Department of Planning and Environment v Chaplin; Department of Planning and Environment v Moolarben Coal Operations Pty Ltd

District Court of NSW|2020-07-08

Introduction

Moolarben Coal Operations (MCO) has pleaded not guilty to an offence that being a person with a health and safety duty pursuant to 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 and David Morris (the Blast Crew) to a risk of death or serious injury contrary to section 32 of the Act.
Michael Chaplin has pleaded not guilty to an offence that being a person who had a health and safety duty pursuant to s 28 of the Act, he failed to comply with that duty and thereby exposed the Blast Crew to a risk of death or serious injury contrary to section 32 of the Act.
The matters are listed to be heard together because they relate to the same incident.
The prosecutor seeks leave to file the Third Amended Summons setting out the charges against the defendants in two respects: 1. to substitute Stephen James Orr as the prosecutor; and 2. to make amendments to the pleaded case against each defendant.
MCO neither consents nor opposes the amendments sought. It concedes that it is not prejudiced by the amendments and that it will be in a position to deal with the additional factual matters raised by them at trial. Accordingly, it is appropriate to allow the amendment of the pleading against MCO, subject to the Court being satisfied that it has the power to substitute the prosecutor.
Mr Chaplin opposes the amendments sought on two bases. First, as to the substitution of the prosecutor, that the evidence relied on by the prosecutor is insufficient to establish that Inspector Orr is a person who can be appointed as the prosecutor in these proceedings. And second, as to the amendments to the charge, that they expand the case to be met by him at trial and the amendments have been proposed in response to without prejudice representations made to the prosecutor.

Factual Background

The prosecution is based on the following pleaded allegations of fact, which I have assumed to be true for the purposes of determining the application. MCO operates an open cut coal mine at Ulan, New South Wales (the mine). Mr Chaplin, a qualified mining engineer, was engaged by MCO to act as a Drill and Blast Engineer at the mine. Mr Chaplin's duties included the design and overseeing of blasts at the mine.
Mr Chaplin was involved in designing and implementing a blast that was to be fired at the mine on 17 May 2017. He did so by undertaking various steps in the days leading up to it in accordance with MCO's "Procedure - Charging and Firing of Explosives (OC)" (CFE Procedure).
The CFE Procedure required Mr Chaplin to determine, in conjunction with the shotfirer, where to position personnel to act as blast guards to enforce a blast exclusion zone, with a specified minimum blast exclusion zone of 500m for personnel and 300m for equipment. This required Mr Chaplin to consider the wind direction and speed and the flyrock expected to be generated by the blast.
As part of his duties, Mr Chaplin prepared a Blast Control Map which was a topographical aerial photograph of the blast area that indicated a 500m Personnel Exclusion Zone and a Fume Management Zone. The Fume Management Zone included a buffer to take into account the anticipated path of travel of the fumes produced by the blast.
The blast was planned to be fired from a position to the north-east of the blast area (the Primary Firing Location). At about 11.45am on the day of the blast, Mr Chaplin told Mr Fisher and Mr Fitzgerald that he wanted a video camera set up to the south of the blast area, to provide better footage of the blast. Messrs Fisher, Morris and Chaplin travelled to that location, where Mr Chaplin set up a video camera.
Messrs Fitzgerald, Sinnett and Large travelled to the south of the blast area, but stopped at a position further back from the blast area and away from where the video camera was set up. Messrs Fisher, Morris and Chaplin joined them at that location after the video camera was in place.
A decision was made to initiate the blast from that location (the Secondary Firing Location). There was no specific discussion about the safety or suitability of the Secondary Firing Location by reference to the Personnel Exclusion Zone or the Fume Management Zone. The Secondary Firing Location was 246m from the blast.
Mr Chaplin did not inform the Blast Crew that the Secondary Firing Location was not safe and that they should move outside of the Personnel Exclusion Zone and the Fume Management Zone.
At 12.07pm the blast was detonated. The blast projected flyrock in the direction of the workers and their vehicles. No worker was struck, but a flyrock alleged to weigh about 20kgs struck one of the vehicles causing damage to the bonnet and front grille. Following the projection of the flyrock, the fume cloud caused by the blast began to travel in the direction of the workers. The Blast Crew collected the video camera, got into their vehicles and moved out of the Fume Management Zone.

