Inspector Howard v Baulderstone Hornibrook Pty Ltd

CITATION: Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92

PROSECUTOR: Inspector Dennis Howard

DEFENDANT (Matter Nos IRC 2572, 2573 & 2776 of 2006): Baulderstone Hornibrook Pty Ltd PARTIES: DEFENDANT (Matter Nos IRC 2574 & 2777 of 2006): Bilfinger Berger AG

DEFENDANT (Matter Nos IRC 2578 & 2775 of 2006): Cross City Tunnel Pty Limited

FILE NUMBER(S): IRC 2572; 2573; 2574; 2578; 2775; 2776; 2777 of 2006

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecutions under s 8(1) and s8(2) of the Occupational Health and Safety Act 2000 - Cross City Tunnel Project - defendants engaged in construction of ventilation tunnel - sentencing - relevant general principles - objective seriousness - aggravating and mitagating factors considered - maximum penalty - fatality - risk of serious injury - forseeability - simple remedial measures - deterrence (general and specific) - significant risks in tunnelling operations - subjective features - contrition - assistance to family - co operation with WorkCover - prior record (Baulderstone Hornibrook) - good industrial citzenship - totality - parity - penalty imposed - moiety - costs

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Protection of the Environment Operations Act 1997

Alcatel Australia Limited v Workcover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 Cahill v State of New South Wales (Department of Education and Training) (No 3) [2009] NSWIRComm 97 Cahill v State of New South Wales (NSW Police) (No 2) [2005] NSWIRComm 400 Cameron v The Queen (2002) 209 CLR 339 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminimum Limited v Workcover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Capral Aluminium Ltd v Workcover Authority of New South Wales (2000) 49 NSWLR 610 Corinthian Industries (Sydney) Pty Ltd v Workcover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Cullen v State Rail Authority of New South Wales (1993) 49 IR 166 Daly v Smith (2006) NSWIRComm 111 Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Dodd (1991) 57 A Crim R 349 Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 Environment Protection Authority v Pannowitz [2005] NSWLEC 175 Fisher v Samaras (1996) 82 IR 384 Fletcher Construction Australia Ltd v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Graincorp Operations Ltd v Inspector Mason (2006) 157 IR 103 Haynes & Callaghan v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (Full Court, 10 March 1994, unreported) Inspector Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 Inspector Hannah v Wonar Pty Ltd (Full Court, 30 June 1992, unreported) Inspector Haynes v James Glass and Aluminium Pty Ltd (Fisher, CJ, 20 May 1994, unreported) Inspector Jelley v Albright & Wilson (Australia) Limited (2007) 164 IR 456 Inspector Jones v Challita (2006) 153 IR 409 Inspector Lai v Rexma Pty Ltd [2008] NSWIRComm 78 Inspector Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Inspector Morrison v Cumnock No 1 Colliery Pty Ltd [2004] NSWIRComm 151 Inspector Patton v Fletcher Construction Australia Ltd (No 2) (2003) 123 IR 350 Inspector Sharpin v Buildcorp Australia Pty Ltd [2005] NSWIRComm 372 Inspector Short v the Crown in the Right of New South Wales (NSW Police) (2007) 164 IR 198 Inspector Yeung v Thiess Pty Ltd (No 2) (2004) NSWIRComm 96 Inspector Yeung v Wilson t/a Wilson's Tree Service (2005) 143 IR 187 JT & LC Tippett Pty Ltd v Workcover Authority of New South Wales [2008] NSWIRComm 177 Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v Workcover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Morrison v Eureka Opals Pty Ltd (No 3) (2006) 153 IR 191 Morrison v Powercoal (2003) 130 IR 364 Morrison v Powercoal Pty Ltd (2004) 137 IR 253 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 CASES CITED: Morrison v Waratah Engineering Pty Ltd (2005) 139 IR 186 Narayan v Inspector Chamings (2007) 169 IR 414 Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 R v Allpass (1993) 72 A Crim R 561 R v De Simoni (1981) 147 CLR 383 R v Gordon (1994) 71 A Crim R 459 R v Gorman (2002) 137 A Crim R 326 R v MacDonell (unreported, Court of Criminal Appeal) R v Moon (2000) 117 A Crim R 497 R v Olbrich (1999) 199 CLR 270 R v O'Neill (1974) 2 NSWLR 582 R v Radich (1954) NZLR 86 R v Rushby (1977) 1 NSWLR 594 at 598 R v Sharma (2002) 54 NSWLR 300 R v Thomson (2000) 49 NSWLR 383 Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 Tyler v Sydney Electricity (1993) 47 IR 1 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v R (2003) 212 CLR 629 Wong v Melinda Group Pty Ltd (1996) 82 IR 118 Workcover Authority (Inspector Carmody) v Baulderstone Hornibrook Pty Ltd [2005] NSWIRComm 43 Workcover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 Workcover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 Workcover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 Workcover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 Workcover Authority of New South Wales (Inspector Glen David Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, 13 March 1996) Workcover Authority of New South Wales (Inspector Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118 Workcover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Workcover Authority of New South Wales (Inspector Lancaster) v Burnshaw Constructions Pty Ltd (2002) 121 IR 119 Workcover Authority of New South Wales (Inspector Mansell) v Air Express International (Australia) Pty Ltd (1996) 83 IR 64 Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34 Workcover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33 Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 Workcover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 Workcover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 128 IR 361 Workcover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277 Workcover Authority of New South Wales (Inspector Short) v Crown in the Right of the State of New South Wales (NSW Police) (2007) 164 IR 198 Workcover Authority of New South Wales v (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (2001) 112 IR 1 Workcover Authority of New South Wales v Consolidated Constructions Pty Ltd (2001) 109 IR 316 Workcover Authority of New South Wales v Fletcher Construction Australia Ltd (2002) 123 IR 121 Workcover Authority of New South Wales v Waugh (1995) 59 IR 89 Workcover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 Workcover New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163

HEARING DATES: 24/02/09, 25/02/09, 26/02/09, (Written Materials) 04/06/09, 11/06/09

PROSECUTOR: Mr J V Agius SC with Mr B G Docking and Mr R Reitano of Counsel WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS: Mr B D Hodgkinson SC with Mr D Jordan of Counsel Middletons Lawyers

INSPECTOR DENNIS HOWARD v BAULDERSTONE HORNIBROOK PTY LTD

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

INSPECTOR DENNIS HOWARD v BAULDERSTONE HORNIBROOK PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

INSPECTOR DENNIS HOWARD v CROSS CITY TUNNEL PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

INSPECTOR DENNIS HOWARD v CROSS CITY TUNNEL PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

INSPECTOR DENNIS HOWARD v BAULDERSTONE HORNIBROOK PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 These proceedings involve prosecutions instituted by Inspector Dennis Howard against Bilfinger Berger AG ('Bilfinger Berger'), Baulderstone Hornibrook Pty Ltd ('Baulderstone Hornibrook') and Cross City Tunnel Pty Limited ('CCT'). Inspector Howard is an inspector of the WorkCover Authority of New South Wales and is authorised by s 106(1)(c) of the Occupational Health and Safety Act 2000 ('the Act') to institute the proceedings. 2 Bilfinger Berger is a foreign company incorporated in Germany with its registered office in Australia at Level 4, 13-15 Lyon Park Road, North Ryde, New South Wales. It is a holding company for a number of companies that participate in the construction and services industries and employs approximately 50,000 people worldwide. 3 Baulderstone Hornibrook, a wholly owned subsidiary of Bilfinger Berger, is duly incorporated in Australia with its registered office, as at the date of the incident, located at Level 10, 40 Miller Street, North Sydney, New South Wales. Baulderstone Hornibrook is now known as Baulderstone Pty Limited with its registered office located at Level 5, 39 Delhi Road, North Ryde, New South Wales. It has operated in the New South Wales construction industry for over 70 years, with its principal activity being to provide project management construction and civil engineering services. 4 Bilfinger Berger and Baulderstone Hornibrook formed an unincorporated joint venture trading under the name Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture ('the joint venture defendants'). 5 CCT was a wholly owned subsidiary of Baulderstone Hornibrook and a duly incorporated company with its registered office located at Level 10, 40 Miller Street, North Sydney, New South Wales. Throughout this judgment, where Bilfinger Berger, Baulderstone Hornibrook and CCT are referred to collectively, they will be referred to as the defendants. 6 The prosecution arose following a fatal incident which occurred during the course of the Cross City Tunnel Project ('the project'). The project consisted of the planning, design, construction and commissioning of a cross city tunnel connecting east and west Sydney beneath the central business district of Sydney. The incident occurred during the course of the construction of a ventilation tunnel, known as the Bypass Ventilation Tunnel Mainline (MVT-1) (design lot T-060-DT). MVT-1 was not included in the original design of the Cross City Tunnel, but was instigated to increase ventilation in the tunnel. The tunnel ran from Darling Harbour to Kings Cross. During construction it had three different excavation faces, being East and West heading from Cross Passage 4 and East from Darling Harbour.

7 On 29 July 2004, during the course of excavating the eastern part of MVT-1 between chainage 1225m and 1230m, east of Cross Passage 4 (MVT-1 East), the roof of the tunnel collapsed. Mr Ronald Shores, a tunneller and roadheader operator who was working as a member of a five person CCT crew, sustained fatal crush injuries from the rock fall. At the time of the collapse, Mr Shores was standing on a work platform on the boom of a roadheader and was drilling a hole for the purpose of installing a rock bolt into the roof of the tunnel with a handheld drill known as a wombat (Mr Shores had intended to install a number of bolts at this location). Messrs Ian Coombs (Baulderstone Hornibrook Graduate Site Engineer), Eamonn Divine (CCT Shift Fitter), Robert McMeekin ('CCT Tunneller' in Mr Shores' crew) and Barrie Stewart (CCT Shift Boss/Tunneller) were in the immediate proximity of the roof collapse.

8 The charges brought against the defendants will be described in detail below, but for the present purpose it is noted that for each of the charges, the risk was particularised as occurring between the period 23 July to 29 July 2004 ('the charge period'). The charges, were variously laid under s 8(1) and 8(2), with the particulars of the charges being amended before the defendants entered pleas of guilty to all charges brought against them.

9 In addition to Mr Shores, a number of other workers were particularised as being at risk within the charge period. As the persons placed at risk varied, depending on the charge and the defendant, it is sufficient to say that common to all charges was the risk to the health and safety of Mr Shores, and that the health and safety of other tunnellers or persons performing duties in relation to MVT-1 (including those mentioned above) were also placed at risk as specified in the respective charges. The failures particularised variously concerned a failure to provide adequate roof support, a failure to provide a falling objects protection system ('FOPS') and failure to provide a fall arrest system by means of handrails. Both the first and second mentioned failures are particularised in a single charge in each of the following matters: Matter Nos IRC 2572, 2573, 2574 and 2578 of 2006. In the result, those charges shall be described in shorthand form throughout the judgment as the 'roof support and overhead fall protection charges'. The guardrail charges are found in Matter Nos IRC 2775, 2776 and 2777 of 2006.

10 The planning and construction of safe tunnelling operations required the effective design and implementation of roof support systems, having regard to, using the industry nomenclature, the 'anticipated' and 'as found' geological and geotechnical conditions of the tunnel. The evidence in this matter revealed that, for the section of MVT-1 particularised in the respective charges, namely chainage 1195m to 1230m ('the particularised area'), the roof support selected and consequently the lack of roof bolts actually installed during the construction of the tunnel (and the absence of an appropriate configuration of them) exposed persons engaged in work associated with the excavation of the tunnel to risks to their safety, given the geological and geotechnical conditions which prevailed in the tunnel in the particularised area. 11 No mechanical system or overhead protective structure was installed on the work platform used by Mr Shores to install roof bolts so as to protect against a falling roof or rocks. Handrails were required to be installed during the installation of rock bolts, but had been removed in order to excavate (they were situated on the ground 20m from the site of the incident). 12 On cases presented by the prosecutor and the defendants, the contractual relations between various entities engaged in or in connection with the project (and MVT-1) and their design and construction practices, are central to the determination of the objective gravity of the offences charges (or at least those offences concerning tunnel roof failure or rock fall). 13 Those considerations are complex, given the intertwined contractual arrangements, characteristic of a large construction project (particularly one involving mining or tunnelling activities), and the elaborate construction practices and activities (and the recording of them) carried out during the project. It is suffice, at this juncture, to provide below a short summary of the parties' positions as to those charges concerning the provision of inadequate roof support and an overview of those arrangements. 14 The prosecutor contended that the joint venture defendants had failed to follow the established and detailed system for installing minimum roof support, as specified in the contracts and related documents, and as a result had installed inadequate roof support for the geological conditions at and before the location of the roof collapse. The joint venture defendants' departure from design drawings for roof support, without the concurrence, acceptance or instruction by consultants (charged with that responsibility), was a breach of the joint venture defendants' contractual obligations and was, therefore, an aggravating factor in determining the objective seriousness of the offence. In any event, it was contended, the defendants also failed to sufficiently check or confirm with the designers that it was appropriate to reduce the roof support to less than that indicated in the design drawings and technical specifications. The defendants, whilst accepting by their plea to the amended particulars to the charges, the latter (but not the former) proposition, submitted that, as a factor mitigating the seriousness of the offence, the consultants engaged by the joint venture defendants to provide design and construction stage services had failed to meet their contractual obligations to the defendants for the design and construction of the project and MVT-1 by permitting an unsafe roof support system to be employed. If appropriate advice had been given about roof support, it was submitted, the risk of roof collapse would have been eliminated or minimised. 15 In February 2002, the Roads and Traffic Authority ('RTA') announced preferred tender status to the Cross City Motorway Consortium. The Consortium comprised CrossCity Motorway Nominees No.2 Pty Ltd as the initial trustee of the CrossCity Motorway Property Trust ('the Trustee'), CrossCity Motorway Pty Ltd ('the Company'), Deutsche Bank AG, Cheung Kong Infrastructure Holdings and DP Capital Partners. 16 On 18 December 2002, the RTA, the Trustee and the Company entered into the Cross City Tunnel Project Deed ('the Project Deed') for, inter alia, the finance, planning, design, construction and commissioning of the project works. On the same date, the Trustee and the Company entered into the Cross City Tunnel Design and Construction Contract ('D&C Contract') with the joint venture defendants to plan, design, construct and commission the project works. The effect of this contract was to engage the joint venture defendants as the principal contractor on the project so as to undertake the planning, design and construction of the Cross City Tunnel ('the Main Works') (and later MVT-1) for the Trustee and Company. 17 During the tender process, the joint venture defendants sub-contracted out the phases of the design and construction stage services of the project (in conformity with the D&C tender) to Connell Wagner Pty Ltd (an incorporated company with its registered office in Australia at Level 12, 60 Albert Road, South Melbourne). In consideration for Connell Wagner entering into a Collateral Agreement, the joint venture defendants agreed to enter into a consultancy agreement with the wholly owned subsidiary of Connell Wagner, CW-DC Pty Ltd (an incorporated company with its registered office in Australia being the same as Connell Wagner), in place of Connell Wagner. In this sense, CW-DC stood in the place of Connell Wagner under the pre-contract agreement. Under the Collateral Deed, Connell Wagner undertook to provide CW-DC with sufficient resources to perform its obligations under the Consultancy Agreement.

18 In the result, on 16 September 2002, CW-DC entered into a Consultancy Agreement for the performance of design consultancy services so that the joint venture defendants were able to meet their obligations under any contract for the design and construction of the project (the ultimate contract being the D&C contract). Under the consultancy agreement CW-DC agreed, inter alia, to perform the services specified in the agreement to internationally accepted standards of good engineering practice used by engineers for the project and to provide the joint venture defendants with the necessary site resources during the construction work which were the subject of Design Documentation. 19 Further, Connell Wagner and CW-DC entered into a labour hire agreement by which Connell Wagner agreed to provide CW-DC with staff and support facilities to enable CW-DC to provide consultancy services. The staff remained employed by Connell Wagner. 20 In view of the extent of the inter-connection between Connell Wagner and CW-DC in the provision of consultancy sources for the project, and in their arrangements with the joint venture defendants, either or both consultants shall be referred to as 'the designers', unless particular reference is made to Connell Wagner or its subsidiary. (It should be noted, however, that most transactions between construction parties and the designers or their personnel in this judgment directly concern CW-DC as a legal entity.)

21 CCT was incorporated for the purposes of employing the skilled trades, operators and construction workers for the project and MVT-1 under a project award and also to deal with administrative functions of the project. Since the completion of the Project, CCT has ceased to operate.

22 Bilfinger Berger was charged with two breaches of s 8(2) of the Act. The first charge (Matter No IRC 2574 of 2006) related to inadequate roof support and the failure to install a fall from overhead protection system and was set out in the amended application for order in the following terms: Between 23 July 2004 and the end of the day shift on 29 July 2004, in the "Bypass Ventilation Tunnel - Mainline" of the Cross City Tunnel at Sydney in the State of New South Wales, being an employer, failed to ensure that persons not in its employment, and in particular, Shaun Anthony Ayshford, Gary Don Campbell, Ian Michael Coombs, Eamonn Anthony Devine, Abraham Kira Dinsdale, Adam Nathan Hargreaves, Peter Guy Hartcliff, Peter David Hooker, Frank Anthony Horky, Manfred Karl Lechner, Nicolaos Liras, Trevor Bruce Love, Robert Allan McMeekin, Neville David Ngawati, Nigel Walter John Pohio, Timothy James Rheinberger, Kokiri Kihirini Ronaki, Robert Edward Mau Seymour, Ronald Arthur Shores, Peter Scott Smith, Barrie John Stewart, Jon Moetatua Tiwha, Landis Blain Ormond Winitana and John Phillip Witherwere, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, while they were at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 23 The particulars of that charge were: 1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rock fall ("the section of MVT-1 East");

2. There was a risk of injury to persons present in the section of MVT-1 East being struck from a tunnel roof failure or rockfall;

3. Aspects of the defendant's unsafe systems of work and work environment were the following:

(a) The defendant did not ensure that there was installed in the section of MVT-1 East, as a minimum, Support Type 2 in an appropriate sequence from chainage 1195 metres;

(b) The defendant permitted persons to work in MVT-1 East from chainage 1195 to the site of the rock fall in circumstances where adequate roof support was not being installed in an appropriate sequence as the excavation took place;

(c) The defendant did not ensure that an adequate assessment of the risks of roof collapse or rock fall was undertaken in the section of MVT-1 East in the circumstances where the defendant did not employ Type 2 roof support as a minimum;

(d) The defendant did not ensure that it had the approval of the designers (Being the CW-DC personnel responsible for the tunnel design) of the cross city tunnel to install roof support below a minimum of Support Type 2 in the section of MVT-1 East. 4. The defendant did not provide a falling objects protection system (also known as FOPS) to protect workers undertaking hand held drilling of holes from the boom of the roadheader, installing rockbolts from the boom of the roadheader and/or barring down and scaling from the boom of the roadheader in the section of MVT-1 East; 5. The multiple and fatal injuries to Ronald Arthur Shores on 29 July 2004 at about chainage 1225 to 1230 metres in the section of MVT-1 East were a manifestation of the risk.

(The description of the ventilation tunnel in the charges here set out has been converted to MVT-1 for conformity with the expression used in this judgment.) 24 The second charge (Matter No IRC 2777 of 2006) under s 8(2) related to Bilfinger Berger's failure to install guardrails. The amended application for order was set out in the following terms: Between 23 July 2004 to the end of the day shift on 29 July 2004 in the "Bypass Ventilation Tunnel - Mainline" of the Cross City Tunnel at Sydney in the State of New South Wales, being an employer, failed to ensure that persons not in its employment, and in particular, Robert Allan McMeekin, Ronald Arthur Shores, Barrie John Stewart and Landis Blain Ormond Winitana were not exposed to risks to their health or safety arising from the conduct of its undertaking, while they were at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 25 The particulars were: 1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rockfall ("the section of MVT-1 East"); 2. Between 23 July 2004 and the end of the day shift on 29 July 2004 in the section of MVT-1 East, persons were working on the boom mounted platform ("platform") of a roadheader in the section of MVT-1 East; 3. The defendant did not prevent persons in the section of MVT-1 East from working at heights on the platform on the boom of the roadheader in circumstances where: (i) there were no handrails in place on the platform on the boom of the roadheader, and

(ii) in the absence of handrails, there was no fall arrest system installed on the platform on the boom of the roadheader. 4. As a consequence of the matters raised above, there was a risk of injury being sustained by persons in the section of MVT-1 East falling from the platform on the boom of the roadheader. 26 As earlier mentioned, Bilfinger Berger entered a plea of guilty to both charges.

Prosecution of Baulderstone Hornibrook 27 Baulderstone Hornibrook was charged with one breach of s 8(1) and two breaches of s 8(2). The charge under s 8(1) (Matter No IRC 2572 of 2006) was set out in the amended application for order as follows: Between 23 July 2004 and the end of the day shift on 29 July 2004 at the "Bypass Ventilation Tunnel - Mainline" of the Cross City Tunnel Project, at Sydney, in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular Ian Michael Coombs, Adam Nathan Hargreaves, Frank Anthony Horky, Manfred Karl Lechner, Nigel Walter John Pohio, Jon Moetatua Tiwha and John Phillip Wither, in that the defendant failed to ensure that systems of work and the work environment were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000

28 The particulars were: 1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rock fall ("the section of MVT-1 East"); 2. There was a risk of injury to employees present in the section of MVT-1 East being struck from a tunnel roof failure or rockfall. Aspects of the defendant's unsafe systems of work and work environment were the following: a. The defendant did not ensure that there was installed in the section of MVT-1 East, as a minimum, Support Type 2 in an appropriate sequence from chainage 1195 metres;

b. The defendant permitted its employees to work in MVT-1 East from chainage 1195 to the site of the rockfall in circumstances where adequate roof support was not being installed in an appropriate sequence as the excavation took place;

c. The defendant did not ensure that an adequate assessment of the risks of roof collapse or rock fall was undertaken in the section of MVT-1 East in the circumstances where the defendant did not employ Type 2 roof support as a minimum;

d. The defendant did not ensure that it had the approval of the designers (Being the CW-DC personnel responsible for the tunnel design) of the cross city tunnel to install roof support below a minimum of Support Type 2 in the section of the MVT-1 East. 3. The multiple and fatal injuries to Ronald Arthur Shores on 29 July 2004 at about chainage 1225 to 1230 metres in the section of MVT-1 East were a manifestation of the risk. 29 The first of the charges under s 8(2) (Matter No IRC 2573 of 2006) related to inadequate roof support and a failure to install a fall from overhead protection system and was set out in the following terms in the amended application for order: Between 23 July 2004 and the end of the day shift on 29 July 2004 at the "Bypass Ventilation Tunnel - Mainline" of the Cross City Tunnel Project, at Sydney, in the State of New South Wales, being an employer, failed to ensure that people (other than the defendant's employees), in particular, Shaun Anthony Ayshford, Gary Don Campbell, Eamonn Anthony Devine, Abraham Kira Dinsdale, Peter Guy Hartcliff, Peter David Hooker, Nicolaos Liras, Trevor Bruce Love, Robert Allan McMeekin, Neville David Ngawati, Timothy James Rheinberger, Kokiri Kihirini Ronaki, Robert Edward Mau Seymour, Ronald Arthur Shores, Peter Scott Smith, Barrie John Stewart, and Landis Blain Ormond Winitana, were not exposed to risks to their health and safety arising from the defendant's undertaking while they were at the defendant's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000.

1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rock fall ("the section of MVT-1 East"); 2. There was a risk of injury to persons present in the section of MVT-1 East being struck from a tunnel roof failure or rockfall; 3. Aspects of the defendant's unsafe systems of work and work environment were the following:

a. The defendant did not ensure that there was installed in the section of MVT-1 East, as a minimum, Support Type 2 in an appropriate sequence from chainage 1195 metres;

b. The defendant permitted persons to work in MVT-1 East from chainage 1195 to the site of the rock fall in circumstances where adequate roof support was not being installed in an appropriate sequence as the excavation took place;

c. The defendant did not ensure that an adequate assessment of the risks of roof collapse or rockfall was undertaken in the section of MVT-1 East in the circumstances where the defendant did not employ Type 2 roof support as a minimum;

d. The defendant did not ensure that it had the approval of the designers (Being the CW-DC personnel responsible for the tunnel design) of the cross city tunnel to install roof support below a minimum of Support Type 2 in the section of the MVT-1 East.

