McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd

General background

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

The organisation of drill and blast activities at the Mine

1. Drill and blast activities took place at the Mine seven days per week, but blasts were not permitted to be detonated on Sundays. OC4 had two blast crews (support A crew and support B crew), each consisting of personnel including appointed shotfirers, bench hands and dippers.
2. Shotfirers were required to hold a Blasting Explosives Users Licence (BEUL) issued by SafeWork NSW. In order to qualify for a BEUL, a shotfirer was required to complete a recognised training course, have relevant experience, have a security clearance known as an Unsupervised Handling Licence (UHL) and to pass written and oral examinations conducted by the New South Wales Resources Regulator (the Regulator). A BEUL entitled a shotfirer to use and prepare for use an explosive or explosive precursor: ss 3 and 6 Explosives Act 2003. The recognised training course completed by all but one of the shotfirers in this case was conducted by Orica Limited (Orica). The content of that training course is relevant and I will return to it later.
3. MCO had an additional process of "appointing" shotfirers, which was an acknowledgement by Mine management that the person was suitable to perform the duties of a shotfirer at the Mine. The appointment set out the duties and responsibilities of a shotfirer, which were acknowledged by the appointee signing the appointment document (appointment) in the course of an interview with the statutory Mine Manager where it was established on behalf of MCO that the appointee understood the requirements of the role. MCO also applied this process to other positions held by members of the blast crew, such as blast guards, magazine keeper and the blast controller.
4. Shotfirers were responsible for a blast area from the time that it was delineated until after the blast was detonated and the shotfirer had inspected the blast area for misfires (undetonated explosives) and gave the all-clear. During the course of preparation of the shot, only persons authorised by the shotfirer could enter the blast area.
5. Bench hands acted as assistants to the shotfirers in completing the work necessary to fire a shot. MCO had a requirement that all members of the blast crews hold a UHL. A number of the bench hands at MCO were qualified shotfirers but did not hold an appointment to act as a shotfirer from MCO.
6. Dippers measured the depth of the drill holes to determine the amount of explosives required for each hole. Dippers also gathered relevant information about the hole which may affect the blast, including the amount of water in the hole, if the sides of the hole were damp, if the hole was blocked or short as well as any hazardous ground conditions.
7. The holes were loaded with explosives by workers employed by Orica, the Mine's explosives supplier at the time of the incident.
8. The blast crews worked alternately on a roster of 14 x 12-hour day shifts per month. The day-to-day work of the blast crews was supervised by the Drill and Blast Co-ordinator, Darren Price. Mr Price was responsible for conducting the daily pre-start meetings for the blast crews. Mr Price reported to the Drill and Blast Superintendent, Mr Fisher. On the weekends, the designated shotfirer supervised the blast crew and reported to the Open Cut Examiner (OCE).
9. Mr Price also held the position of Blast Controller. The Blast Controller was responsible for clearing the PEZ prior to the shot being fired. This involved the following actions: 1. appointing blast guards and deciding where to position them; 2. holding a blast guard meeting about 30 minutes before a blast to explain where he wanted them positioned; 3. taking control of radio communication immediately before a blast; 4. driving around the PEZ to ensure that it was clear of people; and 5. handing control of the shot to the shotfirer once he was satisfied that the PEZ was established and cleared of personnel.
10. The Drill and Blast Engineer, Mr Chaplin, was responsible for the design and planning of blasts at the Mine to ensure that they could be conducted safely and to achieve the desired production results. At the time of the incident, Mr Chaplin provided his professional services through a company operated by him, that had a contract with MCO.
11. At the time of the incident, the Mr Fisher and Mr Chaplin reported to the Technical Services Manager, Nick Craig.
12. Mr Craig reported to the statutory Mine Manager, Tim Oliphant. Steve Archinal was the General Manager and the most senior MCO employee at the Mine.

The process of firing a shot

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

Blast Design

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

Drilling

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

Delineation of the blast area

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

Priming

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

Charging

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

Stemming

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

Tying up

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

Guarding the blast

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

Firing

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

Inspection for misfires

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

The safety procedures at the Mine

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

The Safety Management System

1. As at 17 May 2017, MCO had in place a documented Safety Management System (SMS) to satisfy its obligations under clause 13 Work Health and Safety (Mines and Petroleum Sites) Regulation 2014.
2. The SMS was an umbrella policy describing MCO's broad aims for the safe operation of the Mine, the arrangements for managing risk at the Mine and the systems and procedures in place to control risks to health and safety at the Mine.
3. The SMS states that the first objective of the "Yancoal Way - Our Values" is "to improve safety toward the achievement of zero harm" and that the Yancoal Way requires adherence to the guiding principles that included: Be Safe safety is not optional. It is considered in everything we do to eliminate harm to our people. Safe people Safe practices Safe plant Safe environment Everyone is responsible [1]
4. Clause 4.3 of the SMS sets out the Yancoal Code of Conduct for employees and contractors, that includes the following relevant matters: 1. Generally - it is the employee's/contractor's responsibility to comply with the Code of Conduct. 2. Compliance with laws and regulations - You must be aware of, comply with, your duties and obligations under all laws and regulations relating to your work. 10. Occupational Health and Safety - Yancoal is committed to maintaining a healthy and safe working environment for its employees. All appropriate laws and internal regulations (including occupational health and safety laws) will be fully complied with. All people have obligations to assist in ensuring that this situation is maintained at all times. [2]
5. The SMS stated the SMS Framework Hierarchy to be: 1. Values, 2. Yancoal Code of Conduct, 3. Yancoal Policies and Standards and 4. Moolarben Policies, Plans and Procedures.

Training

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

Induction

1. Each worker was required to undergo safety induction training when they commenced work at the Mine, as either a contractor or as an employee of MCO. The induction program took 3 days to complete and covered a number of topics.
2. Induction training included training on the Yancoal Health and Safety Policy (the HS Policy). The HS Policy provided that Yancoal was committed to "zero harm" and providing a "safe and healthy work environment". The HS policy required, inter alia, a collective effort to: 1. Look after each other. 2. Identify hazards and manage risks. 3. Implement and validate an effective documented health and safety management system. 4. Consult, co-ordinate and communicate with all stakeholders.
3. Induction training also included training on the Yancoal Code of Conduct and the MCO Code of Conduct. The Yancoal Code set out the general requirements of all Yancoal employees. The MCO Code set out the actions and behaviours required of MCO employees. The content of the Codes overlapped.
4. Compliance with each Code was stated to be mandatory. The Yancoal Code required compliance with Yancoal Occupational Health and Safety Policies and Procedures and any duties and obligations imposed on an employee by law. The Yancoal Code stated that non-compliance could lead to disciplinary action in accordance with the Yancoal Disciplinary Procedure.
5. The MCO Code provided that activities were to be conducted safely, through compliance with systems in place to control workplace hazards. The MCO Code stated that non- compliance with it could lead to termination.
6. Workers were also trained during the induction process and from time to time on how to identify risks and the procedures that could be used to do so, including the completion of PRIDES and the Job Safety Analysis Procedure (JSA). Workers were trained that they could and should stop work if they identified an unsafe situation and seek input from a supervisor.

The Communication and Consultation Procedure

1. The purpose of the Communication and Consultation Procedure (CC Procedure) was stated to support safety initiatives at MCO. The CC Procedure set out when consultation was to occur, which included the conduct of risk assessments, and during the identification of hazards and control measures. The CC Procedure stated at 4.4: Workers will be given opportunities to participate in risk assessments, comment on draft versions of the safety management system and provide feedback to safety committee members regarding health, safety and environmental matters. At all times the safety management system will be available to workers for review and comment.
2. The CC Procedure encouraged "open and honest participation" by workers in the creation of "a safe and effective workplace".

