of firing a shot

A blast, also known as “firing a shot”, involved a number of steps. It is not necessary to set out all of them in detail.

Blast Design

Each blast was designed by the Drill and Blast Engineer and recorded in a number of documents, including the drill plan, the tie-up plan, the initiation plan, the Approval to Drill Checklist and the Approval to Blast Checklist.
The blast process commenced with the issue of the drill design by the Drill and Blast Engineer. The drill design had to take into account the matters specified by the Approval to Drill Checklist. Once approved, the drill design was sent to the production team for the holes to be drilled.
The Drill and Blast Engineer was responsible for designing each blast and required by various safety documents to consider the control of flyrock and the control of fumes by minimising the generation of fumes and/or containing fumes within the FMZ. The matters relevant to the control of flyrock and fumes were provided for in the Approval to Blast Checklist that was required to be completed by the Drill and Blast Engineer and counterchecked by the Technical Services Manager or his delegate. At the time of the incident, Mr Craig had delegated the sign-off responsibility to Mr Fisher.

Drilling

Holes were drilled in the designed pattern with specific hole locations, angles, diameters, spacing and depths in the blast area. The depth of each hole was measured by a dipper to calculate the amount of explosives required to be placed in each hole.

Delineation of the blast area

Before work commenced loading holes with explosives, the blast area was delineated with signage, witches hats and bunting. Personnel other than the blast crew were not permitted within the blast area without the permission of the shotfirer, while the shot was being prepared.

Priming

A detonator about the size of a soft drink can was connected to down line and lowered into each hole. The down line was tied off to a peg at the top of each hole.

Charging

Each hole was then loaded with an explosive emulsion, consisting of prilled ammonium nitrate and diesel, by a truck that mixed the explosive at the time of loading. The amount of explosive loaded into each hole was recorded by equipment in the truck used to load the explosive emulsion. The holes were loaded by Orica employees.

Stemming

The holes were then filled with angular aggregate by a truck with an auger and chute attached. Angular aggregate was used because it locked together when loaded into the hole. The purpose of stemming was to contain the blast, to direct the explosive force sideways and down and to prevent it escaping through the path of least resistance i.e., through the top of the hole.

Tying up

The down lines were then connected to a main line that was attached to a detonation box used to initiate the blast. The tie-up pattern was designed by the Drill and Blast Engineer to initiate the blast of each hole in a particular sequence. As a final check, the shotfirers would “walk the shot” in pairs, to check that the blast had been correctly tied-up.

Guarding the blast

About 30 minutes before a blast, the Blast Controller convened a meeting of the blast guards. The Blast Controller identified the boundary of the PEZ on a plan prepared by the Drill and Blast Engineer and assigned locations to blast guards from which vehicles or machinery were used to block access into the PEZ. The blast guards communicated with the Blast Controller by radio when they were in position. A blast guard was required to ensure that no one entered the PEZ prior to the blast or before the all-clear was given.
Once the blast guards were in position, the Blast Controller drove around the PEZ to ensure that it was clear of personnel. At this time the Blast Controller drove a vehicle displaying flashing lights and sounding a siren. When the Blast Controller was satisfied that the PEZ was clear of personnel, he handed over conduct of the shot to the shotfirer.
The shotfirer acknowledged control of the shot on the radio, followed by timed announcements as to when the shot would be fired.

Firing

The detonation of blasts could be done both electronically and by non-electronic means. An electronic blast was detonated by sending a signal from one detonation box at the firing location to another detonation box at the blast site that was connected the main line. The main line was connected to the down lines that were inserted into the blast holes, each of which were connected to a detonator.
A non-electronic or “non-el” blast was conducted by the use of “shocktube”. Shocktube is hollow plastic tubing that contains chemicals that sends a shock wave through the tube at high speed that acts as a detonating charge. Shocktube was available in 500m rolls at the Mine and could be joined if a longer length was required but joining shocktube was not optimal because the join produced a point where the initiation of the blast could fail.
At the time of the incident, the majority of shots were fired electronically.
Immediately before firing the shot, the shotfirer would announce over the radio that he was firing the shot.
Blasts were required to be filmed by the Mine to keep a record of the generation of fumes. There were at least two video cameras that could be used for this purpose. They could be set up on tripods within the PEZ at suitable vantage points. After a blast, the footage was downloaded from the cameras and filed electronically. At the time of the incident, Mr Chaplin was responsible for filming the blasts and filing the footage.

Inspection for misfires

After a blast, the shotfirer inspected the blast area for misfires, which occurred when the explosive in a hole failed to detonate. Once satisfied that the blast area was safe, the shotfirer would give the “all clear” over the radio for work to resume as normal at the Mine.

The safety procedures at the Mine

The following paragraphs set out the overarching safety procedures at the Mine and some relevant specific procedures, being the Blast Guard Procedure and the Safety Observation Procedure. The CFE Procedure is set out later in the chronology.

The Safety Management System

As at 17 May 2017, MCO had in place a documented Safety Management System (SMS) to satisfy its obligations under clause 13 Work Health and Safety (Mines and Petroleum Sites) Regulation 2014.
The SMS was an umbrella policy describing MCO’s broad aims for the safe operation of the Mine, the arrangements for managing risk at the Mine and the systems and procedures in place to control risks to health and safety at the Mine.
The SMS states that the first objective of the “Yancoal Way – Our Values” is “to improve safety toward the achievement of zero harm” and that the Yancoal Way requires adherence to the guiding principles that included:

Be Safe safety is not optional. It is considered in everything we do to eliminate harm to our people.

Safe people

Safe practices

Safe plant

Safe environment

Everyone is responsible [1]

1. Emphasis in the original.

Clause 4.3 of the SMS sets out the Yancoal Code of Conduct for employees and contractors, that includes the following relevant matters:

Generally – it is the employee’s/contractor’s responsibility to comply with the Code of Conduct.
Compliance with laws and regulations – You must be aware of, comply with, your duties and obligations under all laws and regulations relating to your work.
Occupational Health and Safety – Yancoal is committed to maintaining a healthy and safe working environment for its employees. All appropriate laws and internal regulations (including occupational health and safety laws) will be fully complied with. All people have obligations to assist in ensuring that this situation is maintained at all times. [2]
2. Emphasis in the original.
1. The SMS stated the SMS Framework Hierarchy to be:
1. Values,
2. Yancoal Code of Conduct,
3. Yancoal Policies and Standards and
4. Moolarben Policies, Plans and Procedures.

Training

Workers at the Mine were provided with regular training on a number of topics. Each training competency lasted for a specific period before it was required to be repeated. The training records were computerised and the time when a particular training competency expired was noted. It was common for a worker’s knowledge to be tested through the administration of written assessments that were marked by qualified and appointed assessors. MCO retained those written assessments on file.

Induction

Each worker was required to undergo safety induction training when they commenced work at the Mine, as either a contractor or as an employee of MCO. The induction program took 3 days to complete and covered a number of topics.
Induction training included training on the Yancoal Health and Safety Policy (the HS Policy). The HS Policy provided that Yancoal was committed to “zero harm” and providing a “safe and healthy work environment”. The HS policy required, inter alia, a collective effort to:

Look after each other.

Identify hazards and manage risks.

Implement and validate an effective documented health and safety management system.

Consult, co-ordinate and communicate with all stakeholders.

Induction training also included training on the Yancoal Code of Conduct and the MCO Code of Conduct. The Yancoal Code set out the general requirements of all Yancoal employees. The MCO Code set out the actions and behaviours required of MCO employees. The content of the Codes overlapped.
Compliance with each Code was stated to be mandatory. The Yancoal Code required compliance with Yancoal Occupational Health and Safety Policies and Procedures and any duties and obligations imposed on an employee by law. The Yancoal Code stated that non-compliance could lead to disciplinary action in accordance with the Yancoal Disciplinary Procedure.
The MCO Code provided that activities were to be conducted safely, through compliance with systems in place to control workplace hazards. The MCO Code stated that non- compliance with it could lead to termination.
Workers were also trained during the induction process and from time to time on how to identify risks and the procedures that could be used to do so, including the completion of PRIDES and the Job Safety Analysis Procedure (JSA). Workers were trained that they could and should stop work if they identified an unsafe situation and seek input from a supervisor.

The Communication and Consultation Procedure

The purpose of the Communication and Consultation Procedure (CC Procedure) was stated to support safety initiatives at MCO. The CC Procedure set out when consultation was to occur, which included the conduct of risk assessments, and during the identification of hazards and control measures. The CC Procedure stated at 4.4:

Workers will be given opportunities to participate in risk assessments, comment on draft versions of the safety management system and provide feedback to safety committee members regarding health, safety and environmental matters. At all times the safety management system will be available to workers for review and comment.

The CC Procedure encouraged “open and honest participation” by workers in the creation of “a safe and effective workplace”.

The Safety Observation Procedure

The Safety Observation Procedure (SO Procedure) required managers, supervisors and superintendents to conduct random safety observations of activities being undertaken at the Mine. The procedure required the supervisor to observe, and then to stop and engage with the workers at a time when it was safe to do so, to discuss what they were doing and to identify the hazards in the task and the control measures being implemented. Part of the task involved identifying if there was a written procedure applicable to the work that the workers were doing and if the workers were following that procedure.
The safety observation was recorded by filling in a form that was electronically filed. Each observer was required to conduct three safety observations per month.
A number of the blast crew witnesses gave evidence of their experience of being involved a safety observation conducted by various people. For example, Jarrod Toohey, a bench hand in support crew B gave evidence that he knew that safety observations could take place “anywhere, anytime”, including when blast crews were working. His evidence was that the point of safety observations was that management or others could observe workers without alerting them to the fact that they were being observed.