4. The defendant did not provide a falling objects protection system (also known as FOPS) to protect workers undertaking hand held drilling of holes from the boom of the roadheader, installing rockbolts from the boom of the roadheader and/or barring down and scaling from the boom of the roadheader in the section of MVT-1 East; 5. The multiple and fatal injuries to Ronald Arthur Shores on 29 July 2004 at about chainage 1225 to 1230 metres in the section of MVT-1 East were a manifestation of the risk. 31 The second charge under of s 8(2) (Matter No IRC 2776 of 2006) related to the failure to install guardrails and was set out in the amended application for order in the following terms: On 23 July 2004 and until the end of the day shift on 29 July 2004 at the "Bypass Ventilation Tunnel - Mainline" of the Cross City Tunnel Project, at Sydney, in the State of New South Wales, being an employer, failed to ensure that people (other than the defendant's employees), in particular, Robert Allan McMeekin, Ronald Arthur Shores, Barrie John Stewart and Landis Blain Ormond Winitana were not exposed to risks to their health and safety arising from the defendant's undertaking while they were at the defendant's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000.

1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rockfall ("the section of MVT-1 East");

2. Between 23 July 2004 and the end of the day shift on 29 July 2004 in the section of MVT-1 East, persons were working on the boom mounted platform ("platform") of a roadheader in the section of MVT-1 East; 3. The defendant did not prevent persons in the section of MVT-1 East from working at heights on the platform on the boom of the roadheader in circumstances where:

(i) there were no handrails in place on the platform on the boom of the roadheader; and (ii) in the absence of handrails, there was no fall arrest system installed on the platform on the boom of the roadheader.

4. As a consequence of the matters raised above, there was a risk of injury being sustained by persons in the section of MVT-1 East falling from the platform on the boom of the roadheader. 33 Baulderstone Hornibrook entered a plea of guilty to all three charges.

34 CCT was charged with two breaches of s 8(1) of the Act. The particulars of the first charge (Matter No IRC 2578 of 2006) related to inadequate roof support and the failure to install a fall from overhead protection system and was set out in the amended application for order in the following terms: Between 23 July 2004 and the end of the day shift on 29 July 2004, at the "Bypass Ventilation Tunnel -Mainline" of the Cross City Tunnel Project, at Sydney, in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular Gary Don Campbell, Abraham Kira Dinsdale, Eamonn Anthony Devine, Nicolaos Liras, Robert Allan McMeekin, Neville David Ngawati, Kokiri Kihirini Ronaki, Ronald Arthur Shores, Barrie John Stewart, and Landis Blain Ormond Winitana in that the defendant failed to ensure that systems of work and the work environment were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000.

1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rock fall ("the section of MVT-1 East");

2. There was a risk of injury to employees present in the section of MVT-1 East being struck from a tunnel roof failure or rockfall; 3. Aspects of the defendant's unsafe systems of work and work environment were the following: a. The defendant did not ensure that there was installed in the section of MVT-1 East, as a minimum, Support Type 2 in an appropriate sequence from chainage 1195 metres;

b. The defendant permitted its employees to work in MVT-1 East from chainage 1195 to the site of the rock fall in circumstances where adequate roof support was not being installed in an appropriate sequence as the excavation took place;

c. The defendant did not ensure that an adequate assessment of the risks of roof collapse or rock fall was undertaken in the section of MVT-1 East in the circumstances where the defendant did not employ Type 2 roof support as a minimum;

d. The defendant did not ensure that it had the approval of the designers (Being the CW-DC personnel responsible for the tunnel design) of the cross city tunnel to install roof support below a minimum of Support Type 2 in the section of the MVT-1 East. 4. The multiple and fatal injuries to Ronald Arthur Shores on 29 July 2004 at about chainage 1225 to 1230 in the section of the East were a manifestation of the risk. 36 The second charge under s 8(1) (Matter No IRC 2775 of 2006) related to the failure to install guardrails and was set out in the amended application for order in the following terms: On the 23 July 2004 and until the end of the day shift on 29 July 2004, at the "Bypass Ventilation Tunnel -Mainline" of the Cross City Tunnel Project, at Sydney, in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular Robert Allan McMeekin, Ronald Arthur Shores, Barrie John Stewart and Landis Blain Ormond Winitana in that the defendant failed to ensure that plant used by its employees at work was safe and without risks to health, contrary to section 8(1) of the Occupational Health and Safety Act 2000. 37 The particulars were: 1. Between 23 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel - Mainline" was driven east from about chainage 1195 to the site of the rockfall ("the section of MVT-1 East"); 2. Between 23 July 2004 and the end of the day shift on 29 July 2004 in the section of MVT-1 East, persons were working on the boom mounted platform ('platform') of a roadheader in the section of MVT-1 East; 3. The defendant did not prevent persons in the section of MVT-1 East from working at heights on the platform on the boom of the roadheader in circumstances where: (i) there were no handrails in place on the platform on the boom of the roadheader; and

(ii) in the absence of handrails, there was no fall arrest system installed on the platform on the boom of the roadheader.

4. As a consequence of the matters raised above, there was a risk of injury being sustained by persons in the section of MVT-1 East falling from the platform on the boom of the roadheader.

39 It is necessary to mention briefly a significant preliminary stage to these proceedings. The proceedings commenced with the matters originally being listed before Staunton J on 24 August 2006 and continued until the final amendment to the particulars of the charges and the entering of a guilty plea on 15 August 2008. All of this delay was associated with the negotiations that occurred between the prosecution and the defendants regarding the various aspects of the prosecutions, in particular, which defendants were charged and the nature of the particulars of those charges. The final result was that proceedings against the personal defendants in matters were dismissed and, after two amendments, the charges against the corporate defendants were finalised in the terms of the particulars set out above. The significance of this course will be addressed later, but it accounts for the delay of the hearing on sentence. 40 It is also pertinent to mention that the designers who were sub-contracted by the joint venture defendants to fulfil their design and construction obligations were also charged with breaches of the Act arising from the tunnel collapse. Those matters were originally listed with the current proceedings, but ultimately proceeded by way of a separate, defended hearing which is yet to be determined.

41 There was a lengthy Agreed Statement of Facts admitted into evidence. A large number of documents were also attached to the Statement (many of which were repeated in other parts of the evidence). It is clear, on its face, that in order to produce that document the parties engaged in lengthy, detailed and comprehensive discussions. The Court was also aided by other summary schedules produced by the parties after the conclusion of hearings. Due to its substantial length, the Agreed Statement of Facts has not been wholly incorporated in or annexed to this judgment. For the same reason, a series of documents which were attached to the Agreed Statement of Facts have not been annexed or extracted.

42 Having regard to the charges in each matter, the particulars of the respective offences, the Agreed Statement of Facts and the evidence tendered in the proceedings (dealt with below) I accept the pleas of guilty by the defendants, and will enter verdicts accordingly.

43 Mr J Agius, of senior counsel, who appeared with Mr R Reitano and Mr B Docking, of counsel, on behalf of the prosecutor, made oral and written submissions, which, taken together, can be summarised as follows: (a) the objective seriousness of the offences was high given the likely consequences of a rock fall as a result of inadequate roof support. The incident occurred whilst tunnelling 50m below the surface in the likely presence of high horizontal forces and with the defendant employing a level of roof support below that which had been directed in drawings known as Issued For Construction drawings ('IFCs'); (b) as the installation of the inadequate roof support had occurred as a result of the defendants' failure to follow the established and contractually binding system for ensuring adequate roof support for the geological conditions in MVT-1, this was a factor of aggravation; (c) in any event, the defendants had not approached the designers to check or confirm whether the lower level of roof support was appropriate despite the IFCs requiring higher support. Given the gravity of the risk and the consequences of that risk (if such a risk were to manifest), the defendants' actions could not be regarded as a discharge of their statutory duty. Their failure to discharge their statutory obligations is evidenced by their assumption that the roof was adequate based on the fact that the designers had not advised that it was inadequate, and secondly, the defendants' subsequent failure to enquire as to whether the roof support was appropriate for the geological conditions; (d) a factor in mitigation was, however, that the designers had not advised the defendants, contrary to the designers' contractual obligations that, having regard to 'as found' geological conditions, inadequate roof support was being installed; (e) further, the system of work required the tunnelling crew to install rock bolts whilst standing on the boom of a roadheader without overhead protection, except for their hard hats. This submission also embraced the charges concerning guardrails but it should be noted that very little by way of submission or material was advanced by the prosecutor as to the charges concerning guardrails in the proceedings; (f) with respect to Bilfinger Berger and CCT, the maximum penalty for the offences charged was $550,000. Baulderstone Hornibrook had three previous convictions and, accordingly, the maximum penalty applicable to the offences with which it was charged was $825,000; (g) the prosecution submitted that there were a number of factors otherwise relevant to the seriousness of the offence. These included:

i. the defendants were on notice from the documents relating to the excavation of the tunnel that they ought to have been ensuring that, in the absence of clear direction from the designers, the roof support not be reduced below Type 2, as indicated on the IFCs for the relevant section of the tunnel. The evidence showed that the defendants received no indication from the designers that they could use any roof support which offered less support than Type 2 bolting, and yet in the area in which the tunnel collapsed the defendants were installing Type 1 bolting; ii. the defendants' submission that the support notations in the IFCs were a guide and not mandatory, should be rejected. The only way in which the work system would sensibly have operated was if the roof support type indicated in the IFCs was the default, or minimum, roof support type to be installed by the tunnelling crew. The only exceptions were, if the designers indicated that it was appropriate, to put in a reduced support type or, if the constructor decided, for more abundant caution to do so, to increase the level of roof support. In other words, the roof support type in the IFCs was not a guide that the tunnelling crew could choose to follow or not follow, but was instead the mandatory roof support required to be installed, unless the two exceptions applied;

iii. the defendants did not adopt a proactive approach in consulting the designers as to whether the appropriate roof support was being installed in the tunnel. Instead, the defendants relied on the designers to inform them whether inadequate roof support was being applied, even though the defendants knew that assessments by the designers were always 24 hours or 10m behind the tunnelling crew and face of excavation. The tunnelling crew were, therefore, in 'no mans land' for 10m. This system of work should have made the defendants more aware of the risks to the tunnellers' safety; iv. although the failure of the designers to inform the defendants that they were using inadequate roof support might be a factor in the mitigation of penalty, it was not a factor that could substantially reduce the objective seriousness of the offence or the defendants' culpability. The defendants controlled the site and the system of work and never ceded their control to the designers. The defendants were experienced in the industry and should have taken a proactive approach in confirming with the designers whether the appropriate roof support was being installed. That the defendants believed they had the designers' permission to install Type 1 rather than Type 2 Support made the defendants no less culpable. In support of this submission, reliance was placed on Morrison v Waratah Engineering Pty Ltd [2005] NSWIRComm 63; (2005) 139 IR 186 ('Morrison v Waratah'); v. the defendants' failure to adhere to the terms of the design contract, which contractually required the installation of the anticipated roof support as specified by the designers, should be considered by the Court as an aggravating factor;

vi. the defendants controlled the plant available to the tunnelling crew and were aware that in order to install the spot bolting the tunnelling crew had to stand on a platform and drill into the roof of the tunnel without any protection, save for their hard hats; vii. the defendants had specifically considered the risk of injury from rock fall in a meeting held on 27 June 2003, and yet did virtually nothing about it. (h) as to the respective culpability of the three defendants, and without consideration of subjective factors, the prosecutor viewed the culpability of Bilfinger Berger and Baulderstone Hornibrook to be equal for all the offences. The culpability of CCT was equal to the other two defendants in respect of failing to install Falling Overhead Protection System but was less for the inadequate roof support offences. This submission was made on the basis that CCT did not have dealings with the designers regarding the minimum roof support. The defendants agreed, in part, with the prosecutor's approach to respective culpability, but contended that the culpability for CCT was also less than the other two defendants in respect of the failure to install FOPS. This was said to be so because the responsibility for the installation of FOPS was squarely that of the joint venture defendants; (i) all the risks to health and safety to which the defendants had entered pleas of guilty were obvious and foreseeable; (j) this was a proper case to have regard to the death of Mr Shores as an indicator of the seriousness of the relevant detriment to safety. In support of this submission the prosecutor relied on Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32] ( 'Morrison v Powercoal (2003)'); (k) there were simple and remedial steps available to the defendants prior to the incident. It was open to the defendants to raise with the designers, at post site visit meetings and by way of Request for Information ('RFI') procedures, whether it was appropriate to install the Type 1 Roof Support instead of the Type 2 Support indicated in the IFCs. In respect of the failure to install FOPS and the failure to have protection against falls from height, the defendants could have installed the FOPS and guard rails prior to the incident. The prosecutor also identified the use of a mechanical bolting machine, which would not have required the tunnelling crew to install the bolts whilst standing immediately under the roof. This change was implemented after the incident when the tunnelling recommenced; (l) this was a proper case for consideration to be given to both specific and general deterrence; (m) the principle of parity was applicable to Bilfinger Berger and Baulderstone Hornibrook, as they effectively had joint and shared responsibility on the project. As CCT was a labour hire company and had separate obligations, Mr Agius submitted that the principle of consistency was more appropriate to CCT than the principle of parity in assessing the appropriate penalty for that defendant; (n) in respect of subjective considerations, the prosecutor accepted that there was no reason not to accept that the defendants had entered their guilty pleas at the earliest opportunity, that the defendants were entitled to a consideration for the utilitarian value of their pleas of guilty, and that the defendants had cooperated with the WorkCover inspectorate; (o) additionally, the prosecutor advised that the parties had agreed the Court should make an order under s 115 of the Act. The order proposed by the parties forms an annexure to this judgment - Annexure A. The prosecutor submitted that the relevant legislative provision and authority demonstrated that the making of a s 115 order was not a relevant consideration in the Court's determination of penalty: see Inspector Short v the Crown in the Right of New South Wales (NSW Police) (2007) NSWIRComm 138; (2007) 164 IR 198 at [42]-[43]; Cahill v State of New South Wales (NSW Police) (No 2) [2005] NSWIRComm 400 at [57]. Accordingly, the making of a s 115 order was additional to any penalty that the Court might impose. Whilst the defendants agreed that Inspector Short v NSW Police and Cahill v NSW Police were the relevant authorities regarding a s 115 order, they contended that the making of such an order was a matter for the Court to take into account in determining penalty; (p) the prosecutor sought a moiety of any fine imposed for each offence and the costs of the proceedings. The defendants did not oppose the making of such orders.

44 Mr B Hodgkinson, of senior counsel, who appeared with Mr D Jordan, of counsel, made, in summary, the following oral submissions:

(a) whilst it was conceded that the IFCs indicated that the anticipated support to be installed past chainage 1100m was Type 2 Support, the defendants were not on notice that Type 2 Support should have been installed at the relevant chainage point. Whilst the IFCs might be accepted to have been the relevant information at the commencement of the tunnel excavation, the anticipated roof support had been increased and decreased throughout the tunnelling process, by the action or inaction of the parties and the interaction between the parties on an ongoing basis. Accordingly, at the time and location of the incident the defendants' legitimate expectation was that Type 1 Support was appropriate for the relevant geological conditions;

(b) it was conceded that there was no documentation or communication in or by which the designers had advised the defendants that at the relevant chainage point Type 1 Roof Support was to be installed instead of Type 2. However, the defendants were entitled to believe that the installation of Type 1 Roof Support at the location of the incident, was appropriate and sanctioned by the designers. The designers' personnel had accessed the tunnel in the days leading up to and including the day of the incident on 29 July 2004. They had made inspections and assessments on the geological conditions in the tunnel and the relevant roof support, and were aware that Type 1 Support was being installed past chainage 1100m. The fact that the designers did not advise the defendants to increase the roof support, had the effect of the designers giving their approval to the installation of Type 1 Roof Support;

(c) the anticipated roof support in the IFCs was not the mandatory or default minimum roof support as suggested by the prosecutor; (d) although the joint venture defendants were experienced in the tunnelling industry, they were not qualified to make an assessment that the geological conditions at the location of the incident required a higher level of roof support. The defendants had engaged and relied on the designers to provide expert advice, and they had failed to provide the relevant advice for the area in which the incident occurred. If the designers had, pursuant to their contractual obligations, indicated that a higher level of roof support was required, the defendants would have complied with such advice. The Court should consider this a relevant factor in determining the defendants' culpability;

(e) there was a suggestion by the defendants, to which the prosecutor strongly objected, that if the defendants had approached the designers to confirm the roof support, they would, nonetheless, have been informed that Type 1 Roof Support was appropriate at the location of the incident. In response to the prosecutor's objection, Mr Hodgkinson clarified that the defendants were only contending that, if they had asked Mr Timothy Rheinberger, the Senior Engineering Geologist employed by the designers (who conducted the site visit on the day of the incident), he would have informed them that Type 1 was appropriate. The defendants accepted that it may be that Mr Rheinberger's opinion was wrong, but the extent of their submission was that, if they had asked him he would have confirmed that Type 1 Support was appropriate. The defendants' submission did not go so far as to say that the designers would have agreed that Type 1 Roof Support was correct; (f) in respect of the prosecutor's submission concerning the contractual obligations of the parties, the following submissions were made: i. it was irrelevant to the issue to be determined by the Court, that is, the failure of the defendant to fulfil its statutory obligations concerning occupational health and safety. Rather, the Court should look at the actual arrangements between the parties and the way in which the parties operated at the time of the incident. There was a system in place that involved more than a bare contract; ii. if the Court was against the defendants in the above submission, the contracts would nevertheless support the defendants' contention as to how the system (of communications with the designers) operated at the time of the incident. There was no evidence that the contracts operated in the manner submitted by the prosecutor. The Court was directed specifically to the contract between the designers and the defendants and the designers' obligations under that contract. If the designers had performed their contractual and practical obligations, the incident would not have occurred; iii. the effect of the contractual provisions contended for by the prosecutor had to be established to the criminal standard of proof, which the prosecutor failed to establish; iv. the defendants' non-compliance with the relevant contracts could not be an aggravating factor, as an aggravating factor could not arise out of the same circumstances that constituted the breach itself. In other words, for a factor to be an aggravating factor it was required to be an additional circumstance, not the same circumstance considered by the Court in determining the seriousness of the breach; (g) the relevant authority concerning culpability in the light of the involvement of third parties is Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 ('McDonald's'). The defendants contended that McDonald's rather than Morrison v Waratah was the applicable authority having regard to the factual circumstances of this matter; (h) other than the submission regarding the lesser culpability of CCT in respect of the minimum roof support and FOPS offences, the defendants did not develop submissions regarding the FOPS and guardrail offences; (i) the Court should take the following subjective factors into consideration: i. the defendants were of good industrial character. Whilst Baulderstone Hornibrook had three previous convictions, it should be considered in the context of its size, length of business and the dangerous industry in which it operated. Bilfinger Berger, a worldwide company, had no previous convictions in this jurisdiction. Although CCT had only been in operation for a short time, it had no previous convictions, and had since ceased to operate;

ii. assistance had been provided to the family of the deceased immediately after the incident; iii. the defendants had taken steps after the incident to ensure that the system was enhanced and developed to ensure tunnellers' safety;

iv. the defendants had demonstrated remorse over the incident and had accepted that as a consequence of their action or inaction, a preventable tragedy had occurred.

(j) As to the proposed s 115 order, the defendants' submissions have been earlier set out.

45 The prosecutor tendered three volumes of documentary material upon which the defendants also sought to rely. The first two volumes contained miscellaneous documents, including a Project Deed and its related specifications, maps and site visit reports. A number of the documents in the bundle were also attached and formed part of the Agreed Statement of Facts. The third folder contained transcript from the coronial inquiry into the incident. The transcript was limited to an excerpt of evidence given by Mr David Jeffrey Carson, who was the geotechnical engineer employed by the designers for the Project. As previously mentioned, the prosecutor also tendered an expert report by Mr Gregory Kotze, a geological engineer. 46 The defendants tendered a bundle of Issued for Construction documents, which were also attached to the expert report, and the affidavit of Mr Christopher John Reynolds, General Manager, HR, Safety and Corporate Relations employed by Baulderstone Hornibrook. Mr Reynolds deposed that he was authorised to swear the affidavit on behalf of all three defendants. Mr Reynolds was not required for cross-examination. 47 In the result, there was a great deal of documentary evidence tendered in these proceedings, with many of the documents interrelating, and arising out of or in connection with a number of contracts. It is useful to assemble this material initially by placing in context the various contracts made in connection with the project and then dividing the material into three parts: the first, the contractual documents relating to the Project Deed; the second, the contractual documents relating to the designers; and the third category, the construction and miscellaneous documents which were documents prepared or utilised in the actual construction process.

48 The prosecution tendered the Project Deed entered into on 18 December 2002 between the RTA and the Cross City Motorway Consortium. The Project Deed dealt with the finance, planning, design, construction and commissioning of the project works. Clause 8.3 of the Project Deed was entitled Preparation of Design Documentation. Clause 8.3(c) stated: (c) The Design Documentation for each discrete design element of the Project Works and Temporary Works must be certified by the Trustee, the Company or the Contractor and verified by the Independent Verifier as:

(ii) complying with the Deed including the Scope of Works and Technical Criteria and, in particular, the durability requirements in section 2.14 and the design life requirements of section 5.2 of the Scope of Works and Technical Criteria,

in accordance with the Company Documentation Schedule. 49 It is true, as Mr Hodgkinson contended, that Bilfinger Berger and Baulderstone Hornibrook were not parties to the Project Deed. However, this does not, in my view, diminish its significance in assessing the culpability of the joint venture defendants. The expression 'Contractor' in cl 8.3(c) is defined in the Project Deed (cl 1) as being those corporations trading as the Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture. Further, the D&C Contract provides, in cl 8.3(c), that the design documentation for each discrete design element of the 'D&C Works' (defined in cl 1 as, inter alia, the physical works the 'Contractor' must design and construct including the tunnel) must be certified by the Contractor and verified by the Independent Verifier under the Project Deed as "being appropriate for construction", and, inter alia, complying with the Project Deed including the Scope of Works. This is not to deny, however, that the joint venture defendants reached separate consultancy arrangements with CW-DC, but, rather, to place the arrangements between the Trustee, Company and those defendants for the design and construction of the project and, ultimately, MVT-1 in its proper context. (It was not suggested in these proceedings that any of these obligations would exclude the design and construction of MVT-1.) 50 Some further documents relating to the Project Deed should be mentioned. The Scope of Works and Technical Criteria are an exhibit to the Project Deed. That document arose as part of the tendering process as did two further documents which became specifications to the Project Deed: Cross City Tunnel Driven Tunnels : Shaft & Tunnel Excavation Specification (Doc. No.: 200-SPEC-01-A) and Cross City Tunnel Driven Tunnels : Rock Support Specification (Doc. No.: 200-SPEC-02-A).

51 This specification covered "the excavation of tunnels and shafts through whatever geologic conditions are encountered using either mechanical or drilling blasting excavation". A paragraph entitled 'Application' at the beginning of the document stated the following: i. This Specification describes, in conjunction with the Design Drawings, the technical requirements to achieve the design intent for the temporary and permanent works covered by the relevant design lot. While the technical aspects of inspection and testing required for quality control are provided in this Specification, the overall responsibilities and requirements for Quality Assurance are set out in Company's Project Quality Plan.

52 The prosecutor highlighted the following paragraphs within the specification: 3. Execution

iv. The Company shall install rock support as set out in Specification 200-SPEC-02-A, and in accordance with the Design Drawings (as they may be modified during the course of the Works). Additional support shall be installed by the Company, as required for the safety of the excavation and the support and stability of the tunnel face(s) at all headings and walls of each excavation....

vii. Shaft excavation advance shall proceed using an excavation sequence using the rock support arrangements shown on the Design Drawings.

i. Tunnel excavation advance shall proceed using an excavation sequence and the associated rock support requirements shown on the Design Drawings.

ii. Excavate the tunnel to permit the installation of the rock support and shotcrete to the lines and grades shown on the Design Drawings. The necessary tolerances, minimum shotcrete thickness, and minimum clearances are indicated in the Design Drawings.

iv. Excavation shall not proceed until rock support has been installed to within the dimensions from the excavated face(s) shown on the Design Drawings. These dimensions shown on the Design Drawings are limit dimensions (either maximum or minimum), and support shall be place at locations within these limits required by safety considerations, field conditions, and construction methods.

3.5.1 Furnish and install Rockbolts as shown in the Design Drawings and as specified in Specification 200-SPEC-02-A Rock Support.