The Safety Observation Procedure

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

The Blast Guard Duties Procedure

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

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

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

Explosives System Audit

1. On 25 and 27 October 2016, Inspectors Jeff Hanlon and Steve Bath, from the Regulator, undertook an Explosives System Audit (the Audit) at the Mine. Inspector Hanlon was responsible for Explosive Security at the Regulator and had developed the audit document for use at mines undertaking drill and blast activities. The Audit was conducted by Inspector Hanlon putting the information provided to him by the relevant workers at the Mine into the document and then determining what remedial actions were required to be undertaken for the Mine's drill and blast activities to be compliant with the relevant legislation. Inspector Hanlon also made a number of suggestions to make the drill and blast activities safer. The audit document identified that Inspector Hanlon sought and obtained information from Grant Arnold, MCO's Health and Safety Co-ordinator, Mr Oliphant, Mr Craig, Mr Fisher, Mr Price, and Mr Chaplin.
2. Inspector Hanlon issued a prohibition notice dated 2 November 2016 pursuant to s 195 of the Act, directing that all charging and firing operations were to cease until there was evidence provided to the Regulator that members of the shot crew were trained and competent in the Explosives Management Plan (EMP) and all associated shotfiring procedures for the Mine. The relevant procedure at that time was the Charging and Firing of Explosives Safe Work Procedure dated 3 February 2012 (CFE-SWP).
3. Inspector Hanlon also issued three improvement notices dated 1 November 2016 pursuant to s 191 of the Act, stating that: 1. MCO's blasting procedures were out of date; 2. there was no evidence that a risk assessment had been undertaken for the development of the EMP; 3. there was no evidence of the persons consulted for the preparation of the plans and procedures; 4. there was no evidence of how the EMP had been communicated to the workers.
4. The improvement notices required MCO to take remedial steps on or before 31 January 2017.

Training on the CFE-SWP

1. On 2 November 2016, support crew B were provided with training on the CFE-SWP and the BMP. Their competency on the CFE-SWP was assessed by way of a written assessment. I pause to note that the PEZ (500m) and the EEZ (300m) were the same in the CFE-SWP as they were in the CFE Procedure that was adopted in about February 2017.
2. On 3 November 2016, Mr Oliphant sent the training records of support crew B by email to Inspector Hanlon, to demonstrate those workers had been trained on the CFE-SWP and all other procedures relating to drill and blast activities.
3. On 4 November 2016, Mr Oliphant sent the training records of support crew A by email to Inspector Hanlon, to demonstrate those workers had been trained on the CFE-SWP and all other procedures relating to drill and blast activities.
4. On 4 November 2016 Inspector Hanlon advised Mr Oliphant by email that the prohibition notice had been satisfied.
5. I reject the prosecution submission that the lack of training records meant that the workers had not been trained on the requirements of the CFE-SWP. Inspector Hanlon's evidence was that at the time of the Audit, he believed that the blast crews at the Mine were competent and had been trained in the CFE-SWP but there were no records to substantiate that they had received that training. Inspector Hanlon's opinion was confirmed by the evidence of the members of the blast crew that they had been trained on the CFE-SWP and that they understood the requirements for the PEZ and the EEZ in that document, mainly because those requirements did not change in the later CFE Procedure.
6. Further, the workers were trained multiple times on the requirement to establish the PEZ and the EEZ in the period of November 2016 to May 2017. I am satisfied that all members of the blast crew knew of the requirements of the PEZ and the EEZ on 17 May 2017. Accordingly, even if the workers had not been trained on the CFE-SWP prior to the Audit, which I do not accept, it is of no consequence.

The STAC Consulting Pty Ltd Risk Assessment

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

The Explosives Principal Control Plan

1. The EPCP was amended following the completion of the Risk Assessment.
2. The EPCP relevantly provided that: 1. The Drill and Blast Engineer was responsible for blast design and required to give consideration to the control of flyrock, to ensure that it did not present a risk to people, as well as the minimisation of fumes. 2. Holes were to be loaded in accordance with the blast design. 3. Priming, loading and stemming were to be undertaken in accordance with the CFE Procedure. 4. Blast holes were to be tied in accordance with the shot initiation design. 5. Other controls were to be included in the CFE Procedure.

The Charging and Firing of Explosives Procedure

1. The CFE Procedure was referred to in the EPCP and was introduced at about the same time following the Risk Assessment. It replaced the CFE-SWP that had been in force since February 2012.
2. The first version of the CFE Procedure was issued in about December 2016.
3. The version of the CFE Procedure in force on 17 May 2017 was issued on 20 February 2017.
4. The CFE Procedure stated that it applied to "all personnel conducting blasting operations at Moolarben Coal Operations - Open Cut".
5. The CFE Procedure set out, in chronological order the steps to be taken and procedures to be followed for a blast to occur. The relevant steps and procedures were referred to at clauses 4.10.5 - 4.10.8, which are set out as follows: 4.10.5 Establishing the Blast Clearance Zone The Drill & Blast Engineer will establish the blast clearance and fume management zone. The Drill & Blast Coordinator in conjunction with the shotfirer, is responsible for determining blast guard locations. Wind direction and speed, equipment and personnel working in the area and flyrock are to be considered when establishing the blast guard locations. All accesses to be guarded and the number of blast guards required are to also be included on the plan. Minimum blast exclusion zones are: Personnel - 500m Equipment - 300m For any blast, the blast exclusion zone may be extended if an assessment is made regarding the shot or ground conditions. Examples include misfires, reduced burdens, overloaded holes and fume. 4.10.6 Blast Controller The Blast Controller is ultimately responsible for ensuring that all personnel and equipment have been cleared from the blast and surrounding areas and is in a safe position prior to and during the firing of the shot. Prior to the blast guard meeting the blast controller is responsible for: Establishing and maintaining the security of the blast perimeter Checking the security of the blast exclusion zone prior to handing control of the blast area to the shotfirer. Placing blast guard signage is placed (sic) around the blast exclusion zone at the designated blast guard locations. Checking that equipment is located outside the 300m blast exclusion zone as a minimum Carrying out the pre blast meeting. 4.10.7 Blast Guards and Pre-Blast Meeting Blast guarding activities will be conducted in accordance with Procedure - Duties of a Blast Guard. 4.10.8 Initiating the Blast The blast controller is to provide a copy of the pre blast assessment sheet and blast guard locations on a clearance map along with the blast guard's name and number to the designated shotfirer. The blast controller will sweep the area to make sure all guards are in there (sic) correct location and all equipment is clear of the exclusion zone and then hand the shot over to the shotfirer.

Training on the CFE Procedure

1. Training on the CFE Procedure commenced in about December 2016 at the time that it was introduced.
2. The training records demonstrated the following workers were assessed as competent on the content of the CFE Procedure on the dates provided: 1. Mr Large - 24 December 2016; 2. Mr Fisher, Mr Sinnett, Mr Clarke, and Mr Toohey - 29 December 2016; and 3. Mr Fitzgerald - 4 January 2017.
3. Version 4 of the CFE Procedure was approved for issue on 4 January 2017. Version 4 erroneously reversed the requirements for the PEZ and the EEZ, stating that the PEZ was 300m and the EEZ was 500m. Nothing turns on this error. The evidence of the workers was that they identified this as an error in the document at the time that training was provided on it and the error was corrected. More importantly, each worker gave evidence that they clearly understood that prior to the incident, the CFE Procedure stated that the PEZ was 500m and the EEZ was 300m, and that had been the case for a long time.