The Blast Guard Duties Procedure

The Blast Guard Duties Procedure (BGD Procedure) set out the guidelines for a worker carrying out the role and responsibilities of a blast guard.
The BGD Procedure required that a pre-blast meeting was held 30 minutes prior to the scheduled blast time. At the pre-blast meeting, the Blast Controller showed the blast guards the extent of the blast area on a map that had been prepared by the Drill and Blast Engineer. The map had the PEZ, the EEZ, the FMZ and suggested blast guard locations marked on it. The Blast Controller allocated numbers and positions to the blast guards by reference to the numbers on the map and provided information about any personnel and/or equipment that may be impacted by the blast, together with any other relevant information.
Blast guards were required to attend the pre-blast meeting and to be in their allocated positions 20 minutes prior to the scheduled blast time. Blast guards were required to position their vehicle in a manner that restricted access to the area and to ensure that their vehicle’s flashing lights were operating. Blast guards were required to ensure that personnel and equipment were prevented from accessing the blast area, to inform the Blast Controller that they were in position, to act on the Blast Controller’s instructions and to notify the Blast Controller of the presence of any unauthorised personnel and/or equipment.
During the firing sequence, a blast guard was required to ensure that no traffic or personnel entered the blast exclusion zone, to respond to the shotfirer during the blasting sequence, to follow the instructions of the shotfirer and to maintain radio silence.
The note to Clause 4.3 of the BGD Procedure (emphasised in bold in the original) provided:

The firing sequence is the most critical time to ensure that there is no breach of the blast exclusion area. If at any time during the firing sequence the blast exclusion zone is breached the Blast Guard will immediately call, “STOP, STOP, STOP” over the two-way radio to stop the firing sequence.

Events prior to the incident

The appointment of Deon Fisher to the position of Drill and Blast Superintendent

Mr Fisher was appointed as the Drill and Blast Superintendent at the Mine in March 2016. The prosecution case was that he was not properly qualified for the role and failed to adequately perform his duties, so it is necessary to set out his background.
Mr Fisher qualified and worked as a painter before working in civil construction as a heavy vehicle operator. He commenced working at the Mine in about January 2010 as a dump truck driver, later progressing to operating excavators and bulldozers. At the same time, Mr Fisher attended TAFE completing a Certificate IV course to qualify as an OCE. One of the core courses in the Certificate IV was entitled “Conduct surface shotfiring operations”. This was a theory course that did not require him to handle explosives. After completing written and oral examinations with the Regulator, Mr Fisher received his OCE qualification on 26 October 2012.
On 27 November 2012, Mr Fisher was appointed by MCO to be an OCE. That role involved supervising one of four production crews at the Mine and included performing regular safety inspections.
In about March 2015, Mr Fisher was promoted to the role of Senior OCE/Production 3. This role involved providing support to the Production Superintendent and communicating production plans to the other OCEs. In this role, he did not have to supervise a production crew, he filled in for other OCEs when they were on leave and acted up in the superintendent role from time to time.
During his time as an OCE and Senior OCE, Mr Fisher had limited involvement with the drill and blast crews. He assisted with stemming on occasions and acted as a blast guard from time to time. His main concern as a blast guard was to ensure that production equipment was outside of the EEZ.
In March 2016, the position of Drill and Blast Superintendent became vacant. Mr Arnold and Mr Archinal had a discussion about a suitable internal candidate, and it was decided to approach Mr Fisher.
At the time that Mr Fisher was appointed to the role on 16 March 2016, MCO knew that Mr Fisher had limited experience in drill and blast activities and as a superintendent and that he would need support in the role. At the time of his appointment, Mr Fisher did not hold some of the desirable qualifications listed in the job description of the Drill and Blast Superintendent. He did not have the skills to compile the drill and blast engineering plans or to be able to provide technical advice on drill and blast activities. He also lacked computer literacy and familiarity with the administrative requirements of the role.
Notwithstanding these deficiencies, Mr Fisher was well regarded at MCO. Mr Fisher had a history of supervisory positions at MCO in which he met production targets. He had a good rapport with the workers and was an effective leader. MCO were prepared to provide support to Mr Fisher to take the promotion. I infer from the evidence that Mr Arnold and Mr Archinal believed that Mr Fisher could handle the promotion even if it involved new and unfamiliar duties.
Mr Fisher gave evidence that he felt challenged by the appointment to Drill and Blast Superintendent and was eager to go as far as he could in mining. He also acknowledged that he had some concerns and at the beginning felt a bit overwhelmed, particularly by his lack of technical knowledge. He told Mr Craig and and Mr Arnold about his concerns and they arranged for Mr Chaplin to assist him. After this, he decided to accept the role.
Mr Chaplin was retained by MCO to assist Mr Fisher with the planning and budgeting of drill and blast activities at the Mine. At some point prior to the incident, Mr Craig delegated the responsibility for signing off on the design plans for blasts to Mr Fisher. Mr Chaplin’s evidence was that the effect of Mr Fisher signing off on those plans was to accept responsibility for them if anything went wrong.
Mr Fisher did not undertake all of the duties of the Drill and Blast Superintendent and he obtained assistance from Mr Chaplin and other engineers to do so. The bulk of the duties he did not undertake related to the technical and financial planning aspects of the role.
Nothing was ever raised with Mr Fisher before the incident, to the effect that he was not performing to the standard required of him. To the contrary, his performance reviews were very favourable, and noted that his approach to safety was “excellent”.

Explosives System Audit

On 25 and 27 October 2016, Inspectors Jeff Hanlon and Steve Bath, from the Regulator, undertook an Explosives System Audit (the Audit) at the Mine. Inspector Hanlon was responsible for Explosive Security at the Regulator and had developed the audit document for use at mines undertaking drill and blast activities. The Audit was conducted by Inspector Hanlon putting the information provided to him by the relevant workers at the Mine into the document and then determining what remedial actions were required to be undertaken for the Mine’s drill and blast activities to be compliant with the relevant legislation. Inspector Hanlon also made a number of suggestions to make the drill and blast activities safer. The audit document identified that Inspector Hanlon sought and obtained information from Grant Arnold, MCO’s Health and Safety Co-ordinator, Mr Oliphant, Mr Craig, Mr Fisher, Mr Price, and Mr Chaplin.
Inspector Hanlon issued a prohibition notice dated 2 November 2016 pursuant to s 195 of the Act, directing that all charging and firing operations were to cease until there was evidence provided to the Regulator that members of the shot crew were trained and competent in the Explosives Management Plan (EMP) and all associated shotfiring procedures for the Mine. The relevant procedure at that time was the Charging and Firing of Explosives Safe Work Procedure dated 3 February 2012 (CFE-SWP).
Inspector Hanlon also issued three improvement notices dated 1 November 2016 pursuant to s 191 of the Act, stating that:

MCO’s blasting procedures were out of date;

there was no evidence that a risk assessment had been undertaken for the development of the EMP;

there was no evidence of the persons consulted for the preparation of the plans and procedures;

there was no evidence of how the EMP had been communicated to the workers.

The improvement notices required MCO to take remedial steps on or before 31 January 2017.

Training on the CFE-SWP

On 2 November 2016, support crew B were provided with training on the CFE-SWP and the BMP. Their competency on the CFE-SWP was assessed by way of a written assessment. I pause to note that the PEZ (500m) and the EEZ (300m) were the same in the CFE-SWP as they were in the CFE Procedure that was adopted in about February 2017.

On 3 November 2016, Mr Oliphant sent the training records of support crew B by email to Inspector Hanlon, to demonstrate those workers had been trained on the CFE-SWP and all other procedures relating to drill and blast activities.
On 4 November 2016, Mr Oliphant sent the training records of support crew A by email to Inspector Hanlon, to demonstrate those workers had been trained on the CFE-SWP and all other procedures relating to drill and blast activities.
On 4 November 2016 Inspector Hanlon advised Mr Oliphant by email that the prohibition notice had been satisfied.
I reject the prosecution submission that the lack of training records meant that the workers had not been trained on the requirements of the CFE-SWP. Inspector Hanlon’s evidence was that at the time of the Audit, he believed that the blast crews at the Mine were competent and had been trained in the CFE-SWP but there were no records to substantiate that they had received that training. Inspector Hanlon’s opinion was confirmed by the evidence of the members of the blast crew that they had been trained on the CFE-SWP and that they understood the requirements for the PEZ and the EEZ in that document, mainly because those requirements did not change in the later CFE Procedure.
Further, the workers were trained multiple times on the requirement to establish the PEZ and the EEZ in the period of November 2016 to May 2017. I am satisfied that all members of the blast crew knew of the requirements of the PEZ and the EEZ on 17 May 2017. Accordingly, even if the workers had not been trained on the CFE-SWP prior to the Audit, which I do not accept, it is of no consequence.

The STAC Consulting Pty Ltd Risk Assessment

On 18 November 2016, a risk assessment was completed of the OC explosives risk controls at the Mine (the Risk Assessment). The Risk Assessment was facilitated by Stacey Healy (MCO’s Health Safety and Training Coordinator) and compiled by an independent mining safety auditor, Kylie Hanigan of STAC Consulting Pty Ltd (STAC). Ten MCO employees participated in the Risk Assessment, including Mr Fisher, Mr Price, Mr Oliphant, Mr Craig, Mr Walsh, Mr Fitzgerald and Mr Toohey, along with two representatives from MCO’s explosives supplier at the time, Dyno. A further review was conducted with the drill and blast crews on 1 December 2016.
The purpose of the Risk Assessment was to identify potential explosives control risk sources at the Mine and whether they were adequately controlled by existing control measures in place. It was intended that the Risk Assessment would underpin the Explosives Control Principal Plan (EPCP) for the site.
The Risk Assessment identified the risk of harm to people from flyrock and fumes. It specified a “Blast Exclusion Zone” of 500m for people, together with a “Fume Exclusion Zone” based on fume prediction, as “isolation” controls. The blast design by the Drill and Blast Engineer was specified to be an engineering control for each. In addition, a number of administrative controls were listed, including the posting of the blast guards, having appointed shotfirers and an appointed blast controller.
The Risk Assessment noted a number of potential causes of flyrock, including incorrect loading of explosives and incorrect height of stemming material.