53 This specification, dealing with rock support, was also tendered by the prosecution and the following clauses were emphasised: 1.1 Scope

i. This section specifies the minimum requirements for the furnishing and installation of various types of rock support measures required to provide support of the tunnel and shaft excavations for the design life of the project.

ii. For all tunnel works, the rock support arrangements, types of reinforcing, and installation sequences for the anticipated geological conditions are presented in the Design Drawings. These various support types and arrangements are intended to be the basis for the Company's Working Drawings. In these instances, the Company shall determine the type of support to be used based on an assessment of the actual rock conditions encountered. ...

i. This Specification describes, in conjunction with the Design Drawings, the technical requirements to achieve the design intent for the permanent works covered by this Work Package. While the technical aspects of inspection and testing required for quality control are provided in this Specification, the overall responsibilities and requirements for Quality Assurance are contained in the Company's Project Quality Plan...

xx. Design Drawings: Drawings prepared for the purpose of illustrating the design intent for the permanent works.

i. The rock reinforcement shown on the Design Drawings is the anticipated minimum required to provide rock support for the design life of the tunnels. The Company shall install, at a minimum, the rock support elements as shown on the Design Drawings. In addition, the Company shall install additional support as required by Clause ii below.

ii. The excavated tunnel shall be maintained in a stable and safe condition at all times during performance of the works and until the final shotcrete lining is place. The Company shall be responsible for the safety of the excavation and the Work, the protection of personnel in the tunnel, and damage to property due to excavation. The Company is responsible for installation of additional support required to prevent local instability and to maintain safe working conditions in the excavation.

i. Within the tunnels, the support arrangement and excavation sequence to be adopted at any particular location shall be selected from those included on the Design Drawings, and shall depend on the correspondence between the observed geological conditions and the Geological conditions indicated on the Design Drawings. Support place within the shafts shall be as indicated on the Design Drawings.

ii. Additional support, shall be installed by the Company, if the Company considers this is necessary for the safety of the tunnel and shaft excavations, including the stability of the tunnel face(s).

iii. If a geological condition is identified which is not described by the Geological Conditions defined in the Design Drawings, the safety of the persons in or near the tunnel and shaft shall be first assessed, and action taken... 3. Execution

i. The Company shall be responsible for the safety of the excavation and the Works, stability of the tunnel face, the protection of personnel in the tunnels and shafts, and damage to property due to excavation operations. No thing contained in these Specifications shall relieve the Company of these responsibilities.

iii. Ensure rock bolts are installed within the maximum distance to the face of excavation indicated on the Design Drawings. For drill-and-blast excavation, do not leave more than one round of excavated tunnel unsupported, regardless if round length or pull is less than the maximum distance to the face indicated.

iv. Install the rock support to achieve the required minimum internal tunnel dimensions indicated on the Design Drawings.

ii. Temporary rockbolts, if utilised, shall be installed in addition to permanent rock bolts shown on the Design Drawings, at the discretion of the Company.

iii. If temporary rockbolts are used, they shall be installed at the minimum spacings and patterns indicated on the Design Drawings, and no further from the face than the allowable distances shown on the Design Drawings, Install additional rock reinforcement as necessary to ensure safe working conditions.

i. Correct improper installation of rock support systems within 48 hours.

ii. Inspect the conditions and the competence of all tunnel rock support on a regular basis. In the following cases adopt the minimum of the following frequencies: a) For all supports installed within 20 m of the tunnel face, inspect daily.

b) During drilling and blasting operations (if used) immediately after each blast inspect all rock supports located within 10 m of the blast.

iv. Promptly rectify any supports that fail to conform to the requirements of the Design Drawings or this Specification. Where necessary, install additional bolts and tighten face plates snug against rock, or replace rock reinforcement. Final Report and Related Technical Specifications

54 On 18 November 2003, CW-DC issued the Cross City Tunnel Final Design Report Driven Tunnels ('the Final Report'). The Report "represented the Final Design (IFC) Documentation requirements of Appendix 59 Clause 3 (b) of the RTA Scope of Works and Technical Criteria" (see cl 2.1). The Report comprised a number of "Driven Tunnel Lots which collectively document[ed] the requirements of the Bypass Ventilation Tunnel". The Report "address[ed]...Design Lots under the BHBB/CW-DC Consultancy Agreement CS03 dated 16 September 2002". 55 The design lot applicable to these proceedings was Design Lot Number T-060-DT. This was described as 'Bypass Ventilation Tunnel - Mainline'. Appendix A to the Report comprised IFCs relevant to this design lot and, hence, the construction of MVT-1 (the MVT-1 East Tunnel). The report also contained and made reference to technical specifications. 56 The Final Report was predicated upon a number of assumptions, foremost of which, for present purposes, were that the ventilation tunnel would be constructed using a single S 300 roadheader (or equivalent) excavating in an easterly direction from the intake shaft at Druitt Street, and geotechnical information was based on borehole logs provided during the tender process or received from the CW-DC geotechnical investigation. 57 The report also stated that:

This report is based on completed design stage investigations including geotechnical, hydrogeological, noise, vibration, archaeological, utility, survey, traffic and as-built data. This report may be subject to modification should new information arise from construction activities, or be otherwise advised, which indicate conditions different from those assumed for design purposes. 58 The defendants directed the Court's attention to a clause in the Final Report entitled 'Ground Support' (cl 3.7). The clause was found in cl 3, entitled 'Design Lot Assessment', the preamble to which stated "The following is a Final Design (IFC) description of this Design Lot highlighting any unique features of the design ...". 59 Clause 3.7 contained the following provisions:

The support of the BVT and associated connection is defined typically by the ground conditions encountered and the requirement for a design life of 100 years.

3.7.1 Rock Support: Bypass Ventilation Tunnel (BVT) - Mainline The general support for the mainline excavation in rock is as shown on Drawing T-DT-060-051. Typically the support consists of bolting (durable), and shotcrete. In areas where fretting is possible, safety mesh and shotcrete are also required.

60 In this respect, Mr Hodgkinson placed emphasis on the words 'ground conditions encountered in cl 37', and drew a distinction with the words 'ground conditions anticipated'. However, the very nature of the Report, as earlier described in the assumptions underpinning it, was to design the MVT-1 based upon anticipated geological conditions. 61 The relevant technical specifications from the Final Report are the Tunnel and Shaft Excavation and Primary Support Specification (TS-G-645-DT-TD001) and the Tunnel and Shaft Rock Reinforcement Specification (TS-G-645) which were produced on 1 October 2003 and are discussed below before turning to the IFCs.

Tunnel and Shaft Excavation & Primary Support Specification

62 In this specification it was explained that excavations should at all times and as speedily as possible, be properly supported as shown on the Design Drawings or "as otherwise required where emergent ground conditions dictate a departure from the Design Drawings". The Design Drawings were defined as the drawings prepared by the designers for the purpose of illustrating the design intent for the temporary and permanent works. A sub-clause of the specification entitled 'Approval for change to Design Documentation' stated: All changes to Design Documentation shall require certification by the Designer. Variation of ground support type distribution following the agreement with the Designer shall not require further certification. 63 The document specified how design drawings were to be utilised during the construction process as follows: Details of headings, sequences, required ground support and limits on excavation are indicated on the Design Drawings. Tunnel support is designed and scheduled on the basis of the limits on advances detailed on the Design Drawings. The Designer may vary these limits in the light of the ground conditions actually encountered and in the light of the excavation methods actually employed and demonstrated in the Works. The conditions and methods could necessitate decreasing or increasing the limits. The support for each cycle of excavation shall be completed in its entirety as shown on the Design Drawings before excavation commences for the next cycle unless otherwise approved by the Designer. 64 Further:

Details of ground support types are shown on the Design Drawings. Each support type may also require random bolting, additional mesh, additional shotcrete, forward rock reinforcement or dowelling as directed by the Contractor in consultation with the Designer.

The primary support shown on the Design Drawings is indicative. The lengths and the spacing of the various ground support types shown on the Design Drawings may be varied by the Contractor in consultation with the Designer as the work progresses according to the ground conditions actually encountered. The methods of working shall allow for this possibility. Sufficient stocks of the various types of ground supports shall be maintained on site to cater for these potential variations. 65 It should be noted that 'consultation' was defined in the specification as: Written communication between the Contractor and Designer through the request for information (RFI) process, documenting both the request from the Contractor and the recommendations received from the Designer, and administered under the Contractors Quality System. 66 The parties noted in the Agreed Statement of Facts that this specification authorised the designers to vary anticipated support types expressed in the design drawings in the light of ground conditions and excavation methods employed. It stated that "[t]he assessment of the as found conditions and methods could result in changes to the anticipated support limits". The Agreed Statement of Facts also sets out Mr Kotze's opinion that, as the conditions of the roof changes, so must the roof support be "changed, amended, modified, upgraded". However, it was also stated in the Agreed Statement of Facts that the joint venture defendants were required by the specification to adhere to, inter alia, the 'timing' for roof support shown in the design drawings but the designers did not provide the joint venture defendants with "a dedicated construction sequence for MVT-1 East". An ongoing assessment and verification process was required.

67 The final specification tendered by the prosecution dealt with tunnel and shaft rock reinforcement. The relevant extracts were said to be as follows: 1. Rock Reinforcement

(c) The size of rock reinforcement and the pattern for installation shall be as shown on the Design Drawings.

(d) For random bolting, the Contractor may direct or approve non-standard lengths of reinforcement upon consultation with the Designer.

(a) The Contractor shall furnish and install rock reinforcement where shown on the Design Drawings. The pattern, type, length and diameter of rockbolts, and rock reinforcement, shall be commensurate with the rock characteristics.

(d) Design Drawings: Drawings prepared for the purpose of illustrating the design intent for the temporary and permanent works.

All changes to Design Documentation shall require certification by the Designer...

(a) All rock reinforcement shall be installed in accordance with the Design Drawings and the manufacturer's recommendations

(b) The Contractor shall adhere to the sequence and timing for rock reinforcement installation as shown on the rock support and construction sequence Design Drawings.

(f) The Contractor shall be responsible for temporary additional support measures as they relate to safety of works aspects mainly. Temporary bolts shall therefore be installed as determined by the Contractor.

(g) Locations for random bolting shall be as required to provide a safe working environment and shall be as directed by the Contractor in consultation with the Designer.

6. Records 6.1 Rock Reinforcement Installation Records

Records of all rock reinforcement (temporary and permanent) shall be made available to the Designer within 24 hours of their installation or at such other time as agreed with the Designer's representative on site. These records shall include but not be limited to:

(i) Chainage of spot bolts and the position (ii) date and time of installation

(iii) type of rock reinforcement and length (iv) drill hole diameter and depth if not fixed on the drill rig (v) pre-tensioning load (where applicable) if not fixed on the drill rig (vi) water flows (if any), rate and testing (if any) (vii) problems during installation and other pertinent details (viii) name of person making the record (ix) Grout take record for permanent bolts

(permanent and temporary supports were defined - see paragraph 52, Annexure A).

68 These drawings were detailed maps containing longitudinal section plans, birds eye view plans, notes and specifications and notations for roof support. One of the IFCs in the applicable design lot was drawing number T-DT-060-051 (referred to in cl 3.7.1 of the Final Report). It contained the following table which explained the correlation between the assumed ground conditions and the type of roof support:

69 The same IFC included, in diagrammatical form, an explanation of what the various types of roof support entailed. Type 2 Support offered a higher level of roof support than Type 1. Type 1 Support entailed random bolts and shotcrete, as required, whereas Type 2 Support required 2.5m long bolts in a 3 bolt pattern spaced at 1.5m centres (transverse and longitudinal) and a 50 cm layer of shotcrete. 70 The IFC relating to the location of the incident was drawing number T-DT-060-025. This drawing provides a longitudinal section of MVT-1 for chainages 1065m to 1340m. It represents locations east of Cross Passage 4 whose intersection appears on the previous drawing commencing at about chainage 960m (T-DT-060-024). Drawing T-DT-060-025 states that the anticipated roof support to be installed in MVT-1 was as follows: chainage 1065m - 1110m, Type 1 Support (drawing T-DT-060-024 shows that Type 1 Support was anticipated, in fact, from chainage 1000m to 1110m); chainage 1100m to 1240m was Type 2 Roof Support and chainage 1240m to 1340m, Type 3 Support. As the roof collapsed between chainage 1225m and 1230m, the anticipated roof support in the design drawing as at that location was accordingly Type 2 Roof Support.

71 Paragraph 51 of the Agreed Statement of Facts provides: 51. The roof support installed at any tunnel location on the Project was dependent on the IFC documentation and the on going assessment of the "as found" geological conditions. Both the design and construction of MVT-1 were to be carried out based on this documentation and assessment. Work Instruction: Roadheader Excavation and Work Instruction: Rock Support

72 The instruction entitled the 'Work Instruction - Roadheader Excavation' and the 'Work Instruction - Rock Support' were approved for issue by Mr Manfred Lechner (employed by the defendants as the Zone Manager - Tunnel) on 10 April 2003. 73 The prosecutor submitted these documents were important as they were documents whereby by Mr Lechner adopted the Tunnel and Shaft Rock Reinforcement Specification and the Tunnel and Shaft Excavation and Primary Support Specification. 74 The roadheader instruction applied to "the excavation using roadheaders" and, inter alia, "how ground conditions will be assessed after excavation". The objective of the roadheader excavation instruction was to ensure, inter alia, that "operations are carried out in a safe manner". The instruction specified, as a 'Technical Compliance Requirement' that "Design Lots for each respective work location shall describe the particular requirements with respect to tunnel excavation". It also indicated that the technical specification relating to the work instruction was the 'Tunnel and Shaft Excavation and Primary Support Specification'. The instruction identified various safety requirements. 75 The Rock Support instruction was introduced as being an instrument to describe the "methods, technical requirements, safety and specific requirements" relating to the installation of rock support in driven tunnels. The instruction specified that rock bolts were to be installed in "the tunnel drives as part of the permanent rock support for the crown and walls". The instruction specified that: ...design lots for each respective work location shall describe the particular requirements with respect to rock bolt installation. 76 The technical specification in the case of this instruction was the 'Tunnel and Shaft Rock Reinforcement Specification'.

77 The Agreed Statement of Facts outlined the communications systems, reporting and inspection arrangements and provisions for advice used by the joint venture defendants and the designers during the construction process as follows: 72. There were a number of communication systems developed to facilitate communication between CW-DC and BHBB during the construction process. These systems were outlined in the CSS work plan: i. The CSS Work Plan required CW-DC site engineers to prepare and issue Site Visit Reports (SVR) and Action Lists (AL). SVR's were used to inform BHBB of CW-DC observations of the "as found" geological conditions and dispositions of actions to be taken. AL were issued to communicate any action to be taken following observations made by CW-DC personnel and noted in the disposition section of the SVR. These communications were to be sent to the Project centre register which could be accessed by both CW-DC and BHBB personnel (p15 CSS Work Plan & Appendix D of CSS Work Plan). ii. Request for Information (RFI). This was a written system whereby BHBB could raise issues regarding clarification and change of design documentation.

iii. Non Conformance Reports (NCR) could be used by BHBB when a non-conformance issue arose. NCR required the input of the CSS Manager and consultation of the CW-DC design team as notified by BHBB and were to review corrective actions taken and proposed remedial actions advised by BHBB (cl. 4.2 CSS Work Plan dot point 8 and 5.5 NCR procedure). iv. CW-DC was required to provide advice on actions to be taken by BHBB with regard to non-conformances occurring during the performance of BHBB's construction works. (cl. 4.1.3 p10 CSS Work Plan). CW-DC was required to provide BHBB with a request for remedial action where CW-DC believed a potential non-conformance existed. This included action to be taken and recorded in the AL attached to the SVR, which could lead to potential non-conformances or non-compliances with the design intent. (cl. 4.2 CSS Work Plan dot point 10). v. Immediate Action Procedure which required BHBB to make an assessment regarding unforeseen conditions and upon a determination that the unforeseen condition presented a major safety or construction issue to stop work and contact the CSS Manager, in order to conduct an inspection, undertake a risk assessment and resolve the issue (cl. 5.6 p21 & p22 CSS Work Plan).

vi. Daily Mapping Sheets which were prepared by CW-DC after inspections of the face of the tunnels. These detailed the quality of the rock. They also identified the support type being installed. vii. Weekly CSS meetings which were attended by CW-DC and BHBB personnel. 73. CW-DC personnel worked in the vicinity of BHBB personnel both underground and in shared site offices. As a consequence, CW-DC personnel were able to raise any issue or problem identified by them at any time with BHBB personnel including senior BHBB management and vice versa.... 74. Geological inspections on the Project were undertaken by CW-DC predominately each morning over a two hour period between shifts. This assisted tunnelling operations. Thus, tunnelling excavation could continue for up to 24 hours prior to any assessment of the as found conditions. It was the practice of CW-DC to visit the face of MVT-1 East once per day usually around 8.30am but they were not limited to one visit to the face in any 24 hour period. 75. As stated above, the design drawings issued for MVT-1 contained three roof support types and anticipated support distribution. The designers were permitted and authorised to vary these limits in the light of the ground conditions actually encountered and in the light of the excavation methods actually employed and demonstrated in the works. The conditions and methods could necessitate decreasing or increasing the limits. This review of the as found conditions in the tunnel was undertaken by CW-DC on a daily basis. These inspections were performed by either Mr Rheinberger, the Senior Engineering Geologist, Mr Hartcliff, Geologist, and/or Mr Ayshford, Geologist, and involved photographing, mapping of the face walls and crown, and documenting geology. 76. Mr Bodner a senior tunnel designer employed by Connell Wagner and retained by CW-DC to work on the Project, explained CW-DC's geological mapping: "Our geologists visit all active headings on a daily basis and record the rock mass characteristics on what we call a geological mapping sheet. Typically that happens first thing in the morning where our geologists visit the headings, record graphically what they see in terms of geological structure and also take photographic images of the face and the wall at that point in time. They would also measure their chainage using a measure tape which would allow them to establish the respective chainages in the areas which are to be mapped. They also use a geological compass to record the orientation of joints and any defects they may identify." 77. All geological inspection data was taken to the CW-DC office. The other geologists would tell Mr Rheinberger about any inspections they had performed. 78. These daily tunnel inspections resulted in the production of various maps and the issue of Site Visit Reports (SVRs) and Action Lists (ALs). To direct actual rock support to be installed a SVR would be prepared and issued to BHBB. CW-DC would issue SVR's and AL's to BHBB after each inspection. The Type and pattern of roof support to be used in MVT-1 East was relayed down the line from CW-DC to BHBB CCT JV Site Engineers, to the Tunnel Superintendent, who then passed on the information to the Shift Bosses of the roadheader crews. BHBB CCT JV Engineers put the design drawings into a specific form for the crews to understand the rock support to be installed. Daily Mapping Sheets 78 The designers entered the tunnel on a daily basis in order to inspect and assess the conditions. The Daily Mapping Sheets were prepared by the designers in the course of those site visits. The documents showed a sketch and description of the face of the excavation, a record of the chainage location and time of visit and any observations, including specifically observations regarding support type. The prosecutor directed the Court to the observations made in the Daily Mapping Sheets in the lead up to the incident on 29 July 2004: · In the Daily Mapping Sheet dated 23 July 2004 at chainage 1195.6m at 8.20am, the designers indicated that in respect of support type, "none was observed"; · In the Daily Mapping Sheet dated 27 July 2004 at chainage 1209m at 8.45am, in respect of support type the designers noted "3 temp at 1205"; · In the Daily Mapping Sheet dated 28 July 2004 at chainage 1219m at 8.45am, the designers indicated in respect of support type, "none observed"; · In the Daily Mapping Sheet dated 29 July 2004 at chainage 1225.7m at 8.30am, the designers indicated that in respect of support type, "none observed". 79 Mr Agius contended that the Daily Mapping Sheets revealed the following: From the daily mapping sheets with the non charges [sic] from CWDC filled out when they came down every morning in that period between shifts when the night shift had knocked off before the day shift started. They had an opportunity with the machine not running, dust settled to come in and make an inspection of the face to observe the as found condition so there could be no doubt that CWDC knew on a day to day 24 hour period what was happening in the tunnel.

They knew that only type one bolting was being used because support type information observed is consistent with type one bolting. It is inconsistent with type two bolting because if you were employing type two bolting you would have a pattern of bolts, polka dot bolts over the roof. If you were employing type three bolting you would have a much tighter pattern of bolting. If you are employing type one then you are either going to be observed to have had no bolting in the roof or the odd spot bolting here and there as we have seen, three temporary bolts as an exhibit, so CWDC knew and no doubt the defendants did because it was their employees that were down there doing this and there may be no doubt that the constructors knew about what was happening.

15 Metre Maps 80 These were further maps prepared by the designers, in the course of their site visits, but instead of looking at the face of the excavation, the documents contained sketches and notes covering 15m of the tunnel already excavated. The prosecutor highlighted that according to the maps, the designers had observed from chainage 1185m to 1200m that random temporary bolting was being installed. From chainage 1200m to 1215m "random temp in areas of OB" [overbreak] were being installed. From chainage 1215m to 1230m there was no permanent support observed.

Request for Information 81 The Request for Information documents were used by the joint venture defendants to raise issues regarding clarification and change of design documentation. The prosecutor tendered the documents as samples of one of the communication systems in place at the time of the incident, but stated that there were no requests for information relating to the dates specified in the particulars to the charges.

Site Visit Reports 82 The prosecutor tendered Site Visit Reports prepared in the lead up to the roof collapse (the defendant also relied upon these reports). As mentioned above, the Site Visit Reports were used to inform the joint venture defendants of the designers' observations of the 'as found' geological conditions. Both parties agreed that the Reports detailed the designers' visits to the tunnel, including the designers' observations of the tunnel, the geological conditions and the roof support being installed including any suggestions for additional or remedial actions to be taken. 83 In particular, the defendants directed the Court to the Site Visit Reports completed in the lead up to the incident on 29 July 2004. A Site Visit Report dated 23 and 24 June 2004, stated that at East Face Chainage 1082.4m in MVT-1 ".... the eastern drive comprises sandstone I/II in the face with shale breccia in the crown". Further down in the report under the heading 'Dispositions' it stated: Refer to items in MC30, MVT-1, MCA0 and MCBO West and MVT-1 East in the Action List.

Ch 945-974: Type 2 Support, apply shotcrete to shale breccia/laminite in shoulders and crown between Ch 998-1025.

Ch 1044-1080: Install Type 1 Support, apply shotcrete to overbroken area associated with joint in crown and shoulders between Ch 1065-1066.

84 The defendants advised that this was the same entry as that in the Inspection Action List, and which has been extracted below. The defendants also reminded the Court that the document which had set out that Class 1 Sandstone equals Type 1 Roof Support.

85 The defendants also relied on the following relevant site visit reports and the relevant extracts:

· Site Visit Report 1 July 2004, stated that at East Face Chainage 1110 in MVT-1 "... the eastern drive comprises sandstone I in the face and crown"; · Site Visit Report 9 July 2004, stated that at East Face Chainage 1136m in MVT-1 "...The geology of the east drive comprises sandstone I. It is recommended that additional support be installed in the current Y-junction where spalling is evident in centre of the crown at approximately Ch 845"; · Site Visit Report 13 July 2004, stated that at East Face Chainage 1148.6 in MVT-1 "...The eastern drive comprises sandstone I/II in the face and crown"; · Site Visit Report 16 July 2004, stated that at East Face Chainage 1166 in MVT-1 "...The eastern drive comprises sandstone I in the face and crown"; · Site Visit Report 23 July 2004, stated that at East Face Chainage 1195 in MVT-1 "...The eastern drive comprises sandstone I in the face and crown"; · Site Visit Report 28 July 2004, stated that at East Face Chainage 1219 in MVT-1 "...The geology of the eastern drive comprises sandstone I in the face with laminite II in the crown. Water inflows between Ch 842 and Ch 840 will require strip drains to channel the water down the cavern walls prior to shotcreting the crown".

86 It was the defendants' submission that these documents showed that the designers had gone into the tunnel and assessed the roof support and the conditions. The designers had advised where it was necessary to increase the roof support and had communicated this advice to the defendants. The defendants submitted that according to these documents the designers were assessing the conditions as Class 1 Sandstone and that according the roof support to be installed was Type 1 Roof Support. 87 One further Site Visit Report should be mentioned, as it connects to a key Inspection Action List entry referred to below. On 30 April 2004, Mr Bleuler, on behalf of CW-DC, issued a report which advised that "The tunnel geology in MVT-a East "comprises" SST 1 with four obvious defects". He concluded that the opportunity existed "to reduce the permanent support from type 2 (4 bolt pattern) to type 1, that is, spot bolting where required to support potential wedges...". 88 This corresponds to a field book entry by Mr Rheinberger who recorded after a field inspection that "no support was installed" and that "none necessary... talk to CB re reducing to spot bolting". (CB was a reference to Mr Bleuler. He approved the move from Type 2 to Type 1 spot bolting from chainage 976.)

Inspection Action List 89 The Action Lists were a method utilised by the designers to advise the defendants of any action that was required to be undertaken in the tunnel following observations by the designers (as noted in the Site Visit Reports). The designers would complete the document following a site visit and after their assessment of the geological conditions and against the minimum roof support already advised in the IFCs. The most significant inspection Action List for these proceedings is annexed to this judgment as Annexure B. 90 In Mr Carson's evidence in the coronial inquiry, he explained how the last three columns of the Inspection Action List were to be understood:

Q. So if I just take you to both those columns, first of all we have a "target completion" or "target completion"; that's the date when we hope that whatever it is that is to be done, is done, is that right? A. Yes, that's correct.