Factual issues

1. Much of what occurred on the day of the incident was not in dispute.
2. The factual issue in the case centred around whether there was a common practice at the Mine to fire shots from within the PEZ (the common practice issue). The resolution of the common practice issue requires consideration of all of the evidence as to: 1. the content of the relevant safety documents; 2. the practice of firing a shot from within the PEZ; 3. the shotfirers' Orica training and their understanding of the content of Appendix L; 4. what was said by members of the blast crew recorded on the video; and 5. conversations that took place after the incident.
3. The resolution of the common practice issue was complicated by the fact that the evidence of the witnesses was contaminated as a result of the following events.
4. First, the members of the blast crew were stood down after the incident and told to wait for the arrival of an inspector from the Regulator to arrive. In that period, they independently prepared handwritten statements, but then conversed widely amongst themselves and with others as to what had occurred and the reasons for being within the PEZ, including the provisions of Appendix L.
5. Second, when Inspector Macpherson arrived, all of the members of the blast crew participated in a meeting with him, Mr Oliphant and a union representative, where it was openly discussed what had occurred and why they fired the shot from within the PEZ.
6. Third, during the course of the investigation of the incident by the Regulator, the witnesses were not told to avoid discussing the incident with each other. Thereafter, some of them discussed the incident and the reasons for being within the PEZ extensively, and over a long period before being called to give evidence in the proceedings.
7. The blast was recorded on a video camera being held by Mr Chaplin. The camera recorded the discussion of the blast crew leading up to the blast and its aftermath. The words spoken by the members of the blast crew were relied on by the prosecutor and the defendant for different purposes. Accordingly, it is necessary to make findings as to what was said, by whom, and what it I should make of it in context. A significant amount of time was spent in the hearing getting the witnesses to identify who said what on the recording. It is not necessary to make findings on everything that was recorded. I have set out my findings as to the critical passages and generally below.

Events prior to the incident

1. At about 5.50am on 17 May 2017, Mr Price conducted a prestart meeting of support crew B, consisting of Mr Fitzgerald, Mr Sinnett, Mr Toohey and Mr Clarke. Mr Large, an appointed shotfirer from support crew A, was also working that shift to be trained on a new electronic firing system. Mr Morris, a dipper, was also present to gain experience in preparatory work, together with a number of contractors.
2. The record of the prestart meeting recorded that the planned work for the blast crew was tying up and firing shot number 78 in strip 6 of OC4. The weather forecast predicted the wind direction from ENE at a speed of 11kph. Mr Fitzgerald was noted as the appointed shotfirer for the blast. He accepted in his evidence that he was responsible for selecting the firing location and for ensuring the safety of the blast crew.
3. It was not practical to select firing locations prior to the day of a blast because the predicted weather conditions, particularly wind speed and direction, might differ from the actual conditions on the day.
4. Mr Chaplin prepared a map entitled "Moolarben Coal Mine Blast Control Plan" dated 17 May 2017 relating to the blast for that day (the Map). The Map was a black and white copy of a scale topographical map of OC4, on which Mr Chaplin had used software to mark: 1. the blast area, being the area where the explosive emulsion had been loaded into the drilled holes, with a solid red parallelogram; 2. the EEZ in red; 3. the PEZ in blue; 4. the FMZ in pink; and 5. two red lines, the first extending WNW from the north-eastern corner of the blast area to the intersection of the FMZ, and the second SSE from the SE corner of the blast area to the intersection of the FMZ. The area between the two red lines was intended to indicate where the fumes would travel based on the predicted wind direction.
5. Mr Price received a copy of the Map on the morning of the incident and distributed it to the blast guards and the shotfirer, Mr Fitzgerald. As part of completing his duties provided for in the Blasting Checklist for Blast Controller, Mr Price confirmed that the predicted weather conditions coincided with the actual conditions.
6. Following the prestart meeting the blast crew travelled out to the shot and commenced tying up. On completion of that work, Mr Sinnett and Mr Fitzgerald "walked the shot" to ensure that it was tied up correctly.
7. Mr Chaplin set up a video camera on a tripod to record the blast on a mound to the south-east of the blast area. He was also in possession of another video camera which he intended to hold, while recording the blast from the firing location.
8. The blast guard meeting was held on the southern corner of the blast area. Mr Clarke and Mr Toohey were assigned by Mr Price to be blast guards. Mr Clarke and Mr Toohey drove to their assigned positions in the stemming truck. On the way, Mr Toohey dropped Mr Clarke off to pick up a small loader which Mr Clarke used to block access to the road. Mr Toohey used the stemming truck to block access to the road in his position. Mr Price drove around the PEZ to make sure that it was clear, before handing over control of the shot to Mr Fitzgerald as the shotfirer. At this time, Mr Price was required to attend to other duties and did not go to the firing location.