The Explosives Principal Control Plan

The EPCP was amended following the completion of the Risk Assessment.
The EPCP relevantly provided that:

The Drill and Blast Engineer was responsible for blast design and required to give consideration to the control of flyrock, to ensure that it did not present a risk to people, as well as the minimisation of fumes.

Holes were to be loaded in accordance with the blast design.

Priming, loading and stemming were to be undertaken in accordance with the CFE Procedure.

Blast holes were to be tied in accordance with the shot initiation design.

Other controls were to be included in the CFE Procedure.

The Charging and Firing of Explosives Procedure

The CFE Procedure was referred to in the EPCP and was introduced at about the same time following the Risk Assessment. It replaced the CFE-SWP that had been in force since February 2012.
The first version of the CFE Procedure was issued in about December 2016.
The version of the CFE Procedure in force on 17 May 2017 was issued on 20 February 2017.
The CFE Procedure stated that it applied to “all personnel conducting blasting operations at Moolarben Coal Operations – Open Cut”.
The CFE Procedure set out, in chronological order the steps to be taken and procedures to be followed for a blast to occur. The relevant steps and procedures were referred to at clauses 4.10.5 – 4.10.8, which are set out as follows:

4.10.5 Establishing the Blast Clearance Zone

The Drill & Blast Engineer will establish the blast clearance and fume management zone.

The Drill & Blast Coordinator in conjunction with the shotfirer, is responsible for determining blast guard locations. Wind direction and speed, equipment and personnel working in the area and flyrock are to be considered when establishing the blast guard locations. All accesses to be guarded and the number of blast guards required are to also be included on the plan.

Minimum blast exclusion zones are:

Personnel – 500m

Equipment – 300m

For any blast, the blast exclusion zone may be extended if an assessment is made regarding the shot or ground conditions. Examples include misfires, reduced burdens, overloaded holes and fume.

4.10.6 Blast Controller

The Blast Controller is ultimately responsible for ensuring that all personnel and equipment have been cleared from the blast and surrounding areas and is in a safe position prior to and during the firing of the shot.

Prior to the blast guard meeting the blast controller is responsible for:

Establishing and maintaining the security of the blast perimeter

Checking the security of the blast exclusion zone prior to handing control of the blast area to the shotfirer.

Placing blast guard signage is placed (sic) around the blast exclusion zone at the designated blast guard locations.

Checking that equipment is located outside the 300m blast exclusion zone as a minimum

Carrying out the pre blast meeting.

4.10.7 Blast Guards and Pre-Blast Meeting

Blast guarding activities will be conducted in accordance with Procedure – Duties of a Blast Guard.

4.10.8 Initiating the Blast

The blast controller is to provide a copy of the pre blast assessment sheet and blast guard locations on a clearance map along with the blast guard’s name and number to the designated shotfirer.

The blast controller will sweep the area to make sure all guards are in there (sic) correct location and all equipment is clear of the exclusion zone and then hand the shot over to the shotfirer.

Training on the CFE Procedure

Training on the CFE Procedure commenced in about December 2016 at the time that it was introduced.
The training records demonstrated the following workers were assessed as competent on the content of the CFE Procedure on the dates provided:

Mr Large – 24 December 2016;

Mr Fisher, Mr Sinnett, Mr Clarke, and Mr Toohey – 29 December 2016; and

Mr Fitzgerald – 4 January 2017.

Version 4 of the CFE Procedure was approved for issue on 4 January 2017. Version 4 erroneously reversed the requirements for the PEZ and the EEZ, stating that the PEZ was 300m and the EEZ was 500m. Nothing turns on this error. The evidence of the workers was that they identified this as an error in the document at the time that training was provided on it and the error was corrected. More importantly, each worker gave evidence that they clearly understood that prior to the incident, the CFE Procedure stated that the PEZ was 500m and the EEZ was 300m, and that had been the case for a long time.

Events of 17 May 2017

Factual issues

Much of what occurred on the day of the incident was not in dispute.
The factual issue in the case centred around whether there was a common practice at the Mine to fire shots from within the PEZ (the common practice issue). The resolution of the common practice issue requires consideration of all of the evidence as to:

the content of the relevant safety documents;

the practice of firing a shot from within the PEZ;

the shotfirers’ Orica training and their understanding of the content of Appendix L;

what was said by members of the blast crew recorded on the video; and

conversations that took place after the incident.

The resolution of the common practice issue was complicated by the fact that the evidence of the witnesses was contaminated as a result of the following events.
First, the members of the blast crew were stood down after the incident and told to wait for the arrival of an inspector from the Regulator to arrive. In that period, they independently prepared handwritten statements, but then conversed widely amongst themselves and with others as to what had occurred and the reasons for being within the PEZ, including the provisions of Appendix L.
Second, when Inspector Macpherson arrived, all of the members of the blast crew participated in a meeting with him, Mr Oliphant and a union representative, where it was openly discussed what had occurred and why they fired the shot from within the PEZ.
Third, during the course of the investigation of the incident by the Regulator, the witnesses were not told to avoid discussing the incident with each other. Thereafter, some of them discussed the incident and the reasons for being within the PEZ extensively, and over a long period before being called to give evidence in the proceedings.
The blast was recorded on a video camera being held by Mr Chaplin. The camera recorded the discussion of the blast crew leading up to the blast and its aftermath. The words spoken by the members of the blast crew were relied on by the prosecutor and the defendant for different purposes. Accordingly, it is necessary to make findings as to what was said, by whom, and what it I should make of it in context. A significant amount of time was spent in the hearing getting the witnesses to identify who said what on the recording. It is not necessary to make findings on everything that was recorded. I have set out my findings as to the critical passages and generally below.

Events prior to the incident

At about 5.50am on 17 May 2017, Mr Price conducted a prestart meeting of support crew B, consisting of Mr Fitzgerald, Mr Sinnett, Mr Toohey and Mr Clarke. Mr Large, an appointed shotfirer from support crew A, was also working that shift to be trained on a new electronic firing system. Mr Morris, a dipper, was also present to gain experience in preparatory work, together with a number of contractors.
The record of the prestart meeting recorded that the planned work for the blast crew was tying up and firing shot number 78 in strip 6 of OC4. The weather forecast predicted the wind direction from ENE at a speed of 11kph. Mr Fitzgerald was noted as the appointed shotfirer for the blast. He accepted in his evidence that he was responsible for selecting the firing location and for ensuring the safety of the blast crew.
It was not practical to select firing locations prior to the day of a blast because the predicted weather conditions, particularly wind speed and direction, might differ from the actual conditions on the day.
Mr Chaplin prepared a map entitled “Moolarben Coal Mine Blast Control Plan” dated 17 May 2017 relating to the blast for that day (the Map). The Map was a black and white copy of a scale topographical map of OC4, on which Mr Chaplin had used software to mark:

the blast area, being the area where the explosive emulsion had been loaded into the drilled holes, with a solid red parallelogram;

the EEZ in red;

the PEZ in blue;

the FMZ in pink; and

two red lines, the first extending WNW from the north-eastern corner of the blast area to the intersection of the FMZ, and the second SSE from the SE corner of the blast area to the intersection of the FMZ. The area between the two red lines was intended to indicate where the fumes would travel based on the predicted wind direction.

Mr Price received a copy of the Map on the morning of the incident and distributed it to the blast guards and the shotfirer, Mr Fitzgerald. As part of completing his duties provided for in the Blasting Checklist for Blast Controller, Mr Price confirmed that the predicted weather conditions coincided with the actual conditions.
Following the prestart meeting the blast crew travelled out to the shot and commenced tying up. On completion of that work, Mr Sinnett and Mr Fitzgerald “walked the shot” to ensure that it was tied up correctly.
Mr Chaplin set up a video camera on a tripod to record the blast on a mound to the south-east of the blast area. He was also in possession of another video camera which he intended to hold, while recording the blast from the firing location.
The blast guard meeting was held on the southern corner of the blast area. Mr Clarke and Mr Toohey were assigned by Mr Price to be blast guards. Mr Clarke and Mr Toohey drove to their assigned positions in the stemming truck. On the way, Mr Toohey dropped Mr Clarke off to pick up a small loader which Mr Clarke used to block access to the road. Mr Toohey used the stemming truck to block access to the road in his position. Mr Price drove around the PEZ to make sure that it was clear, before handing over control of the shot to Mr Fitzgerald as the shotfirer. At this time, Mr Price was required to attend to other duties and did not go to the firing location.

The primary firing location

The primary firing location selected was to the north of the blast area, outside the PEZ and away from the expected WSW path of the fumes. The primary firing location was discussed between Mr Fitzgerald and Mr Sinnett and chosen while they were tying up the shot, because it provided a good line of sight for the electronic detonation system.
Mr Price’s evidence was that the primary firing location was to the south of the position of the #2 blast guard marked on the Map.
While Mr Chaplin and Mr Fisher were present at the blast area, Mr Chaplin suggested to Mr Fitzgerald that a location to the south of the blast area to provide a better vantage point to take video footage of the blast. He asked if Mr Fitzgerald wanted to fire from that location and Mr Fitzgerald agreed.
Mr Chaplin’s evidence was that, at the time that he made the enquiry, he was solely focussed on the visual aspect of the blast and did not consider the safety implications of moving the firing location because it was not his job to do so. I pause to note that Mr Chaplin as the creator of the Map knew or should have known about the location of the PEZ and the FMZ.
Mr Sinnett, who was not fully engaged in the conversation, questioned Mr Chaplin and Mr Fisher about moving the firing location to the south because it would be downwind of the blast and in the expected path of the fumes.
Mr Fitzgerald’s evidence was that he recalled Mr Chaplin pointing to the kestrel and stating that the wind was blowing across the shot, meaning that a firing location to the south of the blast area would not be directly downwind.