Q. And then the next column which is "Completion construction" is the date when it is actually done, is that right? A. No. That's the date in which CW-DC personnel could visually confirm that it had been completed.

Q. So it may have been done last Saturday, but someone comes along today, say, and verifies that it has been done and they put the date in that it was -- A. Yes

Q. -- complete on that day, so it is a sort of signing of of that having been done, is that you see that? A. Yes, yes.

Q. And then the initials of the person that notes the completion of the construction is then entered into that box? A. Yes.

91 The Annexure B Action List relates to actions recorded from 19 April 2004 at the excavation of the junction of Cross Passage 4 and MVT-1 (at chainage 960m) to 29 July 2004. Item MVT-1-102 relates to the commencement of the excavation of MVT-1 East at chainage 976m. In terms of actions required, the furthest point east in MVT-1 referred to in the document is chainage 1080m in Item MVT-1-104 (corresponding to 'action identified date' 4 June 2004). 92 The Action List is, as the name suggests, an evolving document. In its formative stages, Item MVT-1-103 recorded an action identified as at 30 April 2004 after inspection by Mr Rheinberger for CW-DC. This followed the earlier referred to Site Visit Report of the same date. The Action List entry recorded that from chainage 976m an opportunity existed to reduce permanent support from Type 2 to Type 1 in conformity with the Site Visit Report. The end chainage point had the entry 'TBA' (that is, the entry under the column 'change to'), which the parties agreed meant 'to be advised'. The 'target completion date' was recorded as 30 April 2004, with the 'complete construction date' then not recorded. 93 As the Agreed Statement of Facts records between 30 April and 18 May, Mr Carson, for the designers, undertook four site visits. Mr Rheinberger undertook a further three visits. No further entries were made on the Action List during that juncture. 94 On 18 May 2004, Mr Carson, after a site visit, entered the date '18.05.04' with his initials in the 'date' and 'initial' sub-columns 'complete construction', of the Action List. However, despite further site visits by the designer, no alteration was made to the 'chainage to' column up to and including the date of the incident: it remained 'TBA'.

95 Both the prosecutor and the defendants referred to the evidence given by Mr Carson in respect of the Inspection Action List. Mr Carson had conducted a site visit on 18 May 2004. 96 In evidence given at the coronial inquest, Mr Carson gave the following evidence in answer to questions put by Mr Agius: Q. So if the system, as you understood it, had been followed, had been followed, then it is likely that Mr Rheinberger had made all of those entries in that line up to and inclusive of "Target completion"? A. Yes.

Q. And it is likely that those entries would have all been made on or about that date, 30/4/04? A. Yes.

Q. If the system as you understood it had been followed, who would have made the entry of the date "18/5/04"? A. The general practice would have been, it would have been myself. That's my initial. Q. And that would indicate, would it, not that you can remember it, but if the practice had been followed, that would indicate that you had been satisfied by the 18/5/04 that the action there referred to had been completed? A. Yes. Q. And then you've put your initials in to indicate that you are the person who had that satisfaction? A. Yes.

97 Mr Hodgkinson asked the following question in respect of the visit on 18 May: Q. Apart from your initials and the date, 18 May, there is no other entry on that action sheet that you made on that day, is that correct? A. On 18/5?

Q. So we take it then, given what you have just told us, that you did not form a view on 18 May that something different in terms of roof support ought happen which you discussed with somebody at that time? A. No.

98 Mr Carson also stated that he had conducted a site visit on the 20 May 2004, although he accepted there was no record of his site visit. He initially indicated that he could not recall or did not know when he formed a view on that date if there was anything inappropriate with the roof support being installed. Having conceded that it was most likely that he was in the tunnel on 20 May to check roof support, he nonetheless stated: Q. It follows from your evidence, doesn't it, that you did not form a view on the 20th that there was anything inappropriate with the roof support that you observed that required a change? A. I don't recall. 99 However, under further questioning, he gave the following evidence: Q. You don't now recall whether you were in company on 20 May or not, is that right? A. No. Q. It's the fact, though, if you had made an assessment that there was something that needed to change in terms of roof support, you would have at least discussed it with the other person who was present from Connell Wagner, wouldn't you? A. Yes

Q. And the consequence of that would have been that the discussion that you had initiated on roof support would have then been taken up, as you suggested, with Mr Bleuler or Mr Bodner, most likely, and as a consequence, if there was any necessary change, the site visit report would identify that and an action sheet item would be included, that's right isn't it? A. Yes

Q. So we can take it, can't we, that you didn't make, on your visit on the 20th, any observations of the roof support that was then installed that you thought required any change? A. Sorry, could you just repeat that again

Q. We take it that, as a consequence of your visit on the 20th, you did not form a view that the roof support as you observed it in the Vent Tunnel East required any change? A. Yes. 100 The Site Visit Reports and Action Lists were sent to a Project Centre to register so they could be assessed by both the designers and the joint venture defendants.

101 The defendants submitted that the Inspection Action List should be understood, within the suite of design documents, as supporting the contention that the defendants believed Type 1 Support was appropriate to be installed at the chainage point of the collapse. First, they stated that MVT-1-103 was unclear and that the 'TBA' was inconsistent with the date in the 'Complete Construction' column. There was no entry past MVT-1-104 for action to be taken past chainage 1080m and as at the end of MVT-1-104, Type 1 Roof Support was indicated as the required roof support to be installed. Further no one advised the defendants that MVT-1-103 had come to an end. 102 Hence, according to the defendants, the document advised that MVT-1-103 'remained open', that is, it was appropriate to install the lesser Type 1 Roof Support. MVT-1-104 was to be understood as specific examples of where the designers had thought it necessary to put in different roof support than the Type 1 set out in MVT-1-103. In other words, MVT-1-103 advised that the minimum roof support was Type 1, unless otherwise provided and that MVT-1-104 provided examples as to where the minimum roof support had to be varied at different points. As there was no entry for the chainage of the incident, and as the defendants had not been advised that MVT-1-103 no longer applied, the installation of Type 1 Support was the advised roof support for the area of the tunnel collapse. The defendants did not suggest that they had been informed or advised, as such, to install Type 1 Support beyond chainage 1100m, but submitted that Mr Rheinberger, for CW-DC, had, in fact, made an assessment that Type 1 Support was appropriate up to the site of the incident. In any event, it was submitted for the defendants that the Action List entry MVT-1-103 was unclear and would not allow the finding of fact sought by the prosecutor.

103 The prosecution contended, however, that the Inspection Action List should be understood as an example of where the designers had authorised a reduction in the roof support, but that it could not be understood as permitting the defendants to reduce the roof support at the chainage where the incident occurred. It was said that the entry at MVT-1-103 demonstrated that Type 2 Support had been advised as the minimum roof support in the IFCs, but the designers had entered the tunnel and assessed the conditions and concluded that it was appropriate to reduce the roof support. In the prosecution's submission, although the entry states 'TBA', which was said to mean 'to be advised', the reduction of the roof support was nonetheless 'closed out' on the 18 May 2004. In other words, this document demonstrated an example of where the designers had reduced the roof support, but that reduction had ceased on 18 May 2004 and that the relevant roof support as at the date and chainage of the incident was, therefore, back to the roof support set out in the IFCs, that is, Type 2 Support. Similarly, it was submitted that the 'closed period' from chainage 976m ended at 1100m where the design drawings indicated Type 2 Support should be utilised by the joint venture defendants.

Responsibility Statements 104 The Responsibility Statements of personnel employed by the defendants were included in the prosecution's tender bundle. The Court was taken to the responsibility statements of Vince Newton, Construction Director; Manfred Lechner, Zone Manager - Tunnel; Adam Hargreaves, Project Engineer - Tunnel; and Peter Arz, Technical Director. The responsibility statements set out the core responsibilities of each employee, their responsibilities to other functional managers, the company, subcontractors, subordinate staff and in respect of the training and development of staff. The prosecutor placed emphasis on the following responsibilities: · Vince Newtown - Construction Director ...Ensure the works are executed in accordance with design requirements. · Manfred Lechner - Zone Manager (Tunnel) ...Ensure the works are executed in a safe manner in respect both the workforce and the public.

...Ensure the works are executed in accordance with the design requirements. · Adam Hargreaves - Project Engineer (Tunnel) ...Implement prompt corrective action and reporting if any of the construction targets including those for programme, budget, productivity, quality, safety, environmental management are at task [sic] of not being achieved.

· Peter Arz - Technical Director ...Assist the Design with expertise in Design of Foundation Engineering, Tunnelling and in Geotechnical issues. ...Ensure the Design gets input from the BB Group experience in Design and Construction Methods, ensure their timely availability for the Design and/or Construction and ensure constructability on the Project site. Report of a Meeting Dated 27 June 2003 with personnel from joint venture defendants 105 The prosecutor tendered a 'Report of Meeting' dated 27 June 2003. The document sets out minutes from the meeting between employees of the joint venture defendants. The purpose of the meeting was described as "minimising rockfall risk". The only item on the agenda was:

1. Presentation of the procedures and methods employed to ensure safety of employees and others in tunnel with respect to rockfalls.

106 The prosecutor directed the Court's attention to the following items discussed:

5. PD questions what means are in place to prevent the person installing bolts from being struck by rockfall.

6. NP explains there is no physical barrier, however personnel following the correct procedures shall remain under supported ground and shall perform barring down and scaling in areas prior to being beneath exposed rock surfaces.

30. PD explained that horizontal stresses increase with increased depth of excavation.

31. AH described other tunnels excavated through sandstone at depth where horizontal stresses caused the floor to pop upwards. 107 This document is relevant to the roof support and the FOPS charges. The prosecutor contended that this document showed that prior to the incident the defendants were aware of the risk of injury from a rock fall.

108 The Consultancy Agreement was entered into on 16 September 2002 and set out the responsibilities, obligations and the services to be provided by the designers (as well as warranties), in order to ensure the defendants met their obligations under the Project. It provided that the Consultant must perform the services: (a) to internationally accepted standards of good engineering practice used by engineers in projects of the type of the Project, exercising a high level of skill, care and attention; (b) so that the Design Documents are fit for their intended purposes, as stated or ascertainable from the D&C Contract, having due regard to the assumptions an internationally regarded consulting engineering practice (with the additional local knowledge and experience of the Consultant and the personnel engaged or retained by the Consultant in the provision of the Services) would make in accordance with internationally accepted standards of good engineering practice; (c) so that they satisfy the requirements of the Contractor for the D&C Works, and to the extent that those requirements relate to the Services being fit for their intended purposes, so that they are fit for their intended purposes as stated, ascertainable from the D&C Contract, including that information detailed in Schedule 4, having due regard to the assumptions an internationally regarded consulting engineering practice (with the additional local knowledge and experience of the Consultant and the personnel engaged or retained by the Consultant in the provision of the Services) would make in accordance with internationally accepted standards of good engineering practice; (d) so that they satisfy the design requirements of the Contractor in the D&C Contract and to the extent that those design requirements relate to the Services being fit for their intended purposes, so that they will be and will remain fit for their intended purposes as stated, ascertainable from the D&C Contract, including that information detailed in Schedule 4, having due regard to the assumptions an internationally regarded consulting engineering practice (with the additional local knowledge and experience of the Consultant and the personnel engaged or retained by the Consultant in the provision of the Services) would make in accordance with internationally accepted standards of good engineering practice; and (e) so as to permit the Contractor to comply with its design obligations under the D&C Contract, including that information detailed in Schedule 4, having due regard to the assumption an internationally regarded consulting engineering practice (with the additional local knowledge and experience of the Consultant and the personnel engage or retained by the Consultant in the provision of the Services) would make in accordance with internationally accepted standards of good engineering practice. 109 It also stated that the Consultant must: provide the Contractor with the necessary site resources during the construction of the works, the subject of the Design Documents, to confirm that the design intent is consistent with all other requirements of clause 2.1. 110 Clause 2.2 was entitled 'The Consultant's Warranties'. It stated that the Consultant: (1) warrants that it has the skill, competence and experienced personnel available to properly perform the Services;

(2) acknowledges that the Contractor is relying on the skill, knowledge, judgment and expertise of the Consultant in the performance of the Services

(3) (d) it has entered into the Labour Hire Agreement with Connell Wagner pursuant to which Connell Wagner will provide to the Consultant, at no cost to the Contractor, any additional information, professional staff, computer software, intellectual property and other technical resources or staff or support facilities as the Consultant may need to perform the Services in accordance with this Agreement.

...... (3) (e) having due regard to such assumptions that an internationally regarded engineering consulting practice (with the additional local knowledge of the Consultant and the personnel engaged or retained by the Consultant in the provision of Services) would make in accordance with internationally accepted standards of good engineering practice, the Consultant's design of the D&C Works and the Temporary Works will: (i) satisfy the requirements of the Scope of Works and Technical Criteria and of the D&C Contract; and

(ii) be and will remain at all relevant times fit for their intended purposes as stated or ascertainable from the D&C Contract

(iii) be completed in accordance with the requirements of this Agreement and the D&C Contract. 111 Clause 2.3 was entitled 'Scope of Works and Technical Criteria' which required that if the Consultant became aware of any ambiguity, discrepancy or inconsistency between the Scope of Works and Technical Criteria or any other document referred to or included in the Agreement, the Consultant was to promptly notify the Contractor in writing. 112 The next relevant section concerned services and duties and dealt with the establishment of the Design Management Team. The Agreement stated:

Within 7 days of the date of this Agreement the Parties shall establish an integrated design management team ("Design Management Team") to oversee and co-ordinate the Services with the performance of the Works. The Design Management Team will be headed by:

(1) the Contractor's Engineering Design Manager or his delegate; and (2) the Consultant's Project Principal or his delegate,

(4) be responsible for the implementation of the Design Management Process by the Contractor and the Consultant.

113 The defendants clarified to the Court that the Design Management Team was composed of the joint venture defendants as the contractor and the designers as the consultant. 114 Clause 3.2 further required that a Design Program be submitted within a stipulated period of time and that the design program demonstrate the manner in which the Consultant intended to perform the Services and to comply with its obligations under the Consultancy Agreement. The defendants submitted that this was an important clause as there was a positive obligation on the defendants and the designers to provide a work plan. That plan was tendered in proceedings by the prosecutor (and will be discussed shortly).

115 Clause 4.5, under the heading 'Directions by the Contractor and Access to the Site', stated that the consultant acknowledged that the design documents must enable the design and construction works to be constructed on the construction site and in accordance with the D&C contract. 116 A number of documents were annexed to and formed part of the Consultancy Agreement. The second document annexed to the Consultancy Agreement was entitled 'Services'. The defendants highlighted the following paragraphs: GEOTECHNICAL INVESTIGATIONS

In this item the following activities are anticipated: Develop work plans Develop EMP for drilling operations Develop OHS/HAS plan Obtain underground service plans for all test areas Obtain necessary Council road opening permits Develop Traffic Control Plans and obtain RTA/Council/Police approval Arrange for overhead wires to be protected by Energy Australia, if required.

In this item the following activities are anticipated:

• Interpret field data and incorporate into geotechnical model; - Interpret laboratory data and incorporate into geotechnical model; - Utilise geotechnical model to develop geotechnical design parameters; - Undertake geotechnical analyses for design; - Provide progress reports to design team and the Contractor as field and laboratory date becomes available; - Provide a detailed summary report following completion of all field and laboratory testing. 117 The defendants submitted that the second last point, concerning the progress reports, should be understood as requiring the designers to provide progress reports to the Design Management Team as field data became available and that the purpose of this was to enable the Design Management Team to make an assessment.

118 The third document annexed to the Consultancy Agreement was the Design Management Process which provided that in accordance with the requirements of the Consultancy Agreement, the Contractor and the Consultant would establish a Design Management Team. It continued: The Design Management Team is responsible for:

• implementation of the Design Management Process; - review and agreement of Consultant's design programme; - overview of delivery of the Services, including the Deliverables; - agreement of further Deliverables, if required;

The Contractor's Design Project Manager is responsible for:

• co-ordination of the Contractor internal design interfaces - ensuring the Contractor's construction requirements are provided to the Consultant; - overseeing the Consultant's co-ordination of external design interfaces; - overseeing the Consultant's design quality plan implementation; - managing the design review and approval process, including: - sign off by the Independent Verifier, as required by the D&C Contract; - review and / or approval by the D&C Contractor or Company; and - approval by Authorities

The Consultant's Design Team Manager is responsible for:

• ensuring that the execution of the Services is in accordance with this Agreement; - ensuring the Contractor's construction requirements are integrated into the Services; - managing the design process including: - compliance with the Contractor Design Plan - implementation of Consultant's Design Plan; - sign off by Consultant's internal verifier; - informing and advising the Contractor on all design issues that may impact on the Project and associated risk assessment; - preparation of all Design Documentations required to obtain approval by Authorities; - ensuring the total design process including the Consultant's and sub-consultants' input conforms with AS/NZS-ISO 9001; - 1994 together with Appendix 10 of SWTC. - managing the delivery of Deliverables to the Design Programme, cost control and technical requirements of the Contractor and RTA requirements.

Cross City Tunnel - Construction Stage Services Work Plan

119 The defendants also relied on the Cross City Tunnel - Construction Stage Services Work Plan which was attached to the Agreed Statement of Facts and dated 5 April 2004. The document specified the scope of work performed by the designers and established the procedures they were required to follow in accordance with the Consultancy Agreement. It stated:

The purpose of this Work Plan is to describe CW-DC's scope of works and procedures in executing "Construction Stage Services" phase of the Cross City Tunnel Project.

2.2 Scope of Services Cross City Motorway Consortium (CCM) has contracted with the RTA to build, own, operate and transfer the Cross City Tunnel and associated works. BHBB has been contracted by CCM to design and construct the works. CW-DC has been engaged by BHBB as Principal Design Consultant to provide design consultancy services for the Civil, Structural and Urban Design Works.

CW-DC's scope for the "Construction Stage Services" is set out in Section 2.4 of the BHBB/CW-DC Consultancy Agreement CS003 dated 16 September 2002. An extract of the agreement is attached in Appendix A.

120 The Work Plan set out the Project Team Structure which was as follows:

Lewis Gomes - Project Principal Bill Cox - Design Manager Hans Bleular - CSS Manager

The CW-DC CSS Core Team comprises the following key staff:

Scott Smith - Site Engineer (alternate with BHBB's approval) David Carson - Site Geotechnical Engineer David Myers - Site Engineer Tim Rheinberger - Senior Engineering Geologist Peter Hartcliff - Geologist Shaun Ayshford - Geologist Anica Joveski - Geologist 121 The Work Plan then set out the responsibilities of Key Personnel as follows: ... 3.2 Responsibilities of Key Personnel As the Principal Design Consultant, CW-DC will carry out the following activities for the delivery of the "Construction Stage Services" for civil and structural works contained in the Contract Sum; Inspection of the site geology of the Driven Tunnels, Cut and Cover section and Open Cut section of the Works to verify that the site geology is consistent with the design assumptions, including all necessary mapping. Clarification and/or interpretation of the design and "Issued for Construction" documentation. Rectifications of errors or omissions in design documents are to be undertaken by the Consultant at the Consultant's costs. Modification of the design and/or documentation resulting from unexpected site conditions. Integration and coordination of all civil, structural, tunnel and building works with the E&M works designed by others, to the extent that the E & M works affects the Consultant's design, during the design development phase. All additional activities mentioned below, if these works are executed during the nominal site working hours.

122 Specifically, the Plan also set out the responsibility and authority of key members in the Construction Stage Services ('CSS') team. Some of the duties of the key members in the CSS team included: · issue inspection report and action list for the various work areas (CW-DC CSS Manager); · ensure consistency of advice to BHBB across all disciplines (CW-DC CSS Manager); · maintain obligations under contract (CW-DC CSS Manager); · to confirm/modify the design such that it was adequate for the 'as found' site conditions (CW-DC CSS Manager); · conduct site inspections, with CW-DC CSS Manager and CW-DC Senior Geologist as required, to review the "construction against the design intent" (Site Engineers); · receive request for information from BHBB and forward to relevant Design Leaders and prepare responses (Site Engineers); · provide forward intelligence to allow the Contractor to plan his work (Geologists/Geotechnical Engineer); · assess suitability of installed ground support with reference to the prescribed support bases on the support rules established during the design phase; · make an assessment of anticipated ground conditions ahead of the face (Geologists/Geotechnical Engineer). (The Agreed Statement of Facts states that the Geologists and Geotechnical engineers were responsible to record and assess the 'as found' conditions.) 123 The next relevant section of the Work Plan was entitled CSS Methodologies and Process Control. 4.1 Tasks

To fulfil the Construction Stage Services objectives for the project, the following day to day tasks are to be undertaken by the CSS team:

1. Inspect the various construction areas and provide updates of the "as found" construction condition, which includes the following:

Mapping and assessing the exposed ground conditions and determination of the in situ characteristics of the rock or soil mass. Comparison of the various parameters with the design parameters developed from the inferred conditions during the design process for the various construction elements.

Provide BHBB engineering staff with advice, modifications and information regarding the adequacy of the design as documented to reflect the "as found" conditions.

Undertake ongoing review of the design with regards to the "as found" conditions as the design documentation allows.

Provide BHBB with advice on anticipated ground conditions as requested. .....

3. Provide advice on actions to be taken by BHBB with regard to non-conformances occurring during the performance of BHBB's construction works

4. Manage the interface between BHBB and the CW-DC Design Team with regard to design queries and design intent.

With reference to Item 1 above the following process/methodology shall be used for the tunnelling works:

Following gathering of information and details in the field, in accordance with the procedure outlined in Appendix E, the information is formalised and recorded by the Geologists in the form of mapping sheets, photographic records and/or inspection reports. The information is provided to BHBB on a regular basis both verbally and in a written form after review by the CW-DC Senior Geologist. A record of these discussions and/or documentation is assembled and formally submitted to BHBB on a weekly basis.

Following inspection of the work faces by the CW-DC Senior Geologist and the Driven Tunnel Engineer the adequacy of the installed support with regard to the "as found" conditions and the support limitation specified by the design is reviewed and results advised to BHBB both verbally and in written form by the CW-DC CSS Manager. This written communication consists of a Site Visit Report (SVR) complete with attached Action List. These inspections are to be undertaken on a regular basis and include every work face and are used to monitor the ongoing work and close out actions identified. A sample report form is attached in Appendix D.

Following inspection, the "as found" ground/rock conditions are reviewed and compared with the design assumptions. Where opportunities exist to provide a more economical design or construction solution as the design documentation permits, the review will be submitted to BHBB for consideration by the CW-DC CSS Manager following appraisal and verification by the CW-DC Design Team. Provide BHBB with information of likely conditions to be expectecd ahead of the excavation faces. This information will be arrived at by reviewing the "as found" conditions and comparison with the "inferred" conditions developed during the design phases. This information may include anticipated changes to the ground support in response to expected features.

With regard to Item 3 above the following process/methodology will be used.

Review, in conjunction with the relevant CW-DC Design Teams, "Non-conformance" notification received from BHBB, corrective actions taken and proposed remedial actions advised by BHBB.

Provide technical responses as required by BHBB for discussion with the Independent Verifier.

Provide BHBB with requests for remedial action where CW-DC believes a potential non-conformance exists. This includes action to be taken and recorded in the Action List attached the SVR, which could lead to potential non-conformances or non-compliances with the design intent.

(Non-Conformance Reports required the input of the CSS Manager and consultation with the CW-DC design team as notified by the joint venture defendants. Corrective actions were to be reviewed.)

124 A section entitled 'Site Visits' provided that site visits were to be conducted in accordance with the Site Inspection Safety Guide attached to the Work Plan. The Site Inspection Safety Guide was intended as a guide for inspection of surface and tunnel works and to identify a safe and secure working environment so that incidents are prevented and required that unsafe situations were to be notified immediately to the Superintendent and Site Engineer. It also included a section dealing with Tunnel Inspection Risk Assessment:

A risk assessment must be undertaken at all times whilst walking within the tunnels. Inspect every area before venturing within a work area, walking under supported ground and walking adjacent to side walls. Risk assessments shall include the following key items of concerns:

Ground Conditions Has suitable rock support been installed for the ground condition encountered?

... 125 There was a provision for an immediate action procedure which required the joint venture defendants to make an assessment regarding unforeseen conditions. If those conditions represented a major safety issue, then work was to stop and contact was to be made with the CSS Manager so an inspection could be conducted and a risk assessment made. 126 Mr Hodgkinson also directed the Court's attention to Appendix E to the Work Plan titled 'Geotechnical Mapping Proforma' which in summary required the designers to record, assess and evaluate the geological conditions. 127 Ultimately, the defendants contended that the consultancy agreement and work plan in its entirety demonstrated that the designers had a particular and active role in the design and construction of the tunnel and in which the defendants fundamentally relied on the designers to fulfil. The designers' role included assessing the geological conditions in the tunnel, the adequacy of the support, whether there needed to be additional or varied support installed, and the appropriateness of the methodology being used in the tunnel at that particular time. It was a role that involved continuous assessment of all the conditions and the provision of advice to the defendants. The defendants believed that the designers were fulfilling their obligations, and when they were not advised that increased roof support was required to be installed, the defendants understood that the roof support was adequate.