The primary firing location

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

The secondary firing location

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

The blast

1. The video recording captures a few minutes of conversation before the blast, mostly about rugby league.
2. Wherever I have set out the content of the conversation recorded by the video camera, I have set out what I have heard on the recording and attributed the words spoken based on the recording and the evidence of the witnesses as to what was said by the witness or others. To the extent that what I set out is different to what is contained in the transcript of the video recording prepared at the request of Inspector Brock (the video transcript), what I have set out is to be preferred. I have referred to exchanges by reference to the entries in the video transcript and/or the time stamp on the video recording. Where the participants have spoken over each other in the recording, I have not reflected that, and have joined a witness' statements together to make the evidence easier to follow, where it was necessary to do so.
3. The following relevant exchange occurred at Q21-25 of the transcript of the video: Chaplin: It's actually deceiving 'cause the loaded stuff is quite a way away. Fisher: Let's make that call after. Chaplin: Yep.
4. Mr Fisher gave evidence that this exchange was the first part of a conversation that was completed after the blast which I will come to, to the effect that he and Mr Chaplin thought that the blast crew were too close to the blast.
5. At about 12.07pm on 17 May 2017, the blast was detonated. The start of the explosion is recorded at about the 2.37 minute mark of the video.
6. The video depicts a large explosion from one of the holes that generated a large amount of flyrock. Mr Chaplin's opinion as to the cause of the incident, which I accept, was that there was inadequate stemming of the hole. In other words, there was not enough angular aggregate in the hole to contain the explosion and the explosive force escaped via the path of least resistance, being the top of the hole.
7. Members of the blast crew saw that the flyrock had been projected towards them and Mr Fisher and others called out to take cover.
8. Mr Fitzgerald and Mr Fisher sheltered under a raised toolbox lid on the utility. Others remained in the open, watching the trajectory of the flyrock. A number of pieces of flyrock landed in the vicinity of the workers. A piece of flyrock about the size of a football landed on the bonnet of the shotfirer's utility near the front grille, causing panel damage to the vehicle and the radiator. The Toyota badge of the utility was dislodged by the impact and fell onto the ground where it was parked. The video records the sound of the impact of the flyrock on the flagpole of the shotfirer's utility and the bonnet at about the 2.54-minute mark of the video.
9. Immediately after the blast, Mr Fisher looked briefly at the damage done to the shotfirer's utility. At about the 3.28-minute mark of the video, Mr Sinnett alerted the workers to "a heap of dust" coming in their direction. The workers then started to get into the vehicles. At about the 4.38-minute mark of the video, the dust plume from the blast had reached the vehicles and not all of the blast crew had managed to get into the vehicles by that time. Based on what was depicted on the video, I am satisfied that some members of the blast crew were exposed to fumes from the blast that could have contained toxic gases.
10. Mr Fisher, Mr Chaplin and Mr Morris got into Mr Fisher's vehicle and drove further away from the blast area. The video camera was still recording and the conversation between Mr Fisher, Mr Chaplin and Mr Morris in the vehicle was recorded.
11. The following exchange occurred at Q79-Q80 of the transcript of the video, in the vehicle: Fisher: What did I just say to you a minute ago? Chaplin: It was a bit close yep. I agree.
12. Mr Fisher drove to a location further way from the blast area (the second location). Mr Chaplin, Mr Fisher and Mr Morris got out of the vehicle at about the 5.08-minute mark of the video.
13. At the second location, the following relevant exchanges occurred at Q82-Q98 of the transcript of the video: Chaplin: Fuck me man. That's exciting Dave. I've actually never been that close before. Fisher: Fucking smelt like shit to me at the start man. That's fucking paperwork coming out of my arse. Chaplin: Yeah, she's a near miss that one boss. Fisher: How far away were we? Chaplin: I reckon we'd be 400. Because 500 would be, 500 would be where they are now. Fisher: Yep. Morris: Yeah. Fisher: Are we, are we allowed to be where we were? Chaplin: Yeah shotfirer's call. Yeah. … Fisher: Is that radiator fucking banged in or is it just a bit of panel work? Chaplin: Bit of panel work. The radiator was making some noise. I don't know what that would be though. [laughing] Fuck me. Fisher: I can't fucking believe it.
14. As the shotfirer's utility approached the second location, Mr Morris commented on the appearance of the damage done to it by the flyrock, in an exchange referred to in Q98-99 of the video transcript. Morris: It almost looks like a kangaroo. Chaplin: Yeah.
15. Mr Sinnett, Mr Fitzgerald and Mr Large arrived in their vehicle at the second location, at about the 6.14-minute mark of the video. The following exchanges occurred at Q99-Q193 of the transcript of the video: Chaplin: Hey I'm pretty sure you boys just went to the pub didn't you? Hit a roo? Any chance? Large: Kangaroo. Sinnett: Kangaroo. Fitzgerald: I can't believe the fucking thing. Chaplin: But no shit man that thing has come down and hit that, the actual flag part of that pole. Fisher: I don't know about the kangaroo fucking thing. Chaplin: That's quite exciting. Sinnett: Where's the other cameras? Chaplin: One's down on that stock heap. I've got the other one still here. Fisher: Give me a good reason why that got hit there like that, otherwise we are going to have to fucking do it properly. Fitzgerald: I think you are safer to do it properly. Chaplin: Yeah, better off. Fisher: How far away were we? Chaplin: About 400. Fitzgerald: Well what did you count? About 370? Large: About 30 holes. Fitzgerald: I think we were coming out at 370. Chaplin: 500 is basically end of this shot. Unknown: An extra 300? Chaplin: Yep. Fisher: Righto. Sinnett: Yeah, we're going to have to do it properly. Fisher: Fucking hell man… (indecipherable) Large: Aw fuck man, underneath that, I didn't even think about getting underneath the door but if that had hit the top of that door it would have folded you up like a fucking.. Chaplin: Yeah a pretzel man, fucking would have been. … Chaplin: I am going to say that is the most exciting thing I've had happen to me for a long time. Large: I was just to the right of the box. Sinnett: No, me and Chappy were just trying to dodge the fuckin'… Large: Yeah. That's what I was doing. Chaplin: We just saw the fucking crows in the air and then lost sight of one of them. Fitzgerald: Yeah. Another one dropped fucking close…it went zoom. Sinnett: Yeah. Chaplin: Fuck me. Fisher: I said to Dave just before we fired, "We're a bit close". He goes "Nooo". I said we'll determine it after the fucking shot goes, hey. Chaplin: Yeah it's exciting. Yeah, it's good. We know we're alive right. Fisher: Yeah. Chaplin: No one got hurt. We just won't so it again. Unknown: Are you recording this? Chaplin: I am, but I won't put the sound on. [laughter] Fisher: I need to know, does that camera there? Cause I would love to see it. Chaplin: That camera won't catch us. Fisher: Fuck. Chaplin: Nuh. This one won't either. Sinnett: You'd probably see us all scatter. Chaplin: Ah fuck yeah. Fisher: I was feeling it mate. Chaplin: I think you will hear it though. I will keep the noise one for us. Large: The only thing is too Boof [Mr Fisher's nickname] is that we've moved the utes from the incident. That's for safety shit. Fisher: Yeah, fucking oath. I will see if I got anything. Chaplin: You've got to laugh though man. Fisher: Oh no fuck. I don't give a fuck. Chaplin: Fuck, you've got to laugh. That was exciting. That hole let go like a fucking arsehole didn't it? Large: Didn't it what? In the control row was it? Chaplin: It looked like it was out here a bit. Sinnett: It's fucking dirt. It is mud. Chaplin: It's mud yeah. Yeah, it's mud man. Unknown: It's just a lump of mud. [At this point a video of the blast can be heard to be played on a mobile telephone] Chaplin: That's that pop there. [laughter]. We might even get an overpressure from that cunt too, eh. Oh, that's alright. That's exciting. Done

Findings relevant to the conversation on the video recording

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

Events after the incident

1. Mr Fisher contacted Mr Oliphant and informed him that there had been a "near miss" incident. He directed the workers to return the vehicles to the positions that they were in at the secondary firing location. Mr Fisher telephoned Mr Oliphant and informed him that there had been a "near miss" incident.
2. Mr Oliphant contacted Mr Price and the two of them drove to the secondary firing location where the members of the blast crew were gathered. Mr Oliphant had a conversation with Mr Fisher and other members of the blast crew about what had occurred. He then inspected the area and took photographs of the scene, debris and damage caused to the vehicle, flyrock material, tyre tracks, and the blast area. Mr Oliphant then contacted surveyors who attended the site and surveyed the area. Mr Oliphant reported the incident to the Regulator at 1.54pm.
3. Mr Oliphant, Mr Price and the members of the blast crew then left the incident site and drove to the site office. Mr Oliphant assigned Mr Price the task of collecting written witness statements from the members of the blast crew. Mr Price separated the witnesses at this point by asking them to prepare their statements in separate rooms in the office building. The blast crew used a pro forma document to make handwritten statements.
4. I pause to note that none of the handwritten statements referred to the PEZ or Appendix L. In the handwritten statements, the blast crew stated the following about the secondary firing location: 1. Mr Sinnett estimated it was approximately 300m from the blast area; 2. Mr Fisher stated it was a distance "thought" to be safe to fire from; 3. Mr Large stated that the shotfirers collectively determined it to be a safe firing location approximately 320m from the blast area; 4. Mr Fitzgerald stated that he discussed it with the other shotfirers; 5. Mr Morris estimated it to be 350m from the blast area; 6. Mr Chaplin made no relevant comment.
5. The distances set out in the handwritten statements support my finding that the shotfirers had no intention of selecting the secondary firing location by reference to the PEZ.
6. The members of the blast crew were informed by Mr Oliphant that they were stood down pending an investigation of the incident. He directed them to remain on site until an inspector from the Regulator attended.
7. In the intervening period, a conversation occurred in Mr Chaplin's office between Mr Oliphant, Mr Fitzgerald and other members of the blast crew during which a number of matters relating to the incident were discussed. In his evidence, Mr Oliphant stated that during this conversation, he was told that the reason why the blast crew believed that they were entitled to be at the firing location when firing the blast was what was referred to as "shotfirer's discretion in Appendix L.
8. Inspector Macpherson arrived at the Mine at approximately 4pm on 17 May 2017 and met Mr Oliphant in his office. Mr Oliphant showed Inspector Macpherson the documents prepared for the blast known as the "blast pack" and informed him of the general nature of the incident.
9. Mr Oliphant and Inspector Macpherson then went to a conference room in the administration building and met with Greg Stephens, the site safety and health representative, Mr Large, Mr Sinnett, Mr Fitzgerald, Mr Morris, Mr Fisher, Mr Chaplin and Peter Tatton, an industry safety and health representative. Inspector Macpherson spoke to each person in attendance about their training and experience, and their role on the day, including the activities they had undertaken. These discussions took place in the presence of all those present in the conference room. During the course of the meeting, Mr Fisher and Mr Chaplin stated that they had selected the firing location and had done so based largely on the ability to video the shot from that position. Mr Fisher and Mr Chaplin also commented that firing within the exclusion zone was a regular occurrence and that the exclusion zone did not apply to shotfirers. Mr Chaplin made reference to Appendix L. Mr Large also stated that it was not unusual for the firing location to be inside the PEZ provided the location was safe and confirmed that the decision to fire from within the PEZ on the particular day was based largely on the ability to video the shot from that position. Inspector Macpherson's evidence was that all three shotfirers present supported the proposition that they largely selected the firing location for video purposes, and that often firing locations were chosen that were within the PEZ. When questioned as to why he spoke with each person in the presence of the others, Inspector Macpherson stated that this was not an unusual practice during investigations of incidents, and on this occasion, the persons present had already been together for several hours following the incident.
10. At some point during his attendance, Inspector Macpherson was taken to the secondary firing location in the company of Mr Oliphant and the blast crew.