The secondary firing location

Mr Chaplin, Mr Fisher and Mr Morris drove together in Mr Fisher’s utility south of the blast area where Mr Chaplin wanted to film the blast from. Mr Fisher stopped the vehicle. Mr Fitzgerald, Mr Sinnett and Mr Large followed them in the shotfirer’s utility. When the shotfirer’s utility arrived where Mr Fisher had stopped, they motioned to him to follow them and to drive further away from the blast area. Where the shotfirer’s utility stopped became the secondary firing location.
The secondary firing location was later determined by the Mine surveyors to be 246m SW of the south-western corner of the blast area.
When they arrived at the secondary firing location, the shotfirers went about setting up the detonation box and Mr Chaplin set up the video camera and commenced filming with the video camera.
No-one informed Mr Price of the change of firing location. I infer from the evidence that the decision to change to the secondary firing location was made at about the time of the blast guard meeting and when Mr Price was busy with his duties as the Blast Controller. I note that at the time when Mr Price was driving around the PEZ to make sure it was clear, the blast crew were already set up to fire the blast from the secondary firing location.
Mr Price gave evidence that, had he been told that it was intended to fire from the secondary firing location, he would have stopped the blast because it was unsafe. In Mr Price’s view, the secondary firing location only had one means of ingress and egress, which meant that if fumes did travel towards the blast crew, they would not be able to avoid them. Mr Price’s evidence was that the usual practice would have been to notify him of the change of firing location prior to detonating the blast.

The blast

The video recording captures a few minutes of conversation before the blast, mostly about rugby league.
Wherever I have set out the content of the conversation recorded by the video camera, I have set out what I have heard on the recording and attributed the words spoken based on the recording and the evidence of the witnesses as to what was said by the witness or others. To the extent that what I set out is different to what is contained in the transcript of the video recording prepared at the request of Inspector Brock (the video transcript), what I have set out is to be preferred. I have referred to exchanges by reference to the entries in the video transcript and/or the time stamp on the video recording. Where the participants have spoken over each other in the recording, I have not reflected that, and have joined a witness’ statements together to make the evidence easier to follow, where it was necessary to do so.
The following relevant exchange occurred at Q21-25 of the transcript of the video:

Chaplin: It’s actually deceiving ‘cause the loaded stuff is quite a way away.

Fisher: Let’s make that call after.

Chaplin: Yep.

Mr Fisher gave evidence that this exchange was the first part of a conversation that was completed after the blast which I will come to, to the effect that he and Mr Chaplin thought that the blast crew were too close to the blast.
At about 12.07pm on 17 May 2017, the blast was detonated. The start of the explosion is recorded at about the 2.37 minute mark of the video.
The video depicts a large explosion from one of the holes that generated a large amount of flyrock. Mr Chaplin’s opinion as to the cause of the incident, which I accept, was that there was inadequate stemming of the hole. In other words, there was not enough angular aggregate in the hole to contain the explosion and the explosive force escaped via the path of least resistance, being the top of the hole.
Members of the blast crew saw that the flyrock had been projected towards them and Mr Fisher and others called out to take cover.
Mr Fitzgerald and Mr Fisher sheltered under a raised toolbox lid on the utility. Others remained in the open, watching the trajectory of the flyrock. A number of pieces of flyrock landed in the vicinity of the workers. A piece of flyrock about the size of a football landed on the bonnet of the shotfirer’s utility near the front grille, causing panel damage to the vehicle and the radiator. The Toyota badge of the utility was dislodged by the impact and fell onto the ground where it was parked. The video records the sound of the impact of the flyrock on the flagpole of the shotfirer’s utility and the bonnet at about the 2.54-minute mark of the video.
Immediately after the blast, Mr Fisher looked briefly at the damage done to the shotfirer’s utility. At about the 3.28-minute mark of the video, Mr Sinnett alerted the workers to “a heap of dust” coming in their direction. The workers then started to get into the vehicles. At about the 4.38-minute mark of the video, the dust plume from the blast had reached the vehicles and not all of the blast crew had managed to get into the vehicles by that time. Based on what was depicted on the video, I am satisfied that some members of the blast crew were exposed to fumes from the blast that could have contained toxic gases.

Mr Fisher, Mr Chaplin and Mr Morris got into Mr Fisher’s vehicle and drove further away from the blast area. The video camera was still recording and the conversation between Mr Fisher, Mr Chaplin and Mr Morris in the vehicle was recorded.
The following exchange occurred at Q79-Q80 of the transcript of the video, in the vehicle:

Fisher: What did I just say to you a minute ago?

Chaplin: It was a bit close yep. I agree.

Mr Fisher drove to a location further way from the blast area (the second location). Mr Chaplin, Mr Fisher and Mr Morris got out of the vehicle at about the 5.08-minute mark of the video.
At the second location, the following relevant exchanges occurred at Q82-Q98 of the transcript of the video:

Chaplin: Fuck me man. That’s exciting Dave. I’ve actually never been that close before.

Fisher: Fucking smelt like shit to me at the start man. That’s fucking paperwork coming out of my arse.

Chaplin: Yeah, she’s a near miss that one boss.

Fisher: How far away were we?

Chaplin: I reckon we’d be 400. Because 500 would be, 500 would be where they are now.

Fisher: Yep.

Morris: Yeah.

Fisher: Are we, are we allowed to be where we were?

Chaplin: Yeah shotfirer’s call. Yeah.

…

Fisher: Is that radiator fucking banged in or is it just a bit of panel work?

Chaplin: Bit of panel work. The radiator was making some noise. I don’t know what that would be though. [laughing] Fuck me.

Fisher: I can’t fucking believe it.

As the shotfirer’s utility approached the second location, Mr Morris commented on the appearance of the damage done to it by the flyrock, in an exchange referred to in Q98-99 of the video transcript.

Morris: It almost looks like a kangaroo.

Chaplin: Yeah.

Mr Sinnett, Mr Fitzgerald and Mr Large arrived in their vehicle at the second location, at about the 6.14-minute mark of the video. The following exchanges occurred at Q99-Q193 of the transcript of the video:

Chaplin: Hey I’m pretty sure you boys just went to the pub didn’t you? Hit a roo? Any chance?

Large: Kangaroo.

Sinnett: Kangaroo.

Fitzgerald: I can’t believe the fucking thing.

Chaplin: But no shit man that thing has come down and hit that, the actual flag part of that pole.

Fisher: I don’t know about the kangaroo fucking thing.

Chaplin: That’s quite exciting.

Sinnett: Where’s the other cameras?

Chaplin: One’s down on that stock heap. I’ve got the other one still here.

Fisher: Give me a good reason why that got hit there like that, otherwise we are going to have to fucking do it properly.

Fitzgerald: I think you are safer to do it properly.

Chaplin: Yeah, better off.

Fisher: How far away were we?

Chaplin: About 400.

Fitzgerald: Well what did you count? About 370?

Large: About 30 holes.

Fitzgerald: I think we were coming out at 370.

Chaplin: 500 is basically end of this shot.

Unknown: An extra 300?

Chaplin: Yep.

Fisher: Righto.

Sinnett: Yeah, we’re going to have to do it properly.

Fisher: Fucking hell man… (indecipherable)

Large: Aw fuck man, underneath that, I didn’t even think about getting underneath the door but if that had hit the top of that door it would have folded you up like a fucking..

Chaplin: Yeah a pretzel man, fucking would have been.

…

Chaplin: I am going to say that is the most exciting thing I’ve had happen to me for a long time.

Large: I was just to the right of the box.

Sinnett: No, me and Chappy were just trying to dodge the fuckin’…

Large: Yeah. That’s what I was doing.

Chaplin: We just saw the fucking crows in the air and then lost sight of one of them.

Fitzgerald: Yeah. Another one dropped fucking close…it went zoom.

Sinnett: Yeah.

Chaplin: Fuck me.

Fisher: I said to Dave just before we fired, “We’re a bit close”. He goes “Nooo”. I said we’ll determine it after the fucking shot goes, hey.

Chaplin: Yeah it’s exciting. Yeah, it’s good. We know we’re alive right.

Fisher: Yeah.

Chaplin: No one got hurt. We just won’t so it again.

Unknown: Are you recording this?

Chaplin: I am, but I won’t put the sound on. [laughter]

Fisher: I need to know, does that camera there? Cause I would love to see it.

Chaplin: That camera won’t catch us.

Fisher: Fuck.

Chaplin: Nuh. This one won’t either.

Sinnett: You’d probably see us all scatter.

Chaplin: Ah fuck yeah.

Fisher: I was feeling it mate.

Chaplin: I think you will hear it though. I will keep the noise one for us.

Large: The only thing is too Boof [Mr Fisher’s nickname] is that we’ve moved the utes from the incident. That’s for safety shit.

Fisher: Yeah, fucking oath. I will see if I got anything.

Chaplin: You’ve got to laugh though man.

Fisher: Oh no fuck. I don’t give a fuck.

Chaplin: Fuck, you’ve got to laugh. That was exciting. That hole let go like a fucking arsehole didn’t it?

Large: Didn’t it what? In the control row was it?

Chaplin: It looked like it was out here a bit.

Sinnett: It’s fucking dirt. It is mud.