128 Mr Gregory Kotze of GHDLongMac prepared an expert engineering geological report entitled 'Cross City Tunnel Bypass Ventilation Tunnel [MVT-1] Roof Collapse, 29 July 2004'. 129 Mr Kotze carried out six geotechnical site inspections, engineering geological mapping, and provided geotechnical reviews/advice to assist investigations of the subject fatality. He possessed expert knowledge, training and experience in the following relevant areas: (i) Planning and/or monitoring of safe underground construction operations and in particular tunnelling; (ii) Assessing the potential danger of rock failure to persons working in tunnelling; (iii) Reviewing and/or monitoring what is an adequate rock bolting pattern during the construction phase of tunnelling.

130 Mr Kotze stated that planning for safe tunnelling operations required the effective design of roof support systems, as follows: Planning for safe tunnelling operation requires the effective design of roof support systems... The monitoring of safe tunnelling operations requires an ongoing engineering geological review of the conditions encountered as tunnel excavations proceed, as well as an ongoing review of the performance of the roof strata and the roof support elements that have been installed. ... The potential danger of rock failure to persons working in tunnelling is largely a function of the geological conditions through which the tunnel is being excavated and whether or not the roof support systems can adequately cater for those geological conditions. 131 During the construction phase of tunnelling the applicability and the performance of adopted rock bolting patterns must be subject to constant engineering geological monitoring and review. Mr Kotze stated in this respect:

As construction proceeds the geological conditions must be constantly monitored. Any change in geological conditions that is not consistent with the adopted geological model must be made known to the roof support designers in order that the support design may be modified accordingly to suit the observed conditions if determined to be necessary. 132 The applicability of the installed roof support to the geological conditions encountered in the roof, must also be subject to ongoing engineering geological review. Nature of Geological Conditions in MVT-1

133 As a result of a review of the relevant documentation regarding the geological conditions, Mr Kotze found that it should have been anticipated that there existed the potential danger of rock failure east from cross-passage 4 in MVT-1 and "beneath the palaeochannel". 134 It was known at the design stage that MVT-I would be excavated through Hawkesbury Sandstone bedrock which is known to be 'characterised' by prominent, persistent, sub-horizontal to curviplanar bedding planes, along which bed separation and rock mass detachments can occur in the roof of a tunnel. However, this problem was exacerbated east of Cross-Passage 4. This was known at the design stage. Mr Kotze opined: The potential for roof instability to occur in a tunnel is generally exacerbated by the presence of higher than usual in-situ horizontal stresses in the rock mass. The site investigation for the Cross City Tunnel project delineated a palaeochannel feature that crossed the tunnel alignment between Yurong Street and Crown Street. Beneath the palaeochannel, geotechnical testing in investigation Borehole CCT142, located to the east of cross passage 4, had measured in-situ stresses that were 4 to 5 times higher than elsewhere along the route. It should therefore have been assumed at the design stage that there existed the potential for roof instability to occur, east of cross-passage 4 and beneath the palaeochannel. 135 It should be noted that it is recorded in the Agreed Statement of Facts that CW-DC believed that the palaeochannel feature was a relatively 'shallow feature' and that MVT-1 being the deepest tunnel on the project was too deep to be affected. Construction Stage

136 It was observed in the report that during the construction stage there were general warning signals of the potential for rock failure of MVT-1 between chainages 785m and 1170m in both the east and west drives. In particular there were occurrences of both spalling and overbreak in the roof. 137 Further, there were three separate warning signals in the 'as found' conditions that had the potential for a rock fall from chainage 1170m to 1230m. These were: (i) Bedding plane defects in the roof. In particular, between 1190m and 1197m the geological conditions found in the side walls (found from 1170m) passed into the tunnel roof and represented a clear warning signal; (ii) Bed displacements in the side walls and haunches. From chainage 1170m to 1230m there were ongoing occurrences of such displacements of a sufficient magnitude (by relative location) to represent a warning sign of rock failure; (iii) Irregular shale breccia. From chainage 1215m, an irregular shale breccia unit intersected in the floor of the tunnel and rose irregularly up the side walls and created localised stresses. The presence of this irregular shale unit rising centrally along the tunnel excavation was a warning signal that the potential for rock failure existed. 138 These warning signals would have been able to be identified by a competent geologist and/or engineering geologist but not by a competent construction engineer. 139 Furthermore, Mr Kotze asserted a competent geologist and a competent construction engineer would not be able to identify from the 'warning signals' that a potential danger of rock failure existed in the tunnel. However, a competent engineering geologist would be able to make such an identification because of an ability to assess the significance and implications of the 'as found' conditions.

140 The Bypass Vent Tunnel Mainline Support Cross Sections presented three support types that were available for selection and implementation in the MVT-1 Tunnel as follows: (i) Type 1: Random bolts (where required); (ii) Type 2: 3 Bolt pattern bolts at 1.5m centres (transverse and longitudinal); (iii) Type 3: 4 Bolt pattern bolts at 1.2m centres (transverse and longitudinal).

141 From cross passage 4 of the MVT-1 tunnel to the location of the incident on 29 July 2004, (east Chn 1230m), the anticipated support types were as tabulated as follows:

Chainage Anticipated Support From To Type 960 - 1000 2 1000 - 1100 1 1100 - 1230 2

142 Mr Kotze extracted from the Ventilation Tunnel Bolting Asbuilts (issued 5 August 2004) the following information, in tabular form, so as to delineate the support types that were actually installed in MVT-1 as follows: Chainage Installed Support From To Type 960 - 971 3 (modified) 971 - 998 1 (no rock bolts for 27m) 998 - 1031 2 1031 - 1037 2 (plus 16 random bolts) 1037 - 1056 2 1056 - 1137 1 (no rock bolts for 81m) 1137 - 1150 1 (18 random bolts) 1150 - 1165 1 (no rock bolts for 15m) 1165 - 1171 1 (7 random bolts) 1171 - 1195 1 (no rock bolts for 24m) 1195 - 1201 1 (7 random bolts)* 1201 - 1231 1 (no rock bolts for 30m)*

143 In addition to the remarks made in the above note accompanying the table, Mr Kotze observed that the support type installed had been downgraded from the anticipated Type 2 to Type 1, over the 1100m to 1230m chainage interval to the roof collapse site. 144 Under some conditions the adoption of random bolting can provide adequate roof support, if the number and location of the bolts are suitably directed by an experienced engineering geologist or geotechnical engineer. However, if random bolting is adopted as a minimalist approach and is not subject to suitable geotechnical direction, it is possible to result in inadequate roof support. This was the case in the MVT-1 tunnel. Mr Kotze was asked the following question as to the adequacy of roof support: 14. During the construction stage and in particular from location 1170 to the location of the 29 July 2004 incident in East heading, should the system of rock bolting actually used have been considered adequate or inadequate for the purposes or [of] rock support? In particular in answering this question, please cover the apparent system of random rock bolting and in one area where there was apparently no rock bolts for about 30 metres. 145 His reply was as follows: The bolting asbuilt drawings indicate that Type 1 support with random rock bolting only, was adopted over the 175m tunnel length interval from chainage 1056m to 1231m incorporating the roof collapse site. The drawings indicate that within this tunnel interval there were lengths of roof up to 81m long with no rock bolts installed. Most significantly, from chainages 1171m to 1231m only 17 random rock bolts had been installed, at the 1196m to 1207m location. The roof collapse of 29 July 2004 occurred between 1225m and 1230m, at the eastern end of a 24m length of tunnel where no rock bolts had been installed. It is the writers' opinion that the implementation of Type 1 support in the MVT1 tunnel generally, and in particular between chainages 1170m and 1231m, provided inadequate support to the roof of the tunnel. 146 The reason for his opinion was given as follows: The geotechnical and geological conditions listed in Paragraph 6 to 11 above were apparent during the design and construction phases respectively of the MVT-1 tunnel. The existence of those conditions should have dictated the adoption of a prudent and suitably conservative roof support system, particularly to the east of chainage 1170m. The existence of those conditions and a tunnel span of 5.5m should have dictated the implementation of pattern bolting, particularly to the east of chainage 1170m where the conditions described in Paragraphs 8 and 9 were observed and the western side of the palaeochannel and previously indicted high stress levels were being approached. Instead, the implemented support type had been downgraded from Type 2 pattern bolting to Type 1 random bolting. Moreover, there were significant lengths of tunnel roof where no rock bolting had been carried out and the roof remained unsupported. An unsupported roof could not withstand the geological conditions encountered and the roof collapse occurred. The implementation of Type 1 support therefore had been inadequate. 147 Mr Kotze found it would have been possible to install Type 2 pattern rock bolts as tunnelling proceeded prior to the incident. However, whilst it would have been possible, it would not have been convenient.

148 The potential danger of rock failure to persons working in tunnelling was largely a function of the geological conditions through which the tunnel was excavated and whether or not the roof support systems could adequately cater for those conditions.

Design Stage 149 Mr Kotze advised that the elimination of danger can be expressed geotechnically as the removal of risk. A tunnelling operation with zero risk of rock failure from the roof would have required the engineering of a process by which full structural lining could have been constructed to the face as tunnelling proceeded. In reality however, and from a geotechnical perspective, the design and implementation of such a procedure (if feasible) in Hawkesbury Sandstone, would have been uneconomic and unnecessary. 150 It was noted in the report that the minimisation of risk of rock failure from the roof of MVT-1 east of cross passage 4, required the design of a suitable roof support system based on the geological model of this area. The geological model should have incorporated representative stratagraphic, structural and strength characteristics as determined from site investigation data and through relevant experience in Hawkesbury Sandstone. 151 The geological model should have incorporated the high in situ stresses that were measured in Borehole CCT142 beneath the palaeochannel. Mr Kotze commented "Even if the true representiveness (sic) of the stress test results from that borehole had been subject to debate, the high values measured should not have been discarded from the modelling design process". The details of this model should then have been conveyed to other members of the analytical and engineering roof support design team. An appropriate roof support system should then have been designed to cater for the details of the geological model. An integral part of the design process is the verification of the geological model. Suitably qualified and experienced personnel and appropriate procedures for these requirements could and should have been defined at the design stage to minimise the risk of roof failure occurring during construction. 152 Mr Kotze observed that the following general sequence of events should have been followed immediately it became known to a senior CW-DC professional, that the anticipated proposed roof support type was not being installed: (i) Interrogate site personnel as to why Type 2 Support was not being installed, if on site; (ii) Advise on site personnel of the presence of increased risk of roof instability due to downgraded support installations and, if authorised, direct rectification with Type 2 Support; (iii) If not on site to direct site personnel, seek direct communications with the person(s) responsible for directing site personnel to confirm the requirement for Type 2 Support to be installed until such time as either the design drawings or a designers' representative authorise a reduction in support type; (iv) Initiate direct communications between appropriate designers' and contractors' representatives to confirm that roof support types as designed should not be downgraded without the approval of the designer. 153 Mr Kotze stated that to downgrade a roof support system without specific knowledge on the basis upon which it has been intended, can leave the roof inadequately supported. It was, therefore, conventional for any suggested downgrading of roof support to be assessed and reviewed by the support designer, who could provide informed advice as to its acceptability or otherwise. A designer's representative should have promoted this review process and should not have accepted a downgrade in the roof support shown on design (IFC) drawings, unless it has been subject to design review or verification.

154 During construction of MVT-1, the danger of rock failure could have been reduced to a level that was "acceptable to the workforce" through the implementation of conventional competent tunnelling practices. Mr Kotze stated: The selection and installation of both temporary and permanent rock bolts and other roof support or protection elements, should have been directed each shift by a suitably qualified and experienced engineering geologist or geotechnical engineer. 155 However, Mr Kotze considered that the work crews installing rock bolts could not have been expected to understand the geological model of the site. He observed: They could not have been expected to be aware of or to understand the location of the palaeochannel, the results of stress testing in Borehole CCT142, or the significance of the geological conditions evident in the tunnel as listed in Paragraph 8 and 9. All these issues required to be observed, reviewed and interpreted by a suitably qualified and experienced engineering geologist or geotechnical engineer, who in consultation with the design team should have in turn have selected, located and supervised the installation of suitable roof support so as to cater for the prevailing geological conditions.

He added, in this respect, as follows: Without appropriate geotechnical input, such critical issues can remain unconsidered and inadequate roof support can result. This was the case in the MVT-1 tunnel. 156 Accordingly, had the geological conditions encountered in MVT-1, particularly between chainages 1170m and 1230m, been subject to timely and appropriate engineering geological or geotechnical engineering review and had there been an effective mechanism whereby the work crews installing the rock bolts could have received advice or direction arising from that review, additional rock bolting could have been undertaken whereby the potential danger or risk of rock failure could have been reduced and minimised.

157 Mr Kotze provided his opinion on whether the constructor should have ignored the anticipated type of roof support in the CW-DC IFCs and instead installed roof support identified in the designers' Site Visit Reports or Action List (after daily inspection and mapping) or at the discretion of the roadheader crews.

158 Mr Kotze indicated that it would have been acceptable for the constructor to discontinue the anticipated support types shown on the CW-DC IFCs, providing that the tunnel excavation and roof support installations were instead subject to an appropriate service by suitably qualified and experienced personnel on a full-time basis. These services could not be adequately provided by roadheader crews.

159 In his report, Mr Kotze identified three primary reasons/causes for the rock failure that occurred in the MVT-1 tunnel on 29 July 2004. These are described below. Geological conditions that occurred in the roof of the tunnel

160 In summary, Mr Kotze identified that the following geological conditions contributed to the roof collapse: (i) The roof had been excavated into a 500mm to 700mm thick bed of structureless, high strength sandstone. This sandstone bed was exposed around the top of the tunnel walls; (ii) In the crown of the tunnel, there were several prominent, closely spaced bedding planes that could act as planes of weakness. These had been visible in the side walls of the tunnel between chainages 1174m and 1194m. At 1194m those bedding planes passed into the tunnel roof; (iii) As the tunnel advanced in an easterly direction it was entering into a geological environment where high in situ stresses had been measured at depth in Borehole CCT142; (iv) Stress levels at the failure site were concentrated in the above mentioned sandstone roof unit and at approximate chainage 1231m, the reduced sandstone roof unit was unable to withstand the built-up horizontal stresses that were occurring across the roof. The excavated roof unit failed in lateral compression, whilst separating from the prominent micaceous bedding plane that persisted in the crown. The failure comprised a rapid collapse of the remainder of the excavated sandstone roof unit. No roof support in place

161 The second reason advanced by Mr Kotze concerned the absence of roof support. He opined: The roof collapse occurred because there had been no roof support measures installed to cater for the prevailing geological conditions described above. The anticipated Type 2 pattern rock bolts had not been installed. The nearest Type 1 random rock bolt was at chainage 1207m. There was no rock bolts installed in the roof between chainages 1207m and 1231m. In the absence of any roof support the failure mechanism described above was able to develop and the roof collapse resulted. No technical intervention

162 The excavation of the 131m long tunnel interval took place between 28 June 2004 and 29 July 2004. He found, as the third cause, as follows: During this time no Type 2 pattern bolting was installed and only limited Type 1 random rock bolting was carried out. The geological conditions listed in Paragraph 3 to 5 above had been previously documented and the conditions listed in Paragraph 6 to 8 above were observable. This applies particularly to between chainages 1170m and 1230m, from 19 July 2004 to 29 July 2004. No technical intervention occurred by which the roof support was altered so as to adequately cater for the geotechnical conditions. In the absence of technical intervention the inadequate roof support regime continued, the failure mechanism described above was able to develop and the roof collapse resulted.

(The prosecutor and the defendants accept that Mr Kotze was referring, in this respect, to a lack of advice from CW-DC.)

Overall Opinion re Elimination or Minimisation of Risks

163 Mr Kotze stated: The roof collapse of 29 July 2004 could have been prevented through the installation of a suitably designed roof support system. A suitably designed roof support system could have been installed routinely throughout MVT1. Alternatively, through the application of appropriate ongoing technical review, evaluation and direction, the actual roof collapse incident of 29 July 2004 could have been prevented by suitably upgrading the roof support system from chainage 1170m when the conditions listed in Paragraph 12 above became evident.

164 Mr Kotze identified that following the incident and prior to the resumption of tunnelling, the full length of MVT-1 East drive was installed with permanent Type 2 pattern rock bolts as well as fibre reinforced shotcrete. He presumed that this was done to rectify the deficiency of the limited Type 1 Support installed previously.

Overview of Rock Support INSTALLATIONS FOR MVT-1 165 As Mr Kotze observed, the Bolting Asbuilts drawings revealed that the joint venture defendants installed Type 1 Support with random rock bolting continuously from chainage 1056m to 1231m: a total length of 175m. 166 In fact, as the Agreed Statement of Facts reveals, Type 1 Support had been introduced from about chainage 976m in accordance with the Working Action List. The Bolting Asbuilts revealed the exception was the inclusion of Type 2 Support at chainages 998m to 1031m and 1031m to 1056m. This conforms with the Agreed Statement of Facts, which describes the following developments: 94. Excavation in MVT-1 East ceased on about 27 May 2004 at approximate chainage 1081 and recommenced on about 23/24 June 2004 (the shut down period). On or about 4 June 2004 during the shut down period CW-DC issued SVR 05-461 to BHBB directing that Type 2 Permanent Support be retrospectively installed between chainage 1031 and chainage 1044. There is a difference between temporary and permanent support in that permanent support meets the design life of 100 years. At that time the face position of MVT-1 East was at chainage 1081. BHBB installed Type 2 Permanent Support in compliance with this direction. No similar direction was issued by CW-DC to BHBB in respect of MVT-1 East after chainage 1044. When excavation recommenced, CW-DC carried out inspections and issued SVR and AL as required by the CSS Work Plan. 167 As earlier noted, the anticipated roof support in the design drawings for chainage 1110m to the site of the incident, was Type 2 Support. This chainage was reached by 29 June 2004. The following is recorded in the Agreed Statement of Facts in this respect: 95. By 29 June 2004, the face of MVT-1 East had reached chainage 1100. CW-DC's IFC drawing identified the "anticipated" support type from chainage 1100 as Type 2 Support. At no time after the recommencement of excavation in MVT-1 East on about 23-24 June 2004 did CW-DC give any advice or make any recommendation either in writing or verbally that it was inappropriate to continue installing Type 1 Support or that Type 1 Support was inadequate for the "as found" geological conditions or that Type 2 Support should be installed past chainage 1100. 168 The selection of Type 1 Support resulted in random bolts being installed from chainage 976m which, with the exception of the retrofitting of permanent bolts (as described above) resulted in either occasional or no bolting, and certainly not pattern bolting of the kind required by Type 2 Support. 169 In fact, there were substantial sections of MVT-1 east of chainage 1056m in which no rock bolts were installed. As noted in the Agreed Statement of Facts, there was an 81m section of the MVT-1 where rock bolts had not been installed (the Bolting Asbuilts revealed this occurred between chainage 1056m to 1137m). Those Bolting Asbuilts also recorded that there was no rock bolting between 1150m and 1165m (a distance of 15m) and 1171m and 1195m (a distance of 24m). Further, after seven random rock bolts were installed between chainage 1195m and 1201m there were no further rock bolts installed until the site of the incident, a distance of about 24m. Similarly, for this final section of the tunnel before the site of the incident, the daily mapping sheets show the last recorded roof support at 1209m and the metre maps show no permanent support after 1215m. 170 The final paragraph of the Agreed Statement of Facts outlines the factual circumstances of the relationship and interactions between the joint venture defendants and the designers in the final stages of the excavation of MVT-1 before the incident. Those sections are of some importance and will be extracted in full below: 96. CW-DC did not provide BHBB with a request for remedial action consistent with the CSS Work Plan in relation to the excavation in MVT-1 East after chainage 1100. Nor was it suggested by CW-DC that the installation of Type 1 Support was a non-conformance or non-compliance with the design intent.

97. Daily mapping sheets were prepared by CW-DC for the face of the tunnel. These detailed the quality of the rock and identified the support being installed. The daily mapping sheets noted that the support type being installed in MVT-1 East past chainage 1100 was Type 1 Support or none. At no stage did CW-DC give any advice to BHBB that as a result of the observations recorded in the daily mapping sheets beyond Chainage 1100 that there was a need for an increase in support from Type 1 to Type 2. BHBB did not query the difference between the anticipated support indicated on the IFC drawings and the roof support observed and recorded on the daily mapping sheets.

98. BHBB and CW-DC knew that the IFC drawings indicated that the anticipated support past chainage 1100 was Type 2 and BHBB and CW-DC knew that Type 1 Support was being installed past chainage 1100. In the absence of any advice from CW-DC to the contrary, BHBB had an understanding that it was not inappropriate to install Type 1 Roof Support although the IFC drawings referred to anticipated roof support as type 2.

99. BHBB did not raise an RFI or an NCR with CW-DC regarding the continued installation of Type 1 Support past chainage 1100 in MVT-1 East. CW-DC personnel were aware that Type 1 Support was being installed past chainage 1100 because they continued to carry out daily inspections of MVT-1 East for the purpose of assessing the "as found" geological conditions, preparing mapping sheets, checking support, issuing SVR and AL and verbally communicating with BHBB personnel as required by the CSS Work Plan. Further an opportunity existed at the CSS Weekly Meetings between 30 June 2004 and 27 July 2004 for representatives from CW-DC and BHBB to raise any queries or concerns with each other about the type of support being installed past chainage 1100. No issues were raised by either party regarding the adequacy of the roof support being installed in MVT-1 East.

100.On the morning of 28 July 2004, Mr Rheinberger on behalf of CW-DC carried out, in accordance with CSS Work Plan, an inspection of the face of MVT-1 East, which was then at approximately chainage 1219, and made a note of his observations in his notebook. He assessed that Type 1 Support was appropriate for the observed geological conditions. Mr Rheinberger did not communicate this assessment to the CSS Manager at any time prior to the incident. This was consistent with the assessment that he had made that Type 1 Support was appropriate for the geological conditions observed from chainage 1100.

101.On the morning of 29 July 2004 Shaun Ayshford, CW-DC Geologist visited the site and inspected the face of MVT-1 East. Mr Ayshford conducted an inspection photographing the geology and undertaking mapping. Following Mr Ayshford's visit no advice was given to BHBB with respect to any roof support to be installed at or about the face of MVT-1 East.

102.CW-DC did not identify that the changed geological conditions evident from chainage 1195 rendered Type 1 Support inappropriate or that Type 2 Support should be installed.

103.Each SVR issued by CW-DC for MVT-1 bore the name of the CSS Manager, Hans Bleuler, who was responsible for its issue. As a consequence, at all relevant times, BHBB understood that Mr Bleuler was checking the observations and recommendations made by the CW-DC Geologists and Geotechnical Engineers in order to confirm compliance with the design intent as required by the CSS Work Plan. Mr Bleuler did not check each SVR that was issued to BHBB during July 2004. At no time prior to the incident was it suggested to BHBB that Mr Bleuler was not checking the SVR being one of the responsibilities assigned to him in the CSS Work Plan. EVIDENCE REGARDING FALL FROM OVERHEAD PROTECTION AND GUARDRAILS 171 In respect of the failure to install fall from overhead protections systems, the prosecutor relied upon documents attached to the affidavit of Mr Reynolds. In particular, the Court was directed to a document entitled 'Cross City Tunnel Project - Safe Work Guidelines' which was a component of the Cross City Tunnel Occupational Health, Safety and Rehabilitation Management Plan. The document set out safety requirements applying to all activities undertaken on the Cross City tunnel project and included the following paragraph: All mobile plant working where there is risk of the operator being struck by falling objects or material, or the plant rolling over, will be fitted with a Roll Over Protective Structure (ROPS) or Falling Object Protective Structure (FOPS) complying to AS 2294 or equivalent.

ROP and FOP structures reduce the possibility of an operator from being crushed or otherwise injured should an item of plant rollover or be struck by falling objects or material.

Where FOPS or ROPS have been damaged as a result of an incident, the plant will not be used until the FOPS or ROPS have been replaced or effectively repaired. 172 A further document attached to Mr Reynolds' affidavit and entitled, 'Tunnel Safety Inspection Report' required that "FOP and fire protection [be] fitted", and a powerpoint presentation document entitled 'Cross City Tunnel - Occupational Health Safety, Quality, Environmental and Community Relations Induction Training Program' stated that mobile construction plants must have FOP and ROP protection. 173 Included in another powerpoint presentation document was a document entitled 'How can we achieve an injury free workplace?'. The document stated that of the 570 serious near miss incidents reported between July 2002 and March 2004, 31% had been in relation to falling objects. There was, however, no further explanation of what types of falling objects these incidents involved, nor the nature of how the incident occurred.

