NSWNSWLEC

Environment Protection Authority v Maules Creek Coal Pty Ltd

[2024] NSWLEC 58

Land and Environment Court (NSW)|2023-09-27|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-09-27

Before

Pain J

Catchwords

[2000] NSWCCA 373 Daly v Medwell (1986) 40 SASR 281 Diemould Tooling Services Pty Ltd v Oaten
Santos Ltd v Markos (2008) 101 SASR 339
[2008] SASC 197 Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (2021) 250 LGERA 362
[2013] NSWCCA 204 Hakim v Waterways Authority of New South Wales (2006) 149 LGERA 415

Source

Original judgment source is linked above.

Catchwords

[2000] NSWCCA 373 Daly v Medwell (1986) 40 SASR 281 Diemould Tooling Services Pty Ltd v OatenSantos Ltd v Markos (2008) 101 SASR 339[2008] SASC 197 Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (2021) 250 LGERA 362[2013] NSWCCA 204 Hakim v Waterways Authority of New South Wales (2006) 149 LGERA 415[2006] NSWCCA 376 Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217[2006] NSWCCA 373 Hughes v Phillips (1948) 75 CLR 436[1948] HCA 1 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508[1987] HCA 42 Johnson v Miller (1937) 59 CLR 467[1937] HCA 77 R v B (2008) 76 NSWLR 533[2008] NSWCCA 85 R v Baden-Clay (2016) 258 CLR 308[2016] HCA 35 R v Goodfellow (1994) 33 NSWLR 308 R v Moussad (1999) 152 FLR 373[1999] NSWCCA 337 Romeyko v Samuels (1972) 2 SASR 529 S v R (1989) 168 CLR 266[1989] HCA 66 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359[2018] NSWCCA 202 TT Line Company Pty Ltd v Burrows (2021) 33 Tas R 163[2021] TASFC 3 Walsh v Tattersall (1996) 188 CLR 77

Judgment (187 paragraphs)

[1]

Solicitors: Environment Protection Authority (Prosecutor) King & Wood Mallesons (Defendant) File Number(s): 2022/00305228-004 2022/00305229-004 2022/00305230-004 2022/00305231-004 2022/00305232-004 2022/00305233-004 2022/00305234-004 2023/00077046-004

[2]

JUDGMENT Amended summons Blast A Amended statement of facts Amended summons Blast G Evidence Environment Protection Licence 20221 Letter from Prosecutor to Defendant dated 28 June 2023 Letter from Prosecutor dated 29 June 2023 Letter from Prosecutor dated 20 July 2023 Executive summary of Dr Cameron's report Whether each charge is bad for duplicity and uncertainty Defendant's submissions Patent duplicity Multiplicity of the particulars of 'manner of contravention' Multiplicity of activities said to be 'licensed activities' Latent duplicity and uncertainty Latent duplicity and uncertainty regarding evidence on blast fume Multiplicity of licensed activities Multiplicity of allegations concerning incompetent carrying out of activities Multiplicity of persons alleged to have carried out licensed activities incompetently Prosecutor's submissions No patent duplicity No latent duplicity or uncertainty Reply to alleged multitude of contraventions Reply to alleged multitude of persons and activities Reply to licensed activities (plural) Reply to lack of reference to blast fume in amended summonses Particularisation of case Consideration A. Statutory construction - identification of licensed activity B. Multiple activities / persons C. Particularisation of charges Particulars of contravention in amended summonses Amended statements of facts Dr Cameron's report Particulars in letters from Prosecutor D. Blast fume Conclusion

[3]

JUDGMENT

The Defendant Maules Creek Coal Pty Ltd is charged with eight offences under s 64 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) that it failed to comply with a condition of Environment Protection Licence Number 20221 (EPL) on numerous occasions. Seven of the charges concern events in 2021. Seven notices of motion dated 7 July 2023 were filed by the Prosecutor the Environment Protection Authority and seven notices of motion dated 28 July 2023 were filed by the Defendant each seeking different relief in each of these seven matters. The Prosecutor's notice of motion dated 31 July 2023 relates to a similar charge arising from events in March 2022. The Defendant's notice of motion dated 7 August 2023 also relates to the March 2022 events. The Court made orders that the notices of motion in all eight matters be heard together.
The Prosecutor's notices of motion dated 7 and 31 July 2023 sought leave to rely on amended summonses in all 8 matters inter alia. Such orders were made in all eight matters for the purpose of hearing the Defendant's notices of motion. Accordingly the Defendant's notices of motion dated 28 July and 7 August 2023 addressing the eight amended summonses are the subject of this judgment.
The Defendant's notices of motion seek orders that the eight amended summonses be dismissed due to patent and latent duplicity in the charges. Alternatively, the Defendant seeks orders that the proceedings be permanently stayed. In the course of the hearing other remedies such as election of particulars of the offences to be relied on by the Prosecutor were identified as a possible response to the Court's findings.
Under s 21 of the Criminal Procedure Act 1986 (NSW) (CP Act) a court can amend an indictment if this can be done without injustice.
Section 48 of the POEO Act requires an EPL to be held for scheduled activities. Mining for coal is a scheduled activity under Sch 1 cl 28 of the POEO Act where more than 500 tonnes of coal per day is produced, as occurs at the Defendant's coal mine at Maules Creek (the Mine). The Defendant holds an EPL as required in order to undertake such activity.
The eight charges arise from eight different blasting events at the Defendant's premises at Maules Creek. Seven different blast events in 2021 identified as Blasts A-G are each the subject of a separate charge. A similar charge arises from a blast event in March 2022.

[4]

Amended summons Blast A

The amended summonses are generally similar, and do not therefore all need to be set out in order to address the parties' arguments. The parties focused on Blasts A and G. The amended summons (Blast A) is extracted as follows with amendments marked up as underlined and struck through: The Prosecutor claims: 1. An order that the Defendant, Maules Creek Coal Pty Ltd ACN 140 533 875, whose registered office is at Level 28, 259 George Street, Sydney NSW, appear before a Judge of the Court to answer the charge that, between about 26 September 2021 and about 7 October 2021, at or near Maules Creek Coal Mine at Therribri Road, Boggabri in the State of New South Wales, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of an environment protection licence, a condition of which was contravened by a person. Particulars a. Licence Environment Protection Licence Number 20221 (EPL). b. Licence condition contravened Condition 01.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner. This includes: (a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and (b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity." c. Licensed activities The licensed activities that were carried out by the Defendant was the blast named JER_02_09_OB (Blast A) in the course of mining for coal at Maules Creek Coal Mine, which was operated by the Defendant. d. Manner of contravention The Defendant conducted Blast A in a less than competent manner, in that: The processing and handling by the Defendant and its contractors of explosives used to carry out Blast A occurred in the following circumstances: (a) The explosives selected for use in Blast A had not been tested in a controlled manner in ground and depth conditions similar to those found in Blast A; (b) High emulsion content heavy ammonium nitrate fuel oil (ANFO) explosives were loaded in blast holes in deep and weak strata; (c) More than 10% of the blast holes were overfilled with explosives by 10% or more than the designed charge, contrary to Australian Standard AS 2187.2-2006, Explosives-Storage and Use, Part 2: Use of Explosives (Australian Standard AS 2187.2-2006) section 7.4.5(d) Pumpable Explosives, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6; (d) The communication system, by which observations about geological conditions made by the drillers when drilling the blast holes were notified to the shotfirers, was inadequate drillers did not use a clear communication system to notify the shotfirers about geological conditions when the blast holes were loaded with explosives, contrary to Australian Standard AS2187.2-2006 section 5.2.6 Drilling; (e) The explosive column rise was not measured during the loading of explosives, contrary to Australian Explosives Industry Safety Group Inc Code of Practice, On-Bench Practices for Open Cut Mines and Quarries, Edition 3, June 2019 (AEISG Code of Practice for On-Bench Practices) section 8.3, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6; and (f) The measured top of the explosive column was not recorded after loading of explosives to confirm adequate stemming, contrary to AEISG Code of Practice for On-Bench Practices section 8.4, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6. As a consequence, the licensed activities were not carried out in a competent manner. e. Date on which evidence of the offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Lindsay Fulloon on 14 October 2021. …

[5]

Amended statement of facts

The amended statement of facts dated 29 June 2023 prepared pursuant to s 247E of the CP Act for Blast A is extracted relevantly as follows with amendments marked up: … 3. Between 26 September 2021 and 9 November 2021 (inclusive), the EPL also contained the following conditions: a. Condition A1.2 states that the EPL authorises the carrying out of the following scheduled activities: b. Condition A2.1 states that the EPL applies to the following premises: c. Condition A3.1 states that the EPL "applies to all other activities carried on at the premises". The Project Approval 4. On 23 October 2021, the Mine was approved under the former section 75J of the Environmental Planning and Assessment Act 1979 (EP&A Act) (Application Number 10_0138) (the Project Approval). The Project Approval contains the following relevant conditions: … c. Condition 25 of Schedule 3 states that the Proponent shall prepare and implement a Blast Management Plan for the project. The Blast Management Plan must (amongst other things): … ii. include a specific blast fume management protocol to demonstrate how emissions will be minimised including risk management strategies if blast fumes are generated; … The Blast Management Plan 10. The Maules Creek Blast Management Plan, Issue 2.2, Revision Date 2018 (WHC_PLN_MC_BLAST MANAGEMENT PLAN) (the Blast Management Plan) was prepared in accordance with the condition 25 of Schedule 3 of the Project Approval and section 2.2 of Australian Standard AS 2187.2. 11. Under section 2.4 of the Blast Management Plan, the guidelines and standards applying to blasting at the Mine include: a. Australian Standard AS 2187.2; and b. the AEISG Code of Practice Blast Generated NOx Gases. 12. Section 2.4 of the Blast Management Plan also states that: a. "Best practice blast management procedures will be implemented at the MCCM to achieve acceptable outcomes (in terms of rock fragmentation, ground vibration, overpressure, fly rock, dust and blast fume)…". b. "…best practice control of ground vibration, overpressure, fly rock, dust and blast fume will be achieved through procedures and safeguards including: • Comply with relevant internal procedural documents prior to the commencement of any blast…". … THE MINE AND MINING PROCESS … Blasting activities 15. The Blast Planning, Design & Record Keeping Procedure contains a Blast Design Process Flow Chart which describes the process carried out in relation to blasting activities. The blasting process includes: a. the designing of the blast; b. the drilling of blast holes; c. the loading of blast holes; d. the initiation and firing of the blast; and e. blast review and feedback. 15A. The drill and blast design process involves the selection of a design standard and the preparation of a number of documents which form part of the drill and blast design. These include the drill design (also called a drill pattern) for the blast, load sheets (or charge sheets) and the drill and blast design checklist (which is used to record conformance with the requirements of the Blast Planning, Design & Record Keeping Procedure and to ensure all relevant factors have been considered in the design of the blast). The management of blast fume 16. The Blast Fume Management Procedure describes blast fume as follows at section 2: Blasting fumes are comprised of a group of gases, these include nitrogen dioxide, nitrous oxide, nitric oxide, carbon monoxide and carbon dioxide. The two main gases, nitric oxide (NO) and nitrogen dioxide (NO2) may be found as by-products in the post-blast gases of ammonium nitrate-based explosives, and are generated in greater quantities where incomplete or low-order detonation occurs. Nitric oxide is colourless, but nitrogen dioxide ranges from yellow to dark red/ purple depending on the concentration and size of the gas cloud. These gases are harmful to humans if inhaled in large quantities. Blasting fumes can be harmful to humans if inhaled in sufficient quantities and/or over a prolonged period of time. These fumes can pose a risk to members of the blast crew and sentries in close proximity, or other mine workers exposed in the event that fumes travel outside the immediate blast clearance area without dispersing. Risks to persons outside the mining area are low however also need to be addressed in the event that large fume clouds travel outside the mine lease on to private or public land. 17. Blast fume events are classified in accordance with the following AEISG Visual NOx Gases Rating Scale (from the AEISG Code of Practice Blast Generated NOx Gases at Appendix 2): The causes of blast fume 18. The Blast Fume Management Procedure at section 3 states that fume generation can be attributed to a number of circumstances that, either singularly or combined, can be managed to minimise or mitigate the production of NOx: a. Explosive formulation and quality assurance; b. Geological conditions; c. Blast design; d. Explosive column disruptions during the shot sequence; e. Explosive product selection; f. Explosive desensitisation; g. On bench practices; h. Contamination of explosive in the blast hole; and i. Weather conditions. … The trial blast on 24 February 2021 22. The blast named VEL_06_33_OB (Trial Blast) was fired on 24 February 2021. The explosives selected for use in relation to the Trial Blast consisted of 13% AquaMax 260D, 65% ThrowMax 220D, and the remaining 22% of the blast was loaded with Hanwha products. The average depth of blast holes in the Trial Blast was 11 metres, with a maximum depth of 13 metres. The grounds conditions for the Trial Blast were neither wet, broken nor fractured. The Trial Blast produced a Level 1A fume event in relation to the Enaex portion of the site and no observable fume in relation to the Hanwha portion of the site. … THE BLAST 24. The blast named JER_02_09_OB (Blast A) was fired on 7 October 2021. 25. Blast A caused a fume event with rating 4B, which quickly dissipated to a 3B fume which remained above the pit and clearing areas before dissipating completely. 26. Evidence in relation to Blast A first came to the attention of EPA authorised officer, Mr Lindsay Fulloon, on 14 October 2021. FAILURES TO CARRY OUT LICENSED ACTIVITES IN COMPETENT MANNER 27. The Defendant failed to carry out licensed activities, being Blast A, in a competent manner as set out below. The use of explosives in absence of previous testing in similar conditions 27A. Under section 12.1.3 of the Explosives Control Plan: New explosive products and systems shall be introduced in a controlled manner through the site change management process, until the performance and reliability of such products and systems has been evaluated and appropriate training of the blast crew has been completed. A quality assurance process will be applied that as a minimum covers: - Availability of TDS & SDS sheets - Trained and competent operators - Raw materials are within specification - Material is delivered at appropriate rate to allow correct mixture - Collect cup weight samples per truck to check product density - Product that is pumped to remain under pumping pressure limits - Stage 1 - Initially only loading of minimal blastholes & staggering through pattern to evaluate product consistency - Stage 2 - Load quarter of the pattern, followed by loading half the pattern if evaluation is adequate Additional monitoring & controls include: - Ensuring VOD cables are placed down the blasthole to measure VOD trace results - Post blast inspections to check fragmentation around test blastholes - Viewing and analysing the blast video - Analysing excavator dig rates and data from the trial blast area - Sign off by Drill & Blast Engineer and Operations Manager prior to commencement of Stage 1 and 2 of the trial process 27B. The explosives selected for use in relation to Blast A consisted of 5% AquaMax 270D, 78% ThrowMax 230D, and 17% ThrowMax 240D (Explosives). The selection of the Explosives occurred in circumstances where: a. AquaMax 270D, ThrowMax 230D and ThrowMax 240D were not used in the Trial Blast. b. The average depth of blast holes for Blast A was 28 metres, with a maximum depth of 38 metres. c. There were numerous observations of broken ground and fractured ground in the Drill Operations Reports and Daily Drill Hole Logs prepared for Blast A.

[6]

Amended summons Blast G

The amended summons (Blast G) with amendments marked up is extracted relevantly as follows: The Prosecutor claims: 1. An order that the Defendant, Maules Creek Coal Pty Ltd ACN 140 533 875, whose registered office is at Level 28, 259 George Street, Sydney NSW, appear before a Judge of the Court to answer the charge that, between about 27 October 2021 to about 9 November 2021, at or near Maules Creek Coal Mine at Therribri Road, Boggabri in the State of New South Wales, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of an environment protection licence, a condition of which was contravened by a person. Particulars a. Licence Environment Protection Licence Number 20221 (EPL). b. Licence condition contravened Condition 01.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner. This includes: (a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and (b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity." c. Licensed activities The licensed activities that were carried out by the Defendant was the blast named BRY_08_36_OB (Blast G) in the course of mining for coal at Maules Creek Coal Mine, which was operated by the Defendant. d. Manner of contravention The Defendant conducted Blast G in a less than competent manner, in that: The processing and handling by the Defendant and its contractors of explosives used to carry out Blast G occurred in the following circumstances: (a) The explosives selected for use in Blast G had not been tested in a controlled manner in ground and depth conditions similar to those found in Blast G; (b) Notwithstanding the fume events that followed JER_02_09_OB (Blast A), NAG_06_29_OB and FLX_06_31_PS (Blast B), JER_02_05_OB and JER_02_01_PS (Blast C), NAG_06_31_OB and FLX_06_31_PS_B (Blast D), TSU_09_46_OB (Blast E), and TSU_09_46_OB_B (Blast F), no attendant changes were made to the drill and blast design for Blast G; (c) The communication system, by which observations about geological conditions made by the drillers when drilling the blast holes were notified to the shotfirers, was inadequate, contrary to Australian Standard AS 2187.2-2006, Explosives-Storage and Use, Part 2: Use of Explosives (Australian Standard AS 2187.2-2006) section 5.2.6 Drilling; (d) High emulsion content heavy ammonium nitrate fuel oil (ANFO) explosives were loaded in blast holes in deep and weak strata; (e) The explosive column rise was not measured during the loading of explosives, contrary to Australian Explosives Industry Safety Group Inc Code of Practice, On-Bench Practices for Open Cut Mines and Quarries, Edition 3, June 2019 (AEISG Code of Practice for On-Bench Practices) section 8.3, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6; (f) The measured top of the explosive column was not recorded after loading of explosives to confirm adequate stemming, contrary to AEISG Code of Practice for On-Bench Practices section 8.4, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6; and (g) Explosives were spilled on the bench, contrary to Explosives Regulation 2013 (NSW), clause 101 and Australian Standard AS 2187.2-2006, Explosives-Storage and Use, Part 2: Use of Explosives (Australian Standard AS2187.2-2006) section 7.4.5(c) Pumpable Explosives. As a consequence, the licensed activities were not carried out in a competent manner. …

[7]

Evidence

The Prosecutor tendered the Court Book and the report of Dr Cameron mining industry consultant extracted below in [17].
The Defendant read the affidavits of Ms Twemlow solicitor affirmed 28 July and 22 August 2023. The Defendant tendered a bundle of key documents in its duplicity motions that extracted documents from the exhibit to the affidavit of Ms Twemlow dated 28 July 2023.