The Court's power to amend the summonses

Section 229B(1) of the Act provides that the proceedings for offences are to be dealt with summarily before the Local Court or in the summary jurisdiction of the District Court.
Section 246 Criminal Procedure Act 1986 provides that a prosecutor may commence summary criminal proceedings in the District Court in accordance with the District Court Rules 1973 (the Rules). Rule 53.26 of the Rules provides that proceedings under section 246 Criminal Procedure Act 1986 must be commenced by the issue of a summons or a warrant for apprehension.
Section 15 Criminal Procedure Act 1986 provides that the term "indictment" includes any other processes by which criminal proceedings are commenced.
Section 20 Criminal Procedure Act 1986 provides: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor - (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
Section 21(1) Criminal Procedure Act 1986 provides: 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
Sections 20 and 21 have different purposes. Section 20 confers a discretion to permit an amendment that must be exercised appropriately. Section 21 is more complex. It requires the Court to hold the opinion that the indictment is defective as the basis of the power to amend, so long as the amendment can be made without injustice. The statute does not define what constitutes a defective amendment: Rajendran v R [2010] NSWCCA 322 at [36]-[38].
Leave should be granted to amend an indictment unless the accused would be irreparably prejudiced in meeting the amended charge and the loss of a tactical advantage is not sufficient to refuse a grant of leave: Borodin v R [2006] NSWCCA 83.
It is permissible to allow amendments of formal matters and substantive matters. A count may be substituted where the facts proved justify conviction under the amended count. The question that the Court must answer in exercising the discretion is whether the amendment can be made without injustice: R v Stuart NSWCCA unreported 8 March 1996.

Substitution of the prosecutor

It was common ground that the proceedings were validly commenced and have been continued to date by two named prosecutors, who have both now left the employ of the regulator. It is apparent that some amendment, by way of the substitution of a prosecutor is required to regularise the proceedings and I am satisfied that the power to amend the Summons under either s 20 or s21 Criminal Procedure Act 1986 is enlivened.
Section 230 of the Act, relevantly provides: 230 Prosecutions (1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by - (a) the regulator, or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case), or (c) the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate, but only as permitted by subsection (3) if the offence concerned is a Category 1 offence or a Category 2 offence. (1A) Proceedings for an offence against this Act may also be brought by an Australian legal practitioner authorised in writing to represent a person who is authorised under this section to bring the proceedings. (2) An authorisation under subsection (1) (b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons. … (5) Nothing in this section affects the ability of the Attorney General or the Director of Public Prosecutions to bring proceedings for an offence against this Act.
The evidence discloses that Inspector Orr is an Inspector who was authorised by the regulator on 14 May 2020 to bring proceedings for an offence against the Act.
Mr Chaplin contends that the amendment to the Summons required to substitute the prosecutor would take effect on the date that the original Summons was issued (10 May 2019) and the evidence does not establish that Inspector Orr held an authorisation under s 230(1)(b) of the Act on that date. Mr Chaplin relies on the ordinary rule, that in the absence of a statutory provision to the contrary, that an amendment takes effect from the date that the original process was filed: GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 at [37] (Hodgson JA).
The prosecutor contends that s 230(2) of the Act is a statutory provision to the contrary, that the ordinary rule is displaced and that "an authorisation", which would include Inspector Orr's authorisation, is sufficient authority to continue the proceedings where the Court amends the Summons. Further, the prosecutor contends that the proceedings would not abate if the named prosecutor was no longer duly authorised, such as by ceasing employment or death, because the regulator is a representative of the Crown and the proceedings could continue with either the Crown or the regulator as the prosecutor: Ove Arup Pty Ltd v Industrial Court of New South Wales [(2006) 149 IR 193 at [70]-[71].
In my view, the prosecutor's argument is correct and s 230(2) of the Act authorises the continuation of the prosecution in Inspector Orr's name by reference to his authorisation of 14 May 2020.
I will make orders for the substitution of the named prosecutor in both proceedings.