Disciplinary actions

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

MCO's Internal Incident Investigation

1. On 18 May 2017, an Inspector issued MCO with an Improvement Notice pursuant to section 191 of the Work Health and Safety Act 2011 that required it to: "Review the blasting procedures and retrain the blast crew personnel and mine officials in the procedures including the application of the exclusion zone to all personnel."
2. MCO conducted an internal Incident Investigation titled "Ejection of material from OB shot causing near miss to personnel and damage to light vehicle", the report of which was signed off on 24 May 2017.
3. The following findings were made in the Incident Investigation Report (IIR): 1. Shotfirers did not abide by minimum exclusion zones (blast and fume management zones) detailed within the Charging and Firing of Explosives Procedure. 2. The distance from the initiation point to the blast was estimated by shotfirers. No mechanical aid (e.g. GPS, rangefinder) was used to calculate the distance. 3. A Kestrel unit was under trial to estimate weather/wind patterns at the blast location to predict post blast dust movements. This unit was used at the time of initiation but a change in process to utilise this new technology had not been completed. 4. A Blast Control Plan Map illustrating both the exclusion zone and fume management zone (issued by the Drill and Blast Engineer) was in possession of the group at the time of initiation but not referred to and not followed.
4. The IIR identified a root cause of the incident as: "Violation of minimum exclusion zones detailed within the procedure Charging and Firing of Explosives."
5. The IIR identified the following as contributing factors in terms of absent or failed defences: 1. Exclusion zone not followed. 2. Fume management zone not followed. 3. Charging and Firing of Explosives procedure not followed.
6. The IIR recommended six corrective actions arising from the incident, which included the following: 1. Specify within the Charging and Firing Explosives Procedure: 1. Minimum exclusion zones apply to all personnel including shotfirers. 2. Firing locations are to be recorded post-blast on the Blast Control Plan. 3. Actual stemming quantities are to be recorded on load sheets. 1. Retrain all blast crew personnel in the procedures, including application of exclusion zones to all personnel. 2. Retrain all mine officials in the procedures, including application of exclusion zones to all personnel. 3. Review the blast control plan and blast communication maps to clearly depict the fume management zone. Update blast exclusion and fume management zones on maps to ensure clarity. Consider the use of aerial photography to achieve this. 4. Provide shotfirers with a mechanical aid to calculate distance (e.g. GPS or rangefinder). 5. If the trial of the Kestrel system is successful, utilise the change management process for the system's introduction.

Evidence about the applicability of the PEZ to shotfirers

Appendix L to AS 2187

1. The evidence of some of the witnesses suggested that firing a shot from a location within the PEZ was authorised by reference to the provisions of Appendix L.
2. The fourth edition of the AS 2187 was published in 2006. It was common ground that MCO was aware of its contents. The extent to which the members of the blast crew were aware of the content of Appendix L and whether they relied on it, are relevant matters to be considered.
3. Appendix L of AS 2187 was entitled "Exclusion Zones". It relevantly provided (underlining added): 1.1 GENERAL All blasts require the establishment of an exclusion or evacuation zone prior to firing the shot. Depending on the industry, the zone can be the area, below, at and above ground level from which all unauthorized persons are excluded to protect them from injury and harm. The size of the exclusion zone shall be such that all fly and associated debris is contained within the zone, as well as the consideration on impacts of blast environmental limits on humans and where required, animals. … The shotfirer and authorized persons may remain in the exclusion zone, at a predetermined protected location during firing. Final approval for persons to observe or monitor the shot from within an exclusion zone remains with the shotfirer, who should not be subject to any external pressure. 1.2 PLANNING The requirements for an exclusion zone shall be a component of the blast management plan. The degree of planning will be dependent on the industry, for instance the ventilation system of an underground mine will influence an exclusion zone in three dimensions. For blasting operations where the zone is contained within property boundaries (subject to airspace clearances) or underground, standard procedures may be developed and implemented for each blast. 1.3 SIZE OF THE EXCLUSION ZONE The size of the exclusion zone is directly related to the blasting activity and the surrounding environment… The distance required to limit airblast overpressure to tolerable levels can be estimated, but the distance for fly can be difficult to predict and can vary from site to site. Therefore a competent person shall determine the size of the zone, in many cases through extensive consultation with other stakeholders. The zone may be larger than the calculated size to make use of control points such as transport junctions, or elevated areas that provide clear lines of observation. (underling added)
4. The phrase "predetermined protected location" used in Appendix L is not defined in AS 2187.
5. AS 2187 is a comprehensive document and Appendix L must be read in context. On the relevant issue a number of other provisions in AS 2187 need to be considered.
6. Appendix E of AS 2187 deals with the generation of flyrock and the steps that can be taken to avoid the risk posed by it.
7. Appendix E defines "fly" as "the undesirable projection of any material as a result of a blast" and "flyrock" as "the undesirable projection of rock as a result of a blast".
8. The introduction to Appendix E relevantly provides: E1 INTRODUCTION Because the potential for severe injury or property damage exists, precautions against flyrock and fly should be foremost in the mind of any shotfirer. The closer to persons or property that blasting is carried out, the greater should be the awareness, care and degree of protection exercised in avoiding flyrock and fly incidents. …Flyrock and fly occurs when explosive energy in the form of gas expansion energy is vented violently into the atmosphere and projects rocks and/or debris outward and away from the blast area. Fly generated as such represents a serious problem for users of explosives who must ensure the safety of persons, equipment and property in the area surrounding a blast. A number of incidents have been recorded where persons have been killed or injured as a direct result of fly from blasts. An even greater number of instances report property damage and near misses.
9. Appendix E provides that many factors contribute to the occurrence of flyrock, identifying seven main contributing factors which are then dealt with in detail. It is not necessary to refer further to those matters, except that they are the matters that must be considered by a shotfirer to avoid flyrock incidents.
10. Section 2 of AS 2187 headed "General Requirements" provides that planning of blasts should take place in accordance with a blast management plan, incorporating a risk assessment prepared by a competent person. A "competent person" is defined as "a person who has acquired through training, qualification or experience, or a combination of these, the knowledge and skills to carry out the required task".
11. The development of a blast management plan was also a condition of MCO's NSW Project Approval.
12. MCO's BMP which I have already referred to, included the establishment of "a minimum blast exclusion zone of 500m" and the requirement for the monitoring of blast fumes.
13. The EPCP was also a document seeking to control the risks identified in the Risk Assessment. The EPCP referred to the controls put in place by the CFE Procedure which included the PEZ, the EEZ and the FMZ.