Chaplin: It’s mud yeah. Yeah, it’s mud man.

Unknown: It’s just a lump of mud.

[At this point a video of the blast can be heard to be played on a mobile telephone]

Chaplin: That’s that pop there. [laughter]. We might even get an overpressure from that cunt too, eh. Oh, that’s alright. That’s exciting. Done

Findings relevant to the conversation on the video recording

There are occasions where members of the blast crew smile and laugh about what had just occurred. I am satisfied that they understood the incident to be serious and their joviality was through relief that no one had been seriously hurt.
Similarly, the reference to the damage to the shotfirer’s utility being caused by hitting a kangaroo was a joke and the blast crew did not seriously contemplate putting it forward as an explanation as to how the damage occurred. After a short period of time, the consensus was to “do it properly”, which I understood as a collective intention to tell the truth about the incident and to report it in accordance with MCO’s policies.
The video provides the best contemporaneous evidence of the state of mind of the members of the blast crew. Their reactions to the blast were spontaneous and made at a time before they realised the extent of the investigation and scrutiny that would follow.
There was discussion as to how far away the blast crew had been from the blast area. Various members of the blast crew tried to estimate that distance. I infer from the conversation that the distance between the secondary firing location and the blast area was a matter of importance to the members of the blast crew. Each reference to distance was less than 500m.
There was reference by Mr Chaplin to the distance of 500m. This is of critical importance. The distance of 500m was only relevant because it was the distance required for the PEZ. I am satisfied that Mr Chaplin’s reference to 500m was a reference to the PEZ, even though he did not expressly refer to it.
Mr Chaplin made a reference to “shotfirer’s call”, but there was no reference by anyone to Appendix L.
I infer from the conversation that the members of the blast crew did not have any difficulty in identifying the distance of 500m from the blast area.
I am satisfied that when selecting the secondary firing location, the shotfirers did not have any intention of choosing it by reference to the PEZ. It is clear that the shotfirers did not intend for the secondary firing location to be outside the PEZ.
I also infer from what was said by the members of the blast crew that they knew that they were in breach of the PEZ and would be the subject of an investigation into the near miss incident that had occurred.

Events after the incident

Mr Fisher contacted Mr Oliphant and informed him that there had been a “near miss” incident. He directed the workers to return the vehicles to the positions that they were in at the secondary firing location. Mr Fisher telephoned Mr Oliphant and informed him that there had been a “near miss” incident.
Mr Oliphant contacted Mr Price and the two of them drove to the secondary firing location where the members of the blast crew were gathered. Mr Oliphant had a conversation with Mr Fisher and other members of the blast crew about what had occurred. He then inspected the area and took photographs of the scene, debris and damage caused to the vehicle, flyrock material, tyre tracks, and the blast area. Mr Oliphant then contacted surveyors who attended the site and surveyed the area. Mr Oliphant reported the incident to the Regulator at 1.54pm.
Mr Oliphant, Mr Price and the members of the blast crew then left the incident site and drove to the site office. Mr Oliphant assigned Mr Price the task of collecting written witness statements from the members of the blast crew. Mr Price separated the witnesses at this point by asking them to prepare their statements in separate rooms in the office building. The blast crew used a pro forma document to make handwritten statements.
I pause to note that none of the handwritten statements referred to the PEZ or Appendix L. In the handwritten statements, the blast crew stated the following about the secondary firing location:

Mr Sinnett estimated it was approximately 300m from the blast area;

Mr Fisher stated it was a distance “thought” to be safe to fire from;

Mr Large stated that the shotfirers collectively determined it to be a safe firing location approximately 320m from the blast area;

Mr Fitzgerald stated that he discussed it with the other shotfirers;

Mr Morris estimated it to be 350m from the blast area;

Mr Chaplin made no relevant comment.

The distances set out in the handwritten statements support my finding that the shotfirers had no intention of selecting the secondary firing location by reference to the PEZ.
The members of the blast crew were informed by Mr Oliphant that they were stood down pending an investigation of the incident. He directed them to remain on site until an inspector from the Regulator attended.
In the intervening period, a conversation occurred in Mr Chaplin’s office between Mr Oliphant, Mr Fitzgerald and other members of the blast crew during which a number of matters relating to the incident were discussed. In his evidence, Mr Oliphant stated that during this conversation, he was told that the reason why the blast crew believed that they were entitled to be at the firing location when firing the blast was what was referred to as “shotfirer’s discretion in Appendix L.
Inspector Macpherson arrived at the Mine at approximately 4pm on 17 May 2017 and met Mr Oliphant in his office. Mr Oliphant showed Inspector Macpherson the documents prepared for the blast known as the “blast pack” and informed him of the general nature of the incident.
Mr Oliphant and Inspector Macpherson then went to a conference room in the administration building and met with Greg Stephens, the site safety and health representative, Mr Large, Mr Sinnett, Mr Fitzgerald, Mr Morris, Mr Fisher, Mr Chaplin and Peter Tatton, an industry safety and health representative. Inspector Macpherson spoke to each person in attendance about their training and experience, and their role on the day, including the activities they had undertaken. These discussions took place in the presence of all those present in the conference room. During the course of the meeting, Mr Fisher and Mr Chaplin stated that they had selected the firing location and had done so based largely on the ability to video the shot from that position. Mr Fisher and Mr Chaplin also commented that firing within the exclusion zone was a regular occurrence and that the exclusion zone did not apply to shotfirers. Mr Chaplin made reference to Appendix L. Mr Large also stated that it was not unusual for the firing location to be inside the PEZ provided the location was safe and confirmed that the decision to fire from within the PEZ on the particular day was based largely on the ability to video the shot from that position. Inspector Macpherson’s evidence was that all three shotfirers present supported the proposition that they largely selected the firing location for video purposes, and that often firing locations were chosen that were within the PEZ. When questioned as to why he spoke with each person in the presence of the others, Inspector Macpherson stated that this was not an unusual practice during investigations of incidents, and on this occasion, the persons present had already been together for several hours following the incident.
At some point during his attendance, Inspector Macpherson was taken to the secondary firing location in the company of Mr Oliphant and the blast crew.

Events following 17 May 2017

Disciplinary actions

In the days after the incident a series of disciplinary meetings were held between Mr Oliphant and Mr Arnold on behalf of MCO and the various members of the blast crew.
Mr Sinnett and Mr Large were found to have committed a breach of the CFE Procedure by failing to comply with the PEZ, FMZ and failing to comply with the PPE Procedure for not wearing a hard hat at the secondary firing location. Each incurred 100 demerit points, were given a written final warning and were stripped of their appointment as a shotfirer for a minimum of six months. They each signed a Moolarben Open Cut Corrective Action File Note relating to the action taken against them.
Mr Fitzgerald had already incurred 50 demerit points following his dealing with a misfire on 6 October 2016. He was asked to show cause why his employment should not be terminated. I note that Mr Fitzgerald did not include in his show cause letter, some of the matters he later came to rely on, such as his allegation that he had previously raised with Mr Fisher the disconnect between the PEZ and the alleged common practice at the Mine.
Mr Fitzgerald was also found to be in breach of the CFE Procedure and stripped of his appointment as a shotfirer. He also signed a Moolarben Open Cut Corrective Action File Note relating to the action taken against him.
Following a heated meeting, with Mr Arnold and others, Mr Fisher resigned his employment.
The contract providing for Mr Chaplin’s services was terminated on 23 May 2017 with effect from 17 May 2017. Mr Chaplin did not return to the Mine after the day of the incident.

MCO’s Internal Incident Investigation

On 18 May 2017, an Inspector issued MCO with an Improvement Notice pursuant to section 191 of the Work Health and Safety Act 2011 that required it to:

“Review the blasting procedures and retrain the blast crew personnel and mine officials in the procedures including the application of the exclusion zone to all personnel.”

MCO conducted an internal Incident Investigation titled “Ejection of material from OB shot causing near miss to personnel and damage to light vehicle”, the report of which was signed off on 24 May 2017.
The following findings were made in the Incident Investigation Report (IIR):

Shotfirers did not abide by minimum exclusion zones (blast and fume management zones) detailed within the Charging and Firing of Explosives Procedure.

The distance from the initiation point to the blast was estimated by shotfirers. No mechanical aid (e.g. GPS, rangefinder) was used to calculate the distance.

A Kestrel unit was under trial to estimate weather/wind patterns at the blast location to predict post blast dust movements. This unit was used at the time of initiation but a change in process to utilise this new technology had not been completed.

A Blast Control Plan Map illustrating both the exclusion zone and fume management zone (issued by the Drill and Blast Engineer) was in possession of the group at the time of initiation but not referred to and not followed.

The IIR identified a root cause of the incident as:

“Violation of minimum exclusion zones detailed within the procedure Charging and Firing of Explosives.”

The IIR identified the following as contributing factors in terms of absent or failed defences:

Exclusion zone not followed.

Fume management zone not followed.

Charging and Firing of Explosives procedure not followed.

The IIR recommended six corrective actions arising from the incident, which included the following:

Specify within the Charging and Firing Explosives Procedure:

Minimum exclusion zones apply to all personnel including shotfirers.

Firing locations are to be recorded post-blast on the Blast Control Plan.

Actual stemming quantities are to be recorded on load sheets.

Retrain all blast crew personnel in the procedures, including application of exclusion zones to all personnel.

Retrain all mine officials in the procedures, including application of exclusion zones to all personnel.

Review the blast control plan and blast communication maps to clearly depict the fume management zone. Update blast exclusion and fume management zones on maps to ensure clarity. Consider the use of aerial photography to achieve this.

Provide shotfirers with a mechanical aid to calculate distance (e.g. GPS or rangefinder).