Amendments to the pleaded case against Mr Chaplin

The Second Amended Summons pleaded the risk as: 33 The risk was the risk of other persons, in particular [a member or members of the Blast Crew] suffering serious injury or death as a result of: 33.1 being struck by fly rock ejected from the Blast: and 33.2 being exposed to the fumes generated by the Blast (Risk).
The Second Amended Summons pleaded the particulars of Mr Chaplin's breach of duty as: 34 The Defendant...failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons, in that the Defendant, prior to the Blast: 34.2 failed to provide a warning to the other members of the Blast Crew about the proximity of the Secondary Firing Location to the Blast and, in particular, that the Secondary Firing Location: 34.2.2 was within the Personnel Exclusion Zone; and 34.2.3 was in the direction of the path of travel for fumes as estimated by the Defendant on the Blast Plan Map; 34.3 failed to provide a direction to the Blast Crew to move to a location outside the Personnel Exclusion Zone.
The prosecutor seeks to amend the Summons in three ways. First by pleading the matters in [33.1] and [33.2], and [34.2.2] and [34.2.3] in the alternative, by the insertion of the word "or" at the end of [33.1] and [34.2.2] respectively and the insertion of the words "one or more of the following of" in the chapeau. Second, by pleading [34.2] and [34.3] in the alternative, which is not objected to by Mr Chaplin and will be allowed. Third, by changing the nature of the requirement in [34.3] from a direction to a recommendation.
As to the first matter, the prosecutor contends that the amendment is necessary to clarify the relationship between the particulars that is to specify that they are pleaded in the alternative. I do not agree that this can be put forward as a matter of clarification because the interpretation of the pleading is clear on its face that the matters in [34.2.2] and [34.2.3] were cumulative. The facts to be relied on by the prosecutor allege that the Secondary Firing Location was within the Personnel Exclusion Zone and the Fume Management Zone.
However, it appears to me that the prosecutor could seek to prove the s 32 charge by establishing that the Blast Crew were exposed to a risk of death or serious injury from the fly rock or exposure to the fumes from the Blast or both. Accordingly, the facts pleaded could justify a conviction on either of these three bases. The effect of the amendment will require Mr Chaplin to defend the matter on the same facts, but relied on in alternative ways to prove the offence. In the circumstances, I am not satisfied that Mr Chaplin will suffer any injustice by allowing the first amendment.
As to the third amendment, the prosecutor contends that this is an amendment that is required to better characterise the role of Mr Chaplin. The prosecutor did not lead any evidence on this point. Mr Chaplin relied on an affidavit of his solicitor annexing "without prejudice" representations made by him to the prosecutor. Mr Chaplin contends that I should infer that the amendment is sought by the prosecutor in response to that privileged communication and that if the amendment is allowed that he would suffer irreparable prejudice because the prosecutor has been allowed to respond to his disclosure of a defence that was made under a claim of privilege.
Whilst I was initially attracted to Mr Chaplin's argument, it appears to lack support in principle for the following reasons. First, s 131 Evidence Act 1995 provides that evidence of communications made or documents prepared, are not to be adduced in evidence in connection with an attempt to settle a dispute, but the privilege does not apply to criminal proceedings: s 131(5)(b) and Ramjutton v R [2015] VSCA 309 at [48]. Whilst it is the usual practice of prosecuting authorities not to seek to lead evidence of without prejudice communications, I could not find any authority in support of Mr Chaplin's argument: Ahmad v The Queen [2006] NSWCCA 177 at [20], R v Lu [2007] NSWSC 1259 at [23] and R v Deutrom [2018] NTSC 74 at [47]-[48].
Second, at common law the "without prejudice" privilege applied only to prevent evidence being adduced of communications made in the course of a genuine attempt to settle a dispute being brought before the Court as admissions on the part of the person who made them: Cutts v Head [1984] Ch 290 at 306 applied in Hong Kong Bank of Australia Ltd v Murphy (1992) NSWLR 512 at 522. In the seeking to amend the Summons, the prosecution has not sought to lead evidence of what was contained in the without prejudice communication and that will not be a necessary consequence if the amendment is allowed. There is no prohibition of derivative use of the information obtained during the course of settlement negotiations, so long as the communication is not disclosed in evidence: Daya v CX Reinsurance Company Ltd [2012] NSWSC 1621 at [7]-[9].
Third, the facts relied on by the prosecutor support the proposition that Mr Chaplin failed to say anything to the members of the Blast Crew, notwithstanding that he knew or ought to have known that the Secondary Firing Location was within the Personnel Exclusion Zone and the Fume Management Zone. It is open to the prosecutor to prove that Mr Chaplin breached his duty by failing to advise (or recommend) to the Blast Crew that they should move outside the Personnel Exclusion Zone and the Fume Management Zone and that as a result, they were exposed to the Risk. The proceedings have not yet been listed for trial. The only advantage lost by Mr Chaplin if the amendment is granted is a tactical one, of questionable merit. I am not persuaded that the distinction between the meaning of giving a direction or making a recommendation is significant in the present context. I am satisfied that the third proposed amendment will not cause injustice to Mr Chaplin and it should be allowed.

Orders

The orders that I make in both matters are as follows: 1. I grant leave to the prosecutor to file the Third Amended Summons in the form proposed, on or before 4.00pm on 27 July 2020. 2. I direct that the prosecutor serve the Third Amended Summons on or before 4.00pm on 3 August 2020. 3. I reserve the question of costs of the amendment application and the case readiness hearings to date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2020

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Judgment (7 paragraphs)

Cases Cited (9)