Orica training course documents

1. The Orica training course was known as the "Surface Shotfiring Course". The Trainers Guide for that course contained the following salient points.
2. The Trainers Guide provided a direction to trainers not to change any of the training material, because the course had been designed to meet training and assessment outcomes.
3. Section 6.3.1 dealt with pre-blast planning, and contained the following: Q What should you consider when determining your firing position?

• Must be a safe position and safe from flyrock

1. The remainder of the section 6.3.1 dealt with the risk of damage to equipment left within a blast exclusion zone.
2. Section 6.3.2 dealt with the positioning of blast guards and included (underlining added): Q What kind of things should you use or consider when planning your blast guard positions?

• Use maps and personnel who are very familiar with the local area to help
• Identify all access points into the blast exclusion zone
• Set the blast exclusion zone in accordance with site procedures and outside of potential flyrock distances
• Consider wind direction for post blast dust and possible fume and have a plan to manage it.

1. Section 6.3.4 dealt with the blast exclusion zone clearance and provided: All personnel must be evacuated from within the blast exclusion zone. How this is done at sites may vary, it may be done by the shotfirer, blast guards or a dedicated blast controller. The shotfirer must be sure there are no personnel within the blast exclusion zone prior to commencing the firing procedure. Key learning: Must evacuate all personnel from the blast exclusion zone.
2. Section 6.3.5 dealt with the firing procedure and relevantly stated that the shotfirer was responsible for confirming that no personnel were within the blast exclusion zone before firing.

Was there a common practice at the Mine of firing shots from within the PEZ? (the common practice issue)

Introduction

1. There was some confusion in the prosecution case when it came to the issue of the existence of a common practice at the Mine of firing shots from within the PEZ. In the opening, counsel for the prosecutor suggested that the express direction was required because there was a common practice at the Mine of non-compliance with the PEZ by blast crews. I asked if the common practice was being put forward as an essential or intermediate fact in the reasoning process that had to be established beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579-580 (Dawson J,Mason CJ, Toohey and Gaudron JJ agreeing). That question was taken on notice.
2. Counsel for the prosecutor did not return to this issue until final submissions.
3. The prosecution case was unclear as to how often shots were fired from within the PEZ. How common the practice was or needed to be for the "common practice" to exist was not defined in the prosecution case.
4. As I understood it, the prosecution case was that the failure of the blast crew to comply with the PEZ on 17 May 2017 was not an isolated incident. The prosecutor alleged that the common practice arose because the workers believed that the PEZ did not apply to shotfirers and/or authorised persons. The evidence contained two possible sources of that belief: 1. the prior experience of the workers at the Mine; and 2. a mistaken understanding that the provisions of Appendix L gave the shotfirers a discretion to fire shots from within the PEZ.
5. The prosecutor called the members of the blast crew and a few other workers to give evidence about the common practice. The defendant challenged each of the witnesses about the existence of the common practice. Before analysing the oral evidence, it is necessary to have regard to the principles applicable to that analysis.

The relevant legal principles to be applied in assessing the oral evidence

1. In resolving the issues on the existence of the common practice, I have borne in mind the principles collected by Davies J in Coote v Kelly [2016] NSWSC 1447 at [100]-[102] relating to the assessment of the credibility of witnesses, of which the following points are salient: 1. Memory can be affected by faulty storage of the event and this can be impacted by unconscious bias, wishful thinking or extensive discussion with others. "Witnesses, especially those who are emotional, who think that they are morally in the right, tend to very easily and unconsciously conjure up a legal right that did not exist." This can lead to a witness, however honest, trying to convince a court that their present recollection of an event is superior to the contemporaneous note of it: Onassis v Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 413 (Lord Pearce). 2. The process of litigation subjects the memories of witnesses to powerful biases, particularly where the witness has a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty to a party in the proceedings, such as an employment relationship: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 at [19]. 3. It is difficult for witnesses to distinguish between recollection and reconstruction because the processes underlying the difference are largely unconscious and the strength of a belief or memory is not a reliable measure of its truth: Gestmin at [21]. 4. The preferable course for a judge is to place little reliance on witnesses' recollections of what was said at meetings, and to base factual findings on inferences drawn from contemporaneous documents or known or probable facts, but that is not to say that oral testimony serves no useful purpose: Gestmin at [22]. 5. Human memory of what was said in a conversation is fallible for a variety of reasons, which ordinarily increases with the passage of time and the intervention of litigation. The processes of memory are often overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are repeatedly sub-consciously reconstructed: Watson v Foxman (1995) 49 NSWLR 315 at 319 (McLelland CJ in Eq). 6. The observation of the demeanour of witnesses is a crude and inaccurate methodology and its defects have been exposed on numerous occasions: Fox v Percy (2003) 214 CLR 118 at [30]-[31]. 7. The credibility of a witness and his or her veracity can be tested by reference to the objective facts particularly those provided in contemporaneous documents, his or her motive and the overall probabilities: Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at 57 (Lord Goff). 8. Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of witness testimony, and the trial judge's assessment of the character of those witnesses and the manner in which they gave their evidence, is of primary importance: McGraddie v McGraddie [2013] 1 WLR 2477. 9. Rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the witness that is apt to cast light on the probability of the situation: Camden v McKenzie [2008] 1 Qd R 39 at [34] (Keane JA), cited with approval in New South Wales v Hunt (2014) 86 NSWLR 226 at [56] (Leeming JA, Barrett JA and Tobias AJA agreeing). 10. A court considering historical events will usually prefer to rely on the content of contemporaneous or near contemporaneous documents, because they are likely to be more accurate than flawed attempts to recollect the facts. Such documents are usually a safer repository of reliable fact, particularly where they are prepared by a person with no reason to misstate the facts in them: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J) and Hughes v Barbara Mines Ltd (No 4) [2010] WASC 160 at [157] (K Martin J).
2. I have also taken into account that the discussions between the witnesses after the incident and prior to them giving evidence, had the potential to seriously undermine their credit and the reliability of the evidence that they could give: Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 at [30] (Sheller JA).
3. I will now turn to setting out a summary of the oral evidence on the common practice issue and any relevant credit findings.