[8]

Environment Protection Licence 20221

Relevant sections of the Defendant's EPL are extracted below: … 1 Administrative Conditions A1 What the licence authorises and regulates A1.1 This licence authorises the carrying out of the scheduled development work listed below at the premises listed in A2: Construction of mine related infrastructure. A1.2 This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2. The activities are listed according to their scheduled activity classification, fee-based activity classification and the scale of the operation. Unless otherwise further restricted by a condition of this licence, the scale at which the activity is carried out must not exceed the maximum scale specified in this condition. … A3 Other activities A3.1 This licence applies to all other activities carried on at the premises, including: Ancillary Activity Chemical storage Concrete works Crushing, grinding and separating of rock for construction activities Railway systems activities Sewage treatment system … 3 Limit Conditions … L4 Blasting L4.1 The airblast overpressure level from blasting operations in or on the premises must not exceed 120dB (Lin Peak) at any time at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence. L4.2 The airblast overpressure level from blasting operations in or on the premises must not exceed 115dB (Lin Peak) for more than five per cent of the total number of blasts over each reporting period at any time and at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence. L4.3 The ground vibration peak particle velocity from the blasting operations carried out in or on the premises must not exceed 10mm/sec at any time at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence. L4.4 The ground vibration peak particle velocity from the blasting operations carried out in or on the premises must not exceed 5mm/sec for more than five per cent of the total number of blasts over each reporting period at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence. L4.5 Blasting operations on the premises must only be carried out between the hours 9am to 5pm, Monday to Saturday, inclusive. L4.6 The hours of operation for blasting operations specified in condition L4.5 may be varied if the EPA, having regard to the effect that the proposed variation would have on the amenity of the residents in the locality, gives written consent to the variation. L4.7 Blasting at the premises is limited to 1 blast on each day on which blasting is permitted. Note: Additional blasts are permitted where it is demonstrated to be necessary for safety reasons and the EPA and neighbours have been notified of the intended blast prior to the additional blast being fired. Note: This condition does not apply to blasts that generate ground vibration of 0.5 mm/s or less at any residence on privately owned land. Note: For the purpose of this condition, a blast refers to a single blast event, which may involve a number of individual blasts fired in quick succession in a discrete area of the mine. L4.8 Condition L4.7 does not apply to blasts that generate ground vibration of 0.5 mm/s or less at any residence on privately- owned land, or to blasts required to ensure the safety of the mine or its workers. Note: For the purposes of this condition, a blast refers to a single blast event, which may involve a number of individual blasts fired in quick succession in a discrete area of the mine. … 4 Operating Conditions 01 Activities must be carried out in a competent manner 01.1 Licensed activities must be carried out in a competent manner. This includes: a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity. … 04 Other operating conditions Blast Fume 04.1 Offensive blast fume must not be emitted from the premises. Definition: Offensive blast fume means post-blast gases (whether visible or invisible, odorous or odourless) from the detonation of explosives at the premises that by reason of their nature, duration, character or quality, or the time at which they are emitted, or any other circumstances: (i) are harmful to (or is likely to be harmful to) a person that is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted. … 5 Monitoring and Recording Conditions … M7 Blasting M7.1 To determine compliance with conditions L4.1 to L4.4 inclusive: a) Airblast overpressure and ground vibration levels must be measured and electronically recorded for monitoring points 31, 32, 33 and 34 for the parameters specified in Column 1 of the table below and b) The licensee must use the units of measure, sampling method and sample at the frequency specified opposite in the other columns.

[9]

Letter from Prosecutor to Defendant dated 28 June 2023

The Defendant relied on a letter it received from the Prosecutor dated 28 June 2023 extracted in reference to Blast A as follows: Environment Protection Authority v Maules Creek Coal Pty Ltd ACN 140 533 875 Land and Environment Court Proceedings No. 20221305228, 20221305229, 20221305230, 20221305231, 20221305232, 20221305233 and 20221305234 We refer to the above matters. Request for further and better particulars In your letter dated 17 May 2023, you requested that we provide the following further particulars: "With respect to each Summons, please specify the identity of the person alleged to have contravened Condition 01.1 of the Environment Protection Licence held by the Defendant". The particulars provided below derive largely from the business records of the Defendant. In some cases, those records are incomplete or illegible. In these circumstances, the Prosecutor reserves the right to amend the particulars if or when further information comes to hand. Summons in Land and Environment Court Matter No. 20221305228 (Blast A) In relation to "d. Manner of contravention: (a) High emulsion content heavy ammonium nitrate fuel oil explosives were loaded in blast holes in deep and week strata" The Drill and Blast Engineer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to: • Ensure designs took into account the potential for fume by assessing (inter alia) the following: ... Expected hole conditions for the blasting material type; ... product selection... • Ensure drill and blast design were signed off by the Drill and Blast Superintendent • Ensure the charge sheets were developed using measured data • Ensure charge sheets were approved by the Drill and Blast Superintendent • Ensure pre and post blast checklists were completed and actions undertaken The Drill and Blast Superintendent's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to: • Ensure Drill and Blast Engineers took into account the potential for fume generation for all drill and blast designs and that these designs were signed off by an experienced drill and blast engineering person (Superintendent or Senior Engineer) Under the Defendant's Explosives Control Plan section 5.1: • The Drill and Blast Engineer or Technical Services Superintendent release the drill and/or blast patterns, load sheets (charge sheets) and tie-up plans • The Drill and Blast Engineer or Technical Services Superintendent store the drill shift reports and drill sheets with blasthole depths recorded by the Driller In relation to Blast A: • The drill sheets (drill logs) for Blast A recorded many instances of broken ground and cavities. • The load sheets (charge sheets) for Blast A identified the explosives to be loaded in the blast holes. • The Drill and Blast Engineer responsible for designing Blast A was Lee Butler. • The Drill and Blast Engineers responsible for preparing the load sheets for Blast A were Lee Butler and Sosten Sitima. • The Senior Drill and Blast Engineer responsible for approving Blast A was Darren Megson. • The Technical Services Superintendent responsible for approving Blast A was Roberto Giglio. • The Drill and Blast Superintendent responsible for approving the blast design and the loading of Blast A was Michael Clark. In relation to "d. Manner of contravention: (b) More than 10% of blast holes were overfilled with explosives by 10% or more than the designed charge" The Shotfirer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to: • Ensure the charging plan was followed • Ensure blasting activities were completed in accordance with the drill and blast standards and procedures, including the Defendant's Loading and Stemming Blast Holes Procedure Under the Defendant's Loading and Stemming Blast Holes Procedure section 3.1 and 3.6: • Blast holes were to be charged under the direct supervision of an appointed Shotfirer. • The maximum kg loaded was not to exceed 10% above original designed kg specified on the load sheets. No further loading could be conducted without direct instruction, approval and sign off by the Shotfirer and the Drill and Blast Superintendent. In relation to Blast A: • Blast A included 130 holes loaded above 10% of the design. • The completed load sheets (charge sheets) for Blast A did not contain signatures or written approvals by the Shotfirer and Drill and Blast Superintendent for the charging of these holes over 10% as required by the Defendant's Loading and Stemming Blast Holes Procedure. • The Shotfirers responsible for Blast A were Shaun Kalisz, Jim Drane and another person whose signature was not decipherable. In relation to "d. Manner of contravention: (c) The drillers did not use a clear communication system to notify the shotfirers about geological conditions when the blast holes were loaded with explosives" The Drill and Blast Engineer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to: • Ensure the charge sheets were developed using measured data • Ensure charge sheets were approved by Drill and Blast Superintendent Under the Defendant's Explosives Control Plan section 5.1: • The Drill and Blast Engineer or Technical Services Superintendent release the drill and/or blast patterns, load sheets (charge sheets) and tie-up plans • The Drill and Blast Engineer or Technical Services Superintendent store the drill shift reports and drill sheets with blasthole depths recorded by the Driller In relation to Blast A: • The drill sheets (drill logs) for Blast A included many instances of broken ground and cavities as recorded by the Drillers. • Under the Explosives Control Plan section 5.1, the drill sheets were to be provided to Drill and Blast Engineers, Lee Butler or Sosten Sitima, or to Technical Services Superintendent, Roberto Giglio, to store. • Due to an inadequate communication system, information about geological conditions that had been recorded in the drill sheets prepared by the Drillers was not provided by the Drill and Blast Engineers to the Shotfirers. • The load sheets (charge sheets) released to the Shotfirers did not contain information about the geological conditions of the blast holes as recorded by the Drillers in the drill sheets. • The Drill and Blast Engineers responsible for preparing the load sheets (charge sheets) for Blast A were Lee Butler and Sosten Sitima. • The Drill and Blast Superintendent responsible for approving the load sheets (charge sheets) for Blast A was Michael Clark. In relation to "d. Manner of contravention: (d) The explosive column rise was not measured during the loading of explosives" The Shotfirer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to: • Ensure the charging plan was followed • Ensure blasting activities were completed in accordance with the drill and blast standards and procedures, including the Defendant's Loading and Stemming Blast Holes Procedure Under the Defendant's Loading and Stemming Blast Holes Procedure section 3.6: • The column rise and final explosives column height of every hole had to be measured to ensure there was adequate stemming to contain the explosive energy and that holes were not overloaded or under loaded. In relation to Blast A: • The completed load sheets (charge sheets) for Blast A did not contain recordings or measurements of the explosive column rise. • The Shotfirers responsible for Blast A were Shaun Kalisz, Jim Drane and another person whose signature was not decipherable. In relation to "d. Manner of contravention: (e) The measured top of the explosive column was not recorded after loading of explosives to confirm adequate stemming" The Shotfirer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to: • Ensure the charging plan was followed • Ensure blasting activities were completed in accordance with the drill and blast standards and procedures, including the Defendant's Loading and Stemming Blast Holes Procedure Under the Defendant's Loading and Stemming Blast Holes Procedure section 3.6: • The column rise and final explosives column height of every hole had to be measured to ensure there was adequate stemming to contain the explosive energy and that holes were not overloaded or under loaded. In relation to Blast A: • The completed load sheets (charge sheets) for Blast A did not contain recordings or measurements of the final explosives column height. • The Shotfirers responsible for Blast A were Shaun Kalisz, Jim Drane and another person whose signature was not decipherable. …

[10]

Letter from Prosecutor dated 29 June 2023

The Defendant received a letter of particulars from the Prosecutor dated 29 June 2023 of 18 pages. Extensive particulars were provided in the context of proposed amended summonses. These were not expressly referred to in argument.

[11]

Letter from Prosecutor dated 20 July 2023

The Defendant relied on a letter it received from the Prosecutor dated 20 July 2023 relevantly extracted in reference to Blast A as follows: Environment Protection Authority v Maules Creek Coal Pty Ltd ACN 140 533 875 Land and Environment Court Proceedings No. 2022/305228, 2022/305229, 2022/305230, 2022/305231, 2022/305232, 2022/305233 and 2022/305234 … By reference to our letters to you of 28 and 29 June 2023, we have extracted below the names of those persons who, while working in combination to carry out the respective blasts on behalf of the Defendant, were responsible for the Defendant's alleged incompetence with respect to those blasting activities. As with the particulars previously supplied to you in these letters, the information provided below derives largely from the business records of the Defendant. In some cases, those records are incomplete or illegible. As such, the Prosecutor reserves the right to amend the particulars if or when further information comes to hand. Persons jointly responsible for the breach of condition 01.1 of EPL 20221 Land and Environment Court Matter No. 2022/305228 (Blast A) No. Person 1 Lee Butler 2 Sosten Sitima 3 Darren Megson 4 Roberto Giglio 5 Michael Clark 6 Shaun Kalisz 7 Jim Drane … [similar list of varying length provided for each charge] Next steps The information provided in this letter is referrable to the particulars contained under the heading "manner of contravention" in the draft amended summonses also served on you by way of letter dated 29 June 2023. Those amendments include the proposed amended particular that "The Defendant conducted Blast B in a less than competent manner…" By the provision of this information, the EPA considers that the requests for particulars sought by the amended notices of motion have now been met… …

[12]

Executive summary of Dr Cameron's report

The Defendant relied on the executive summary of Dr Cameron's report relevantly extracted as follows: A. Executive Summary 1. Introduction 1.1. I have been briefed by the NSW EPA to provide my expert opinion on an Investigation of Blast Fume Events at Maules Creek Coal Mine. The EPA is investigating seven blasts that occurred at the Mine between 7 October 2021 and 9 November 2021 that have been identified in Section 2.3.1 as Blasts A to G. … 3. Findings Standard of Competence … 3.12. In my opinion, regulatory requirements (including NSW Explosive Regulation 2013, Australian Standard AS 2187.2 - 2006, PA 10_0138 and the Blast Management Plan) as well as corporate and site specific standards, plans, processes and procedures developed and approved by WHC and Maules for safe operations at the Mine must be followed for blasts to be designed and carried out in a competent manner. This includes the Blast Management Plan, being the document required to be developed and adhered to under Australian Standard AS 2187.2- 2006. … Opinion (a) - were licensed activities in respect of Blasts A to G, such as the design and carrying out of blasting at the Mine, carried out in a competent manner? 3.17. In my opinion, licensed activities in respect of Blasts A to G, such as the design and carrying out of blasting at the Mine, were not carried out in a competent manner because: 3.17.1. Testing of new explosives (Enaex products) in the conditions found in Blasts A to G was not conducted prior to full production use of the products in these blasts. Maules Creek Mine's Explosives Control Plan specifies a gradual introduction of new explosives in blasts containing explosives products normally used. 3.17.2. Velocity of Detonation (VoD) measurements were not conducted on Enaex explosives in conditions representative of Blasts A to G prior to or during Blasts A to G to confirm the performance of the explosives as required by the Explosives Control Plan or as recommend by Prism Blasting in their report "Review Product and Design Considerations, Whitehaven Coal - Maules Creek" as well as the Enaex "WHC Product Awareness" presentation. 3.17.3. The introduction of new explosives at Maules was not done in a staged and controlled manner as required by the Explosives Control Plan. 3.17.4. The risk assessment completed as part of the Maules Management of Change for changing explosives suppliers to Enaex did not recognise the potential risk of blast fume, though a report/presentation from a consultant (Prism Mining) contracted to assist in the transition from Hanwha to Enaex products had expressed concerns about fume from some of the Enaex explosives in particular conditions. In addition, there were areas known to Maules that had previously experienced fume from blasting. The Risk Assessment resulted in a "High" risk rating that, based on the assessment format, required a signature showing it had been reviewed and approved by the "General Manager". A signed copy of the Risk Assessment was not provided. 3.17.5. Many instances of explosives spilled on the bench were observed for Blasts D, E & G. This is unsecured explosives in violation to New South Wales Explosives Regulation 2013 - Reg 101, Australian Standard AS 2187.2 - 2006 section 7.4.5 Pumpable Explosives, as well as recognised as a "Major Hazard" in the Explosives Control Plan. 3.17.6. The explosives spilled on the bench were not consumed in the blast and therefore were mixed into the rock during blasting and ended up in the mine waste areas where they are dissolved by rainwater causing pollution with ammonium nitrate and oil/hydrocarbons. This is not an appropriate procedure for the disposal of waste material (explosives). 3.17.7. A large number of holes in Blasts A and B were overloaded by more than 10% without direct instruction, approval and sign off by the Shotfirer and the Drill and Blast Superintendent as specified in Maules' Loading and Stemming Blast Holes procedure and also contrary to Australian Standard AS 2187.2 - 2006 section 7.4.5 Pumpable Explosives. 3.17.8. The measured top of explosive column was not recorded to confirm there was adequate stemming to contain the explosive energy and that holes were not overloaded or under loaded as per Loading and Stemming Blast Holes procedure. 3.17.9. Explosive column rise was not measured in all holes for Blasts A to G due to the practice of using short measuring tapes or rods to only check for the explosive column reaching the stemming height. This continued after geological conditions, including broken ground and cavities resulting in explosives not coming to stem height, was identified as a potential contributor to fume from Blast A. This practice resulted in explosives lost into broken ground and/or cavities not being identified by the blast crew in a timely manner and these holes having full designed charge and, in some cases, up to 10% more loaded. 3.17.10. The Mine did not review and identify the above issues, alter its blast design or procedures following Blast A, even after successive blast fume events occurred. …

[13]

Whether each charge is bad for duplicity and uncertainty

[14]

Defendant's submissions

The Defendant submits each charge is bad for patent (obvious on the face of the document) and latent (not demonstrable on the face of the document but clear from the way the prosecution case is conducted) duplicity and uncertainty. The law requires that there be certainty as to the particular offence with which an accused is charged, Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 at 497-498 (Evatt J), S v R (1989) 168 CLR 266; [1989] HCA 66 at 276 (Dawson J), Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at 92 (Kirby J).
The common law rule against duplicity is that no count in an indictment should charge a defendant with having committed two or more separate offences, Walsh v Tattersall at 92-93 (Kirby J), Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain) at [33]-[34] (Leeming JA, Hulme and Button JJ agreeing). The rule against duplicity is based on considerations of the orderly administration of criminal justice and fairness, namely the court knowing the charge before it and the defendant knowing what case they have to meet. Patent duplicity arises where it is apparent on the face of the summons that more than one offence has been charged within the one count, Johnson v Miller at 487 (Dixon J), Walsh v Tattersall at 100. Latent duplicity is disclosed by the way in which the prosecution case is conducted, Walsh v Tattersall at 100. Latent duplicity includes a prosecutor seeking to lead evidence of multiple offences answering the description of the offence or offences charged, Johnson v Miller at 486, S v R at 285 (Gaudron and McHugh JJ). The facts alleged by a prosecutor may also disclose latent duplicity, Johnson v Miller at 486.
The law requires a strict application by the courts of the rule against duplicity, Walsh v Tattersall at 110-111, Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202 (Snowy Monaro) at [50] (Bathurst CJ, Fullerton and Campbell JJ agreeing). Where acts form part of the same transaction or criminal enterprise, they may be charged permissibly in a single count without infringing the rule against duplicity, Truegain at [48]. The Court must examine whether the acts occurred in a close temporal or physical proximity such as to be susceptible to treatment as a single count, Walsh v Tattersall at 107-109. However, the strict approach to duplicity holds sway in considering whether this exception applies, and the general rule is that, unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity, they should be separately charged, Walsh v Tattersall at 107, Truegain at [50].