174 The prosecution also relied on photographs tendered into evidence, to show that at the time of the incident there were no guardrails or fall from overhead protection installed on the boom work platform of the roadheader. Photograph twenty did show that at the time of the incident there was overhead protection above the operator of the roadheader. Photographs 40 and 41 depicted that as at 28 February 2005 fall from overhead protection, a pipe handrail and a harness for fall protection had also been installed on the boom work platform. 175 The prosecutor also directed the Court to three documents entitled 'Tunnel Zone Safety Induction' booklets. These documents showed diagrams of workers in a tunnel working with overhead protection in the form of a cage. 176 The prosecutor submitted that the evidence revealed that the defendants knew of the risk of falling objects from overhead and, in turn, of the need to have overhead protection prior to the incident. 177 The defendants did not tender nor did they seek to rely on any evidence in respect of fall from overhead protection or guardrails.

178 The affidavit of Mr Reynolds set out the defendants' approach to safety at the time of the incident. He revealed an extensive and elaborate system in which the defendants adopted a multi-layered approach and employed significant resources in order to ensure safety on the project. Included in their system was an OHS&R Management Plan and OHS policies, safety studies, risk assessments, specialist health and safety personnel employed at both the corporate and business level of the project, continuous improvement and management review of safety procedures, audits, reports, regular meetings, forums, committees, induction and training. He deposed that the defendants were committed to health and safety and to ensuring that the project was safe for all employees and non-employees. 179 With respect to steps taken after the incident, the affidavit disclosed that the defendants undertook the following: (a) following the incident the defendants removed the platforms from the boom of the roadheaders and engaged the services of engineering company Robert Bird & Partners, to design and certify a FOPS system. This system was subsequently installed on the roadheaders working in MVT-1; (b) introduced a 'Positive Attitude Safety System' ('PASS') on the project which concentrated on evaluating the performance of work crews and to raise awareness of safety as part of workplace culture;

(c) worked diligently to continue to improve their overall safety performance. Key safety performance indicators from 2004 to 2008 demonstrated that the number of severe injuries had decreased from 14 in 2004 to 1 in 2008 and there had been no further fatalities since this incident had occurred; (d) a review of safety performance was conducted and produced in the December 2004 Safety Review. The review identified a number of initiatives that Mr Reynolds advised had been subsequently implemented. These initiatives included: i. continued focus on investigating 'near miss' incidents and taking corrective actions in order to eliminate their re-occurence;

ii. active line management involvement in the safety management process;

iii. as the majority of work was carried out by sub-contractors, increased front end engagement with contractors regarding the defendants' expectations regarding safety and any issues of concern;

(e) complied with the WorkCover notices; (it will be recalled that Mr Kotze's report revealed an additional step taken after the incident was the placement of a Type 2 rockbolts along the length of the tunnel affected by the charges). 180 Mr Reynolds' affidavit also contained the following relevant evidence, which was not disputed by the prosecutor: (a) CCT ceased operation at the completion of the surface project works in June 2006 and there was no intention to re-establish the company in another capacity; (b) following the incident, the defendants provided assistance to the deceased's family in the form of counselling, organising and paying for two funerals, one in Australia and one in New Zealand and financial assistance. The defendants paid approximately $100,000 for the costs of the two funerals, including the costs of flights and accommodation for 13 family members to attend the funeral in Australia. On 3 August 2004, the project was closed down and senior management and numerous project team members attended the funeral. Senior management also attended the funeral in New Zealand. The defendants maintained contact with Mrs Shores' family following the funerals; (c) the defendants, in consultation with Unions New South Wales and the Australian Workers' Union, established a trust fund to provide for the education and future welfare of Mr Shores' children. The defendants paid the costs of setting up and administration of the fund and contributed $200,000; (d) Baulderstone Hornibrook was strongly committed to supporting the communities with which it was involved. In recent years, Baulderstone Hornibrook had provided financial and in kind support to a number of organisations across Australia; (e) on behalf of the defendants, Mr Reynolds expressed deep remorse in relation to the incident, and accepted that the death of any worker was unacceptable. He acknowledged that the defendants would never be able to fully appreciate the full impact the death of Mr Shores had had on his wife, children, family and friends.

181 The principles to apply in sentencing offenders for offences against the Act, and formerly the Occupational Health and Safety Act 1983 (more often, but not exclusively, relating to offences against the general duties imposed under those Acts), have been stated in numerous decisions of Full Benches of this Court (and its predecessors), prominent amongst which are (in chronological order): Inspector Hannah v Wonar Pty Ltd (Full Court, 30 June 1992, unreported); Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (Full Court, 10 March 1994, unreported); Workcover Authority of New South Wales v Waugh (1995) 59 IR 89; Warman International Limited v Workcover Authority of New South Wales (1998) 80 IR 326; Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Fletcher Construction Australia Ltd v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; Workcover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700; Morrison v Powercoal (2003); Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 66; (2005) 147 IR 117 ('Morrison v Powercoal (2005)') (which provides a recent statement of the relevant principles in the context of the Crimes (Sentencing Procedure) Act 1999). 182 In Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435 at [70], the Full Bench stated that "whilst the principles may readily be stated, their application in particular cases not infrequently gives rise to difficulties"; an observation that is borne out by the significant number of judgments of Full Benches of the Court considering the application of the principles both before and after that judgment. Some examples, in addition to those mentioned above, are (in chronological order): Cullen v State Rail Authority of New South Wales (1993) 49 IR 166; Haynes & Callaghan v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455; Alcatel Australia Limited v Workcover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 ('Alcatel'); Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 ('Corinthian Industries'); Workcover Authority of New South Wales (Inspector Lancaster) v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319; (2002) 121 IR 119; Workcover Authority of New South Wales (Inspector Moore) v Blacktown City Council [2003] NSWIRComm 362; (2003) 128 IR 361; Inspector Patton v Fletcher Construction Australia Ltd (No 2) [2003] NSWIRComm 94 (2003) 123 IR 350; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 ('Menzies'); Workcover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 ('Coleman'); Inspector Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 ('Maddaford'); Morrison v Waratah; Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465; WorkCover Authority of New South Wales (Inspector Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118; Inspector Yeung v Wilson t/a Wilson's Tree Service [2005] NSWIRComm 158; (2005) 143 IR 187 ('Wilson's Tree Service'); Inspector Green v Camilleri Properties Pty Ltd [2006] NSWIRComm 90; (2006) 152 IR 156 ('Green v Camilleri Properties'); Inspector Jones v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 ('Challita'); Morrison v Eureka Opals Pty Ltd (No 3) [2006] NSWIRComm 151; (2006) 153 IR 191; Graincorp Operations Ltd v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103; WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 ('Gleeson'); Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121; Inspector Jelley v Albright & Wilson (Australia) Limited [2007] NSWIRComm 148; (2007) 164 IR 456; Narayan v Inspector Chamings [2007] NSWIRComm 281; (2007) 169 IR 414; Inspector Lai v Rexma Pty Ltd [2008] NSWIRComm 78 ('Rexma'); and JT & LC Tippett Pty Ltd v Workcover Authority of New South Wales [2008] NSWIRComm 177 ('Tippett'). Some first instance decisions are often cited in these judgments (or otherwise). These include (in chronological order): Tyler v Sydney Electricity (1993) 47 IR 1; Inspector Haynes v James Glass and Aluminium Pty Ltd (Fisher, CJ, 20 May 1994, unreported); Fisher v Samaras (1996) 82 IR 384 ('Fisher v Samaras'); Workcover Authority of New South Wales (Inspector Mansell) v Air Express International (Australia) Pty Ltd (1996) 83 IR 64; Workcover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80; Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 ('Kembla Coal and Coke'); McDonald's; WorkCover New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163; Inspector Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 and Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201). Mention should also be made of the recent judgment of Schmidt J in Cahill v State of New South Wales (Department of Education and Training) (No 3) [2009] NSWIRComm 97. 183 The issues arising in this matter do not enliven a need to wholly synthesise the principles so developed or to repeat them in substantial measure. It may be instructive, however, to revisit some particular aspects of the principles. These are discussed below.

184 The purposes for which a Court may impose a sentence on an offender are specified in s 3A of the Crimes (Sentencing Procedure) Act 1999. In this jurisdiction, the Court has adopted the approach applied by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 to the matters listed in s 3A: Morrison v Powercoal (2003) at [100] and Morrison v Powercoal (2005) at [13]. The principal and particular purposes of occupational health and safety legislation are the protection of workers from breaches of health and safety and compelling attention to occupational health and safety at the workplace: Tippett at [112] (applying McDonald's) and Albright at [38] (there reflecting the objects of the Act). In R v Markarian [2003] NSWCCA 8 at [19], Hulme J (with whom Heydon JA and Carruthers AJ agreed), in the course of restating some basic principles of sentencing, adopted the following passage from Veen (at 261-2): "the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed which are calculated to secure those objectives. We agree, therefore, with her Honour that the objectives cannot effectively be secured unless, as he said, one is prepared to resort to a sentence sufficiently heavy to act as a real deterrent...".

185 The sentencing of an offender involves a consideration of both objective and subjective factors: Morrison v Powercoal (2005) at [13]. The Court will keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 to 699; Lawrenson at 475; Fletcher Construction (1999) at 78 and Morrison v Powercoal (2005) at [13] (applying Lawrenson). Thus, in sentencing, the factual basis for the Court's decision will include what the offender actually did and the history and other personal circumstances of the offender: R v Olbrich (1999) 199 CLR 270 at [1] (as to the proof of fact, see Olbrich at [25]). As to what the offender did, it must be borne in mind that the offender can only be sentenced "for the offence for which the offender has been convicted" (Camilleri's Stock Feeds at 699 and also Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [29] ('Ridge'); Powercoal v Morrison (2005) at [76]; and Profab at [34], but the Court is bound to take into consideration the circumstances surrounding the offence for which the defendant has been convicted "so long as the circumstances are not inconsistent with the plea or verdict" (Camilleri's Stock Feeds at 699 applying R v De Simoni (1981) 147 CLR 383 at 396). It should be noted that a plea of guilty only carries with it an admission of the essential legal ingredients of the offence admitted by the plea: R v O'Neill (1974) 2 NSWLR 582 at 588. Any facts (or disputes of fact) beyond that (and particularly those advanced by the Crown that are said to aggravate the offence) must either be agreed or proved in accordance with relevant principles: see O'Neill at 588 - 589 and Olbrich at [25 - 28]. 186 However, the primary factor to consider in sentencing under occupational health and safety legislation is the objective seriousness of an offence: Lawrenson at 475, Fletcher Construction (1999) at 78, Morrison v Powercoal (2005) at [13], Albright at [28], Capral at [53], Profab at [30], Manpac at [70] to [71], Menzies at [60], McDonald's at 428 and 430, and Walco at [22] to [23]. Thus, it is always important, in seeking to determine the sentence appropriate for a breach of occupational health and safety legislation, to consider the gravity of the offence viewed objectively, as "without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place": Dodd (1991) 57 A Crim R 349 at 354, as applied in Lawrenson at 476 and Fletcher Construction (1999) at 74 (see also R v Gordon (1994) 71 A Crim R 459 at 468, R v Allpass (1993) 72 A Crim R 561 at 563 and McDonald's at 432). (Indeed, the objective seriousness of the offence should be considered "first of all": Gordon at 468.) 187 Adopting the approach in Veen (at 472), each offence has its own objective gravity meriting at most a sentence proportionate to that gravity with the maximum sentence fixed by the legislation defining the limits of sentence for the most grave category (see Dodd at 354). This approach will ensure that allowance for subjective factors does not produce a sentence which fails to adequately take into account the objective gravity of the offence: Dodd at 354; Lawrenson at 476 and Fletcher at 79 and that there is a reasonable proportionality between a sentence and the circumstances of the offence (Dodd at 354). Thus, this Court has consistently stated that subjective matters such as a plea of guilty, previous good individual citizenship, cooperation with the investigation and subsequent measures to improve safety, "rank in importance well behind the two primary aspects of the matter, namely, the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce" (per Walco at [23]; see also Morrison v Powercoal (2005) at [13], Fletcher Construction (1999) at 78, Lawrenson at 475, Waugh at 97 and McDonald's at 429). 188 In Morrison v Powercoal (2005), the Full Bench approved (at [14]) the dicta of Hungerford J in Fisher v Samaras (at [388]) where his Honour held that the Court had a duty to "ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty in so far as a defendant is concerned not to impose such a penalty as would be oppressively high" (emphasis added) (a confirmation of that approach - without specific referral to Fisher v Samaras was given by the Full Bench in Warman at [339]). 189 Wright J, in Walco (at [23]), considered that this dicta should not be considered as qualifying the approach to balancing subjective and objective factors as expressed in Waugh. His Honour was referring to the subsidiary role of subjective factors discussed above. However, in my view, no contrary view was expressed in Fisher v Samaras. Hungerford J's observations were, in fact, derived from an earlier decision of Cullen J (Workcover Authority of New South Wales (Inspector Glen David Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, 13 March 1996) in which Cullen J (at [116]) had expressed the view that the Court has a duty to ensure breaches of occupational health and safety legislation are punished with penalties of such magnitude "that companies will address occupational health and safety issues before such accidents occur". In substance, Hungerford J was, as he noted, correctly in my view, applying the oft quoted passage from the judgment of the Court of Criminal Appeal (delivered by Street CJ) in R v Rushby (1977) 1 NSWLR 594 at 598, as follows: If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and the probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 190 The objective seriousness of the offence involves an objective assessment of the nature and quality of the offence: Morrison v Powercoal (2003) at [13]; Lawrenson at 474; Independent Cargo at 4 and Hannah v Wonar at 9. As earlier noted, this will involve an assessment of what the defendant did (the objective circumstances of the offence) which, in the case of occupational health and safety legislation, will involve an assessment of the detriment to safety occasioned by the defendant (McDonald's at [438]) and the nature and quality of the defendant's acts, as assessed in that respect. 191 As was observed by the Full Bench in Morrison v Powercoal (2005) at [13], the sentencing practice established by this Court under the occupational health and safety legislation conforms with the requirements of the Crimes (Sentencing Procedure) Act 1999 (see ss 3A, 21A, 22, 22A and 23). The decision of the Full Bench in Fletcher Construction (1999) (at 79) (and Morrison v Powercoal (2005)) demonstrates that, nonetheless, there are a number of factors which, in the jurisprudence of the Court, may tend to establish the existence of an objectively serious offence. A few may be nominated for present purposes, as follows: (i) Foreseeability In McDonald's at 450 ( following Kembla Coal and Coke at [27]), the Court held that the degree of foreseeability of a risk to safety was a significant factor to be taken into account when assessing the level of culpability of the defendant (see also Benbow v Planada at [9]). Hence, the existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a relevant factor in the assessment of the gravity of the offence. By the Full Bench judgment in Capral (at [82]), it was held that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. The gravity of the offence will increase where the risk to safety is known and left unabated with remedial action being available. In reliance on Hannah v Wonar (at [9]), Lawrenson (at [476]) and Coleman at [88], the Full Bench in Powercoal v Morrison at [90] acknowledged the proposition that it will be a serious offence where there is "an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible" (see also Menzies at [87]. In Hannah at [8]), the Full Bench referred to a "known and perceived danger, unchecked, and left in place". The Full Bench in Morrison v Powercoal (2005) referred to a risk being "glaringly obvious" (see also Wild Geese at [27]). Similarly, an offence has been found to have a high level of seriousness where the risk to safety was actually foreseen and not eliminated or minimised by available remedial measures ( Coleman at [89] to [91] and McDonald's at 452, Workcover Authority of NSW (Insp Lyons v Warman International Ltd (2001) 105 IR 236 and Benbow v Planada at [10]). It should be emphasised, however, as did the Full Bench in Capral (at [82]), the absence of foreseeability does not necessarily render the offence as being nominal or 'not serious'. The defendant is required to be proactive in seeking out and managing risks to safety ( Rexma at [52], Corinthian Industries at [10], Coleman at [86] and Workcover Authority of New South Wales v Fletcher Construction Australia Ltd (2002) 123 IR 121 at [43] and [44]). Thus, the defendant will not benefit from a lack of knowledge or foresight deriving from a failure to put in place a proper system for risk assessment, adequate work methods for a location or proper training (see Patton v Fletcher 123 IR 121 at [41] and [42], Benbow v Planada at [21] and Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [15] and [16]). (ii) Death or Serious Injury in Relation to an Offence

A related consideration is the relationship between the seriousness of injuries suffered or which may have been suffered and the gravity of the offence. The principle was stated in Capral at [94], thus: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequence might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.... The judgment refers to a long line of authority consistent with that approach, including Tyler at 5, Hannah v Wonar at 9 Wong v Melinda Group Pty Ltd (1996) 82 IR 118 at 131, Lawrenson at 476, Walco at 22 and McDonald's at 428. To these may be added Fletcher Construction (1999) at 79. This passage has been consistently applied: Maddaford at [17]; Menzies at [86]; Narayan at [40] and Cahill at [35]. The authority was applied, in terms, in Morrison v Powercoal (2003) at [32] and Morrison v Powercoal (2005) at [93]. These principles are consistent with s 21A(2)(g), and in the case of a death arising from an industrial accident, s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (see Morrison v Powercoal (2005) at [94]). (iii) Simple Remedial Measures Available

A further factor in assessing the gravity of an offence is whether there was available at the time of an incident simple and straightforward remedial measures to avoid or minimise the relevant risk to safety. When taken in combination with the foreseeability of the risk to safety then, such a factor may significantly increase the gravity of the offence. Thus, in Morrison v Powercoal (2003), the Full Bench observed that in assessing the gravity of an offence, the focus must be on the risk, and viewing it objectively, the seriousness of the act or omission that gives rise to the risk (see at [32]). The Full Bench observed (at [33]): …it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straight forward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender... (the Full Bench thereafter continued this discussion in relation to mitigating factors: see Morrison v Powercoal (2005) at [93]; also see Menzies at [87]. In Gleeson , the Full Bench referred to a particular class of remedial measure, namely, "simple remedial measures well known in the industry in which the respondent was engaged" (at [29]). 192 There are two further considerations having significance in the assessment of the objective seriousness of the offence which warrant attention: the maximum penalty for the offence and deterrence.

(i) Maximum Penalty In Morrison v Powercoal (2005) (at [16] and [17]), the Full Bench observed that a fundamental consideration in determining penalty is the maximum penalty for an offence. In R v Moon (2000) 117 A Crim R 497 at [70], Howie J described "the nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence" as being "crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed". Wright J, in Walco (at [23]), described the task of the Court in sentencing as "assessing the relative seriousness of the offender's particular offence in relation to the worst case for which the maximum penalty is provided" (see Independent Cargo at 4). Ultimately, maximum penalties will have significance in sentencing in accordance with the statement of the High Court of Australia (per Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 228 CLR 357 at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that: "A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]." It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case... (ii) Deterrence In Gordon , Hunt CJ at CL described 'public deterrence' as the main purpose of punishment (at 468), that is, as was stated by the Court of Appeal in R v Radich (1954) NZLR 86 at 87, "to protect the public from the commission of such crimes by making it clear to the offender and other persons with similar impulses that, if they yield to them, they will meet with severe punishment". In Capral , it was made clear that deterrence may consist of general or specific (or personal) deterrence, each of which had varying aims (at [74]). However, both general and specific deterrence were found to be particularly relevant in occupational health and safety prosecutions in the light of the objects and terms of the Occupational Health and Safety Act 1983. The objects and terms of the Act warrant no different conclusion. As was made clear in Workcover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [69] (cited with approval in Coleman at [80], Eureka Opals at [8] and Gleeson at [27]), when this Court considers general deterrence, it should be "cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work". The Full Bench in Capral held that both aspects of deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases .... we would expect such cases to be very rare..." (at [74]). In Capral , it was held that even where "an offender demonstrates good character or commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence" (at [75]). The need for general deterrence in relation to serious offences was said to be undeniable. It may be noted that this finding was made in the context of the appellant in that matter arguing that considerably less weight should be given to deterrence because of the appellant's attempts both before and after the accident to ensure the safety of its workers and because of its record as a safety conscious employer (at [71]). In Inspector Yeung v Thiess Pty Ltd (No 2) (2004) NSWIRComm 96 at [24], it was held that the Full Bench in Capral was not suggesting that general deterrence "should be allowed to override, to an impermissible degree, the offender's favourable subjective circumstances, particularly that the defendant is unlikely to re-offend" (quoting R v Jenkins [1999] NSWCCA 110 at [38] per Simpson J). It is not entirely clear what an 'impermissible degree' meant in that context, as the Court found in that matter that there was a strong case for general deterrence, particularly as the accident had occurred in a notoriously dangerous industry (the construction industry) and 'fall' accidents continued to feature in OHS prosecutions. However, as a general approach, the proposition stated in Thiess is not consistent with the judgment in Capral or relevant sentencing principles . Despite the strong subjective factors identified in that matter, the Full Bench in Capral considered that weight should be given to general deterrence in the sentencing of the defendant, and stipulated that general deterrence should feature in all but exceptional cases in sentencing under occupational health and safety legislation. The approach in Thiess is not, in my view, consistent with R v Jenkins , as Simpson J was in the minority in the passage relied upon in Thiess (and in any event the principle stated was only relevant to the particular context of the appeal against sentence her Honour was there considering). In my view, the correct balance between subjective factors and the weight to be given to deterrence (or factors relating thereto) lies in the observations of Hunt CJ at CL in Gordon at 468, as follows: [T]he subjective considerations relating to the particular offender (however, persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. It is appropriate, in considering the weight to be attributed to general deterrence, to bear in mind the population to which the deterrent effect of sentence is directed: R v MacDonell (unreported, Court of Criminal Appeal (at 8) per Simpson J, Hunt CJ at CL agreeing). This approach was adopted by the Full Bench in Morrison v Powercoal (2005) (at [101]) where it was held that the penalty should reflect the need for general deterrence so as to draw attention to those operating in the mining industry the necessity of engaging in practices that conform "to all of the requirements of the Occupational Health and Safety Act , particularly the necessity to be pro-active in preventing roof collapse". 193 The leading authority of the Court in relation to specific deterrence is Capral at [75] - [77]. Without repeating those passages from the judgment, particular elements may be identified (in conjunction with later authorities dealing with the same subject): 1. the objective of specific deterrence is to deter the particular offender from repeating the offence. Thus, the propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence; 2. the Court may, in sentencing, disregard specific deterrence if the risk of re-offending is low or non-existent as may result, for instance, from the rehabilitation of the offender or because the offender will not have an opportunity to commit a similar offence in the future. Similarly, the attitude of the offender to workplace safety and any steps taken to improve safety following the accident may be relevant to such a determination. In Morrison v Powercoal (2005) at [105] it was held that, notwithstanding the extensive steps which had been taken by the corporate respondent to improve its approach to occupational health and safety, some weight would normally be given to specific deterrence because the respondent was a large enterprise in one of the State's more dangerous industries. However, specific deterrence did not ultimately feature in that matter because the respondent was no longer an operational entity; 3. however, as was pointed out in Capral at [77], it is unlikely that the weight which may be attached to specific deterrence could be reduced to zero in the cases of offences under occupational health and safety legislation. At the least, the principle will apply where the offender "continues to be an employer" (as risks to the safety of employees or contractors may "exist or be possible"): see also Green v Camilleri Properties at [17]; Gleeson at [32]; Albright at [18]; Tippett at [106]; Wilson's Tree Service at [113] and Rexma at [50]. This is approach will encourage diligence by the offender in the future; 4. the principle described in the preceding paragraph was, in Challita (at [34]), found to limit considerably the circumstances in which specific deterrence may not operate in relation to occupational health and safety offences (although it was made clear that a sentencing judge is not always required to give weight to this factor). 194 The principles relevant to the mitigation of the seriousness of the offence or the exculpation of the offender including subjective factors will be dealt with as applicable under the 'Consideration' section of this judgment.

195 The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100]. 196 When constrained by the particulars to those charges before the Court which concern roof support and overhead fall protection, the relevant risk here is the risk of roof fall (described in the particulars as "a tunnel roof failure or rock fall") in that section of MVT-1 driven east from chainage 1195m to the site of the incident (see Morrison v Powercoal (2004) at [111] and Newcastle Wallsend Coal Company at [392]. There was consequently a risk to the health and safety of persons working in the particularised area which had every prospect of resulting in a fatality (as it did) or serious injury. The danger or hazard (see Newcastle Wallsend Coal at [390]) was occasioned by the geological or geotechnical conditions found in the particularised area (and, incidentally, earlier sections of the tunnel falling outside the charges) which created roof instability and an increased prospect for roof failure. This is not to suggest that the defendants did not have an obligation throughout the system of tunnels being constructed to protect employees from the 'ever present' risk of roof failure (Morrison v Powercoal (2004) at [101] and [104]) but that there were particular and pronounced dangers arising from the geological conditions (at least) from 23 July 2004 (at which date chainage 1195m was reached). The defendants were obliged under the Act to provide roof support and overhead protection commensurate with the risk encountered in the particularised area so as to avoid exposing persons working therein to roof failure or rock fall.