Evidence of Cameron Clarke

1. Cameron Clarke was a bench hand employed at MCO since about 2010, first as a plant operator and then from about 2015, as a bench hand assigned to support crew B. Mr Clarke held an UHL. Mr Clarke's work involved assisting in all aspects of blasting in OC4. Prior to the incident, Mr Clarke usually drove the stemming truck and acted as a blast guard, as he did on 17 May 2017.
2. From his blast guard position, he could see the two light vehicles that the crew were using but he could not assess exactly where they were. Mr Clarke saw the explosion and observed that one hole was unusual in that it produced a large explosion and a lot of flyrock. He held his position until he was given the "all clear". He then drove to the blast area. At that location, he saw Mr Oliphant approach. Mr Oliphant told him that there had been an incident. Mr Clarke and Mr Toohey then left the blast area and went back to the crib room to have lunch.
3. After lunch, Mr Clarke was stood down with the rest of the crew. He later participated in a meeting with an Inspector from the Regulator. He left the Mine at about 6.00pm.
4. Mr Clarke's evidence was that he understood the 500m PEZ to apply to everyone on the ground, except for the shotfirer who had a discretion to fire the shot from a position with a clear line of sight to the blast. Mr Clarke was not sure if anyone else could be with the shotfirer at the firing location. On occasions before 17 May 2017, Mr Clarke was present with the shotfirer at the firing location. His evidence was that on those occasions the odometer in a vehicle would be used to measure out the PEZ. In his evidence, he could not recall any time when he was present at a firing location that was within the PEZ.
5. An application was made for Mr Clarke to refresh his memory from his record of interview (ROI) with Inspector Brock that took place on 23 March 2018. At the start of the passage Mr Clarke was taken to, he told Inspector Brock that he had not been within the PEZ as a blast guard or at the firing location. Inspector Brock then asked a series of questions eliciting answers that were hearsay or conclusions that were not based on Mr Clarke's experience. For example, most of the answers in the relevant passage were Mr Clarke's expression of what "would have" happened. This included that the shotfirers "would have been" within the 500m PEZ. Inspector Brock summarised Mr Clarke's answers back to him, introducing as fact matters on which Mr Clarke's initial responses were equivocal. Mr Clarke accepted these embellishments on his answers in a way that demonstrated that he was not providing his own version of events. For example, Mr Clarke's evidence was that he was usually a blast guard and had been present at the firing location on five or fewer occasions, which Inspector Brock put back to Mr Clarke as "what five occasions".
6. After being taken to this passage in his ROI, Mr Clarke stated that it did refresh his memory because "if I've said it in the paperwork that I was there. This is going back to 2018. If I said it, we were within the 300 [metres]". This answer was demonstrative of Mr Clarke's confusion at the time that he gave evidence, which was confirmed by my observation of his demeanour at that time. Ultimately, Mr Clarke accepted a version of events after being given the opportunity to refresh his memory from his ROI that was not contained in the answers that he gave in March 2018.
7. I am satisfied that Mr Clarke was a witness who was easily led when he participated in the interview with Inspector Brock and when he gave evidence. He was present at the firing location on five occasions or less. I cannot place much weight on his evidence as to the alleged common practice of firing from within the PEZ because of his limited opportunity to make relevant observations and because he was confused in giving evidence. The limited evidence he did give did not provide a foundation for his understanding or generally support the existence of the common practice.

Evidence of Jarrod Toohey

1. Mr Toohey was a bench hand at MCO for about two and a half years prior to the incident. His duties included stemming, tying up and cleaning up the blast area. Mr Toohey held a BEUL at the date of the incident but was not an appointed shotfirer.
2. Mr Toohey acted as a blast guard on 17 May 2017. From his blast guard location, he could not see the firing location because he was 30 metres below the height where the shot was being fired. He used the stemming truck to block access into the PEZ. After the shot had been fired and the shotfirer gave the "all clear", Mr Toohey picked up Mr Clarke in the stemming truck and drove back to the blast area. Mr Price and Mr Oliphant arrived shortly afterwards, at which time Mr Oliphant said words to the effect of "what did you do?" directed at Mr Price. Mr Toohey and Mr Clarke drove back to the crib room for lunch. The rest of the blast crew arrived about 10 - 15 minutes later.
3. Mr Toohey's understanding of the CFE procedure was that the PEZ applied to "everyone except people firing a shot". Mr Toohey's understanding was based on the "unwritten rule" amongst shotfirers and that he first came across when he started working in drill and blast.
4. Mr Toohey found it difficult to quantify how many times (or what percentage) of the time he had been at a firing location prior to 17 May 2017 given the frequency of blasts at the Mine. He estimated he would have been at the firing location about 20-25% of the time prior to 17 May 2017 and that he was "probably" inside the PEZ about 20-30% of those occasions. Mr Toohey's evidence was that his knowledge of the firing location inside the PEZ was based on guess work, after looking at markings on the Blast Control Plan Map and the odometer of the vehicle. In relation to the latter, Mr Toohey said that if the odometer revealed that he had driven less than 500 metres away from the blast area, the firing location must have been within the PEZ. Mr Toohey could not recall any precise distances that had been recorded by the odometer on occasions where he had checked it after driving from a blast location to determine if the firing location was inside the PEZ.
5. Mr Toohey was shown a written assessment on the CFE-SWP completed by him on 2 November 2016. Mr Toohey said that he completed assessments of this kind "all the time" and that he did not recall this particular assessment. He could not recall any specific discussion on the occasion of this assessment relating to the PEZ.
6. Mr Toohey was then shown a copy of the theory assessment on the CFE procedure completed by him on 27 December 2016. He did not recall this particular assessment either, including that it was an occasion on which the Mine had amended its procedures.
7. Mr Toohey gave evidence that about a month or two after the incident he was appointed by MCO as a shotfirer. His recollection was that there were changes made to the CFE procedure including an amendment to expressly include shotfirers in the PEZ. Mr Toohey recalled that he was required to undertake further written assessment on the amended version of the CFE procedure when that was introduced, and that blast crews were provided with a distance measuring device to measure the distance between the blast area and the firing location.
8. In cross-examination, Mr Toohey accepted that firing the shot from within the PEZ was not part of the training he had received at MCO but something he regarded as a general rule in the mining industry. Mr Toohey first came across this general rule during his time at Wilpinjong Mine, prior to commencing employment with MCO. He accepted that safety observations were undertaken regularly and could occur at any time, without the workers initially understanding that they were being watched. He could only recall one particular safety observation conducted by Mr Craig.
9. Overall, Mr Toohey's evidence was very vague and light on detail. His recollection of events and usual practices was poor without significant prompting, such as by showing him the written assessments. His evidence was that firing locations were determined by the shotfirers and that he was not involved in discussions with them about that decision. His opinion that shots were fired from within the PEZ was based on speculation on his part. For example, he gave evidence that the PEZ could be measured by the use of an odometer on a vehicle but he could not recall an occasion when he did so. I am not satisfied that he paid much attention to where shots were fired from before the incident and that he either acted as a blast guard or followed the shotfirers to the firing location without paying attention to the PEZ. I formed the view that his evidence was reconstructed on the crucial point and I do not place much weight on his evidence.