[15]

Multiplicity of the particulars of 'manner of contravention'

A matter demonstrative of patent duplicity is that the particulars of 'manner of contravention' in the Blast A amended summons expressly identifies, by way of sub‑particulars (a)-(f), six alternative allegations that the 'licensed activities' were carried out otherwise than in a competent manner when any one of those allegations, if made out, would be sufficient to make out the offence charged. There are six separate alleged contraventions of condition 01.1 contained within the amended summons for Blast A (seven in relation to Blast G). This is clear patent duplicity in and of itself.

[16]

Multiplicity of activities said to be 'licensed activities'

Secondly, patent duplicity arises because the particulars of the amended summonses both under the heading 'licensed activities' and under the heading 'manner of contravention' embody allegations that licensed activities, in the plural, were carried out otherwise than in a competent manner when the carrying out of any one such activity otherwise than in a competent manner would suffice to make out the offence charged.
The reference to licensed activities in the plural is consistent with the circumstance that particulars listed in, for example sub-particulars (a)-(f) of the amended summons for Blast A, under manner of contravention concern different activities. This conclusion is properly drawn from their description and is reinforced by the concluding words which follow after sub-particulars (a)-(f), in which it is stated that, as a consequence of all six particularised matters, the licensed activities were carried out otherwise than in a competent manner. Put another way, the amended summons patently states, by using the plural 'activities', rather than the singular 'activity', that more than one offence occurred by reason of the matters so particularised. This leaves the Defendant in a state of uncertainty as to what case it has to meet and what would be the licensed activity.
Not only does the framing of the charge by the Prosecutor by reference to licensed activities in the plural infringe the rule against duplicity, which would be enough per se to warrant remedy, it unfairly prejudices the Defendant in the conduct of its defence. That is because the Defendant should be entitled to defend any charge for an alleged contravention of condition 01.1 of the EPL, if it sees fit to do so, on the basis that the activity the subject of the charge is not a licensed activity within the meaning of condition 01.1. However, where multiple activities are specified, such a defence might be available to one or more, but not all, of the activities the subject of the charge.

[17]

Latent duplicity and uncertainty

Additionally, the prosecution case and its conduct demonstrate latent duplicity and gross, impermissible uncertainty as to what case the Defendant has to meet in each of the proceedings. The evidence the Prosecutor proposes to adduce, the facts it asserts in its amended statements of facts served as part of the notice of its case under s 247E of the CP Act, and the responses it has given to the Defendant's requests for particulars all disclose: 1. a multitude of possible offences answering the description of the offences charged and leave a high degree of uncertainty as to what case the Defendant has to meet; and 2. a multitude of persons carried out any one of a multiplicity of activities said to be licensed activities otherwise than in an incompetent manner in any one of numerous aspects.

[18]

Latent duplicity and uncertainty regarding evidence on blast fume

A large body of material which the Prosecutor has given notice it will adduce at the hearings concern the circumstances that a blast fume was generated by each blast in question, including seven records of interviews of employees of the explosives contractor. Yet none of the charges, as particularised, state anything about blast fume. The Defendant is left having to assume that the evidence concerning the blast fume and its possible causes somehow forms part of the allegations of incompetence, but leaves gross uncertainty in relation to each of the proceedings as to what specific allegations the Prosecutor relies upon from the evidence in relation to the generation of blast fume, and its causes, in making out its case in each of the proceedings that the licensed activities were carried out otherwise than in a competent manner.
Dr Cameron's report identifies the general instructions provided to him to provide an expert opinion on an investigation of blast fume events at the Mine. The executive summary sets out the fume events being investigated in relation to each of the seven Blasts A-G. The opinion of what activities were not carried out in a competent manner in par 3.17 of the report includes matters that are not particularised in the amended summonses for Blasts A-G.
The amended statements of facts for all offences make express reference to instances of blast fume and to various standards and procedures said to apply to the management of blast fume. No explanation for what allegations are being made in relation to this material is provided, including who was responsible for them by reasons of carrying out an activity or activities incompetently, further adding to uncertainty for the Defendant.
The point is exemplified by an examination of the Prosecutor's amended statement of facts in relation to the Blast A proceeding. Although no mention is made in the amended summons, at all, of any fume being generated as a consequence of Blast A, the amended statement of facts includes the following references: 1. At par 4(c)(ii), it is stated that condition 25 of Sch 3 of the project approval for the Mine requires that the Defendant's blast management plan must include a specific blast fume protocol to demonstrate how emissions will be minimised including risk management strategies if blast fumes are generated. 2. At par 12, it is stated that the Defendant's blast management plan states that best practice blast management procedures will be implemented at the Mine to achieve acceptable outcomes in terms of blast fume. 3. At par 13, it is stated that there are other procedures that contain requirements which are relevant to blasting at the Mine, including the blast fume management procedure. 4. At pars 16 and 17, there is a section under the heading 'The management of blast fume' which includes the classification of blast fume on a nominated scale, which is extracted in the facts. 5. At par 18, under the heading 'The causes of blast fume', there is express reference to a section of the Defendant's blast fume management procedure which identifies the circumstances that either singularly or combined can be managed to minimise or mitigate the production of NOx (the principal gas associated with blast fume). 6. At par 25, it is stated 'Blast A caused a fume event with rating 4B which quickly dissipated to a 3B fume which remained above the pit and clearing areas before dissipating completely'.

[19]

Multiplicity of licensed activities

The uncertainty and duplicity related to the multiplicity of licensed activities is patent (see above in [22]-[24]) and is latent. The body of evidence relied upon by the Prosecutor globally, in relation to all of the proceedings, discloses any number of possibilities as to activities alleged by the Prosecutor to have been carried out otherwise than in a competent manner. This is made clear from the report of Dr Cameron based on his instructions for Blasts A-G, such as in opinion (a) 'were licensed activities in respect of Blasts A to G such as the design and carrying out of the blasting at the Mine carried out in a competent manner?'. Dr Cameron refers to numerous activities which he considers demonstrate incompetence in the executive summary.
The amended statements of facts all include a heading 'blasting activities' which discloses an assertion that there are various activities that are licensed associated with blasting, namely the designing of the blast, the drilling of the blast holes, the loading of blast holes, the initiation and firing of the blast and blast review and feedback, see par 15 of the statement of facts for Blast A. These activities are carried out by different persons with different roles at different times.

[20]

Multiplicity of allegations concerning incompetent carrying out of activities

Patent duplicity arises from the face of the amended summonses given the inclusion of multiple sub-particulars containing alternative allegations of incompetence in the sub-particulars of manner of contravention.
Duplicity and uncertainty are also latent given the multiple possible offences falling within the description of the offence charged. Dr Cameron's report intended to be relied on in all proceedings provides various opinions as to standards of competence he says should be met by the Defendant, including by specific reference to statements contained in the Defendant's blast management plan, per pars 3.6-3.11 of his executive summary. In par 3.12 Dr Cameron opines that the blast management plan must be followed in order for blasts to be designed and carried out in a competent manner. The amended summonses for Blasts A-G make no reference to that plan yet it appears to be a significant failure relied on. The Defendant does not know what case it is meeting.
The opinions of incompetence expressed in par 3.17 of Dr Cameron's report include matters which are not the subject of contraventions identified in the amended summonses. The charges are defective for latent duplicity and uncertainty.
Paragraph 3.22 of Dr Cameron's report identifies measures that he considers could have been taken to control, abate or mitigate fume from Blasts A-G and as these were not taken this suggests incompetence. These matters are not identified in the amended summonses and give rise to uncertainty and latent duplicity.

[21]

Multiplicity of persons alleged to have carried out licensed activities incompetently

The Prosecutor's letter dated 28 June 2023 specifies the identity of persons alleged to have contravened the EPL. An additional letter dated 20 July 2023 identifies in tabular form the identity of the persons said to have contravened condition 01.1 of the EPL in relation to each proceeding.
For example, in relation to Blast A, the correspondence from the Prosecutor (extracted above in [16]) identifies Lee Butler, Sosten Sitima, Darren Megson, Roberto Giglio and Michael Clark as being persons, put neutrally, who were involved in the activities said to fall within the purview of the drill and blast engineers. It is not discernible from that letter what, if any, role any of the identified persons performed in the contravention of condition 01.1. It can be readily inferred that the Prosecutor itself does not know the answer to that enquiry, given its counsel expressly informed the Court that such an issue was a 'matter for evidence' on 30 June 2023, some two days after the letter was sent.
When the particulars thus provided by the Prosecutor are considered together with the notice the Prosecutor has given of its case under s 247E of the CP Act, the following circumstances are disclosed: 1. The multiplicity of persons named by the Prosecutor as having contravened the Defendant's EPL in each of the proceedings include drill and blast engineers, shotfirers, the Defendant's drill and blast superintendent, and the Defendant's technical services superintendent, these being persons who carry out different activities at different times associated with mine blasting. 2. The Prosecutor has not identified what person is said to have done which act, or omitted to do which act, said to give rise to the particularised contraventions of condition 01.1.
It is against that background that three fundamental points may be made. Firstly, it is abundantly clear that what the Prosecutor is alleging is that more than one person has contravened condition 01.1 in circumstances where it is not particularised, by reference to any one person, what it said that the person actually did or did not do.
Secondly, the particularisation of the charge and the conduct of the case by the Prosecutor leaves the Defendant in a legally embarrassing position of uncertainty in that it cannot possibly understand the case it has to meet.

[22]

Prosecutor's submissions

The acts and omissions relied on were performed on behalf of the Defendant for the purpose of conducting the blast the subject of each charge. Each individual blast occurred in the context of the Defendant carrying out the licensed activity of mining for coal. The persons responsible for the acts and omissions that cumulatively comprise the Defendant's alleged incompetence worked in combination to carry out each blast. They had a common purpose.
Each blast constitutes a single continuous activity or enterprise, R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337 at [65]-[66] (Smart AJ, Wood CJ at CL, Bell J agreeing). Each blast occurred in the context of the Defendant mining for coal at the Mine, for which it requires an EPL that authorises that activity to be carried on at those premises, Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (2021) 250 LGERA 362; [2021] NSWCCA 289 (Charlotte Pass Snow Resort) at [51] (Preston CJ of LEC, Price and Adamson JJ agreeing).
In Walsh v Tattersall Kirby J at 108 observed various indicia that were proposed to sustain a single count against the charge of duplicity. Applying these indicia, it is apparent that the Defendant's conduct in respect of each blast satisfied the circumstances required for charging a single count. 1. Timing: the charge period for each amended summons commences first with the design of each separate blast and coincides with the detonation of the blast. Forming part of that activity are the critical sequential and interrelated steps involving the design, drilling, loading, firing and detonation of the blast. 2. Similarity of the acts and omissions: the unifying characteristics of the acts and omissions are that they relate to the same specified scheduled activity, namely each respective blast carried out by the Defendant in the course of mining for coal at the Mine, Charlotte Pass Snow Resort at [53]. 3. Physical proximity of the place where the events happened: the impugned conduct and omissions all took place at the Mine. 4. Intention of the Defendant throughout the conduct: the intention of the persons involved in each respective blast was to perform the steps and responsibilities related to their role in order to carry out the blast on behalf of the Defendant.
The conduct squarely falls within the 'same criminal enterprise or the one criminal activity' as conceptualised by Kirby J in Walsh v Tattersall at 108, consistent with Bentley v Gordon (2005) 139 LGERA 449; [2005] NSWCCA 157 at [19] (Giles JA, Buddin J agreeing), [56] (Smart AJ) and Truegain at [22]. Even if it is open to formulate individual charges with respect to separate activities, a charge may still be proceeded with on the basis of a single overall arrangement, Hakim v Waterways Authority of New South Wales (2006) 149 LGERA 415; [2006] NSWCCA 376 (Hakim) at [82] (Spigelman CJ, Grove and Bell JJ agreeing).

[23]

No patent duplicity

Unlike in Truegain at [54] the processing and handling of explosives are not distinct 'scheduled activities' under Sch 1 of the POEO Act. In any event, the purpose of s 21 of the CP Act is to amend particulars that are defective without injustice. Injustice means irreparable prejudice in meeting the charge. Any alleged uncertainty with respect to the precise activity relating to each charge is also removed by this amendment.

[24]

No latent duplicity or uncertainty

The amended summonses are not bad for latent duplicity or uncertainty.

[25]

Reply to alleged multitude of contraventions

Reliance on multiple sub-particulars to prove the manner of contravention does not lead to the result that the charges are duplex, CSR Ltd v Environmental Protection Authority (2000) 110 LGERA 334; [2000] NSWCCA 373 at [33]-[34] (Smart AJ, Spigelman CJ and Hulme J agreeing) (CSR Ltd), Romeyko v Samuels (1972) 2 SASR 529 at 552 (Bray CJ), Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 (Hannes) at [9] (Basten JA).
Whether or not any combination of the sub-particulars relied on are sufficient to prove beyond reasonable doubt that the licensed activity on the respective blasts were carried out in a less than competent manner will be a matter for determination by the trial judge. If it is the case that not all sub-particulars are proved, but that the contravention is nevertheless established, then the lack of competence will be less extensive than as pleaded by the Prosecutor.
Not all sub-particulars need to be proved. Properly understood the sub‑particulars are cumulative as opposed to alternative allegations. The Defendant's complaint above in [25] was unaccompanied by minimal, if any, particularity contrary to the authorities above in [51].

[26]

Reply to alleged multitude of persons and activities

Each amended summons concerns the Defendant's competency in carrying out a blast while mining for coal. In correspondence to the Defendant, the Prosecutor identified the roles of the person who bore responsibility for the sub‑particularised acts and omissions under the heading 'manner of contravention' in the amended summonses, as well as the individuals who performed those roles for each respective blast. The Prosecutor confirmed the identified persons were 'working in combination to carry out the respective blasts on behalf of the Defendant, [and that they] were responsible for the Defendant's alleged incompetence with respect to those blasting activities' in a letter to the Defendant dated 20 July 2023, see above in [16].
'Any person' in s 64(1) of the POEO Act should be read to include 'any persons' in accordance with s 8(b) of the Interpretation Act 1987 (NSW). Context and common sense points squarely against any argument to the contrary. If only the conduct or omission of an individual actor may be relied on in proof of an offence contravening s 64(1) of the POEO Act, this would severely limit the means by which such an offence could be charged.
A charge is not made duplex by virtue of a multiplicity of persons carrying out an activity when working in combination, Johnson v Miller at 483 (Dixon J). The criminal law is replete with instances of charges that involve a multiplicity of persons and acts occurring over a period of time to which no complaint of duplicity arises for example the charge of conspiracy, R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 at [75] (Spigelman CJ, James and Howie JJ agreeing).
At trial it will be open to the Defendant to argue in relation to each sub-particular under the heading manner of contravention that the evidence reveals incompetence attributable to some person not associated with it (so as to enliven the potential defence under s 64(2) of the POEO Act). There is no unfairness in the matters proceeding to trial.