If the trial of the Kestrel system is successful, utilise the change management process for the system’s introduction.

Evidence about the applicability of the PEZ to shotfirers

Appendix L to AS 2187

The evidence of some of the witnesses suggested that firing a shot from a location within the PEZ was authorised by reference to the provisions of Appendix L.
The fourth edition of the AS 2187 was published in 2006. It was common ground that MCO was aware of its contents. The extent to which the members of the blast crew were aware of the content of Appendix L and whether they relied on it, are relevant matters to be considered.
Appendix L of AS 2187 was entitled “Exclusion Zones”. It relevantly provided (underlining added):

1.1 GENERAL

All blasts require the establishment of an exclusion or evacuation zone prior to firing the shot. Depending on the industry, the zone can be the area, below, at and above ground level from which all unauthorized persons are excluded to protect them from injury and harm.

The size of the exclusion zone shall be such that all fly and associated debris is contained within the zone, as well as the consideration on impacts of blast environmental limits on humans and where required, animals.

…

The shotfirer and authorized persons may remain in the exclusion zone, at a predetermined protected location during firing. Final approval for persons to observe or monitor the shot from within an exclusion zone remains with the shotfirer, who should not be subject to any external pressure.

1.2 PLANNING

The requirements for an exclusion zone shall be a component of the blast management plan. The degree of planning will be dependent on the industry, for instance the ventilation system of an underground mine will influence an exclusion zone in three dimensions.

For blasting operations where the zone is contained within property boundaries (subject to airspace clearances) or underground, standard procedures may be developed and implemented for each blast.

1.3 SIZE OF THE EXCLUSION ZONE

The size of the exclusion zone is directly related to the blasting activity and the surrounding environment…

The distance required to limit airblast overpressure to tolerable levels can be estimated, but the distance for fly can be difficult to predict and can vary from site to site. Therefore a competent person shall determine the size of the zone, in many cases through extensive consultation with other stakeholders. The zone may be larger than the calculated size to make use of control points such as transport junctions, or elevated areas that provide clear lines of observation. (underling added)

The phrase “predetermined protected location” used in Appendix L is not defined in AS 2187.
AS 2187 is a comprehensive document and Appendix L must be read in context. On the relevant issue a number of other provisions in AS 2187 need to be considered.
Appendix E of AS 2187 deals with the generation of flyrock and the steps that can be taken to avoid the risk posed by it.

An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].
A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.
“Reasonably practicable” is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters, including;

the likelihood of the risk concerned occurring, and

the degree of harm that might result from the risk, and

what the defendant knows or ought reasonably to know about;

the risk, and

ways of eliminating or minimising the risk, and

the availability and suitability of ways to eliminate or minimise the risk, and

after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The phrase “exposed to risks” contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.
The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words “reasonably practicable” indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
A duty holder must have a proactive approach to safety issues. The question is not, did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties, then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers, but duty holders must conduct operations on the basis that such acts will occur and must be guarded against to the fullest extent practicable.
The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste, through to foolish disregard for personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].
Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.
The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer’s undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.

Causation

The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.
Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].
A finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [226] (Cavanagh J).

consideration

Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [28]-[30] of the Summons?

The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].
In order to find Element 3 established, I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [28]-[30] of the Summons and that the steps were reasonably practicable.
I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [28]-[30] of the Summons were reasonably practicable.

The pleaded risk

The pleaded risk was of the Blast Crew suffering serious injury or death as a result of being struck by flyrock or being exposed to fumes.

The likelihood of the risk occurring

The likelihood of the risk occurring was moderate to high if appropriate precautions were not taken. The PEZ and FMZ were isolation controls intended to remove personnel from the area where the risk existed.

The degree of harm

The degree of harm that might eventuate if a person was struck by flyrock or exposed to blast fumes was significant and included a risk of death.

The defendant’s knowledge of the risk

The risk posed by flyrock and blast fumes were known to the defendant and provided for in its written safety documentation, including the CFE Procedure, the BMP, the BFMS and the EPCP.

Cost of the particularised measures

It was not contended that the cost of any of the particularised measures set out in [28]-[30] in the Summons was grossly disproportionate to the risk.

The common practice issue

For the reasons given at [418]-[433], I am not satisfied that there was a common practice at the Mine of firing shots from within the PEZ. This is relevant to the defendant’s knowledge and the reasonable practicability of the pleaded measures, for reasons I will come to in addressing those measures.

The particulars of breach of duty

I will now turn to consider the pleaded particulars of breach of duty set out in [28]-[30] of the Summons.
I will deal with each sub-particular in turn.

28 The defendant failed to provide and maintain a safe system of work at the Moolarben Coal Complex for its open cut operations in that it did not provide:

28.1.1 an express direction in the CFE Procedure that no person, including a shotfirer, was to remain inside the Personnel Exclusion Zone of 500m during an open cut blast; and or

29 The Defendant failed to provide adequate training and instruction for its open cut blasting operations conducted at the Moolarben Coal Complex in that it did not provide an express instruction to its blast crews that:

29.1 under no circumstances were they to be present within the Personnel Exclusion Zone during a blast; and/or

29.2 the CFE Procedure applied without exception

Express direction and training on it

It is convenient to deal with these particulars together.
The particular pleaded in [28.1.1] of the Summons required the CFE Procedure to emphasise the reference to “all personnel” by expressly providing that it included shotfirers. The particulars pleaded in [29.1] and [29.2] of the Summons required the defendant to instruct or train its workers that no person was to be present in the PEZ and that the CFE Procedure applied without exception. The latter particulars were in effect a requirement to train the workers on the express direction.
These were steps that were identified in IIR and taken by the defendant in response to the incident. The findings of the IIR were based on the acceptance of the existence of the common practice, which for the reasons given I have found did not exist at the Mine.
To the contrary, I am satisfied that the shotfirers who were responsible for selecting firing locations knew that the PEZ applied to them and authorised persons, but that they did not comply with the PEZ on 17 May 2017. It follows that the express direction and training on it were not required at the Mine and thereby not reasonably practicable steps, because the shotfirers knew and understood that the PEZ applied to them and authorised persons and the express direction was unnecessary.
If I am wrong on the common practice conclusion, I am not satisfied that the express direction (and training on it) was a reasonably practicable step for the following additional reasons.
Safety documents should be expressed in clear, simple and unequivocal language that can be understood and applied by the workers they apply to. The effect of the amendment of the CFE Procedure suggested by the express direction particular was to qualify the term “all personnel”, not only in the CFE Procedure, but potentially to MCO’s safety documents in general and could lead to confusion.
Inspector Hanlon’s evidence was that the wording of the CFE Procedure did not cause him any concern and that the expression “all personnel” was clear in its application.
Each of the relevant workers knew that the CFE Procedure was expressed to apply to “all personnel”, and that there was nothing in the CFE Procedure to suggest that it was to be read subject to Appendix L or by reference to any common practice at the Mine. No training was provided at the Mine to that effect. The plain language of the CFE Procedure made it clear that the common practice of firing shots from within the PEZ, if there was one, was prohibited.
The members of the blast crews had been trained on the CFE Procedure after its introduction and prior to the incident. They had also been trained on the CFE-SWP which contained the same relevant provisions.
I am satisfied by what was said by the workers immediately after the blast, namely that they knew that they were required to comply with the PEZ.
Each of the shotfirers had been trained by Orica on the content of Appendix L. That training made repeated references to the importance of site-specific safety rules, like the CFE Procedure, which made it clear that the provisions of Appendix L and the site-specific safety rules had to be read together.
Inspector Hanlon’s evidence was that the provisions of Appendix L were dealt with differently by different mines. Some provided for an immutable PEZ and others provided for exceptions for shotfirers to be within the exclusion zone, if certain conditions were met. In this context, an immutable exclusion zone was an isolation control that was more likely to eliminate the risk to personnel from flyrock and fumes, whereas some risk would always be present, and could only be minimised if persons were permitted to be within an exclusion zone.
MCO had specified in the CFE Procedure an immutable exclusion zone that could be made bigger if the circumstances required that. There was no provision in the CFE Procedure to reduce the size of the PEZ. By comparison, the EEZ could be reduced with sign-off from the OCE. There was evidence in a response to a s 155 Notice that MCO chose 500m for the PEZ, because it was a distance that was more likely to eliminate the risk posed to personnel by flyrock. Inspector Hanlon’s evidence supported this assertion made on behalf of MCO.
Further, the secondary firing location was within the EEZ. The workers had the utility vehicles inside the EEZ and they had not sought the relevant permission to do so. This was another clear breach of the CFE Procedure.
I accept the evidence of Mr Oliphant, Mr Arnold and Mr Craig that Mine management were unaware that shots were being fired from within the PEZ and relied on the plain language of the CFE Procedure. They were also entitled to rely on the content of the training on the CFE Procedure and the fact that the workers were assessed as competent on the CFE Procedure, and the CFE-SWP before that, through written assessments on both procedures.
It can be accepted that Mine management should have known that shots were being fired from within the PEZ, if that was in fact occurring. However, it would have been difficult for Mine management to have detected that they were. Mine management could have asked the workers, but for the reasons I have already referred to it is likely that they would have received conflicting responses. It is also likely that they would have been told that the workers were complying with the CFE Procedure, because the workers all understood that they would have exposed themselves to sanction for non-compliance with the procedures at the Mine. The assessment of where a shotfirer was at the time of firing a shot, relative to the PEZ, would have been very difficult by observing that process from a location other than the firing location, such as the observation point. The assessment of the PEZ could have been difficult to determine if the SO Procedure had been undertaken, but it would have been possible. There was no evidence of a previous flyrock incident at the Mine. There were many other tasks that could have been observed that I infer that they were also thought to present an immediate risk to health and safety. For the reasons given, I cannot reliably determine what proportion of shots, if any, were fired from within the PEZ. The proportion may have been so small as to make a breach of the PEZ very difficult to detect.
Finally, there were a number of formal occasions on which the workers could have raised with Mine management that there was a disconnect between the PEZ specified in the CFE Procedure and the terms of Appendix L, such as the Audit and the Risk Assessment. None of the shotfirers did so, because they were not confused about the application of the PEZ to them and any authorised persons.
For the reasons already given, I reject the evidence of Mr Fitzgerald, Mr Sinnett and Mr Large that they raised the issue of the tension between the PEZ and Appendix L with Mr Fisher or Mr Price prior to the incident. For the reasons already given, I have rejected the submission of the prosecutor that there had been no training on the CFE-SWP prior to 2 November 2016.
Taking into account all of the evidence, I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty by failing to take the steps particularised in [28.1.1], [29.1] and [29.2] of the Summons.