197 Any assessment of the objective seriousness of the offence must be confined to those failures particularised in the charges and then, based on what the offender actually did, taking into account, in that respect, all of the relevant circumstances surrounding the offence. 198 In this case, the charges concerning roof support and overhead fall protection refer to, as earlier mentioned, multiple failures, but nonetheless only consist, in each case, of a single offence and must be assessed as such: Manpac (at [73]). Whilst there shall be a discussion in the balance of this judgment of the respective elements of the roof support and overhead fall charges, this is only for the purposes of evaluating the particulars to the charges with a view to assessing the objective gravity of each offence and not to treat those elements as if they constituted separate offences. 199 It is also necessary to examine the precise nature of the failures of the defendants and any relevant points of aggravation or mitigation, including the particular concern raised by the defendants as to the role of the designers in contributing to the detriments to safety. Nevertheless, given some of the complexities associated with these considerations, it is appropriate to commence any review of the failures of the defendants at some level of abstraction (albeit constrained by the particulars of the charges). 200 At a most general level, the defendants failed to provide sufficient roof support to avert the risk of roof failure or rock fall and failed to protect employees by means of overhead roof support from that same risk. 201 The roof of MVT-1 in the particularised area required support by the patterned and sequenced system of rock bolts described as Type 2 Support, and not the random or spot bolting system actually employed (Type 1 Support) in order to provide for safe tunnelling operations for persons working in MVT-1; in other words, to avert the risk. The type of support chosen by the joint venture defendants resulted in no roof support (by rock bolting) actually being installed over at least the last 22m - 24m before the site of the incident (commencing from chainage 1207m - 1209m). In fact, there was no roof support at the location of the roof collapse, although Mr Shores was endeavouring to install a spot bolt. Excepting for the provision of hard hats (which were wholly inadequate to avert the risk) no overhead fall protection was provided for the crew installing rock bolts from the boom of the roadheader (or, as noted in the particulars of the charges, from barring down and scaling from the boom). 202 The charges brought under s 8 of the Act which concerned roof support and overhead fall protection are particularised as the provision, by the defendants, of an "unsafe system of work and work environment". In order to properly understand the failures of the defendants, therefore, it is necessary to identify with some precision just what was the system of work, work arrangements and work environment employed or created by the defendants in the construction of MVT-1. 203 The system of work and work arrangements employed by the defendants to construct MVT-1 derived from a web of contracts, technical specifications and drawings, work instructions and construction work practices. The system was implemented by the defendants with the advice of the designers being given as to design and construction. The system was intended to regulate the excavation of the ventilation tunnel so that it could be driven in a safe and efficient manner. The provision of adequate roof or rock support was the uppermost feature of these arrangements, as it was necessary to provide a safe system of work and a safe tunnel construction. It is clear from the originating documents, that is the specifications to the Deed, that the provision of adequate roof support was necessary for a safe construction process for the tunnel. 204 The establishment of adequate roof support was achieved principally by two main means: planning and roof support adjustment in accordance with 'as found' provisions. Adequate roof support was supplied by means of planning for safe tunnelling operations. The planning consisted of the production of design drawings for the project after exploration and investigation of the proposed site. As Mr Kotze described it, a safe tunnelling operation required the effective design of roof support systems so as to avert the potential danger of rock failure by planning for the installation of a rock bolting pattern. 205 Whilst the various specifications identified earlier in this judgment employ different language to describe the regulation of the excavation, it is, in my view, beyond doubt that those specifications, deriving, as they do, from the Project Deed (the Shaft and Tunnel and Rock Support Specifications) and the Final Report issued by the designers (the Tunnel and Shaft Rock Reinforcement Specification which was adopted as a compliance condition by the joint venture defendants in the Work Instruction : Rock Support) required the excavation to proceed in accordance with the design drawings, that is, the pattern of rock bolting specified in the design drawings of IFCs. Generally, the language is mandatory. In one case the word 'indicative' is used but the clear intention of the specifications is that the design drawings will govern the driving of the tunnel unless and until 'as found' conditions permit, in accordance with the conditions specified in the various arrangements, a variation to the design roof support (the word 'indicative' used in the Tunnel and Shaft Excavation and Primary Support Specification is used in that context, that is, the design drawings may be varied in consultation with the designer). 206 Both the specifications to the Project Deed and the Final Report provide that the roof support specified in the design drawings may be varied in accordance with ground conditions 'actually' found during the course of the excavation. The specifications permit an increase or decrease of the roof support specified in the design drawings based on 'as found' conditions. The Rock Support Specification only refers to 'additional support' being installed by the 'Company' but it is clear from both the Agreed Statement of Facts and the Tunnel and Shaft Excavation and Primary Support Specification (adopted by the joint venture defendants in the Work Instruction; Road Header Excavation) that geological conditions may result in an increase or decrease in the roof support limits provided by the design drawings. 207 The specifications for the project provide that either the joint venture defendants or the designers may alter the roof support specified in the design drawings, but the joint venture defendants may only do so in conjunction or consultation with the designers. The Tunnel and Shaft Excavation and Primary Support Specification provided that the joint venture defendants may do so 'in consultation' with the designers as the work progresses according to the ground conditions actually encountered. Consultation is defined in that specification as a "written communication between the contractor and the designer through the RFI documenting both the request from the Contractor and the recommendations received from the Designer". The instrument contemplates, therefore, a formal process if the joint venture defendants are to initiate the change. The Tunnel and Shaft Rock Reinforcement Specification required that all changes to the design documentation required certification by the designers. This is consistent with the Work Plan which imposed an obligation on the designers to provide the joint venture defendants with advice and information as to the adequacy of the design and to provide for modifications of the design in accordance with 'as found' conditions. This included the capacity to review the design with a view to its alteration where "opportunities exist to provide a more economical design or construction solution". When considered in conjunction with the Work Instructions, it is clear that a variation may not be made to the roof support provided in the design drawing unless that modification is approved by the designers. 208 Thus, the ultimate responsibility for the modification of the design conditions rested with the designers. The joint venture defendants did not have a capacity to act independently in altering design requirements. It must be steadily borne in mind that all of these arrangements were designed to provide for safe operations and that the various other processes and practices adopted, such as RFIs and Action Lists, were processes aimed at ensuring that these conditions were monitored and applied effectively at the workplace (no doubt, bearing in mind the complicated and dangerous circumstances under which the construction work was being performed). 209 In broad terms, the prosecutor was, therefore, correct to describe the IFCs drawings as representing the "default or minimum support" for tunnel operations in so far as the expression was intended to represent that the required roof support would be that specified in the design drawings unless and until the designers agreed that different support was applicable because of 'as found' conditions. However, that submission was wrong to the extent that it was suggested that the variation or modification of the roof support from the design drawing was limited to additional support or an increase in the limit.

210 The prosecutor submitted that, as an aggravating factor, "there was no instruction from [the designers] which permitted a reduction in roof support below Type 2 for the relevant chainage involved in the roof collapse". In other words, the defendants had not given effect to the system of work thereby creating an unsafe work environment. That proposition was resisted by the defendants. The resolution of that question requires a closer examination of the arrangements governing the relationship between the joint venture defendants and the designers, the practices and procedures to give effect to those arrangements and the particular implementation of them leading up to the incident of 29 July 2004. 211 The designers were engaged to provide expert advice to the joint venture defendants as to the design and construction of the project. The Consultancy Agreement provided that there would be a Work Plan developed for the project, and that the designers would manage the design process including implementation of the designers' design plan, internal verification and "informing and advising the contractor on all design issues that may impact on the project and associated risk assessment". The Work Plan established that the designers would provide the joint venture defendants' staff with "advice, modifications and information regarding the adequacy of the design as documented to reflect the 'as found' conditions" and "undertake ongoing review of the design with regards to the 'as found' conditions as the design documentation allows". 212 The particular processes and methodologies to be employed to give effect to those obligations for the excavation of drive tunnels were also set out in the Work Plan and included staff of the designers being responsible for evaluating the adequacy of the installed support after inspection of work faces and having regard to 'as found' conditions and support limitations specified in the design. The obligation extended to providing a review of the current circumstances and communicating those results to the joint venture defendants both verbally and in writing (the critical written documents, in that respect, being the Site Visit Reports and the Action Lists). This obligation also extended to providing the joint venture defendants with specific information where there existed non-conformance with design requirements and suggesting appropriate remedial action. This again included entries in the Site Visit Reports and Action Lists. It follows from this analysis that there was an intricately defined relationship between the joint venture defendants and the designers by which the designers were required to provide advice as to modifications in roof support (from the design drawings) in the light of 'as found' conditions. 213 The designers conducted daily inspections of the work face. Their observations were reported to the joint venture defendants by means of the Site Visit Reports. Any action required was communicated by means of the Action Lists. However, there was also direct interaction between the personnel of the designers and the joint venture defendants, both from working underground and occupying shared accommodation, such that any difficulties could be readily and easily communicated. All site visits were to be attended by a joint venture defendant engineer. The weekly CSS meetings were attended by staff of the designers and the joint venture defendants (the Work Plan specifies that this will be the responsibility of the Technical Director and Survey Manager of the joint venture defendants and the CSS Manager and Senior Geologist of the designers).

214 This is the context in which the contention by the prosecutor, as to the absence of 'instruction' from the designers, may be examined, having regard to the relevant acts or omissions of the joint venture defendants and the designers leading up to the incident. It should be noted, however, that the prosecutor conceded that the designers 'never informed' the joint venture defendants that the reduction in roof support was 'not approved'. (This will be considered as a mitigating factor later in the Consideration.) Further, paragraph (d) of the particulars to the charges concerning roof support seems to limit the admission in the plea to the defendant failing to "ensure that it had approval of designers" (emphasis added). In other words, the particular was directed to a failure to check or confirm that there was ongoing approval from the designer for the roof support installed after chainage 1195m in MVT-1. That consideration will also be returned to shortly. 215 It follows that the aggravating factor the prosecutor contends for in this respect is that the joint venture defendants did not have approval, permission or an instruction to reduce the level of roof support in compliance with the system or obligations described above. It is implicit in that submission that the joint venture defendants so acted from chainage 1100m because that is the chainage from which Type 2 Support was required under the design drawings but not installed by the joint venture defendants. If translated in the terms of the actual charges, the contention relates to the situation after chainage 1195m. As will be seen below, however, in order to properly analyse this contention, it is necessary to look at documents dealing with chainage earlier than 1100m. 216 The design drawings provided that Type 2 Support would be introduced from 1100m. It will be recalled the preceding roof support in the IFCs was: 960m - 1000m, Type 2 Support and 1000m - 1100m, Type 1 Support. Yet, as is now well demonstrated in this judgment, Type 1 Support was installed from 976m, with some retrospective fitting at the various chainages described in Item MVT-1-104 of the Action List in Annexure B (these retrofitted changes appear at a slightly different point in the Bolting Asbuilts, but the difference is immaterial). 217 Putting aside the retrospective adjustment to permanent support as reflected in MVT-1-104, the reduction in roof support occurred from chainage 976m to 1000m, and then again from 1100m to 1230m (at the site of the incident). By 23 June 2004, there had occurred a retrofit which increased the support level from chainage 1031m to 1044m from Type 1 to Type 2 Support. 218 The adjustment to the roof support from 976m was brought about after a site inspection and report and the entry MVT-1-103 on the Action List. Mr Carson confirmed the Action List entry had been made on 4 June 2004. 219 Before returning to the Action List, there are some other factual matters worthy of mention. The excavation of MVT-1 ceased about 27 May 2004 at chainage 1081m. The entry in the 'Complete Construction (Date)' column of Item MVT-1-103, namely, 18 May 2004, was made, therefore, at a chainage prior to 1081m. Work resumed on 23/24 June 2004 at chainage 1082m. Chainage 1100m (when design Type 2 Support was to commence) was reached on 29 June 2004. The designers consistently record after 29 June 2004 that Type 1 Support was employed during the excavation (this was previously set out in detail and includes Daily Mapping Sheets, the 15 Metre Maps and Site Visit Reports). 220 Items MVT-1-103 and MVT-1-104 of the Action List take on a particular significance because Item MVT-1-103 documented a shift from Type 2 to Type 1 Support at a particular time and chainage before the incident; there being no other documented entries of a change in roof support for MVT-1 East in any other Action List after the entry for Item MVT-1-104. Item MVT-1-104 records the Action List entry closest to the incident site at 1088m. Indeed, the interpretation of these documents was central to the debate about whether the defendant had or had not received the requisite approval of the designers to reduce the roof support. 221 The prosecutor contended that the entry of '5/18/2004' in the 'Complete Construction (Date)' column of MVT-1-103 indicated that the chainage in roof support to Type 1 had 'closed' on this date. This was said to be supported by Mr Carson's evidence and the fact that the design drawings contemplated that Type 1 Support would be reached by 1000m in any event because the design drawings provided for Type 1 Support from that chainage. Hence, beyond chainage 1000m, the support must be taken to have reverted to that shown on the design drawings. When viewed in this light, the change in support type was only for a closed period from 976m to 1000m because the design plans had already provided for Type 1 Support.

222 These are affirmative factors in favour of the prosecutor's contention, and constitute facts indicating that any reduction in roof support ended by either 1000m or 1081m (on MVT-1-104). The factors are reasonably significant because the Action Lists are important instruments to enable the proper operation of the Work Plan.

223 However, the proposition advanced by the prosecution as to these Action List entries is far from being without doubt when all relevant considerations are taken into account. This is so for the following reasons. First, Mr Carson agreed in his evidence that the entry in the 'Complete Construction (Date)' column indicated that the action "had been done" and that the date entry recorded when the observation of that act had been made. It is not clear what that entry in MVT-1-103 truly records as the action which is thereby said to be "done" by that date is recorded in the 'Action Required' column for that Item as being the commencement of (or opportunity to commence) a reduction in the permanent roof support to Type 1 Support. In the result, the entry in the 'Complete Construction (Date)' column may simply record that a reduction had, in fact, occurred. It must be remembered, in that respect, that on 18 May 2004 when the entry was made, Type 1 Support was actually being installed (according to the Bolting Asbuilts and Item MVT-1-104) at that chainage. (No rock bolts were, in fact, installed between 1056m and 1137m.) 224 The second factor which raises doubt as to the prosecutor's factual contention is the entry 'TBA' found in the 'Chainage (from) and (to)' column. The continuation of this entry in this form when Mr Carson entered '5/18/2004' on 18 May 2004 adds to the uncertainty as to what the Action List is communicating when approval is given to revert from Type 2 to Type 1 Support from chainage 976m. It is unclear just when the action is due to expire because there is a tension between the entry in the completion column and the entry 'TBA'. This is particularly so because the 'Chainage to' entry is intended to record the end point of the action (as opposed to the completion date which recorded when the action was observed to be done). 225 Thirdly, Item MVT-1-104 creates further confusion in that it specifies departures from the design drawings (both increasing and decreasing the limits) after 4 June 2004. Nothing was said in that Item as to what level of roof support was to be adopted after chainage 1080m, but the notation 'TBA' remained unaltered. In other words, on 4 June 2004 the designers saw fit to make particular variations as to permanent support up to chainage 1080m without any adjustment to the earlier entry in the same document for 30 April 2004, where a reduction from Type 2 to Type 1 Support is identified as being appropriate for an undefined chainage. The entry 'Final Support' in Item MVT-1-104 confounds the issue because it may indicate a distinction between the permanent retrofitted support identified in MVT-1-104 and support of a different character commenced after 976m and, further, that some reassessment of roof support levels after 976m may still be undertaken (the implication then being that the reduced support was to be maintained until further advised). One implication is that no need for change was identified when the further entries were made on 4 June 2004 (other than the specific alterations there nominated) and, as Mr Carson said in his evidence, he had not observed on either 18 or 20 May that there was any need to depart from Type 1 Support. 226 When read in this light, the Action List, therefore, allowed for some doubt as to when, if at all, the reduction in roof support approved from 976m in fact ended prior to the incident. It leaves open a construction that the designers intended to leave the Type 1 Support in situ after 976m, subject to specific variations advised or some future entry specifying a chainage by which the reduction would cease. This has a wider significance which will be discussed shortly but some of those considerations may be mentioned at this juncture. 227 The Action List (and Site Visit Reports) were an integral component of the Work Plan and were instruments created by the designers for their use and the use of the joint venture defendants to regulate the provision of roof support in the excavation. If the entry of the date "18 May 2004" did not 'close' the reduction in roof support (to Type 1 Support) then the presence of an unresolved cessation point for the reduction (given by the expression 'TBA') should have alerted the joint venture defendants of the need for ongoing inquiries with the designers about the appropriate level of roof support both in terms of the appropriate end point and intermediate roof support levels. 228 This is not a finding about the adequacy of communication between the joint venture defendants and the designers. This issue may have been open for consideration but I have refrained from forming a view about it because of the removal of former particular 3(e) by the further amended application for orders (concerning the roof support and fall protection charges) and the absence of a specific contention as to the system of communication by the prosecutor. Rather, the issue brings into sharper focus the failure of the joint venture defendants to make relevant inquiries with the designers about the level of roof support.

229 There is one further factor weighing against the prosecutor's contention. The increase in permanent roof support installed between 1031m and 1044m occurred during the closure of the excavation from 27 May to 23/24 June. No such direction for increased roof support was issued after 1044m or after the resumption on 23/24 June or when chainage 1100m was reached on 29 June 2004. The designers were plainly aware of the lower roof support utilised (and regularly recorded the same), but took no corrective steps, notwithstanding the more than adequate and available means of communication between the designers and the joint venture defendants then operating. Whilst not conclusive of any express consent being given by the designers, as no express advice appears to have been given after 1080m, these considerations are consistent with the designers acquiescing in the level of support applied by the joint venture defendants. 230 In his written submissions as to this contention, the prosecutor referred to evidence given by Mr Lechner before the Coroner. This evidence was not put before the Court and merely remained part of the prosecutor's written submissions. It is true that what is recorded to have been said by Mr Lechner in his coronial evidence (in the prosecutor's submission) might indicate a willingness of the joint venture defendants to alter the roof support without the approval of the designers, but the evidence does not definitively deal with the question as to whether or not the joint venture defendants had proceeded without instruction or approval in the chainages here under consideration. Likewise, it may have been contended that the absence of express approval in conformity with the rigours of the specifications may be a factor in favour of the prosecutor's contention. The difficulty with such a notion, however, is that the Action List was a vehicle by which the designers communicated changes and, of course, Item MTV-1-103 appeared on such a list (thus, technically conforming with the requirements for such communications). 231 Taking into account these competing considerations, I consider that the contention of fact raised by the prosecution as to the absence of instruction must be rejected. The prosecutor sought to prove the absence of instruction or approval as an aggravating factor. The Court may not take into account a fact adverse to the interests of the defendant on sentencing unless that fact has been proved beyond reasonable doubt: R v Olbrich at [25] and [27] and Weininger v R (2003) 212 CLR 629 at [18]. As described above, there is doubt as to whether, as a matter of fact, the defendants acted without instruction or approval. 232 It does not follow from this conclusion, however, that the Court should accept, as a fact favourable to the defendants, that they had received an instruction or approval, per se, to reduce support to Type 1 from 1195m to the site of the incident: Weininger v R (2003) 212 CLR 629 at [20]. 233 The defendants conceded that no express approval was given to install Type 1 Support after chainage 1195m, but contended that they had acted upon the bases of an absence of contradiction from the designers for this level of support and the ongoing approval given via the Action List entry, Item MVT-1.

234 So expressed, the approval relied upon by the defendants was tenuous and constituted an unsatisfactory basis upon which to install Type 1 Support for the particularised area, absent, that is, a clear, contemporaneous confirmation of the level of support from the designers.

235 There were clear dangers presented by inadequate roof support. This assessment is valid, even without the further knowledge of Mr Kotze's opinion that, from 1195m, the changed and adverse geological conditions were demonstrable and created roof instability. The joint venture defendants had clear notice of the roof support expected for the particularised area, by the design drawings, and knew that the drawings were the foundation for a safe excavation of the tunnel, so that any departure therefrom required the exercise of real care and caution (as well as conformity with the requirements of the system as to the making of such alterations). In this context, reliance upon an absence of a contradiction from the designers rather than the attainment of an express affirmative confirmation was wholly unsatisfactory. 236 Further, whilst there may have been an adequate system of communication between the joint venture defendants and the designers, the vagueness of the Action List entry relied upon by the joint venture defendants (MVT-1-103), when considered in the light of the defendants' obligations under the Act, compelled the need for regular and rigorous checking with and confirmation from the designers about the level of roof support. The Action List entry was inconclusive (on the defendants' case) in that it left open the question of just when the roof support reduction to Type 1 Support would end (by the entry 'TBA'). That alone would have dictated the need for increased care by regularly seeking verification of the adequacy of roof support installed. The rigorous requirements of the specifications, which regulated the circumstances when the roof support may be varied from the IFCs, reinforces that conclusion. In the result, by chainage 1230m, the excavation had progressed 130m with spot bolting at variance from the designed roof support which itself was based upon anticipated geological conditions and an anticipated need for higher level support. 237 The defendants failed to activate those mechanisms available under their arrangements with the designers, such as the RFIs or the weekly meetings, to query any disconformity with the design drawings. The joint venture defendants should have ensured they had a clear and express instruction or approval warranting Type 1 Support (via Action List or other means) from the designers (in contrast to MVT-1-103) to continue the lower level of roof support until the site of the incident, given that the design drawing had indicated the need for a higher level of support from 1100m.

238 As was explained in Morrison v Powercoal (2005) at [95], in the context of an underground mine, the existence of a perilous workplace places an "uncompromising responsibility on the corporate respondent to take every possible precaution that was reasonably practicable to ensure any risk to health and safety did not materialise". This statement is applicable in the present case. I broadly agree with the submission of the prosecutor that it "would never be the case, where the consequences of a risk to health and safety are so grave that employers [would] rely upon the absence of an indication from another to continue a work practice which gives rise to the risk". Particular 3(c) of the particulars of the charges in Matter Nos IRC 2572, 2573, 2574 and 2578 of 2006 is also relevant in this context. There was also a failure by the defendants (by the absence of proper inquiry with the designers) to ensure that an adequate assessment of the risk of roof collapse or rock fall had been undertaken (in circumstances where Type 2 Support had not been employed in the particularised area). 239 The defendants did concede, by their plea and admissions in the Agreed Statement of Facts and submissions, a failure to check and confirm with the designers the adequacy of the level of roof support in the particularised area was a breach of the Act. However, in the light of the foregoing discussion, such a relatively simple exposition of the detriments to safety occasioned by the defendants in these matters understates the gravity of their conduct in relation to the roof support and overhead fall protection charges. 240 This is not to suggest that the role of the designers in contributing to the risk is immaterial to the objective seriousness of the offence.

241 There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and Workcover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316. 242 The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]). 243 The Court is not equipped, in these proceedings, to conclusively determine whether the designers met their obligations to the defendants in the design and construction of MVT-1. There is a separate prosecution concerning the designers where questions of that kind may arise and it would be inappropriate for the Court to embark upon here a procedure tantamount to conducting a trial of an entity not before the Court. Any adverse observations concerning the designers must be qualified in the light of those limitations: McDonald's at 437 - 438. However, the Court is required to deal with the defendants' submissions on mitigation. With these reservations in mind, and based upon the evidence and submissions before the Court in these sentencing proceedings, the Court finds that there was a failure of the designers to carry out their obligations under the Consultancy Agreement and Work Plan, in consequence of which advice was not provided by the designers to the joint venture defendants of the impending and actual geological dangers after 1195m or the need to correct the inadequate roof support between that chainage and the site of the incident. (The reference to impending dangers refers to Mr Kotze's opinion that there existed "in-situ stresses" at about the point of the roof collapse identified by Borehole CCT142.) The failure occurred notwithstanding daily inspections (Mr Kotze identified that a competent engineering geologist should have been able to detect the risks associated with the 'as found' conditions), regular meetings with the defendants and an elaborate system of checks and balances. 244 Mr Hodgkinson submitted that, had the designers provided the advice to the defendants as required under the Consultancy Agreement and the Work Plan, the incident would have been avoided. This submission raises similar issues for the assessment of the objective gravity of the offences as was discussed by the Full Bench in Warman (at 342) and McDonald's (at 447 - 449), although in both of those cases the question raised was whether the system of work, if adhered to, would have avoided the risk or prevented the accident. 245 There is merit in the defendants' submission, in this respect, as Mr Kotze was firmly of the opinion that a cause of the roof collapse was the absence of appropriate technical intervention, namely, the absence of advice from the designers. 246 However, this consideration (which will be taken into account in favour of the defendants) must be counterbalanced against the following factors: 1. Whilst the defendants were not properly advised by the designers, the joint venture defendants retained control over the project and the administration of the system of work. They controlled the plant available to the tunnelling crew and, thereby, the method of installing rock bolting without sufficient overhead protection. They retained at all times the capacity to interrogate the designers about the roof support installed, whether the installation derived from actions taken by the joint venture defendants or advice (or lack thereof) provided by the designers. The joint venture defendants, in this sense, maintained control over a cause of the risk in the sense that they had the capacity to interact with the designers to ensure that adequate roof support was provided in the excavation and overhead fall protection installed on the roadheader. As the prosecutor submitted, "overhead protection was a significant control measure for the risks faced by the tunnelling crew whilst working on the roadheader".