[27]

Reply to licensed activities (plural)

The reference to licensed activities merely repeats the words of condition 01.1 and no more should be read into the use of the plural. The particular activity the subject of the EPL is mining for coal per Sch 1 cl 28 of the POEO Act. In each of the amended summons, the relevant allegation is that 'the Blast' (singular) was carried out in a less than competent manner in the course of 'mining for coal.' This can only be referable to the activity of mining for coal, as opposed to the processing or handling of coal as part of the Mine's operations, the distinction set out in Truegain at [56].

[28]

Reply to lack of reference to blast fume in amended summonses

The relevance of blast fume is clear from the Prosecutor's amended statements of facts. The Prosecutor submits a level 1A fume event was created when the new supplier's explosive products were partially trialled by the Defendant on 24 February 2021, see amended statement of facts for Blast A extracted above in [8]. The generation of a blast fume instigated the Prosecutor's investigation due to a community complaint. In respect of each of the charges, a similar fume event occurred.
The generation of blast fume after each respective blast is both a manifestation of the Defendant's alleged incompetence in carrying out the blast, and circumstantial evidence from which inferences consistent with guilt or innocence may be drawn by the trier of fact, R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
As the blast fumes are not essential factual ingredients of the charges, John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 at 520 (Mason CJ, Deane and Dawson JJ), there is no need to include reference to blast fume in each of the amended summons and the failure to do so can hardly be said to give rise to 'gross uncertainty'.

[29]

Particularisation of case

It may be that certain sub-particulars, such as the inadequacy of the communication system between drillers and shotfirers, the failure to measure the explosive column rise and the failure to record the measured top of the explosive column, would not on their own amount to incompetence in the view of the trier of fact (variously (c), (d), (e), (f), (g) for Blasts A-G). Considered cumulatively, the combination of such sub-particulars may indeed satisfy the trier of fact that the relevant blast was conducted in a less than competent manner.
Conversely, if found as a fact, the first sub-particular in the amended summonses relating to Blasts A-G, concerning the selection of explosive products that had not been tested in a controlled manner in similar ground and depth conditions to each respective blast, would be highly probative of the contention that the blast had been conducted in a less than competent manner.
However, even if the trial judge were to conclude that sub-particular (a) is sufficient to make out the offence, it does not lead to the conclusion that an order for an election is appropriate or necessary. This is because it is permissible for the acts and omissions relating to, for example, product selection in the absence of trialling (sub-particular (a)), the failure to make attendant changes to the drill and blast design notwithstanding previous fume events (sub-particular (b) for Blasts B-G), and the loading of selected products into blast holes in deep and weak strata (sub-particular (b) for Blast A, sub-particular (c) for Blasts B-D, sub-particular (d) for Blast G), to bind together to strengthen the available inference of incompetence. In doing so, these sub‑particulars may also form the basis of a submission that the Defendant was (in effect) trialling the new suppliers' explosives in unsuitable ground conditions in Blasts A-G.
A conclusion as to incompetency in relation to any particular blast would be more confidently drawn if the trier of fact also found it proved that loaded explosives had been spilled on the bench (sub-particular (g) for Blasts D,G, sub-particular (f) for Blast E), and/or that blast holes had been overfilled by 10% or more as alleged for Blast A (sub-particular (c)) and Blast B (sub-particular (d)).
Each of the sub-particulars under manner of contravention in the amended summonses is capable of combining to prove only the one allegation of incompetence relating to a course of conduct, activity or enterprise, defined by reference to each respective blast. That the charges can be 'supported by more than one class of evidence' does not mean 'that several charges [are] made', Hughes v Phillips (1948) 75 CLR 436; [1948] HCA 1 at 442 (Latham CJ, Starke, Dixon, McTiernan and Williams JJ agreeing). This demonstrates that there is no duplicity in the amended summonses.

[30]

Consideration

The Prosecutor has charged the Defendant in relation to eight blast events separately and these are particularised in each amended summons. The eight amended summonses allege multiple acts and omissions in the sub-particulars of the manner of contravention which are said to constitute the course of conduct which gives rise to each offence of a breach of condition 01.1 of the EPL. The amended summonses for Blasts A and G which occurred in 2021 are set out above in [7] and [9]. The amended statement of facts for Blast A is also extracted above in [8]. The parties agree that the submissions made in relation to Blasts A-G collectively which occurred in 2021 also apply to the March 2022 charge.
The parties generally agreed albeit with different emphases the principles concerning the common law prohibition of duplicity in charging criminal offences referring to Johnson v Miller at 487, 489 (Dixon J) and at 497-498 (Evatt J). Kirby J in Walsh v Tattersall at 110-111, Bathurst CJ in Snowy Monaro at [50] affirmed its strict application. The parties agree that the common law principles that criminal charges must not be duplicitous is subject to an exception where a course of continuous conduct constitutes an offence, Walsh v Tattersall at 107-108 (Kirby J). The parties also agreed that where acts form part of the same transaction or criminal enterprise which individually may constitute an offence they can be charged as a single count without infringing the rule, Truegain at [48] cited in Snowy Monaro at [47], Charlotte Pass Snow Resort at [54] (78 water pollution events could be a single charge). At issue is whether in these eight charges the amended summonses satisfy that exception or, by identifying multiple offences, do so in an impermissible way as giving rise to patent, or latent duplicity and uncertainty. As identified in Walsh v Tattersall by Kirby J at 108, each case must depend on questions of fact and degree mindful of the statutory context.
In Hannes Basten JA stated: [9] There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities…

[31]

A. Statutory construction - identification of licensed activity

Authorities emphasise the importance of statutory construction to determine the nature of the offence charged. Under s 48 of the POEO Act scheduled activities in Sch 1 require an EPL for premises where an activity is carried on. 'Mining for coal' is a scheduled activity under cl 28 of Sch 1 if that activity has the capacity to produce more than 500 tonnes of coal per day. Mining for coal is defined as 'the mining, processing or handling of coal (including tailings and chitter) at underground mines or open cut mines'. The Defendant has an EPL which authorises the carrying out of specified scheduled activities in condition A1.2 at the Mine which includes mining for coal and, separately, coal works and crushing, grinding or separating. 'Activity' is defined in the dictionary to the POEO Act to include any industrial activity, which includes mining for coal.
Condition 01.1 requires that licensed activities must be carried out in a competent manner which includes: a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.
The Prosecutor alleges that steps from design to detonation necessary to carry out the blast the subject of each charge is the course of conduct, activity or enterprise giving rise to each offence, being steps necessary for the mining of coal. In that sense the charges do focus on a licensed activity albeit it has been expressed as licensed activities in the amended summonses.
In particular (b) 'License condition contravened' in each amended summons the license condition breached is identified as condition 01.1 of the EPL requiring that licensed activities (intended by Prosecutor as activity) must be carried out in a competent manner. The only relevant part of licensed activities referenced in the subsections of condition 01.1 appears to be processing, not the handling, movement or storage of materials under subsection (a). Subsection (b) of condition 01.1 does not arise on the present facts alleged. The consideration of condition 01.1 is therefore different to Truegain. In Truegain Leeming JA held a summons alleging a breach of the same condition 01.1 in different circumstances was duplicitous, because acts and omissions relating to both storage and treatment, being separate licensed activities, were included in one charge. This finding was supported in his view by Chugg v Pacific Dunlop Ltd [1988] VR 411 (Chugg) and Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 (Boral Gas) as follows: [66] I would reach that conclusion unassisted by authority. However, authority is not lacking. As the primary judge pointed out, Chugg v Pacific Dunlop Ltd [1988] VR 411 concerned an information based on the obligation on an employer to "provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health", and the particulars identified several acts and omissions. Fullagar J held the information duplicitous. Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 concerned the New South Wales counterpart. Hill J said that many of the acts and omissions identified as failures were "disparate in nature and content", and involved "different items of plant, different systems of work, different operations and procedures, different locations on the premises, … [and] different risks of danger to different employees": at 179. His Honour said that the gist of the offence was each act or omission which breached the obligation to ensure the health, safety and welfare of an employer's employees. Hungerford J also found that the disparate acts amounted to more than one offence.

[32]

B. Multiple activities / persons

The challenge of considering the offences in the amended summonses is that the identification of licensed activities (intended by Prosecutor as activity) as 'mining for coal' covers a wide variety of complex industrial processes engaged in under the EPL. The focus of each charge is a single blast undertaken on a particular day in pursuit of the licensed activity of mining for coal with some steps taken to achieve the blast particularised under manner of contravention in a time period leading up to the date of detonation.
The amended summonses for Blasts A and G have 6 or 7 sub-particulars specifying the manner of contravention. These identify multiple activities undertaken in order to carry out the blast the subject of each charge. The Defendant complains that some of the sub-particulars could on their own represent an offence therefore the amended summonses are duplicitous as they contain multiple offences. The Prosecutor first submitted that one course of conduct, the carrying out of each blast the subject of a charge, the various particulars if proved in the alternative or cumulatively did not result in duplicitous charges, relying on CSR Ltd at [33]-[34] citing Bray CJ in Romeyko v Samuels at 345. Applying the considerations identified by Kirby J in Walsh v Tattersall at 108, the Prosecutor submitted that all the actions particularised are within the charge period and at one location.
The Prosecutor also submitted that no duplicity arises (or if it does it is acceptable) a position supported by Diemould. That case considered whether offences laid under work place health and safety laws were duplicitous. The Prosecutor relied on the reasoning of Doyle CJ (White J agreeing) that multiple contraventions of a section (s 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA)) imposing a general duty on employers to provide a safe workplace did not give rise to separate offences under s 58, at [24]. Doyle CJ considered that the provisions gave rise to a single instruction or command in light of the statutory scheme, at [19]. In Chugg Fullagar J at 415-416 considered a similar offence under equivalent New South Wales legislation, cited in Diemould at [28]. The approach in Chugg was not applied by Doyle CJ to the act he was considering. Doyle CJ held: [29] …to my mind the issue is not one of characterising the employer's duty (the affirmative command that is drawn from s 19), but of identifying what constitutes a contravention of s 19(1). And, as I will explain, the need to identify and to particularise an offence means that the defendant will know "with precision what he is charged with", although the proof of that charge may involve the proof of a number of acts or omissions. At times that may mean that the factual basis of a charge is not straightforward, but it does not follow that the accused person will not know with what he is charged. And, on the contrary approach, I foresee scope for the prolonged dissection of facts to isolate the separate "identifiable acts or omissions", each one of which separately will constitute the contravention of the provision. In the end, each approach has its own difficulties.

[33]

C. Particularisation of charges

The issue of uncertainty arises due to the particularisation of the Prosecutor's case, in written and oral submissions before me, the amended statements of facts using Blast A as an example, correspondence between the parties' solicitors set out above in [14]-[16] and Dr Cameron's report also extracted in part above in [17].

[34]

Particulars of contravention in amended summonses

I consider uncertainty arises for the Defendant as the amended summonses do not specify how the sub-particulars under manner of contravention are intended to prove each of the offences. The unamended summonses for Blast A had 'and' between sub-particulars (e) and (f), suggesting that all the sub-particulars had to be proved by the Prosecutor in order to establish incompetence, which did make the Prosecutor's position clear. That position shifted with the deletion of 'and' between (e) and (f) leaving unclear how the sub-particulars were intended to operate. The Prosecutor's submissions about how the sub‑particulars were intended to prove the offence evolved over the numerous submissions filed by the parties (ten in all) and during oral submissions in the second hearing phase. The Prosecutor submitted the sub‑particulars could be proved both separately and cumulatively in several imprecise ways.
During the hearing the Prosecutor advised that sub-particular (a) in Blasts A-G amended summonses is directed to the selection of explosives, not to conducting tests on explosives providing clarification that testing of explosives is not the subject of that sub-particular.
The way the sub-particulars of manner of contravention were intended to work was difficult to understand. The Prosecutor submitted at first that whether or not one or a combination of sub-particulars were sufficient to establish the offences was a matter for the trial judge. This approach was identified in Diemould by Doyle CJ at [52]‑[57] referring to the possibility that a prosecutor could rely on multiple particulars of a contravention with a defendant having to contest every allegation in the particulars and the prosecutor succeeding in obtaining a conviction by proving only one of the particulars. In later submissions the Prosecutor stated that the acts and omissions relied on in relation to each blast operated in a permissible cumulative fashion. For example Blast A sub‑particulars (d), (e) and (f) may not on their own establish incompetency. If proven and considered cumulatively they might satisfy the trier of fact of incompetence. Sub-particular (a) together with particular (b) for Blasts B-G concerning the selection of explosive products would be highly probative in proving the Prosecutor's case. In Blast G sub-particulars (a) and (b) together with particular (d) which is related would be highly probative of guilt. The sub‑particular that explosives had been spilled on the bench as specified in relation to Blasts D, G sub-particular (g), Blast E sub-particular (f) would contribute to a finding of incompetence. Similarly that blast holes were overfilled by 10% for Blast A sub‑particular (c) and Blast B sub-particular (d).

[35]

Amended statements of facts

Each charge has an amended statement of facts. The amended statement of facts for Blast A is extracted in part above in [8]. The amended statement of facts identifies that there are a number of steps required to undertake a blast, being the design of the blast, the drilling of blast holes, the loading of blast holes, the initiation and firing of the blast and blast review and feedback. One section commencing at par 16 refers to the blast fume management procedure, classification of blast fume (par 17) and cause of blast fume (par 18). A trial blast on 24 February 2021 is referred to (par 22). Failures to carry out licensed activities are specified in par 27A referring to the use of explosives in the absence of previous testing which a quality assurance process should cover.
Further matters beyond those referred to in the amended summonses including blast fume which I consider separately below are provided in the amended statements of facts. How these relate to each of the multiple sub‑particulars of manner of contravention is not clear. The Defendant's complaint that the volume of sub-particulars provided leads to uncertainty is valid. The amended statements of facts need to be rationalised.

[36]

Dr Cameron's report

Dr Cameron's report provides a wide-ranging critique of the Defendant's blasting operations and practices for the charge periods, as can be seen from the executive summary extracted above in [17]. Dr Cameron refers to fume events and provides opinions on standards of competence in par 3.17 identifying ten areas of concern which in some respects are additional to the manner of contravention particularised in the summons for example 3.17.2, 3.17.3, 3.17.4. The Prosecutor will need to specify what parts of Dr Cameron's report it intends to rely on to support the amended summonses as pleaded. Any additional matters not relevant to proving guilt should not be relied on.

[37]

Particulars in letters from Prosecutor

Extensive particulars are provided in letters dated 28, 29 June 2023 and 20 July 2023 from the Prosecutor to the Defendant, see above in [14]-[16]. Given the range of actions and persons identified a wide range of possible behaviours could be caught, which may or may not relate to the sub-particulars of the manner of contravention specified in the amended summonses. This must be made clearer to the Defendant.
The amount of particulars provided in the amended statements of facts and the letters of particulars from the Prosecutor do not provide certainty to the Defendant about the basis for the sub-particulars of the manner of contravention in the amended summonses. This is exacerbated by the scope of Dr Cameron's report.
The Prosecutor needs to clarify precisely how it intends to prove each blast in relation to all the particulars of contravention provided.

[38]

D. Blast fume

No reference is made to blast fume in the manner of contravention in the amended summonses. Extensive reference to blast fume appears in the amended statements of facts, Dr Cameron's report and in the letter of particulars dated 28 June 2023.
The EPL contains conditions which specify requirements in relation to blast impact minimisation at section 3 'Limit conditions', L4 'Blasting' and which specify at 04 'Other operating conditions', blast fume 04.1 that offensive blast fume must not be omitted from the premises. Section 5 'Monitoring and recording conditions' at M7 specifies blasting monitoring conditions. As identified above none of the conditions expressly regulating blast fume are referred to in the amended summonses.
The Defendant's complaint of uncertainty in relation to blast fume is warranted given this large volume of material, which appears disconnected from the manner of contravention specified in the amended summonses. The Prosecutor has submitted that the reference in the amended statements of facts to blast fume is essentially background information explaining how the charges came to the attention of the Prosecutor. When considered in conjunction with Dr Cameron's report which refers expressly to the creation of blast fume as part of his findings of incompetence, I consider that the role of blast fume is not reflected in the amended summonses charged and must be excluded from material to be relied on to establish the charges.
The Defendant's original written submissions included a section criticising the extensive evidence served by the Prosecutor which was not ultimately pressed at the hearing. The brief observations by the Defendant above in [43] suggests the evidence served to date is voluminous. It is likely that rationalisation of the particulars of the charge will also require rationalisation of evidence relied on. I am unable to be more specific as I was not addressed on that matter.

[39]

Conclusion

The Defendant's notices of motion dated 28 July and 7 August 2023 seek orders for dismissal of charges and/or stay of proceedings. I will not be making such orders. What follows from my findings is that the Prosecutor will have to: 1. Confirm whether it wishes to further amend the amended summonses to refer to a singular licensed activity. 2. Precisely identify for each of the amended summonses for each charge the interrelationship between the sub-particulars under particular (d) manner of contravention, as started to occur as summarised above in [96]-[100]. 3. Rationalise the amended statements of facts, multiple letters of particulars and Dr Cameron's report to reflect the amended summonses including removing reliance on blast fume. 4. Rationalise the evidence where appropriate to reflect the case intended to be brought.
Whether the parties require a particular order from the Court to give effect to the judgment and a timetable for these actions to be undertaken will be discussed with the parties.