28 The defendant failed to provide and maintain a safe system of work at the Moolarben Coal Complex for its open cut operations in that it did not provide:

…

28.1.2 adequate monitoring of compliance with the CFE Procedure by the blast crews and in particular, compliance with the Personnel Exclusion Zone in that the CFE Procedure did not require a shotfirer to log the location from which a shot was fired; and/or

28.1.3 provide to the blast crews a mechanism or device such as a range finder or GPS to assist blast crews to determine whether they were outside the Personnel Exclusion Zone before initiating a blast; and/or

28.1.4 ensure that the maps attached to the Blast Control Plans and Blast Control Communications documentation were clear and could be readily interpreted by the blast crews to locate the Personnel Exclusion Zone.

Adequate monitoring of compliance with the PEZ by requiring post-blast logging of the firing location

Notwithstanding the wording of this particular, the prosecutor advanced a number of ways of satisfying it. First, that Mr Price and Mr Fisher as the relevant supervisors did not enforce compliance with the PEZ. Second, that the safe act observations completed at the Mine in the two-year period prior to the incident pursuant to the SO Procedure were inadequate. And, finally, that the Mine should have required post-blast logging of the firing location of each blast.
As to the first contention, applying s 244 of the Act, the conduct of Mr Price and Mr Fisher was conduct of the defendant, which may be sufficient to make it liable for a breach of its s 19(1) duty: Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 at [84]-[99] (Cavanagh J, with whom Gleeson JA and Garling J agreed). However, in this case there are other matters to be considered.

The first contention must be evaluated in the light of my finding on the common practice issue. In dealing with Mr Price, it follows that the only relevant date for his failure to enforce the PEZ is on 17 May 2017.
On the day of the incident, Mr Price was told that the blast would be fired from the primary firing location to the north of the blast area, which he understood to be outside of the PEZ and the FMZ marked on the Map. He was attending to his duties as the Blast Controller when the secondary firing location was agreed to and selected by Mr Fitzgerald. Mr Price was not informed of the change to the firing location or given an opportunity to comment on it. He did not attend the secondary firing location because he was required to attend to other duties. I am not satisfied that Mr Price’s actions on the day of the incident amounted to a failure to enforce the PEZ as the Drill and Blast Co-ordinator.
Mr Fisher’s evidence on this point, which I accept, was that he had raised with the shotfirers on an earlier occasion why they fired shots from within the PEZ. He was told that they were authorised to do so by relevant legislation and he was shown a document, which I infer was a copy of Appendix L.
Mr Fisher did not hold a BEUL and it was reasonable for him to accept what he had been told by experienced workers who did. On the day of the incident, I accept that while he thought they were close the blast area it was difficult to judge and that he relied on the experienced shotfirers to comply with their statutory duties and the applicable rules.
The second contention was that the safe act observations undertaken in the two-year period before the incident were inadequate. The prosecutor’s submission was that of the 39 safe act observation records produced for the relevant period that only two related to the high-risk activity of firing a shot and that based on Mr Fisher’s evidence that the safe act observations were poorly perceived at the Mine, because they were akin to “dobbing” on other departments.
There is a considerable degree of hindsight reasoning in the prosecutor’s submission on this point. There were undoubtedly a number of dangerous tasks undertaken at the Mine that could have been the subject of an observation and the reasons why some tasks were selected for close supervision was not explored in any depth in the evidence of the relevant supervisors. It should be noted that there were no previous flyrock incidents at the Mine, and there were multiple OC blasts conducted each week. I am satisfied that the vast majority of shots were fired from outside of the PEZ and thereby the PEZ was an effective control measure that did not warrant any particular priority over other tasks and that this was reflected in the proportion of observations relating to that activity.
As to the perception of the SO Procedure at the Mine, I am not satisfied that it was of any significance. Many critical safety procedures are resisted or resented by workers and sometimes management. They can be perceived as inconvenient or a waste of time, however, the effectiveness of the procedure may or may not be impacted by such sentiments. I am not satisfied on the evidence that the perception of the SO Procedure at the Mine made it ineffective. I am satisfied that the supervisors who were asked about the SO Procedure applied it as it was intended and created documents to record the content of the observations that could be followed up on, if necessary. For the reasons given, I do not accept that prior to 2 November 2016 that the workers had not been trained on the CFE-SWP and the requirements of the EEZ and PEZ. It follows that I do not accept that the supervisors were not capable of ensuring compliance with those requirements, because there was in effect no written procedure in place.
The third contention related to post-blast logging of the firing location which was a recommendation made in the IIR and implemented at the Mine following the incident. The prosecution contended that it was a simple and inexpensive step that could have been taken and given the primacy of the PEZ as a control measure, it would have provided a method of checking for compliance with the PEZ.
Whilst I accept that the post-logging of the firing location was a simple and inexpensive step that could have been taken, I am not satisfied beyond reasonable doubt that it would have had the required impact on safety for the reasons that follow.
It was not reasonably practicable to choose a firing location until immediately prior to firing a shot, because the predicted weather conditions may have changed. Logging the firing location, after the shot was fired, would not have assisted the shotfirers to choose a safe firing location.
For the reasons already given, I am satisfied that the shotfirers knew that the CFE Procedure provided that all personnel were required to be outside of the PEZ and that there were serious consequences for non-compliance with the Mine’s written safety procedures. In my view, it is likely that the marking of the PEZ on the Map would have influenced the shotfirers to mark firing locations on the Map that were outside of the PEZ, irrespective of the actual firing location. As a result, it is unlikely that this step would have produced a reliable means of ensuring compliance with the PEZ.
I am not satisfied beyond reasonable doubt that the defendant was in breach of its s 19(1) duty by failing to take the step provided for in [28.1.2] of the Summons.

Provision of a measuring device

Prior to the incident, the workers used a number of means of estimating the distance between the blast area and the firing location. These included the length of a roll of shocktube (which was 500m), the odometer on a vehicle and counting the number of drilled holes in future blast sites. There were no complaints made by the workers prior to the incident that they needed a measuring device to measure the distance between a blast area and a proposed firing location.
The shotfirers were not mistaken in the incident as to where the PEZ was. They were capable of identifying where they should have been by reference to landmarks and the Map. They did not intend to comply with the PEZ. Mr Fitzgerald said immediately after the blast that he believed that the secondary firing location was 370m from the blast area. Mr Chaplin said he believed it was 400m. In their handwritten statements, Mr Sinnett estimated 300m and Mr Large estimated 320m.
In the video, Mr Chaplin had no difficulty in identifying landmarks that indicated where the 500m mark was.
Merely providing a device with which to measure distance of the PEZ was insufficient to impact the risk without also establishing that the workers were trying to comply with the PEZ.
I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty by failing to take the step particularised in [28.1.3] of the Summons.

Map quality

Mr Fitzgerald gave evidence that he was given a copy of the Map on the day of the incident. He placed it on the dashboard of the vehicle he was driving and did not refer to it again.
Mr Sinnett gave evidence that the quality of the Blast Control Plan maps (maps) used to identify the PEZ varied prior to the incident. Mr Large gave evidence that the maps could be out of date by six to eight weeks, but he did not suggest that the particular Map was out of date because amongst other things he did not see it on the day of the incident. Mr Fitzgerald gave evidence that he complained about the poor quality of the maps to Mr Chapman and Mr Price in a pre-start meeting, prior to the incident.
Mr Kelly gave evidence that he did not have any trouble interpreting the Map that was used on the day of the incident. Mr Kelly said he could easily identify several landmarks on the map from his experience of working at the mine. Mr Clarke and Mr Price both gave evidence that they could identify various locations and landmarks on the Map. Mr Chaplin gave evidence that he thought the Map was “crystal clear” as to the delineation of the PEZ, the EEZ and the FMZ.
The quality of the maps improved after the incident when the defendant began using a drone to take aerial photographs of the relevant areas in OC4. However, the mere fact that the maps were improved after the incident does not mean that the Map was unclear or led to the blast crew being within the PEZ.
On this issue, I prefer the evidence of Mr Kelly, Mr Clarke, Mr Price and Mr Chaplin to the evidence of Mr Fitzgerald, Mr Sinnet and Mr Large, because they had less of an interest in giving the evidence that they did.
I am satisfied that the PEZ was clearly marked on the Map, that the workers were experienced with the workings in OC4 and used to interpreting the maps and were capable of identifying the PEZ from it. On the evidence, the shotfirers had no intention of selecting a firing location that was outside of the PEZ and did not rely on the Map to select a firing location outside of the PEZ.
I am not satisfied beyond reasonable doubt that the defendant was in breach of its s 19(1) duty by failing to take the step provided for in [28.1.4] of the Summons.