2. The defendants were required under the Act to proactively search for and identify all possible risks and be diligent to ensure safety at the workplace: Atco at [85], Rexma at [52] and Coleman at [86]. It was necessary in this case to actively interrogate the designers as to the level of roof support recommended, particularly in the light of the fact that the defendants knew that they were operating under a lower roof support in the particularised area than identified in the design drawings (and given their obligations in that respect) and had received vague advice about roof reduction in the Action List entry MVT-1-103. 3. The defendants relied upon the designers to inform them whether inadequate roof support was being supplied, even though the defendants knew that assessment by the designers would be as much as 24 hours or 10m behind the tunnelling crew in the face of the excavation. This should have placed an increased emphasis on regularly interrogating the designers as to the adequacy of the roof support. In addition to this matter, the defendants had specifically considered the risk of injury from rock fall in a meeting held on 27 June 2003 and still took no steps to avert the risks.

247 It should be noted, in this same respect, that the defendants should be credited with the establishment of a system of work which had settled and detailed safety procedures and instructions, albeit that they failed in the application of that system of work in the excavation of the tunnel because of failures of the kind discussed thus far in this judgment. 248 The balancing of those factors should result in the defendants receiving a moderate reduction in the penalty which might otherwise have been imposed by the Court because of the role of the designers in contributing to the detriments to safety herein under consideration. 249 Before turning to other factors which involve the objective seriousness of the offence, reference must be made to that aspect of the charges concerning overhead fall protection. It is suffice to say that, in this respect, there was a known hazard of injury from rock (or roof) fall about which the defendants took no adequate remedial steps by the installation of overhead fall protection until after the incident. 250 There are a number of other factors which increase the objective seriousness of the offences concerning roof support and overhead fall protection. These are as follows:

1. The occurrence of death (and the prospect of serious injury) in this case does manifest the seriousness of the relevant detriment to safety. The breaches in this case involved every prospect of a serious consequence. This issue is common to both the roof support and overhead fall protection components of the charges concerning those matters; 2. The risk to safety was reasonably foreseeable. The Court has not taken into account, in this respect, the abstract consideration that an absence of adequate roof support would result in an obviously foreseeable risk to safety. If the analysis were approached in this way, the Court may have concluded that the defendants actually foresaw or knew of the risk to safety occasioned. It was, however, reasonably foreseeable that a failure to adequately check the level of roof support with the designers may result in an inadequate assessment as to the proper level of roof support and, thereby, the prospect of roof collapse. This is true as a general proposition. The position is a fortiori when regard is had to the defendants' knowledge of the excavation proceeding with a roof support less than the design drawings and where the defendants also knew that the level of roof support was under constant review in the light of 'as found' conditions. In these circumstances, it was highly foreseeable that inadequate checks could lead to inadequate roof support not being detected. In relation to the overhead fall protection, it must be concluded that it was highly foreseeable that an absence of such protection may expose employees to the risk of being hit by falling rocks or roof. (In fact, documents produced by the defendants show the defendants knew of the risk and the need for overhead fall protection, but took no steps before the accident to eliminate the risk.) 3. Simple remedial measures were available. I agree with the prosecutor's submission that it was open to the defendants to raise with the designers at post site visit meetings and by way of RFIs whether it was appropriate to install Type 1 Support instead of Type 2 Support as indicated in the IFCs. Further, whilst there was, according to Mr Kotze, a greater inconvenience in installing Type 2 Support rock bolts, the defendants affected that adjustment (to Type 2 Support) reasonably rapidly after the accident (and had earlier done so (as recorded in MVT-1-104) after the excavation had temporarily ceased from 27 May. In respect to the overhead fall component of the charges, it is clear, from steps taken after the incident, that the installation of FOPS was a simple remedial step available to the defendants. In this respect, the Court notes that steps taken after the accident are also applicable to the assessment of the objective seriousness of the offence by illustrating what measures may have been taken by the defendants before the incident: McDonald's at [439] and Kembla Coal and Coke at [27]. 251 There are two other considerations relevant to the objective seriousness of the offence. The first is the maximum penalty for the offences. In the case of Bilfinger Berger and CCT, the maximum penalty applicable for the offences charged was $550,000. In the case of Baulderstone Hornibrook, the maximum penalty applicable for the offences charged was $825,000. 252 The second consideration is deterrence. There can be no question, as the defendants properly conceded, that general deterrence is applicable in relation to these offences. Here it is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the construction industry and, particularly those engaged in tunnelling, of the necessity to engage in tunnelling practices that conform with all of the requirements of the Act, and, in particular, the necessity to be pro-active in preventing roof collapse (whether consultants are engaged or not) (see the counterpart observation for the mining industry in Morrison v Powercoal (2003) at [101]). This is a significant factor in this matter. 253 In accordance with earlier stated principles, specific deterrence should also feature in the penalties for the joint venture defendants. They are large enterprises which will continue to operate in dangerous industries. Specific deterrence will not feature in the penalty for CCT as it has ceased to operate and there is no intention to re-establish the company in another capacity. 254 Even when confined to the particulars of the charges and the particular acts and omissions of the defendants, and making due allowance for mitigating factors, in the light of the foregoing discussion, the offences concerning roof support and overhead fall protection in these matters must be considered, when viewed objectively, as serious. 255 The remaining charges concern the 'handrail' offences. Very little was put by either party in this respect. The charges may be summarised as a risk of a fall because of the removal of handrails in order to conduct some tunnelling operations. The fall risk was over 2m and posed a risk of serious injury. The risk was reasonably foreseeable and simply remedied by instruction or refitting procedures. General deterrence is applicable as is specific deterrence for the joint venture defendants, although deterrence is a significantly lesser feature of those charges. These offences are significantly less serious than the offences concerning overhead fall protection and roof support, and the parties appeared to approach these charges in that light. 256 I now turn to the subjective features of the matter. 257 The steps taken by the defendants following the incident are a relevant factor in mitigation: Rexma at [24] and Tippett at [107]. Following the roof collapse, the defendants took extensive steps to remedy the risk to safety within MVT-1. This included the refit of Type 2 Support, the installation of a certified FOPS system; the removal of the platforms from the boom of the roadheaders and installation of the guard rails. Although these steps were available to be implemented prior to the incident (and have been earlier considered in the context of determining objective seriousness), the defendant should be commended for these measures as they were effective remedial steps that addressed the risk to safety in the tunnel. 258 The defendants have also worked diligently to improve their overall safety performance and have introduced a number of safety initiatives since the incident, including the introduction of PASS, a Positive Attitude Safety System that evaluates the performance of work crews and raises safety awareness as part of workplace culture. I accept that that the defendants have demonstrated a strong commitment to workplace safety and that this is also a factor to be taken into account in their favour: Morrison v Powercoal (2005) at [109].

259 The assistance provided to the family of an injured worker is another relevant factor in mitigation: Corinthian Industries at [17] and Powercoal (2005) at [112] and [114]. The defendants provided considerable assistance and support to Mr Shores' family, for which they should be entitled to some benefit. The defendants arranged counselling and assisted in the organisation of funeral arrangements. The defendants paid the costs of two funerals, one in Sydney and one in New Zealand, which senior management and project team members attended. The defendants, in consultation with Unions NSW and the Australian Workers' Union, also established a trust fund (for which the defendants contributed $200,000) for the education and welfare of Mr Shores' children. 260 I also accept that the defendants have demonstrated contrition and remorse over the incident: Alcatel at 107 - 108; Morrison v Powercoal (2005) at [111]; Challita at [39]; Rexma at [53] and McDonald's at 454. The conduct of the defendants following the incident and the express statement of contrition and remorse by Mr Christopher Reynolds demonstrate the defendants have accepted that their action or inaction resulted in the death of Mr Shores. 261 A related consideration is the co-operation by the defendants with the WorkCover Authority of New South Wales: Gleeson at [30]; Challita at [39] and Rexma at [53]. This is a factor which can be taken into account for corporations: Alcatel at 107 - 108 and McDonald's at 453. I accept that the defendants co-operated with WorkCover and its investigation and should, accordingly, be entitled to a discount. 262 The next consideration is the discount which should be afforded the defendants for the entry of a plea of guilty. 263 The defendants entered pleas of guilty on 5 August 2008 after prosecutions concerning a number of personal defendants were discontinued and leave was granted to amend the charges originally brought before the Court. At that stage, the matters were not set down for trial but had a long history of directions before Staunton J. The matters were, thereafter, programmed for sentencing, proceeding largely on the basis of agreed facts. After further amendments (amending particular 3(d) and deleting particular 3(e) of the roof support and fall protection charges), the matters proceeded entirely upon the basis of an Agreed Statement of Facts and uncontested affidavit and documentary evidence. 264 The prosecutor submitted that, in the light of that history, there is no reason why the Court should not treat the pleas as being entered at the earliest opportunity. 265 I consider that the defendants should have a discount on sentence for their pleas of guilty at the top of the range referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 383. (I note that the judgment of the Full Bench in Ridge at [37] required that, after the judgment in R v Sharma [2002] NSW CCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act.) 266 My reasons for this conclusion are as follows: 1. The pleas were not entered at the first listing (or even after numerous call overs). However, the pleas were entered immediately upon the particulars of charges being amended. That was prior to any trial being fixed: Thomson (at [154]). The particulars to the charges were altered so as to amend or eliminate elements after negotiations between the prosecutor and the defendants. This enabled the reduction (and after the further amendments to the roof support and fall protection charges, the elimination) of evidentiary contests in the proceedings (although, clearly, there were disputes about the proper conclusions to be drawn from the accepted facts) and a narrowing of factors applicable to the objective gravity of the offence: Cameron v The Queen (2002) 209 CLR 339 at [23] - [24] and R v Gorman (2002) 137 A Crim R 326 at [64] (although there was no reduction of the charges, per se, in this case) (see also Inspector Sharpin v Buildcorp Australia Pty Ltd [2005] NSWIRComm 372 at [38] and Inspector Morrison v Cumnock No 1 Colliery Pty Ltd [2004] NSWIRComm 151 at [13]). The pleas can, therefore, be treated as having been entered, in my view, at the first reasonable opportunity: Cameron at [23] - [25]. 2. The second factor identified in Thomson at [154] has some real significance here. Having regard to the factual circumstances under consideration in these matters, it may be reasonably concluded that any trial would have been both complex and resulted in lengthy proceedings. 267 The defendants shall receive a discount of 25% for their pleas of guilty.

268 I note that both Bilfinger Berger and CCT (which has since ceased to operate) have no previous convictions and accept they are of good industrial character: Corinthian Industries at [17]; Morrison v Powercoal (2005) at 107; and Tippett at [107].

269 Mr Hodgkinson contended that, although Baulderstone Hornibrook had a prior record, it was also of good industrial character. I note that there have been two convictions before the Chief Industrial Magistrate in 1992 and 2003, with fines of $2,000 and $15,000 being imposed respectively. Baulderstone Hornibrook also has a conviction before this Court in 2005 in WorkCover Authority (Inspector Carmody) v Baulderstone Hornibrook Pty Ltd [2005] NSWIRComm 43. That matter concerned the toppling over of a crane, which resulted in the amputation of an employee's leg. Marks J found the offence objectively serious and imposed a fine of $97,500.

270 The record of the defendant Baulderstone Hornibrook is plainly not unblemished. However, in light of its size, length of operation and the dangerous industry in which it operates, I consider the record of Baulderstone Hornibrook to be reasonably good: Haynes v C I & D Manufacturing (No 2) at 456 - 457 and WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of State of New South Wales (Department of Education and Training) (2001) 112 IR 1 at [61]. SECTION 115 ORDERS

271 The final matter requiring consideration before turning to the question of penalty is the application made by the prosecutor for an order under s 115(1)(a) of the Act requiring the defendant to publicise the offence. The terms of the proposed order are contained in Annexure A to this judgment and are consented to by the defendants. 272 The making of an order under s 115 of the Act is discretionary: Workcover Authority of NSW (Inspector Mansell) v Chen (2004) 137 IR 33 at [59] ('Chen'). A central purpose for the making of an order under s 115 is deterrence. This was described by the Full Bench in Chen (at [55]): It is apparent that the legislature intended to make provision for offences and penalties imposed to be publicised or notified in a way that brought to the attention of relevant persons or classes of persons the existence of the offences dealt with by the Court and the nature of the penalties imposed. Undoubtedly, such an order, once effected, would have the impact of drawing attention to the defendant's offending behaviour and act as an ongoing deterrent to influence the offender to address attention to workplace health and safety in an ongoing and proactive manner in order to avoid the adverse consequences that such publicity or notification may bring to the offender's corporate reputation. As well, it may deter potential offenders to be more alert to their health and safety obligations. 273 The judgment of Lloyd J of the Land and Environment Court of New South Wales in Environment Protection Authority v Pannowitz [2005] NSWLEC 175 is also relevant. In that matter his Honour considered an application by the prosecutor for a publication order pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997. His Honour formed the view that there was a real need for general deterrence in that matter and that a publication order was "necessary to achieve the required general deterrence". I agree with his Honour that publication orders may be made for this purpose. That approach is entirely consistent with the judgment in Chen.

274 I consider that the Court should make a publication order under s 115(1)(a) in terms of Annexure A to this judgment, as amended to include the total sum of the fines imposed on each defendant. In that respect, I consider the prosecutor is correct in submitting that a significant factor in the exercise of the discretion to make such an order is the agreement of the parties to the same. Further, the proposed order conforms with the objectives of the Act and, in particular, the objectives of s 115(1). The application is properly supported by details of the order and grounds in support of the same (see Chen at [59]). 275 Having determined that it is appropriate to make the s 115 order, it is then necessary to deal with the defendants' submission that the making of the order is a matter to be taken into account in determining the penalty that the Court will impose upon them. The prosecutor submitted that the making of a s 115 order has "nothing at all to do with the penalty that the Court imposes upon the defendant". The prosecutor's submission, in this respect, is founded upon the construction of s 112(2) of the Act and two authorities of this Court: Workcover Authority (NSW) (Inspector Short) v Crown in the Right of the State of New South Wales (NSW Police) (2007) 164 IR 198 and Cahill v State of New South Wales (NSW Police) (No 2) [2005] NSWIRComm 400. 276 It may be readily accepted, as submitted by the prosecutor, that the provisions of s 112 require that the making of any order under s 115 is not in substitution for or an alternative to a penalty. The provisions of s 112 do convey the concept that the making of an order under Div 2 of Pt 7 is cumulative upon, or extra to, a penalty. This construction is entirely consistent with the authorities in Cahill and Inspector Short v In the Right of the State of New South Wales (NSW Police) although those matters concerned an application to make an order under s 116 of the Act in lieu of a fine. 277 The question remains, however, as to whether the making of an order under the relevant Division is constrained by the operation of s 112 to such an extent that the making of a s 115 order could in no way act to diminish penalty, even if the publication order achieved aims which were in common with aspects of the sentencing process, such as general deterrence, or might itself become a relevant factor in the sentencing process such as a demonstration of co-operation with the WorkCover Authority or contrition. 278 In Environment Protection Authority v Nalco Australia Pty Limited [2007] NSWLEC 831 at [27], Lloyd J found that the defendant, by agreeing to a publication order, had demonstrated contrition. He did not indicate explicitly whether such a conclusion would result in a diminution of penalty. Similar considerations, as to whether the penalty may be reduced in consequence of the making of a consent publication order, might arise in cases where there arises an overlap with factors taken into account in the assessment of the objective seriousness of the offence (such as deterrence) or in the assessment of subjective factors, such as cooperation with the WorkCover Authority. It should also be noted, in this respect, that there is a difference between s 244 of the Protection of the Environment Operations Act 1997 and the Act in that the former Act contains an additional sub-section, s 244(3), which provides that "orders may be made under this part regardless of whether any penalty is imposed, or other action taken, in relation to the offence".

279 It is unnecessary for me to resolve this issue in these matters. This is because I have formed the view that, if a power existed to take into account the publication order for the purposes of diminishing penalty, in the present case I would decline, in the exercise of the Court's discretion under s 115(1), to do so. I consider that deterrence is of particular importance in the matters before the Court concerning roof support and overhead fall protection and that the making of the publication order is a necessary additional step to sufficiently provide a general and specific deterrent with respect to those offences. In this case, deterrence will only be adequately achieved, in my view, by the penalty fixed and its communication and dissemination by the making of a publication order. Rather than diminishing the deterrent feature of the penalty given, it should be supplemented by a publication order. I accept this situation may not exist in all prosecutions brought under the Act, in which case the issue raised by the defendants will require resolution. I agree that the defendants' agreement to the publication order does indicate contrition and remorse on their part, but I have already accepted the defendants are contrite and remorseful from other aspects of their conduct (earlier referred to in this judgment) and have given full measure in this respect.

TOTALITY, PARITY AND PENALTY 280 I turn now to consider the principle of totality. The principle was addressed by the Full Bench of this Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 ('Keenan') where the Full Bench held (at [34] and [35]: 34 In Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 (a case decided before Pearce ), a Full Bench of this Court treated the fact that different offences have strong connecting features as supporting the application of the totality principle. In that case, the Full Bench considered the appropriate penalties for a defendant convicted of five offences under the Occupational Health and Safety Act (under both sections 15(1) and 16(1)), and one offence under s 27(1) of the Factories Shops and Industries Act 1962. Those offences arose out of four accidents and one inspection at the defendant's premises. The Full Bench stated (at 339) that: There were in our view clear features connecting a number of these events to each other. The first prosecution concerned a sheet metal rolling machine, which would appear to stand alone. The second and third prosecutions both related to the use and fencing of a fast loop moulding machine. The fourth prosecution related to a table mounted circular saw of some age which was sought to be replaced after the relevant accident by a new saw which itself, although freely available on the market, had two identified safety weaknesses which led to the fifth and sixth prosecutions. This inter-relationship seems to us to satisfy with considerable ease the proposition involved in the principle of totality that there be some similarity in the offences. 35 Subject to one consideration, that judgment reflects an appropriate application of the principle of totality, reflecting the need to avoid excessive punishment and to avoid "double punishment" for common elements of multiple offences. The last sentence of the passage cited, however, which seems to limit the circumstances in which the principle of totality is to be applied, appears to state the principle too narrowly and may well require reconsideration in subsequent Full Bench proceedings. See, for example, the judgment of the Court of Criminal Appeal in Close (1993) 65 A Crim R 55 at 59-60 where Hunt CJ at CL stated: Whenever sentences are accumulated, careful consideration must always be given to the principle of totality - as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved: Glenister [1980] 2 NSWLR 597 at 612; Holder and Johnston [1983] 3 NSWLR 245 at 260-261; (1983) 13 A Crim R 375 at 389-390. That principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences: L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168; Bakhos (1989) 39 A Crim R 174 at 176, 177-178; Harrison (1990) 48 A Crim R 197 at 198-199. It was clearly relevant in this case. In such circumstances, all of the sentences which are accumulated should usually be adjusted downwards in order to produce an acceptable total sentence.

A similar approach was taken by Sheller JA at 56-57 and by Sully J at 70. However, this appeal does not require for its determination the resolution of that issue. 281 The issue referred to in paragraph [35] of Keenan does not appear to have been given further specific consideration. 282 In the current proceedings, I am satisfied that charges in Matter No IRC 2572 of 2006 and Matter No IRC 2573 of 2006 contain common elements as discussed in Keenan and that, accordingly, the principle of totality should be applied for each of those offences. No party suggested that the principle of totality should be applied to those charges concerning a failure to install guardrails when considered in the light of the remaining charges concerning roof support and overhead fall protection. I propose to approach sentencing on that basis as it does not appear there were sufficiently common elements between those two classes of charges. In the absence of an invitation to do so, I do not propose to revisit the question left open in Keenan which, in any event, should be considered by a Full Bench of the Court. 283 The defendants should be sentenced in accordance with the relevant principles of parity and consistency as applied in this jurisdiction. The principles were considered in Capral Aluminium as follows (at [62] - [63]): 62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103): Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 … 63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range... 284 As between the joint venture defendants, it is accepted by the parties that their culpability is equal in respect to the objective seriousness of the offence and the subjective features are very similar. However, the penalty for Bilfinger Berger should be less by virtue of it being a first offender and the lower maximum penalties for the offences it faces: Daly v Smith [2006] NSWIRComm 111 at [75]. However, the penalty for Baulderstone Hornibrook should allow for the Court's earlier observations about its prior record and relatively good industrial citizenship. 285 As to CCT, the defendants submitted it was less culpable than the joint venture defendants in respect of all charges. The prosecutor agreed with this submission, at least so far as it concerned minimum roof support, but contended that CCT's culpability was equal to the joint venture defendants in respect of the failure to install FOPS. I agree with this contention by the prosecutor. Whilst CCT plainly played a much lesser role in the system for the provision of roof support, it employed persons to work on equipment which exposed them to the risk of rock fall by the absence of overhead protection. The same conclusion follows for the guardrail charges. It follows, nonetheless, that the objective seriousness of the offences concerning CCT are less than the joint venture defendants. As to subjective factors, CCT is in the same position as Bilfinger Berger, a first offender, but no element of specific deterrence will feature in the penalty for CCT.

286 Before turning to the application of those principles it is necessary to return briefly to a consideration of the objective seriousness of the offences and the subjective factors. 287 The penalty which I shall give in this matter shall make due allowance for the strong subjective factors in favour of the defendants (referred to earlier in this judgment). However, as discussed in some detail earlier, the Court must ensure that those considerations do not produce a sentence which fails to sufficiently take into account the objective gravity of the offence. In this matter, the objective factors associated with the charges concerning roof support and overhead fall protection are significant and call for the imposition of a substantial penalty. It is unnecessary to repeat the earlier assessment of the detriments to safety occasioned by the defendants. It is suffice to say, by brief addition, that the detriments to safety occasioned by the defendants resulted in the provision of inadequate roof support in an already dangerous working environment. So inadequate were the procedures taken that only spot bolting was applied by the defendants in the particularised area (resulting in no rock bolts being installed over some considerable distance prior to the incident). In the result, there was an avoidable and tragic death of a man and the exposure of many others to the risk of serious injury. This manifested the degree of seriousness of the risk to safety.

288 Having regard to these considerations, I consider that the following penalties are appropriate. In the case of Bilfinger Berger, the appropriate penalties are: in Matter No IRC 2574 of 2006 a fine of $203,775 and in Matter No IRC 2777 of 2006 $53,625. In relation to Baulderstone Hornibrook, the appropriate penalties are: in Matter No IRC 2572 of 2006 a fine of $284,212; in Matter No IRC 2573 of 2006 a fine of $284,212 and in Matter No IRC 2776 of 2006 a fine of $80,437. 289 Having regard to the principle of totality for Matter Nos IRC 2572 and 2573 of 2006, the appropriate total fine, having regard to the overall criminality, should be $300,000. As the criminality is equal for those offences, the fines to be imposed in relation to each of those offences are: in Matter No IRC 2572 of 2006 a fine of $150,000 and in Matter No IRC 2573 of 2006 a fine of $150,000. 290 In relation to CCT, the appropriate penalties are: in Matter No IRC 2578 of 2006 a fine of $150,150 and in Matter No IRC 2775 of 2006 a fine of $53,625.

291 There is no issue between the parties as to moiety or costs and orders will be made accordingly.

292 For all of the reasons given, I make the following orders: 1. The defendants are convicted of each offence; 2. The defendant Bilfinger Berger AG is fined the following amounts: Matter No IRC 2574 of 2006 $203,775 Matter No IRC 2777 of 2006 $53,625

3. The defendant Baulderstone Hornibrook Pty Ltd is fined the following amounts: Matter No IRC 2572 of 2006 $150,000 Matter No IRC 2573 of 2006 $150,000 Matter No IRC 2776 of 2006 $80,437

4. The defendant Cross City Tunnel Pty Limited is fined the following amounts: Matter No IRC 2578 of 2006 $150,150 Matter No IRC 2775 of 2006 $53,625 5. In each case, one half of the fine is to be paid as a moiety to the prosecutor; 6. Baulderstone Hornibrook Pty Ltd shall take action to publish a notice in accordance with Annexure A to this judgment; 7. The defendants are to pay the prosecutor's costs, as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. __________________________

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.