[40]

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: 05 June 2024

[41]

Multiplicity of allegations concerning incompetent carrying out of activities

[42]

Multiplicity of persons alleged to have carried out licensed activities incompetently

[43]

Prosecutor's submissions

[44]

No patent duplicity

[45]

No latent duplicity or uncertainty

[46]

Reply to alleged multitude of contraventions

[47]

Reply to alleged multitude of persons and activities

[48]

Reply to licensed activities (plural)

[49]

Reply to lack of reference to blast fume in amended summonses

[50]

Particularisation of case

[51]

A. Statutory construction - identification of licensed activity

[52]

B. Multiple activities / persons

[53]

C. Particularisation of charges

[54]

Particulars of contravention in amended summonses

[55]

Amended statements of facts

[56]

Dr Cameron's report

[57]

Particulars in letters from Prosecutor

[58]

The Defendant Maules Creek Coal Pty Ltd is charged with eight offences under s 64 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) that it failed to comply with a condition of Environment Protection Licence Number 20221 (EPL) on numerous occasions. Seven of the charges concern events in 2021. Seven notices of motion dated 7 July 2023 were filed by the Prosecutor the Environment Protection Authority and seven notices of motion dated 28 July 2023 were filed by the Defendant each seeking different relief in each of these seven matters. The Prosecutor's notice of motion dated 31 July 2023 relates to a similar charge arising from events in March 2022. The Defendant's notice of motion dated 7 August 2023 also relates to the March 2022 events. The Court made orders that the notices of motion in all eight matters be heard together.
The Prosecutor's notices of motion dated 7 and 31 July 2023 sought leave to rely on amended summonses in all 8 matters inter alia. Such orders were made in all eight matters for the purpose of hearing the Defendant's notices of motion. Accordingly the Defendant's notices of motion dated 28 July and 7 August 2023 addressing the eight amended summonses are the subject of this judgment.
The Defendant's notices of motion seek orders that the eight amended summonses be dismissed due to patent and latent duplicity in the charges. Alternatively, the Defendant seeks orders that the proceedings be permanently stayed. In the course of the hearing other remedies such as election of particulars of the offences to be relied on by the Prosecutor were identified as a possible response to the Court's findings.
Under s 21 of the Criminal Procedure Act 1986 (NSW) (CP Act) a court can amend an indictment if this can be done without injustice.
Section 48 of the POEO Act requires an EPL to be held for scheduled activities. Mining for coal is a scheduled activity under Sch 1 cl 28 of the POEO Act where more than 500 tonnes of coal per day is produced, as occurs at the Defendant's coal mine at Maules Creek (the Mine). The Defendant holds an EPL as required in order to undertake such activity.

[59]

The amended summonses are generally similar, and do not therefore all need to be set out in order to address the parties' arguments. The parties focused on Blasts A and G. The amended summons (Blast A) is extracted as follows with amendments marked up as underlined and struck through:

[60]

The Prosecutor claims:

1. An order that the Defendant, Maules Creek Coal Pty Ltd ACN 140 533 875, whose registered office is at Level 28, 259 George Street, Sydney NSW, appear before a Judge of the Court to answer the charge that, between about 26 September 2021 and about 7 October 2021, at or near Maules Creek Coal Mine at Therribri Road, Boggabri in the State of New South Wales, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of an environment protection licence, a condition of which was contravened by a person.

Particulars

[61]

Environment Protection Licence Number 20221 (EPL).

[62]

Condition 01.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner. This includes:

(a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity."

[63]

The licensed activities that were carried out by the Defendant was the blast named JER_02_09_OB (Blast A) in the course of mining for coal at Maules Creek Coal Mine, which was operated by the Defendant.

[64]

The Defendant conducted Blast A in a less than competent manner, in that: The processing and handling by the Defendant and its contractors of explosives used to carry out Blast A occurred in the following circumstances:

(a) The explosives selected for use in Blast A had not been tested in a controlled manner in ground and depth conditions similar to those found in Blast A;

(b) High emulsion content heavy ammonium nitrate fuel oil (ANFO) explosives were loaded in blast holes in deep and weak strata;

(c) More than 10% of the blast holes were overfilled with explosives by 10% or more than the designed charge, contrary to Australian Standard AS 2187.2-2006, Explosives-Storage and Use, Part 2: Use of Explosives (Australian Standard AS 2187.2-2006) section 7.4.5(d) Pumpable Explosives, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6;

(d) The communication system, by which observations about geological conditions made by the drillers when drilling the blast holes were notified to the shotfirers, was inadequate drillers did not use a clear communication system to notify the shotfirers about geological conditions when the blast holes were loaded with explosives, contrary to Australian Standard AS2187.2-2006 section 5.2.6 Drilling;

(e) The explosive column rise was not measured during the loading of explosives, contrary to Australian Explosives Industry Safety Group Inc Code of Practice, On-Bench Practices for Open Cut Mines and Quarries, Edition 3, June 2019 (AEISG Code of Practice for On-Bench Practices) section 8.3, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6; and

(f) The measured top of the explosive column was not recorded after loading of explosives to confirm adequate stemming, contrary to AEISG Code of Practice for On-Bench Practices section 8.4, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6.

As a consequence, the licensed activities were not carried out in a competent manner.

[65]

e. Date on which evidence of the offence first came to the attention of an authorised officer

[66]

Evidence of the offence first came to the attention of authorised officer Lindsay Fulloon on 14 October 2021.

[67]

The amended statement of facts dated 29 June 2023 prepared pursuant to s 247E of the CP Act for Blast A is extracted relevantly as follows with amendments marked up:

[68]

...

3. Between 26 September 2021 and 9 November 2021 (inclusive), the EPL also contained the following conditions:

[69]

a. Condition A1.2 states that the EPL authorises the carrying out of the following scheduled activities:

b. Condition A2.1 states that the EPL applies to the following premises:

c. Condition A3.1 states that the EPL "applies to all other activities carried on at the premises".

[70]

The Project Approval

4. On 23 October 2021, the Mine was approved under the former section 75J of the Environmental Planning and Assessment Act 1979 (EP&A Act) (Application Number 10_0138) (the Project Approval). The Project Approval contains the following relevant conditions:

...

[71]

c. Condition 25 of Schedule 3 states that the Proponent shall prepare and implement a Blast Management Plan for the project. The Blast Management Plan must (amongst other things):

[72]

...

ii. include a specific blast fume management protocol to demonstrate how emissions will be minimised including risk management strategies if blast fumes are generated;

...

[73]

The Blast Management Plan

10. The Maules Creek Blast Management Plan, Issue 2.2, Revision Date 2018 (WHC_PLN_MC_BLAST MANAGEMENT PLAN) (the Blast Management Plan) was prepared in accordance with the condition 25 of Schedule 3 of the Project Approval and section 2.2 of Australian Standard AS 2187.2.

11. Under section 2.4 of the Blast Management Plan, the guidelines and standards applying to blasting at the Mine include:

[74]

a. Australian Standard AS 2187.2; and

b. the AEISG Code of Practice Blast Generated NOx Gases.

[75]

12. Section 2.4 of the Blast Management Plan also states that:

[76]

a. "Best practice blast management procedures will be implemented at the MCCM to achieve acceptable outcomes (in terms of rock fragmentation, ground vibration, overpressure, fly rock, dust and blast fume)...".

b. "...best practice control of ground vibration, overpressure, fly rock, dust and blast fume will be achieved through procedures and safeguards including:

[77]

• Comply with relevant internal procedural documents prior to the commencement of any blast...".

[78]

...

THE MINE AND MINING PROCESS

...

Blasting activities

15. The Blast Planning, Design & Record Keeping Procedure contains a Blast Design Process Flow Chart which describes the process carried out in relation to blasting activities. The blasting process includes:

[79]

a. the designing of the blast;

b. the drilling of blast holes;

c. the loading of blast holes;

d. the initiation and firing of the blast; and

e. blast review and feedback.

[80]

15A. The drill and blast design process involves the selection of a design standard and the preparation of a number of documents which form part of the drill and blast design. These include the drill design (also called a drill pattern) for the blast, load sheets (or charge sheets) and the drill and blast design checklist (which is used to record conformance with the requirements of the Blast Planning, Design & Record Keeping Procedure and to ensure all relevant factors have been considered in the design of the blast).

The management of blast fume

16. The Blast Fume Management Procedure describes blast fume as follows at section 2:

[81]

Blasting fumes are comprised of a group of gases, these include nitrogen dioxide, nitrous oxide, nitric oxide, carbon monoxide and carbon dioxide. The two main gases, nitric oxide (NO) and nitrogen dioxide (NO2) may be found as by-products in the post-blast gases of ammonium nitrate-based explosives, and are generated in greater quantities where incomplete or low-order detonation occurs. Nitric oxide is colourless, but nitrogen dioxide ranges from yellow to dark red/ purple depending on the concentration and size of the gas cloud. These gases are harmful to humans if inhaled in large quantities.

Blasting fumes can be harmful to humans if inhaled in sufficient quantities and/or over a prolonged period of time. These fumes can pose a risk to members of the blast crew and sentries in close proximity, or other mine workers exposed in the event that fumes travel outside the immediate blast clearance area without dispersing. Risks to persons outside the mining area are low however also need to be addressed in the event that large fume clouds travel outside the mine lease on to private or public land.

[82]

17. Blast fume events are classified in accordance with the following AEISG Visual NOx Gases Rating Scale (from the AEISG Code of Practice Blast Generated NOx Gases at Appendix 2):

The causes of blast fume

18. The Blast Fume Management Procedure at section 3 states that fume generation can be attributed to a number of circumstances that, either singularly or combined, can be managed to minimise or mitigate the production of NOx:

[83]

a. Explosive formulation and quality assurance;

b. Geological conditions;

c. Blast design;

d. Explosive column disruptions during the shot sequence;

e. Explosive product selection;

f. Explosive desensitisation;

g. On bench practices;

h. Contamination of explosive in the blast hole; and

i. Weather conditions.

[84]

...

The trial blast on 24 February 2021

22. The blast named VEL_06_33_OB (Trial Blast) was fired on 24 February 2021. The explosives selected for use in relation to the Trial Blast consisted of 13% AquaMax 260D, 65% ThrowMax 220D, and the remaining 22% of the blast was loaded with Hanwha products. The average depth of blast holes in the Trial Blast was 11 metres, with a maximum depth of 13 metres. The grounds conditions for the Trial Blast were neither wet, broken nor fractured. The Trial Blast produced a Level 1A fume event in relation to the Enaex portion of the site and no observable fume in relation to the Hanwha portion of the site.

...

THE BLAST

24. The blast named JER_02_09_OB (Blast A) was fired on 7 October 2021.

25. Blast A caused a fume event with rating 4B, which quickly dissipated to a 3B fume which remained above the pit and clearing areas before dissipating completely.

26. Evidence in relation to Blast A first came to the attention of EPA authorised officer, Mr Lindsay Fulloon, on 14 October 2021.

FAILURES TO CARRY OUT LICENSED ACTIVITES IN COMPETENT MANNER

27. The Defendant failed to carry out licensed activities, being Blast A, in a competent manner as set out below.

The use of explosives in absence of previous testing in similar conditions

27A. Under section 12.1.3 of the Explosives Control Plan:

[85]

New explosive products and systems shall be introduced in a controlled manner through the site change management process, until the performance and reliability of such products and systems has been evaluated and appropriate training of the blast crew has been completed. A quality assurance process will be applied that as a minimum covers:

- Availability of TDS & SDS sheets

- Trained and competent operators

- Raw materials are within specification

- Material is delivered at appropriate rate to allow correct mixture

- Collect cup weight samples per truck to check product density

- Product that is pumped to remain under pumping pressure limits

- Stage 1 - Initially only loading of minimal blastholes & staggering through pattern to evaluate product consistency

- Stage 2 - Load quarter of the pattern, followed by loading half the pattern if evaluation is adequate

Additional monitoring & controls include:

- Ensuring VOD cables are placed down the blasthole to measure VOD trace results

- Post blast inspections to check fragmentation around test blastholes

- Viewing and analysing the blast video

- Analysing excavator dig rates and data from the trial blast area

- Sign off by Drill & Blast Engineer and Operations Manager prior to commencement of Stage 1 and 2 of the trial process

[86]

27B. The explosives selected for use in relation to Blast A consisted of 5% AquaMax 270D, 78% ThrowMax 230D, and 17% ThrowMax 240D (Explosives). The selection of the Explosives occurred in circumstances where:

[87]

a. AquaMax 270D, ThrowMax 230D and ThrowMax 240D were not used in the Trial Blast.

b. The average depth of blast holes for Blast A was 28 metres, with a maximum depth of 38 metres.

c. There were numerous observations of broken ground and fractured ground in the Drill Operations Reports and Daily Drill Hole Logs prepared for Blast A.

[88]

The amended summons (Blast G) with amendments marked up is extracted relevantly as follows:

[89]

The Prosecutor claims:

1. An order that the Defendant, Maules Creek Coal Pty Ltd ACN 140 533 875, whose registered office is at Level 28, 259 George Street, Sydney NSW, appear before a Judge of the Court to answer the charge that, between about 27 October 2021 to about 9 November 2021, at or near Maules Creek Coal Mine at Therribri Road, Boggabri in the State of New South Wales, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of an environment protection licence, a condition of which was contravened by a person.

Particulars

[90]

Environment Protection Licence Number 20221 (EPL).

[91]

Condition 01.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner. This includes:

(a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity."

[92]

The licensed activities that were carried out by the Defendant was the blast named BRY_08_36_OB (Blast G) in the course of mining for coal at Maules Creek Coal Mine, which was operated by the Defendant.

[93]

The Defendant conducted Blast G in a less than competent manner, in that: The processing and handling by the Defendant and its contractors of explosives used to carry out Blast G occurred in the following circumstances:

(a) The explosives selected for use in Blast G had not been tested in a controlled manner in ground and depth conditions similar to those found in Blast G;

(b) Notwithstanding the fume events that followed JER_02_09_OB (Blast A), NAG_06_29_OB and FLX_06_31_PS (Blast B), JER_02_05_OB and JER_02_01_PS (Blast C), NAG_06_31_OB and FLX_06_31_PS_B (Blast D), TSU_09_46_OB (Blast E), and TSU_09_46_OB_B (Blast F), no attendant changes were made to the drill and blast design for Blast G;

(c) The communication system, by which observations about geological conditions made by the drillers when drilling the blast holes were notified to the shotfirers, was inadequate, contrary to Australian Standard AS 2187.2-2006, Explosives-Storage and Use, Part 2: Use of Explosives (Australian Standard AS 2187.2-2006) section 5.2.6 Drilling;

(d) High emulsion content heavy ammonium nitrate fuel oil (ANFO) explosives were loaded in blast holes in deep and weak strata;

(e) The explosive column rise was not measured during the loading of explosives, contrary to Australian Explosives Industry Safety Group Inc Code of Practice, On-Bench Practices for Open Cut Mines and Quarries, Edition 3, June 2019 (AEISG Code of Practice for On-Bench Practices) section 8.3, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6;

(f) The measured top of the explosive column was not recorded after loading of explosives to confirm adequate stemming, contrary to AEISG Code of Practice for On-Bench Practices section 8.4, and the Defendant's Loading and Stemming Blast Holes procedure section 3.6; and

(g) Explosives were spilled on the bench, contrary to Explosives Regulation 2013 (NSW), clause 101 and Australian Standard AS 2187.2-2006, Explosives-Storage and Use, Part 2: Use of Explosives () section 7.4.5(c) Pumpable Explosives.

[94]

The manner of contravention of Blast G varies from Blast A in relation to:

[95]

(1) Sub-particular (b) referring to blast fumes in Blast G does not appear in Blast A;

(2) Sub-particular (c) referring to overfilling of blast holes in Blast A does not appear in Blast G; and

(3) An additional sub-particular (g) is added to Blast G, explosive spilled on the bench.

[96]

The Prosecutor tendered the Court Book and the report of Dr Cameron mining industry consultant extracted below in [17 ].
The Defendant read the affidavits of Ms Twemlow solicitor affirmed 28 July and 22 August 2023. The Defendant tendered a bundle of key documents in its duplicity motions that extracted documents from the exhibit to the affidavit of Ms Twemlow dated 28 July 2023.

[97]

Relevant sections of the Defendant's EPL are extracted below:

[98]

...

1 Administrative Conditions

A1 What the licence authorises and regulates

A1.1 This licence authorises the carrying out of the scheduled development work listed below at the premises listed in A2:

Construction of mine related infrastructure.

A1.2 This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2. The activities are listed according to their scheduled activity classification, fee-based activity classification and the scale of the operation.

Unless otherwise further restricted by a condition of this licence, the scale at which the activity is carried out must not exceed the maximum scale specified in this condition.

...

A3 Other activities

A3.1 This licence applies to all other activities carried on at the premises, including:

[99]

Ancillary Activity

Chemical storage

Concrete works

Crushing, grinding and separating of rock for construction activities

Railway systems activities

Sewage treatment system

[100]

...