30 The Defendant failed to provide adequate supervision for its open cut blasting operations that were conducted at the Moolarben Coal Complex in that:

30.1 it failed to ensure that the person appointed to the position of Drill and Blast Superintendent had suitable qualifications and appropriate experience for the position or alternatively was provided with appropriate training; and/or

30.2 it failed to monitor adequately Deon Fisher in the role of Drill and Blast Superintendent through observation and assessment to ensure he was sufficiently competent for the role and understood his responsibilities to blast crews.

The prosecutor’s submission on this particular focussed on Mr Fisher’s lack of experience in drill and blast activities that were necessary to meet the requirements of the job description for the Drill and Blast Superintendent. It was common ground that Mr Fisher did not have the usual experience necessary to fulfil the requirements of that role.
However, I am not satisfied that this amounted to a breach of the defendant’s duty for the reasons that follow.
The prosecutor’s argument lacked any connection between the skills that Mr Fisher did not have and the incident. Mr Fisher lacked computer skills, technical knowledge relating to the planning of blasts, and the ability budget and audit supplies. The defendant arranged training for Mr Fisher with Mr Chaplin on the areas in which he lacked proficiency and later those tasks were performed by Mr Chaplin. There was no deficiency alleged in the quality of Mr Chaplin’s work on these tasks. It was not alleged that those tasks were involved in the lead up to the incident. Further, Mr Fisher had other sources of support including Mr Craig and the other OCEs, who he was close to.
Whilst Mr Fisher did not have a BEUL, it was not part of his role to provide day to day supervision of the blast crews. That responsibility fell to Mr Price, who was a qualified shotfirer and held a BEUL. Mr Fisher was not usually present at the firing location, in fact most of the time he was attending to other duties. MCO had ensured that the day to day supervision of the blast crews was undertaken by a person with appropriate qualifications.
Mr Fisher had relevant experience at the Mine, including experience as a supervisor. He did not have all of the usual experience on drill and blast activities that would have been considered optimal by reference to the role description of the position of Drill and Blast Superintendent. However, Mine management had faith in him as a proven performer in production and as a supervisor. He was a good leader and had a good safety record. MCO believed, based on his past record, that Mr Fisher could fulfil the role of Drill and Blast Superintendent, notwithstanding that it was considered to be a growth role for him.
I cannot place much weight on Mr Fisher’s evidence that he believed that the blast crew were standing too close to the blast at the secondary firing location. His evidence on this point was vague and really a reconstruction based on a few disjointed comments recorded on the video that he could not explain. In the conversation recorded immediately before the blast, I am satisfied that both Mr Fisher and Mr Chaplin considered it difficult to determine how far away they were from the blast area. They were in the company of three appointed shotfirers who owed independent statutory duties to ensure the safety of blast crew. Mr Fisher was entitled to rely on the expertise of the shotfirers, the statutory obligations imposed on them and MCO’s requirements to choose a firing location that complied with the CFE Procedure and was thereby outside of the PEZ.
Taking into account Mr Fisher’s evidence, the evidence about him from the managers and the other workers and his conduct in the video recording, I am satisfied that the faith placed on Mr Fisher by MCO was well founded. He came across as an effective leader and a diligent supervisor with a high regard for safety.
I am not satisfied beyond reasonable doubt that the defendant was in breach of its s 19(1) duty by failing to take the step provided for in [30] of the Summons.

Conclusion on Element 3

I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 3.

Element 4 - Did the defendant’s breach of duty expose the Blast Crew to a risk of death or serious injury?

The applicable principles were not in dispute and are set out at [461]–[464] above.
For the reasons given, I have found that the defendant did not breach its s 19(1) duty by failing to take the pleaded measures. If I am wrong on any of those findings, I am also not satisfied that the prosecutor has established that any of those failures were a significant or substantial cause of the blast crew being exposed to a risk of serious injury or death for the reasons that follow.
I have made, and now make, the following relevant findings of fact to the causation issue:

the shotfirers knew that the PEZ applied to them and authorised persons;

the Map clearly set out the PEZ and the FMZ to be observed when firing the shot;

the shotfirers knew they were within the PEZ at the secondary firing location;

the primary firing location was outside the PEZ and the FMZ;

at the primary firing location there was no risk that the fumes from the blast would be blown towards the blast crew;

the shotfirers did not adequately consider if the secondary firing location was safe to fire from;

the positioning of the video camera was not a relevant consideration in choosing the secondary firing location;

the shotfirers were not relying on Appendix L to select the secondary firing location. The shotfirers knew that the CFE Procedure did not refer to Appendix L. Mr Fitzgerald and Mr Large knew that the Orica training stated that exclusion zones were to be set in accordance with the site-specific procedure, being in this case the CFE Procedure;

the shotfirers knew that MCO required them to comply with their statutory obligations and the requirements of all safe work procedures at the Mine, including the CFE Procedure, or they were at risk of the termination of their employment;

the shotfirers knew that the PEZ was an isolation control designed to remove people from a location where they could be harmed and that failure to do so put whoever was left in the PEZ at risk of death or serious injury.

Had the shotfirers complied with the statutory obligations of their BEULs, and/or the CFE Procedure the near miss incident would not have occurred.
The most immediate cause of the blast crew being exposed to the risk was the failure by the shotfirers to comply with the terms of the CFE Procedure that they had been adequately and extensively trained on.
Further, MCO had in place a series of robust systems to ensure that the workers complied with the terms of the CFE Procedure, including the SO Procedure, the appointment system, the Codes of Conduct, the CC Procedure and disciplinary processes.
If I am wrong in my conclusion and there was a common practice at the Mine of firing shots from within the PEZ, then the most significant cause of the belief that it was an acceptable practice, came from a misapplication of Appendix L of AS 2187.
The express words of Appendix L were misleading if they were not read in context. If I had accepted the evidence that the shotfirers relied on Appendix L as the justification for firing shots from within the PEZ, then it was clear that the shotfirers did not understand the need to choose a “protected” firing location by reference to all of the relevant factors that could have impacted the generation of flyrock. The shotfirer’s evidence was that Appendix L allowed them to fire shots from within the PEZ at a location that they deemed to be safe. They did not engage in any particular analysis of the relevant factors to arrive at a “safe” location or understand that they needed to do so. The words of Appendix L were too permissive and did not convey the need to consider context or the site-specific procedures, including that those procedures might override the exception provided for by Appendix L.
Further, it was also clear that whilst the Orica training referred to the significance of site-specific procedures, it did not state that those site-specific rules could include a countermanding of the exception provide for in Appendix L.
I am satisfied that the CFE Procedure was clear. It was expressed to refer to “all personnel” for obvious reasons, being that any person not complying with the isolation control provided for by the PEZ was at risk of injury or death from flyrock, which could not be accurately predicted because of the unpredictable nature of explosions. Their identification as a shotfirer or authorised person did not make the risk disappear.
If there was a common practice of non-compliance with the PEZ, it occurred because of the poorly expressed exemption provided for by Appendix L and the failure of Orica to train the shotfirers that site-specific procedures could override Appendix L. In my view these were both intervening factors that preclude a finding that any omission of MCO was a substantial and significant cause of the blast crew being exposed to a risk of death or serious injury.

Conclusion on Element 4

I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

Conclusion and Orders

The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
I find the defendant not guilty.
The Second Amended Summons is dismissed.
I order that the prosecutor is to pay the defendant’s costs of the proceedings as agreed or assessed pursuant to s257G Criminal Procedure Act 1986.
Exhibits are returned.

NOTATION
The Court notes this was an appropriate matter for the retention of senior and junior counsel by both parties given the length and complexity of the proceedings.

**********

Endnotes

Amendments

09 August 2023 - Final orders added on cover sheet.

09 August 2023 - [196] replaced the words "during the course of the trial" with "until final submissions"

Decision last updated: 09 August 2023

Medium Neutral Citation:	McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255
Hearing dates:	11, 17-20, 23-27, 30-31 August 2021; 1, 7-8, 15-17 September 2021; 19- 22 October 2021; 1-2, 8-10, 29-30 November 2021, 1-2, 9 December 2021; 14-15 July 2022
Date of orders:	13 July 2023
Decision date:	13 July 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2 I find the defendant not guilty. 3 The Second Amended Summons is dismissed. 4 I order that the prosecutor is to pay the defendant’s costs of the proceedings as agreed or assessed pursuant to s257G Criminal Procedure Act 1986. 5 Exhibits are returned. NOTATION 1 The Court notes this was an appropriate matter for the retention of senior and junior counsel by both parties given the length and complexity of the proceedings.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury
Legislation Cited:	Explosives Act 2003 Explosives Regulation 2013 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety (Mines and Petroleum Sites) Regulation 2014
Cases Cited:	Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Bulga Underground Operations v Nash [2016] NSWCCA 37 Camden v McKenzie [2008] 1 Qd R 39 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Coote v Kelly [2016] NSWSC 1447 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Fox v Percy (2003) 214 CLR 118 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 Hughes v Barbara Mines Ltd (No 4) [2010] WASC 160 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 McGraddie v McGraddie [2013] 1 WLR 2477. New South Wales v Hunt (2014) 86 NSWLR 226 Onassis v Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 Shepherd v The Queen (1990) 170 CLR 573 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Watson v Foxman (1995) 49 NSWLR 315 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85
Texts Cited:	AS 2187.2 - 2006 Explosives – Storage and use Part 2: Use of Explosives
Category:	Principal judgment
Parties:	McColm (NSW Department of Planning and Environment) (Prosecutor) Moolarben Coal Operations Pty Ltd (Defendant)
Representation:	Counsel: P McDonald SC/W Thompson (Prosecutor) A Moses SC/J Alderson (Defendant) Solicitors: Lander & Rogers (Prosecutor) Seyfarth Shaw Australia (Defendant)
File Number(s):	2019/154712
Publication restriction:	None