3 Limit Conditions

...

L4 Blasting

L4.1 The airblast overpressure level from blasting operations in or on the premises must not exceed 120dB (Lin Peak) at any time at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.2 The airblast overpressure level from blasting operations in or on the premises must not exceed 115dB (Lin Peak) for more than five per cent of the total number of blasts over each reporting period at any time and at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.3 The ground vibration peak particle velocity from the blasting operations carried out in or on the premises must not exceed 10mm/sec at any time at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.4 The ground vibration peak particle velocity from the blasting operations carried out in or on the premises must not exceed 5mm/sec for more than five per cent of the total number of blasts over each reporting period at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.5 Blasting operations on the premises must only be carried out between the hours 9am to 5pm, Monday to Saturday, inclusive.

L4.6 The hours of operation for blasting operations specified in condition L4.5 may be varied if the EPA, having regard to the effect that the proposed variation would have on the amenity of the residents in the locality, gives written consent to the variation.

L4.7 Blasting at the premises is limited to 1 blast on each day on which blasting is permitted.

Note: Additional blasts are permitted where it is demonstrated to be necessary for safety reasons and the EPA and neighbours have been notified of the intended blast prior to the additional blast being fired.

Note: This condition does not apply to blasts that generate ground vibration of 0.5 mm/s or less at any residence on privately owned land.

Note: For the purpose of this condition, a blast refers to a single blast event, which may involve a number of individual blasts fired in quick succession in a discrete area of the mine.

L4.8 Condition L4.7 does not apply to blasts that generate ground vibration of 0.5 mm/s or less at any residence on privately- owned land, or to blasts required to ensure the safety of the mine or its workers.

[101]

Letter from Prosecutor to Defendant dated 28 June 2023

[102]

The Defendant relied on a letter it received from the Prosecutor dated 28 June 2023 extracted in reference to Blast A as follows:

[103]

Environment Protection Authority v Maules Creek Coal Pty Ltd ACN 140 533 875 Land and Environment Court Proceedings No. 20221305228, 20221305229, 20221305230, 20221305231, 20221305232, 20221305233 and 20221305234

We refer to the above matters.

Request for further and better particulars

In your letter dated 17 May 2023, you requested that we provide the following further particulars: "With respect to each Summons, please specify the identity of the person alleged to have contravened Condition 01.1 of the Environment Protection Licence held by the Defendant".

The particulars provided below derive largely from the business records of the Defendant. In some cases, those records are incomplete or illegible. In these circumstances, the Prosecutor reserves the right to amend the particulars if or when further information comes to hand.

Summons in Land and Environment Court Matter No. 20221305228 (Blast A)

In relation to "d. Manner of contravention: (a) High emulsion content heavy ammonium nitrate fuel oil explosives were loaded in blast holes in deep and week strata"

The Drill and Blast Engineer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to:

[104]

• Ensure designs took into account the potential for fume by assessing (inter alia) the following: ... Expected hole conditions for the blasting material type; ... product selection...

• Ensure drill and blast design were signed off by the Drill and Blast Superintendent

• Ensure the charge sheets were developed using measured data

• Ensure charge sheets were approved by the Drill and Blast Superintendent

• Ensure pre and post blast checklists were completed and actions undertaken

[105]

The Drill and Blast Superintendent's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to:

[106]

• Ensure Drill and Blast Engineers took into account the potential for fume generation for all drill and blast designs and that these designs were signed off by an experienced drill and blast engineering person (Superintendent or Senior Engineer)

[107]

Under the Defendant's Explosives Control Plan section 5.1:

[108]

• The Drill and Blast Engineer or Technical Services Superintendent release the drill and/or blast patterns, load sheets (charge sheets) and tie-up plans

• The Drill and Blast Engineer or Technical Services Superintendent store the drill shift reports and drill sheets with blasthole depths recorded by the Driller

[109]

• The drill sheets (drill logs) for Blast A recorded many instances of broken ground and cavities.

• The load sheets (charge sheets) for Blast A identified the explosives to be loaded in the blast holes.

• The Drill and Blast Engineer responsible for designing Blast A was Lee Butler.

• The Drill and Blast Engineers responsible for preparing the load sheets for Blast A were Lee Butler and Sosten Sitima.

• The Senior Drill and Blast Engineer responsible for approving Blast A was Darren Megson.

• The Technical Services Superintendent responsible for approving Blast A was Roberto Giglio.

• The Drill and Blast Superintendent responsible for approving the blast design and the loading of Blast A was Michael Clark.

[110]

In relation to "d. Manner of contravention: (b) More than 10% of blast holes were overfilled with explosives by 10% or more than the designed charge"

The Shotfirer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to:

[111]

• Ensure the charging plan was followed

• Ensure blasting activities were completed in accordance with the drill and blast standards and procedures, including the Defendant's Loading and Stemming Blast Holes Procedure

[112]

Under the Defendant's Loading and Stemming Blast Holes Procedure section 3.1 and 3.6:

[113]

• Blast holes were to be charged under the direct supervision of an appointed Shotfirer.

• The maximum kg loaded was not to exceed 10% above original designed kg specified on the load sheets. No further loading could be conducted without direct instruction, approval and sign off by the Shotfirer and the Drill and Blast Superintendent.

[114]

• Blast A included 130 holes loaded above 10% of the design.

• The completed load sheets (charge sheets) for Blast A did not contain signatures or written approvals by the Shotfirer and Drill and Blast Superintendent for the charging of these holes over 10% as required by the Defendant's Loading and Stemming Blast Holes Procedure.

• The Shotfirers responsible for Blast A were Shaun Kalisz, Jim Drane and another person whose signature was not decipherable.

[115]

In relation to "d. Manner of contravention: (c) The drillers did not use a clear communication system to notify the shotfirers about geological conditions when the blast holes were loaded with explosives"

The Drill and Blast Engineer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to:

[116]

• Ensure the charge sheets were developed using measured data

• Ensure charge sheets were approved by Drill and Blast Superintendent

[117]

Under the Defendant's Explosives Control Plan section 5.1:

[118]

• The Drill and Blast Engineer or Technical Services Superintendent release the drill and/or blast patterns, load sheets (charge sheets) and tie-up plans

• The Drill and Blast Engineer or Technical Services Superintendent store the drill shift reports and drill sheets with blasthole depths recorded by the Driller

[119]

• The drill sheets (drill logs) for Blast A included many instances of broken ground and cavities as recorded by the Drillers.

• Under the Explosives Control Plan section 5.1, the drill sheets were to be provided to Drill and Blast Engineers, Lee Butler or Sosten Sitima, or to Technical Services Superintendent, Roberto Giglio, to store.

• Due to an inadequate communication system, information about geological conditions that had been recorded in the drill sheets prepared by the Drillers was not provided by the Drill and Blast Engineers to the Shotfirers.

• The load sheets (charge sheets) released to the Shotfirers did not contain information about the geological conditions of the blast holes as recorded by the Drillers in the drill sheets.

• The Drill and Blast Engineers responsible for preparing the load sheets (charge sheets) for Blast A were Lee Butler and Sosten Sitima.

• The Drill and Blast Superintendent responsible for approving the load sheets (charge sheets) for Blast A was Michael Clark.

[120]

In relation to "d. Manner of contravention: (d) The explosive column rise was not measured during the loading of explosives"

The Shotfirer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to:

[121]

• Ensure the charging plan was followed

• Ensure blasting activities were completed in accordance with the drill and blast standards and procedures, including the Defendant's Loading and Stemming Blast Holes Procedure

[122]

Under the Defendant's Loading and Stemming Blast Holes Procedure section 3.6:

• The column rise and final explosives column height of every hole had to be measured to ensure there was adequate stemming to contain the explosive energy and that holes were not overloaded or under loaded.

In relation to Blast A:

[123]

• The completed load sheets (charge sheets) for Blast A did not contain recordings or measurements of the explosive column rise.

• The Shotfirers responsible for Blast A were Shaun Kalisz, Jim Drane and another person whose signature was not decipherable.

[124]

In relation to "d. Manner of contravention: (e) The measured top of the explosive column was not recorded after loading of explosives to confirm adequate stemming"

The Shotfirer's responsibilities (set out in Appendix F of the Defendant's Blast Fume Management Procedure) include to:

[125]

• Ensure the charging plan was followed

• Ensure blasting activities were completed in accordance with the drill and blast standards and procedures, including the Defendant's Loading and Stemming Blast Holes Procedure

[126]

Under the Defendant's Loading and Stemming Blast Holes Procedure section 3.6:

[127]

• The column rise and final explosives column height of every hole had to be measured to ensure there was adequate stemming to contain the explosive energy and that holes were not overloaded or under loaded.

[128]

• The completed load sheets (charge sheets) for Blast A did not contain recordings or measurements of the final explosives column height.

• The Shotfirers responsible for Blast A were Shaun Kalisz, Jim Drane and another person whose signature was not decipherable.

[129]

The Defendant received a letter of particulars from the Prosecutor dated 29 June 2023 of 18 pages. Extensive particulars were provided in the context of proposed amended summonses. These were not expressly referred to in argument.

[130]

The Defendant relied on a letter it received from the Prosecutor dated 20 July 2023 relevantly extracted in reference to Blast A as follows:

[131]

Environment Protection Authority v Maules Creek Coal Pty Ltd ACN 140 533 875 Land and Environment Court Proceedings No. 2022/305228, 2022/305229, 2022/305230, 2022/305231, 2022/305232, 2022/305233 and 2022/305234

...

By reference to our letters to you of 28 and 29 June 2023, we have extracted below the names of those persons who, while working in combination to carry out the respective blasts on behalf of the Defendant, were responsible for the Defendant's alleged incompetence with respect to those blasting activities. As with the particulars previously supplied to you in these letters, the information provided below derives largely from the business records of the Defendant. In some cases, those records are incomplete or illegible. As such, the Prosecutor reserves the right to amend the particulars if or when further information comes to hand.

Persons jointly responsible for the breach of condition 01.1 of EPL 20221

Land and Environment Court Matter No. 2022/305228 (Blast A)

No. Person

1 Lee Butler

2 Sosten Sitima

3 Darren Megson

4 Roberto Giglio

5 Michael Clark

6 Shaun Kalisz

7 Jim Drane

...

[similar list of varying length provided for each charge]

Next steps

The information provided in this letter is referrable to the particulars contained under the heading "manner of contravention" in the draft amended summonses also served on you by way of letter dated 29 June 2023.

Those amendments include the proposed amended particular that "The Defendant conducted Blast B in a less than competent manner..."

By the provision of this information, the EPA considers that the requests for particulars sought by the amended notices of motion have now been met...

...

[132]

The Defendant relied on the executive summary of Dr Cameron's report relevantly extracted as follows:

[133]

A. Executive Summary

1. Introduction

1.1. I have been briefed by the NSW EPA to provide my expert opinion on an Investigation of Blast Fume Events at Maules Creek Coal Mine. The EPA is investigating seven blasts that occurred at the Mine between 7 October 2021 and 9 November 2021 that have been identified in Section 2.3.1 as Blasts A to G.

...

3. Findings

Standard of Competence

...

3.12. In my opinion, regulatory requirements (including NSW Explosive Regulation 2013, Australian Standard AS 2187.2 - 2006, PA 10_0138 and the Blast Management Plan) as well as corporate and site specific standards, plans, processes and procedures developed and approved by WHC and Maules for safe operations at the Mine must be followed for blasts to be designed and carried out in a competent manner. This includes the Blast Management Plan, being the document required to be developed and adhered to under Australian Standard AS 2187.2- 2006.

...

Opinion (a) - were licensed activities in respect of Blasts A to G, such as the design and carrying out of blasting at the Mine, carried out in a competent manner?

3.17. In my opinion, licensed activities in respect of Blasts A to G, such as the design and carrying out of blasting at the Mine, were not carried out in a competent manner because:

[134]

3.17.1. Testing of new explosives (Enaex products) in the conditions found in Blasts A to G was not conducted prior to full production use of the products in these blasts. Maules Creek Mine's Explosives Control Plan specifies a gradual introduction of new explosives in blasts containing explosives products normally used.

3.17.2. Velocity of Detonation (VoD) measurements were not conducted on Enaex explosives in conditions representative of Blasts A to G prior to or during Blasts A to G to confirm the performance of the explosives as required by the Explosives Control Plan or as recommend by Prism Blasting in their report "Review Product and Design Considerations, Whitehaven Coal - Maules Creek" as well as the Enaex "WHC Product Awareness" presentation.

3.17.3. The introduction of new explosives at Maules was not done in a staged and controlled manner as required by the Explosives Control Plan.

3.17.4. The risk assessment completed as part of the Maules Management of Change for changing explosives suppliers to Enaex did not recognise the potential risk of blast fume, though a report/presentation from a consultant (Prism Mining) contracted to assist in the transition from Hanwha to Enaex products had expressed concerns about fume from some of the Enaex explosives in particular conditions. In addition, there were areas known to Maules that had previously experienced fume from blasting. The Risk Assessment resulted in a "High" risk rating that, based on the assessment format, required a signature showing it had been reviewed and approved by the "General Manager". A signed copy of the Risk Assessment was not provided.

3.17.5. Many instances of explosives spilled on the bench were observed for Blasts D, E & G. This is unsecured explosives in violation to New South Wales Explosives Regulation 2013 - Reg 101, Australian Standard AS 2187.2 - 2006 section 7.4.5 Pumpable Explosives, as well as recognised as a "Major Hazard" in the Explosives Control Plan.

3.17.6. The explosives spilled on the bench were not consumed in the blast and therefore were mixed into the rock during blasting and ended up in the mine waste areas where they are dissolved by rainwater causing pollution with ammonium nitrate and oil/hydrocarbons. This is not an appropriate procedure for the disposal of waste material (explosives).

[135]

Whether each charge is bad for duplicity and uncertainty

[136]

The Defendant submits each charge is bad for patent (obvious on the face of the document) and latent (not demonstrable on the face of the document but clear from the way the prosecution case is conducted) duplicity and uncertainty. The law requires that there be certainty as to the particular offence with which an accused is charged, Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 at 497-498 (Evatt J), S v R (1989) 168 CLR 266; [1989] HCA 66 at 276 (Dawson J), Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at 92 (Kirby J).
The common law rule against duplicity is that no count in an indictment should charge a defendant with having committed two or more separate offences, Walsh v Tattersall at 92-93 (Kirby J), Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain) at [33]-[34] (Leeming JA, Hulme and Button JJ agreeing). The rule against duplicity is based on considerations of the orderly administration of criminal justice and fairness, namely the court knowing the charge before it and the defendant knowing what case they have to meet. Patent duplicity arises where it is apparent on the face of the summons that more than one offence has been charged within the one count, Johnson v Miller at 487 (Dixon J), Walsh v Tattersall at 100. Latent duplicity is disclosed by the way in which the prosecution case is conducted, at 100. Latent duplicity includes a prosecutor seeking to lead evidence of multiple offences answering the description of the offence or offences charged, at 486, at 285 (Gaudron and McHugh JJ). The facts alleged by a prosecutor may also disclose latent duplicity, at 486.

[137]

Multiplicity of the particulars of 'manner of contravention'

[138]

A matter demonstrative of patent duplicity is that the particulars of 'manner of contravention' in the Blast A amended summons expressly identifies, by way of sub‑particulars (a)-(f), six alternative allegations that the 'licensed activities' were carried out otherwise than in a competent manner when any one of those allegations, if made out, would be sufficient to make out the offence charged. There are six separate alleged contraventions of condition 01.1 contained within the amended summons for Blast A (seven in relation to Blast G). This is clear patent duplicity in and of itself.

[139]

Multiplicity of activities said to be 'licensed activities'

[140]

Secondly, patent duplicity arises because the particulars of the amended summonses both under the heading 'licensed activities' and under the heading 'manner of contravention' embody allegations that licensed activities, in the plural, were carried out otherwise than in a competent manner when the carrying out of any one such activity otherwise than in a competent manner would suffice to make out the offence charged.
The reference to licensed activities in the plural is consistent with the circumstance that particulars listed in, for example sub-particulars (a)-(f) of the amended summons for Blast A, under manner of contravention concern different activities. This conclusion is properly drawn from their description and is reinforced by the concluding words which follow after sub-particulars (a)-(f), in which it is stated that, as a consequence of all six particularised matters, the licensed activities were carried out otherwise than in a competent manner. Put another way, the amended summons patently states, by using the plural 'activities', rather than the singular 'activity', that more than one offence occurred by reason of the matters so particularised. This leaves the Defendant in a state of uncertainty as to what case it has to meet and what would be the licensed activity.
Not only does the framing of the charge by the Prosecutor by reference to licensed activities in the plural infringe the rule against duplicity, which would be enough per se to warrant remedy, it unfairly prejudices the Defendant in the conduct of its defence. That is because the Defendant should be entitled to defend any charge for an alleged contravention of condition 01.1 of the EPL, if it sees fit to do so, on the basis that the activity the subject of the charge is not a licensed activity within the meaning of condition 01.1. However, where multiple activities are specified, such a defence might be available to one or more, but not all, of the activities the subject of the charge.

[141]

Additionally, the prosecution case and its conduct demonstrate latent duplicity and gross, impermissible uncertainty as to what case the Defendant has to meet in each of the proceedings. The evidence the Prosecutor proposes to adduce, the facts it asserts in its amended statements of facts served as part of the notice of its case under s 247E of the CP Act, and the responses it has given to the Defendant's requests for particulars all disclose:

[142]

(1) a multitude of possible offences answering the description of the offences charged and leave a high degree of uncertainty as to what case the Defendant has to meet; and

(2) a multitude of persons carried out any one of a multiplicity of activities said to be licensed activities otherwise than in an incompetent manner in any one of numerous aspects.

[143]

Latent duplicity and uncertainty regarding evidence on blast fume

[144]

A large body of material which the Prosecutor has given notice it will adduce at the hearings concern the circumstances that a blast fume was generated by each blast in question, including seven records of interviews of employees of the explosives contractor. Yet none of the charges, as particularised, state anything about blast fume. The Defendant is left having to assume that the evidence concerning the blast fume and its possible causes somehow forms part of the allegations of incompetence, but leaves gross uncertainty in relation to each of the proceedings as to what specific allegations the Prosecutor relies upon from the evidence in relation to the generation of blast fume, and its causes, in making out its case in each of the proceedings that the licensed activities were carried out otherwise than in a competent manner.
Dr Cameron's report identifies the general instructions provided to him to provide an expert opinion on an investigation of blast fume events at the Mine. The executive summary sets out the fume events being investigated in relation to each of the seven Blasts A-G. The opinion of what activities were not carried out in a competent manner in par 3.17 of the report includes matters that are not particularised in the amended summonses for Blasts A-G.
The amended statements of facts for all offences make express reference to instances of blast fume and to various standards and procedures said to apply to the management of blast fume. No explanation for what allegations are being made in relation to this material is provided, including who was responsible for them by reasons of carrying out an activity or activities incompetently, further adding to uncertainty for the Defendant.
The point is exemplified by an examination of the Prosecutor's amended statement of facts in relation to the Blast A proceeding. Although no mention is made in the amended summons, at all, of any fume being generated as a consequence of Blast A, the amended statement of facts includes the following references:

[145]

(1) At par 4(c)(ii), it is stated that condition 25 of Sch 3 of the project approval for the Mine requires that the Defendant's blast management plan must include a specific blast fume protocol to demonstrate how emissions will be minimised including risk management strategies if blast fumes are generated.

(2) At par 12, it is stated that the Defendant's blast management plan states that best practice blast management procedures will be implemented at the Mine to achieve acceptable outcomes in terms of blast fume.

(3) At par 13, it is stated that there are other procedures that contain requirements which are relevant to blasting at the Mine, including the blast fume management procedure.

(4) At pars 16 and 17, there is a section under the heading 'The management of blast fume' which includes the classification of blast fume on a nominated scale, which is extracted in the facts.

(5) At par 18, under the heading 'The causes of blast fume', there is express reference to a section of the Defendant's blast fume management procedure which identifies the circumstances that either singularly or combined can be managed to minimise or mitigate the production of NOx (the principal gas associated with blast fume).

(6) At par 25, it is stated 'Blast A caused a fume event with rating 4B which quickly dissipated to a 3B fume which remained above the pit and clearing areas before dissipating completely'.

[146]

No factual assertion is made about how the blast fume matters are connected to the allegation that Blast A was carried out in an incompetent manner, and the Defendant is therefore legally embarrassed and prejudiced about the conduct of its defence and it cannot know the case it is to meet.

[147]

The uncertainty and duplicity related to the multiplicity of licensed activities is patent (see above in [22 ]-[24 ]) and is latent. The body of evidence relied upon by the Prosecutor globally, in relation to all of the proceedings, discloses any number of possibilities as to activities alleged by the Prosecutor to have been carried out otherwise than in a competent manner. This is made clear from the report of Dr Cameron based on his instructions for Blasts A-G, such as in opinion (a) 'were licensed activities in respect of Blasts A to G such as the design and carrying out of the blasting at the Mine carried out in a competent manner?'. Dr Cameron refers to numerous activities which he considers demonstrate incompetence in the executive summary.
The amended statements of facts all include a heading 'blasting activities' which discloses an assertion that there are various activities that are licensed associated with blasting, namely the designing of the blast, the drilling of the blast holes, the loading of blast holes, the initiation and firing of the blast and blast review and feedback, see par 15 of the statement of facts for Blast A. These activities are carried out by different persons with different roles at different times.

[148]

Multiplicity of allegations concerning incompetent carrying out of activities

[149]

Patent duplicity arises from the face of the amended summonses given the inclusion of multiple sub-particulars containing alternative allegations of incompetence in the sub-particulars of manner of contravention.
Duplicity and uncertainty are also latent given the multiple possible offences falling within the description of the offence charged. Dr Cameron's report intended to be relied on in all proceedings provides various opinions as to standards of competence he says should be met by the Defendant, including by specific reference to statements contained in the Defendant's blast management plan, per pars 3.6-3.11 of his executive summary. In par 3.12 Dr Cameron opines that the blast management plan must be followed in order for blasts to be designed and carried out in a competent manner. The amended summonses for Blasts A-G make no reference to that plan yet it appears to be a significant failure relied on. The Defendant does not know what case it is meeting.
The opinions of incompetence expressed in par 3.17 of Dr Cameron's report include matters which are not the subject of contraventions identified in the amended summonses. The charges are defective for latent duplicity and uncertainty.
Paragraph 3.22 of Dr Cameron's report identifies measures that he considers could have been taken to control, abate or mitigate fume from Blasts A-G and as these were not taken this suggests incompetence. These matters are not identified in the amended summonses and give rise to uncertainty and latent duplicity.

[150]

Multiplicity of persons alleged to have carried out licensed activities incompetently

[151]

The Prosecutor's letter dated 28 June 2023 specifies the identity of persons alleged to have contravened the EPL. An additional letter dated 20 July 2023 identifies in tabular form the identity of the persons said to have contravened condition 01.1 of the EPL in relation to each proceeding.
For example, in relation to Blast A, the correspondence from the Prosecutor (extracted above in [16 ]) identifies Lee Butler, Sosten Sitima, Darren Megson, Roberto Giglio and Michael Clark as being persons, put neutrally, who were involved in the activities said to fall within the purview of the drill and blast engineers. It is not discernible from that letter what, if any, role any of the identified persons performed in the contravention of condition 01.1. It can be readily inferred that the Prosecutor itself does not know the answer to that enquiry, given its counsel expressly informed the Court that such an issue was a 'matter for evidence' on 30 June 2023, some two days after the letter was sent.
When the particulars thus provided by the Prosecutor are considered together with the notice the Prosecutor has given of its case under s 247E of the CP Act, the following circumstances are disclosed:

[152]

(1) The multiplicity of persons named by the Prosecutor as having contravened the Defendant's EPL in each of the proceedings include drill and blast engineers, shotfirers, the Defendant's drill and blast superintendent, and the Defendant's technical services superintendent, these being persons who carry out different activities at different times associated with mine blasting.

(2) The Prosecutor has not identified what person is said to have done which act, or omitted to do which act, said to give rise to the particularised contraventions of condition 01.1.

[153]

It is against that background that three fundamental points may be made. Firstly, it is abundantly clear that what the Prosecutor is alleging is that more than one person has contravened condition 01.1 in circumstances where it is not particularised, by reference to any one person, what it said that the person actually did or did not do.
Secondly, the particularisation of the charge and the conduct of the case by the Prosecutor leaves the Defendant in a legally embarrassing position of uncertainty in that it cannot possibly understand the case it has to meet.
Thirdly, every step which has been taken by the Prosecutor as the proceedings have developed, has created more, not less, uncertainty for the Defendant in terms of understanding the case which the Defendant is required to meet.
Multiple records of interview for 18 people and 11,000 pages of evidence have been served but the Prosecutor's case has not been clarified.

[154]

The acts and omissions relied on were performed on behalf of the Defendant for the purpose of conducting the blast the subject of each charge. Each individual blast occurred in the context of the Defendant carrying out the licensed activity of mining for coal. The persons responsible for the acts and omissions that cumulatively comprise the Defendant's alleged incompetence worked in combination to carry out each blast. They had a common purpose.
Each blast constitutes a single continuous activity or enterprise, R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337 at [65]- [66] (Smart AJ, Wood CJ at CL, Bell J agreeing). Each blast occurred in the context of the Defendant mining for coal at the Mine, for which it requires an EPL that authorises that activity to be carried on at those premises, Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (2021) 250 LGERA 362; [2021] NSWCCA 289 (Charlotte Pass Snow Resort) at [51] (Preston CJ of LEC, Price and Adamson JJ agreeing).
In Walsh v Tattersall Kirby J at 108 observed various indicia that were proposed to sustain a single count against the charge of duplicity. Applying these indicia, it is apparent that the Defendant's conduct in respect of each blast satisfied the circumstances required for charging a single count.

[155]

(1) Timing: the charge period for each amended summons commences first with the design of each separate blast and coincides with the detonation of the blast. Forming part of that activity are the critical sequential and interrelated steps involving the design, drilling, loading, firing and detonation of the blast.

(2) Similarity of the acts and omissions: the unifying characteristics of the acts and omissions are that they relate to the same specified scheduled activity, namely each respective blast carried out by the Defendant in the course of mining for coal at the Mine, Charlotte Pass Snow Resort at [53].

(3) Physical proximity of the place where the events happened: the impugned conduct and omissions all took place at the Mine.

(4) Intention of the Defendant throughout the conduct: the intention of the persons involved in each respective blast was to perform the steps and responsibilities related to their role in order to carry out the blast on behalf of the Defendant.

[156]

The conduct squarely falls within the 'same criminal enterprise or the one criminal activity' as conceptualised by Kirby J in Walsh v Tattersall at 108, consistent with Bentley v Gordon (2005) 139 LGERA 449; [2005] NSWCCA 157 at [19] (Giles JA, Buddin J agreeing), [56] (Smart AJ) and Truegain at [22]. Even if it is open to formulate individual charges with respect to separate activities, a charge may still be proceeded with on the basis of a single overall arrangement, Hakim v Waterways Authority of New South Wales (2006) 149 LGERA 415; [2006] NSWCCA 376 (Hakim) at [82] (Spigelman CJ, Grove and Bell JJ agreeing).
There is nothing unreasonable in charging the Defendant in relation to its alleged incompetence with respect to each single blast, in the sense that each explosion represented one blasting project encompassing all acts, necessary or convenient to be carried out for its fulfilment, from blast design to detonation.

[157]

Unlike in Truegain at [54] the processing and handling of explosives are not distinct 'scheduled activities' under Sch 1 of the POEO Act. In any event, the purpose of s 21 of the CP Act is to amend particulars that are defective without injustice. Injustice means irreparable prejudice in meeting the charge. Any alleged uncertainty with respect to the precise activity relating to each charge is also removed by this amendment.

[158]

The amended summonses are not bad for latent duplicity or uncertainty.

[159]

Reliance on multiple sub-particulars to prove the manner of contravention does not lead to the result that the charges are duplex, CSR Ltd v Environmental Protection Authority (2000) 110 LGERA 334; [2000] NSWCCA 373 at [33]- [34] (Smart AJ, Spigelman CJ and Hulme J agreeing) (CSR Ltd), Romeyko v Samuels (1972) 2 SASR 529 at 552 (Bray CJ), Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 (Hannes) at [9] (Basten JA).
Whether or not any combination of the sub-particulars relied on are sufficient to prove beyond reasonable doubt that the licensed activity on the respective blasts were carried out in a less than competent manner will be a matter for determination by the trial judge. If it is the case that not all sub-particulars are proved, but that the contravention is nevertheless established, then the lack of competence will be less extensive than as pleaded by the Prosecutor.
Not all sub-particulars need to be proved. Properly understood the sub‑particulars are cumulative as opposed to alternative allegations. The Defendant's complaint above in [25 ] was unaccompanied by minimal, if any, particularity contrary to the authorities above in [51 ].

[160]

Reply to alleged multitude of persons and activities

[161]

Each amended summons concerns the Defendant's competency in carrying out a blast while mining for coal. In correspondence to the Defendant, the Prosecutor identified the roles of the person who bore responsibility for the sub‑particularised acts and omissions under the heading 'manner of contravention' in the amended summonses, as well as the individuals who performed those roles for each respective blast. The Prosecutor confirmed the identified persons were 'working in combination to carry out the respective blasts on behalf of the Defendant, [and that they] were responsible for the Defendant's alleged incompetence with respect to those blasting activities' in a letter to the Defendant dated 20 July 2023, see above in [16 ].
'Any person' in s 64(1) of the POEO Act should be read to include 'any persons' in accordance with s 8(b) of the Interpretation Act 1987 (NSW). Context and common sense points squarely against any argument to the contrary. If only the conduct or omission of an individual actor may be relied on in proof of an offence contravening s 64(1) of the POEO Act, this would severely limit the means by which such an offence could be charged.
A charge is not made duplex by virtue of a multiplicity of persons carrying out an activity when working in combination, Johnson v Miller at 483 (Dixon J). The criminal law is replete with instances of charges that involve a multiplicity of persons and acts occurring over a period of time to which no complaint of duplicity arises for example the charge of conspiracy, R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 at [75] (Spigelman CJ, James and Howie JJ agreeing).

[162]

The reference to licensed activities merely repeats the words of condition 01.1 and no more should be read into the use of the plural. The particular activity the subject of the EPL is mining for coal per Sch 1 cl 28 of the POEO Act. In each of the amended summons, the relevant allegation is that 'the Blast' (singular) was carried out in a less than competent manner in the course of 'mining for coal.' This can only be referable to the activity of mining for coal, as opposed to the processing or handling of coal as part of the Mine's operations, the distinction set out in Truegain at [56].

[163]

Reply to lack of reference to blast fume in amended summonses

[164]

The relevance of blast fume is clear from the Prosecutor's amended statements of facts. The Prosecutor submits a level 1A fume event was created when the new supplier's explosive products were partially trialled by the Defendant on 24 February 2021, see amended statement of facts for Blast A extracted above in [8 ]. The generation of a blast fume instigated the Prosecutor's investigation due to a community complaint. In respect of each of the charges, a similar fume event occurred.
The generation of blast fume after each respective blast is both a manifestation of the Defendant's alleged incompetence in carrying out the blast, and circumstantial evidence from which inferences consistent with guilt or innocence may be drawn by the trier of fact, R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
As the blast fumes are not essential factual ingredients of the charges, John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 at 520 (Mason CJ, Deane and Dawson JJ), there is no need to include reference to blast fume in each of the amended summons and the failure to do so can hardly be said to give rise to 'gross uncertainty'.

[165]

It may be that certain sub-particulars, such as the inadequacy of the communication system between drillers and shotfirers, the failure to measure the explosive column rise and the failure to record the measured top of the explosive column, would not on their own amount to incompetence in the view of the trier of fact (variously (c), (d), (e), (f), (g) for Blasts A-G). Considered cumulatively, the combination of such sub-particulars may indeed satisfy the trier of fact that the relevant blast was conducted in a less than competent manner.
Conversely, if found as a fact, the first sub-particular in the amended summonses relating to Blasts A-G, concerning the selection of explosive products that had not been tested in a controlled manner in similar ground and depth conditions to each respective blast, would be highly probative of the contention that the blast had been conducted in a less than competent manner.
However, even if the trial judge were to conclude that sub-particular (a) is sufficient to make out the offence, it does not lead to the conclusion that an order for an election is appropriate or necessary. This is because it is permissible for the acts and omissions relating to, for example, product selection in the absence of trialling (sub-particular (a)), the failure to make attendant changes to the drill and blast design notwithstanding previous fume events (sub-particular (b) for Blasts B-G), and the loading of selected products into blast holes in deep and weak strata (sub-particular (b) for Blast A, sub-particular (c) for Blasts B-D, sub-particular (d) for Blast G), to bind together to strengthen the available inference of incompetence. In doing so, these sub‑particulars may also form the basis of a submission that the Defendant was (in effect) trialling the new suppliers' explosives in unsuitable ground conditions in Blasts A-G.
A conclusion as to incompetency in relation to any particular blast would be more confidently drawn if the trier of fact also found it proved that loaded explosives had been spilled on the bench (sub-particular (g) for Blasts D,G, sub-particular (f) for Blast E), and/or that blast holes had been overfilled by 10% or more as alleged for Blast A (sub-particular (c)) and Blast B (sub-particular (d)).
Each of the sub-particulars under manner of contravention in the amended summonses is capable of combining to prove only the one allegation of incompetence relating to a course of conduct, activity or enterprise, defined by reference to each respective blast. That the charges can be 'supported by more than one class of evidence' does not mean 'that several charges [are] made', ; at 442 (Latham CJ, Starke, Dixon, McTiernan and Williams JJ agreeing). This demonstrates that there is no duplicity in the amended summonses.

[166]

The Prosecutor has charged the Defendant in relation to eight blast events separately and these are particularised in each amended summons. The eight amended summonses allege multiple acts and omissions in the sub-particulars of the manner of contravention which are said to constitute the course of conduct which gives rise to each offence of a breach of condition 01.1 of the EPL. The amended summonses for Blasts A and G which occurred in 2021 are set out above in [7 ] and [9 ]. The amended statement of facts for Blast A is also extracted above in [8 ]. The parties agree that the submissions made in relation to Blasts A-G collectively which occurred in 2021 also apply to the March 2022 charge.
The parties generally agreed albeit with different emphases the principles concerning the common law prohibition of duplicity in charging criminal offences referring to Johnson v Miller at 487, 489 (Dixon J) and at 497-498 (Evatt J). Kirby J in Walsh v Tattersall at 110-111, Bathurst CJ in Snowy Monaro at [50] affirmed its strict application. The parties agree that the common law principles that criminal charges must not be duplicitous is subject to an exception where a course of continuous conduct constitutes an offence, Walsh v Tattersall at 107-108 (Kirby J). The parties also agreed that where acts form part of the same transaction or criminal enterprise which individually may constitute an offence they can be charged as a single count without infringing the rule, Truegain at [48] cited in Snowy Monaro at [47], Charlotte Pass Snow Resort at [54] (78 water pollution events could be a single charge). At issue is whether in these eight charges the amended summonses satisfy that exception or, by identifying multiple offences, do so in an impermissible way as giving rise to patent, or latent duplicity and uncertainty. As identified in Walsh v Tattersall by Kirby J at 108, each case must depend on questions of fact and degree mindful of the statutory context.
In Basten JA stated:

[167]

[9] There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities...

[168]

Another aspect of the case the Prosecutor wished to make, that some of the sub-particulars of the manner of contravention are intended to work cumulatively, became clearer in the course of argument. I will discuss particularisation of the charges further below.

[169]

A. Statutory construction - identification of licensed activity

[170]

Authorities emphasise the importance of statutory construction to determine the nature of the offence charged. Under s 48 of the POEO Act scheduled activities in Sch 1 require an EPL for premises where an activity is carried on. 'Mining for coal' is a scheduled activity under cl 28 of Sch 1 if that activity has the capacity to produce more than 500 tonnes of coal per day. Mining for coal is defined as 'the mining, processing or handling of coal (including tailings and chitter) at underground mines or open cut mines'. The Defendant has an EPL which authorises the carrying out of specified scheduled activities in condition A1.2 at the Mine which includes mining for coal and, separately, coal works and crushing, grinding or separating. 'Activity' is defined in the dictionary to the POEO Act to include any industrial activity, which includes mining for coal.
Condition 01.1 requires that licensed activities must be carried out in a competent manner which includes:

[171]

a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

[172]

The Prosecutor alleges that steps from design to detonation necessary to carry out the blast the subject of each charge is the course of conduct, activity or enterprise giving rise to each offence, being steps necessary for the mining of coal. In that sense the charges do focus on a licensed activity albeit it has been expressed as licensed activities in the amended summonses.
In particular (b) 'License condition contravened' in each amended summons the license condition breached is identified as condition 01.1 of the EPL requiring that licensed activities (intended by Prosecutor as activity) must be carried out in a competent manner. The only relevant part of licensed activities referenced in the subsections of condition 01.1 appears to be processing, not the handling, movement or storage of materials under subsection (a). Subsection (b) of condition 01.1 does not arise on the present facts alleged. The consideration of condition 01.1 is therefore different to Truegain. In Truegain Leeming JA held a summons alleging a breach of the same condition 01.1 in different circumstances was duplicitous, because acts and omissions relating to both storage and treatment, being separate licensed activities, were included in one charge. This finding was supported in his view by Chugg v Pacific Dunlop Ltd [1988] VicRp 49; [1988] VR 411 (Chugg) and Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 (Boral Gas) as follows:

[173]

[66] I would reach that conclusion unassisted by authority. However, authority is not lacking. As the primary judge pointed out, Chugg v Pacific Dunlop Ltd [1988] VicRp 49; [1988] VR 411 concerned an information based on the obligation on an employer to "provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health", and the particulars identified several acts and omissions. Fullagar J held the information duplicitous. Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 concerned the New South Wales counterpart. Hill J said that many of the acts and omissions identified as failures were "disparate in nature and content", and involved "different items of plant, different systems of work, different operations and procedures, different locations on the premises, ... [and] different risks of danger to different employees": at 179. His Honour said that the gist of the offence was each act or omission which breached the obligation to ensure the health, safety and welfare of an employer's employees. Hungerford J also found that the disparate acts amounted to more than one offence.

[174]

The Defendant rightly complains that the use of the term licensed activities in the amended summonses is plural, which alone suggests that the charge is duplicitous. I agree that the use of plural activities suggests that more than one offence is being charged. As the Defendant submitted grammatical issues are evident in describing a blast as an activity and using the verb form 'was' to describe activities.
Licensed activities appears three times in each amended summons, particular (c) refers to licensed activities in the heading and in the first line and is described in all amended summonses as '... was the blast named ... in the course of mining for coal at Maules Creek Coal Mine...'. The words also appear at the end of particular (d) manner of contravention. Condition 01.1 requires licensed activities to be carried out in a competent manner.
At the outset of the hearing the Prosecutor sought to further amend the amended summonses to refer to singular licensed activity where the summonses presently refer to licensed activities. As the Defendant opposed that amendment there having been very little notice given of the intention to do so by the Prosecutor, and I was not at that stage aware of all the issues which would arise in argument, I did not allow such an amendment. Were the application to be made again I consider that it should be permitted to clarify what the Prosecutor intends in its pleadings. A reference to licensed activity would provide some clarification of the case the Prosecutor seeks to make.
Secondly, the Defendant submitted that the identification of licensed activities is unclear. A blast is not licensed activities under the EPL according to the Defendant. Only activities regulated under the EPL are licensed activities and if an activity is otherwise outside the EPL it is not a licensed activity. The effect of this argument appeared to be that aspects of blasting the subject of conditions in the EPL were licensed but those aspects were not the subject of these charges. Section 3 'Limit conditions' under the EPL includes condition L4 'Blasting'. Eight controls on blasting activity are specified. Section 4.04 'Other operating conditions' include blast fume condition 04.1 specifying that offensive blast fume must not be emitted from the premises. None of the license conditions regulating blasting operations or minimisation of blast fume are referred to in the amended summonses under manner of contravention. If an amendment was made to provide for a singular licensed activity in the amended summonses, as I understand the Defendant's argument it can still argue that no activity which is licensed is the subject of each charge, for example the design of a blast is not a licensed activity under the EPL. I do not consider I need to resolve that issue at this point in the proceedings. This argument is open to the Defendant at trial regardless of my conclusion that licensed activities can become licensed activity in the amended summonses.

[175]

The challenge of considering the offences in the amended summonses is that the identification of licensed activities (intended by Prosecutor as activity) as 'mining for coal' covers a wide variety of complex industrial processes engaged in under the EPL. The focus of each charge is a single blast undertaken on a particular day in pursuit of the licensed activity of mining for coal with some steps taken to achieve the blast particularised under manner of contravention in a time period leading up to the date of detonation.
The amended summonses for Blasts A and G have 6 or 7 sub-particulars specifying the manner of contravention. These identify multiple activities undertaken in order to carry out the blast the subject of each charge. The Defendant complains that some of the sub-particulars could on their own represent an offence therefore the amended summonses are duplicitous as they contain multiple offences. The Prosecutor first submitted that one course of conduct, the carrying out of each blast the subject of a charge, the various particulars if proved in the alternative or cumulatively did not result in duplicitous charges, relying on CSR Ltd at [33]-[34] citing Bray CJ in Romeyko v Samuels at 345. Applying the considerations identified by Kirby J in Walsh v Tattersall at 108, the Prosecutor submitted that all the actions particularised are within the charge period and at one location.
The Prosecutor also submitted that no duplicity arises (or if it does it is acceptable) a position supported by Diemould. That case considered whether offences laid under work place health and safety laws were duplicitous. The Prosecutor relied on the reasoning of Doyle CJ (White J agreeing) that multiple contraventions of a section (s 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA)) imposing a general duty on employers to provide a safe workplace did not give rise to separate offences under s 58, at [24]. Doyle CJ considered that the provisions gave rise to a single instruction or command in light of the statutory scheme, at [19]. In Fullagar J at 415-416 considered a similar offence under equivalent New South Wales legislation, cited in at [28]. The approach in was not applied by Doyle CJ to the act he was considering. Doyle CJ held:

[176]

[29] ...to my mind the issue is not one of characterising the employer's duty (the affirmative command that is drawn from s 19), but of identifying what constitutes a contravention of s 19(1). And, as I will explain, the need to identify and to particularise an offence means that the defendant will know "with precision what he is charged with", although the proof of that charge may involve the proof of a number of acts or omissions. At times that may mean that the factual basis of a charge is not straightforward, but it does not follow that the accused person will not know with what he is charged. And, on the contrary approach, I foresee scope for the prolonged dissection of facts to isolate the separate "identifiable acts or omissions", each one of which separately will constitute the contravention of the provision. In the end, each approach has its own difficulties.

[177]

The Defendant submitted that the reasoning in Diemould in not applying Chugg is contrary to Truegain because of the support derived from Chugg and Boral Gas, extracted above in [77 ]. As identified above the pleading issues in Truegain in relation to which Chugg and Boral Gas were cited differ from this matter, so that alone is not a basis for distinguishing Diemould. It provides an example where a court considered that the pleading sufficiently identified to a defendant the case it had to meet for the purpose of assessing evidence relied on by a prosecutor.
In TT Line Company the offence arose from the transportation of horses in one journey across Bass Strait (resulting in the death of many horses on a ship in one day) being one offence of use of a method of management reasonably likely to result in unreasonable and unjustifiable pain and suffering to the animal(s). Several actions were identified in particulars as the course of conduct relied on and about which the Defendant claimed duplicity. The Supreme Court of Tasmania found that the charge was not duplicitous. As the Prosecutor identified, in so holding Porter AJ at [106]-[114] discussed the application of Truegain, Byrne v Baker [1964] VicRp 57; [1964] VR 443, Chugg and Boral Gas. Porter AJ at [120] extracted Leeming JA in Truegain at [59] and identified his Honour's discussion at [70] of Environment Protection Authority v Sydney Water Corp Ltd (1997) 98 LGERA 361 where the proposition that a failure to maintain an industrial plant installed on premises could be particularised by reference to five separate items of equipment.

[178]

The issue of uncertainty arises due to the particularisation of the Prosecutor's case, in written and oral submissions before me, the amended statements of facts using Blast A as an example, correspondence between the parties' solicitors set out above in [14 ]-[16 ] and Dr Cameron's report also extracted in part above in [17 ].

[179]

Particulars of contravention in amended summonses

[180]

I consider uncertainty arises for the Defendant as the amended summonses do not specify how the sub-particulars under manner of contravention are intended to prove each of the offences. The unamended summonses for Blast A had 'and' between sub-particulars (e) and (f), suggesting that all the sub-particulars had to be proved by the Prosecutor in order to establish incompetence, which did make the Prosecutor's position clear. That position shifted with the deletion of 'and' between (e) and (f) leaving unclear how the sub-particulars were intended to operate. The Prosecutor's submissions about how the sub‑particulars were intended to prove the offence evolved over the numerous submissions filed by the parties (ten in all) and during oral submissions in the second hearing phase. The Prosecutor submitted the sub‑particulars could be proved both separately and cumulatively in several imprecise ways.
During the hearing the Prosecutor advised that sub-particular (a) in Blasts A-G amended summonses is directed to the selection of explosives, not to conducting tests on explosives providing clarification that testing of explosives is not the subject of that sub-particular.
The way the sub-particulars of manner of contravention were intended to work was difficult to understand. The Prosecutor submitted at first that whether or not one or a combination of sub-particulars were sufficient to establish the offences was a matter for the trial judge. This approach was identified in Diemould by Doyle CJ at [52]‑[57] referring to the possibility that a prosecutor could rely on multiple particulars of a contravention with a defendant having to contest every allegation in the particulars and the prosecutor succeeding in obtaining a conviction by proving only one of the particulars. In later submissions the Prosecutor stated that the acts and omissions relied on in relation to each blast operated in a permissible cumulative fashion. For example Blast A sub‑particulars (d), (e) and (f) may not on their own establish incompetency. If proven and considered cumulatively they might satisfy the trier of fact of incompetence. Sub-particular (a) together with particular (b) for Blasts B-G concerning the selection of explosive products would be highly probative in proving the Prosecutor's case. In Blast G sub-particulars (a) and (b) together with particular (d) which is related would be highly probative of guilt. The sub‑particular that explosives had been spilled on the bench as specified in relation to Blasts D, G sub-particular (g), Blast E sub-particular (f) would contribute to a finding of incompetence. Similarly that blast holes were overfilled by 10% for Blast A sub‑particular (c) and Blast B sub-particular (d).

[181]

Each charge has an amended statement of facts. The amended statement of facts for Blast A is extracted in part above in [8 ]. The amended statement of facts identifies that there are a number of steps required to undertake a blast, being the design of the blast, the drilling of blast holes, the loading of blast holes, the initiation and firing of the blast and blast review and feedback. One section commencing at par 16 refers to the blast fume management procedure, classification of blast fume (par 17) and cause of blast fume (par 18). A trial blast on 24 February 2021 is referred to (par 22). Failures to carry out licensed activities are specified in par 27A referring to the use of explosives in the absence of previous testing which a quality assurance process should cover.
Further matters beyond those referred to in the amended summonses including blast fume which I consider separately below are provided in the amended statements of facts. How these relate to each of the multiple sub‑particulars of manner of contravention is not clear. The Defendant's complaint that the volume of sub-particulars provided leads to uncertainty is valid. The amended statements of facts need to be rationalised.

[182]

Dr Cameron's report provides a wide-ranging critique of the Defendant's blasting operations and practices for the charge periods, as can be seen from the executive summary extracted above in [17 ]. Dr Cameron refers to fume events and provides opinions on standards of competence in par 3.17 identifying ten areas of concern which in some respects are additional to the manner of contravention particularised in the summons for example 3.17.2, 3.17.3, 3.17.4. The Prosecutor will need to specify what parts of Dr Cameron's report it intends to rely on to support the amended summonses as pleaded. Any additional matters not relevant to proving guilt should not be relied on.

[183]

Extensive particulars are provided in letters dated 28, 29 June 2023 and 20 July 2023 from the Prosecutor to the Defendant, see above in [14 ]-[16 ]. Given the range of actions and persons identified a wide range of possible behaviours could be caught, which may or may not relate to the sub-particulars of the manner of contravention specified in the amended summonses. This must be made clearer to the Defendant.
The amount of particulars provided in the amended statements of facts and the letters of particulars from the Prosecutor do not provide certainty to the Defendant about the basis for the sub-particulars of the manner of contravention in the amended summonses. This is exacerbated by the scope of Dr Cameron's report.
The Prosecutor needs to clarify precisely how it intends to prove each blast in relation to all the particulars of contravention provided.

[184]

No reference is made to blast fume in the manner of contravention in the amended summonses. Extensive reference to blast fume appears in the amended statements of facts, Dr Cameron's report and in the letter of particulars dated 28 June 2023.
The EPL contains conditions which specify requirements in relation to blast impact minimisation at section 3 'Limit conditions', L4 'Blasting' and which specify at 04 'Other operating conditions', blast fume 04.1 that offensive blast fume must not be omitted from the premises. Section 5 'Monitoring and recording conditions' at M7 specifies blasting monitoring conditions. As identified above none of the conditions expressly regulating blast fume are referred to in the amended summonses.
The Defendant's complaint of uncertainty in relation to blast fume is warranted given this large volume of material, which appears disconnected from the manner of contravention specified in the amended summonses. The Prosecutor has submitted that the reference in the amended statements of facts to blast fume is essentially background information explaining how the charges came to the attention of the Prosecutor. When considered in conjunction with Dr Cameron's report which refers expressly to the creation of blast fume as part of his findings of incompetence, I consider that the role of blast fume is not reflected in the amended summonses charged and must be excluded from material to be relied on to establish the charges.
The Defendant's original written submissions included a section criticising the extensive evidence served by the Prosecutor which was not ultimately pressed at the hearing. The brief observations by the Defendant above in [43 ] suggests the evidence served to date is voluminous. It is likely that rationalisation of the particulars of the charge will also require rationalisation of evidence relied on. I am unable to be more specific as I was not addressed on that matter.

[185]

The Defendant's notices of motion dated 28 July and 7 August 2023 seek orders for dismissal of charges and/or stay of proceedings. I will not be making such orders. What follows from my findings is that the Prosecutor will have to:

[186]

(1) Confirm whether it wishes to further amend the amended summonses to refer to a singular licensed activity.

(2) Precisely identify for each of the amended summonses for each charge the interrelationship between the sub-particulars under particular (d) manner of contravention, as started to occur as summarised above in [96 ]-[100 ].

(3) Rationalise the amended statements of facts, multiple letters of particulars and Dr Cameron's report to reflect the amended summonses including removing reliance on blast fume.

(4) Rationalise the evidence where appropriate to reflect the case intended to be brought.

[187]

Whether the parties require a particular order from the Court to give effect to the judgment and a timetable for these actions to be undertaken will be discussed with the parties.

Environment Protection Authority v Maules Creek Coal Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (187 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (39)