Evidence of Darren Kelly

1. Mr Kelly was the Civil Operator for MCO and a member of support crew A. He undertook various tasks in drill and blast activities including conducting earth works, constructing windrows and bunds, preparing areas for blasting, loading blast holes, logging blast detonators, dipping and stemming blast holes and acting as a blast guard. Mr Kelly held a BEUL, a Certificate III in metalliferous mining and multiple tickets. He had a long work history in mining, working at open cut coal mines, open cut metalliferous mines and underground metalliferous mines and had extensive experience as a shotfirer including as a trainer of shotfirers. He commenced work for MCO in about 2014, initially through a labour hire company for six months and thereafter as an employee. He was not an appointed shotfirer at the Mine. Mr Large was the appointed shotfirer in support crew A in the two-and-a-half-year period prior to the incident. Mr Kelly was not at the Mine on the date of the incident.
2. Mr Kelly's evidence was that during his time at the Mine, prior to the incident, he was not at the firing location for every blast that was fired. He had difficulty in estimating the number of times that he would have been at the firing location when a shot was fired, given the number of shots fired varied from week to week.
3. Mr Kelly's evidence was that there was a knowledge and understanding at the Mine that the PEZ was 500m and that the workers "did their best" to comply with it, by using a number of methods to estimate the distance between the firing location and the blast area, such as: reading the maps by identifying the topographical features on them, using the odometer on a vehicle and on occasions joining rolls of shocktube.
4. Mr Kelly had never heard of the term "shotfirer's discretion" before 17 May 2017. His understanding was that the PEZ applied to shotfirers and authorised personnel.
5. Mr Kelly gave his evidence in a straight-forward manner and appeared comfortable as a witness. His proficiency in mining was conveyed in his evidence. Mr Kelly's evidence was more independent than most of the other workers employed at the Mine. He was on annual leave at the time of the incident and had no interest in giving the evidence that he did. I have no hesitation in accepting him as a witness who was doing his best to tell the truth and I accept his evidence.

Evidence of Ian Gorman

1. Mr Gorman was a standby shotfirer and Stemming Truck Operator at the Mine and was a member of support crew A. At the date of the incident, Mr Gorman had been performing these duties for about 12 months but had only been an employee of MCO for about six months. Prior to that, he had worked at MCO since 2009 under a number of labour hire arrangements. Mr Gorman commenced work in the mining industry in 1981, working at the Ulan Coal Mine for 25 years before working for a blasting contractor at mines in the Lithgow area.
2. Mr Gorman held a BEUL and occupied a number of drill and blast positions at the Mine. On days when blasts were scheduled, Mr Gorman acted as the standby shotfirer or otherwise as a blast guard. Mr Large was the appointed shotfirer for support crew A. Mr Gorman was not at the Mine on the day of the incident.
3. In cross-examination Mr Gorman agreed that the PEZ was one of the best forms of protection against persons being injured or killed, or property being damaged, as a result of flyrock or fumes. He gave evidence that the point of the PEZ was to exclude all persons, without exception, from the blast area. Mr Gorman's understanding was that the CFE procedure, in place at the time of the incident, specified the PEZ that applied to all personnel, including shotfirers and the blast crew.
4. Mr Gorman agreed that the importance of following safety procedures at the Mine was emphasised in the induction training at the Mine and that he understood that it was important to do so to minimise the risk of the dangerous activities carried out at the Mine.
5. In re-examination, Mr Gorman was shown a record of training that he had received at the Mine and gave evidence that the induction training at the Mine was current for a certain period before it was repeated, in refresher training.
6. Mr Gorman was an impressive witness with vast experience in the mining industry that was apparent in his evidence. Like Mr Kelly, Mr Gorman was not present at the Mine on the day of the incident and appeared to have no interest in the evidence that he gave. I have no hesitation in accepting him as a witness who was doing his best to tell the truth and I accept his evidence.

Evidence of Nathan Walsh

1. Mr Walsh was a shotfirer at the Mine and was appointed to this position in late 2018. Mr Walsh commenced work at the Mine in May 2014, working as an operator until about November 2015 and then as a bench hand for support crew B before his appointment as a shotfirer. He held a BEUL. Mr Walsh sometimes undertook the role of a blast guard and on other occasions had been present at the firing location. On 17 May 2017, Mr Walsh was at the Mine site but was undertaking an Orica training course.
2. Mr Walsh gave evidence that MCO's procedures prescribed a PEZ of 500m and an EEZ of 300m. Mr Walsh stated that his understanding was that "personnel" in relation to the PEZ included everyone, but that the blast crew would run under the rule of the "shotfirer's discretion". When asked if the PEZ was complied with prior to the incident, Mr Walsh replied, "Not every time", and stating that he would go to the firing location determined by the shotfirers.
3. Mr Walsh stated that before 17 May 2017, there were times when he was at the firing location and the PEZ was not complied with. He understood that shotfirers could pretty much fire from wherever they felt was a "safe" location. Mr Walsh stated that he had been told that was the situation by the shotfirers at the Mine and that he followed their directions. Prior to 17 May 2017, Mr Walsh stated that the distance between the blast area and the firing location was determined by reference to the applicable Map on which the PEZ and EEZ were marked from an aerial view of the shot.
4. Mr Walsh could recall mention of the Australian Standards in his Orica training but could not recall a reference to Appendix L. Mr Walsh could not recall whether he had seen the CFE Procedure prior to 17 May 2017. He did not have a particular view as to whether the shotfirers were covered by the PEZ, but just followed the shotfirers wherever they went and did what they told him to do, giving evidence, "I just rolled with the shotfirers".
5. In cross-examination, Mr Walsh accepted that he followed the shotfirer's directions was because they were in charge of the shot. Prior to 17 May 2017, when a blast was scheduled, he acted as a blast guard for the majority of the time and was not at the firing location. Mr Walsh did not have any recollection of completing written assessments on the CFE Procedure but accepted that the PEZ was 500m and the EEZ was 300m.
6. There was nothing about Mr Walsh's evidence that provided a convincing foundation for the conclusion that prior to the incident, shots were fired commonly from within the PEZ. Mr Walsh's evidence was that he was told by the shotfirers that they had a discretion to do so, but he could not recall any particular instance when shots were fired from within the PEZ. He had limited opportunities to observe that occurring, because for the most part he acted as a blast guard and was not present at the firing location. On the limited times he was present at the firing location, he followed the shotfirers to the firing location because they were in charge. He did not recall anything about the Orica training on Appendix L. Mr Walsh appeared to be uncomfortable and tentative as a witness. I formed the impression that there was a significant risk that his evidence was reconstructed on the basis of what he was told about the so-called shotfirer's discretion or Appendix L after the incident. I have not placed much weight on his evidence.

Evidence of Brendan Large

1. Mr Large was a shotfirer at the Mine. He commenced work in early 2010, working initially as an operator for about two and a half years, before moving to drill and blast and working as a bench hand from June 2013, and then as a shotfirer from May 2014. Mr Large was also an appointed blast guard, blast controller, magazine keeper as well as a trainer and assessor. Prior to commencing work at the Mine, Mr Large had worked at Tallawang Mine as an operating and explosives charger for approximately two and a half years. This was his first job in the mining industry. Mr Large held a BEUL, a security clearance licence, and a Certificate IV in Training and Assessment Education. At the time of the incident, Mr Large was working as the lead shotfirer for support crew A, supported by Mr Gorman. Mr Large fired most of the shots and this was different to how support crew B operated, with Mr Fitzgerald and Mr Sinnett splitting the shots equally between them. Mr Large was sometimes called in for overtime to assist or undertake training with support crew B as he was on the day of the incident.
2. Prior to the blast he assisted in tying up. Mr Large fired the shot on the day under the supervision of the appointed shotfirer, Mr Fitzgerald, as part of his training on a new electronic firing system.
3. Mr Large was not involved in the pre-blast meeting at the blast area, because he was occupied familiarising himself with the features of the electronic firing system and conducting last checks on the receiver box, away from where those discussions took place. Mr Fitzgerald had told him earlier in the day that the shot would be fired from the north and he was not aware when that intention was changed.
4. Mr Large's evidence was that travelling in the shotfirers utility to the firing location a conversation took place between himself, Mr Fitzgerald, and Mr Sinnett, in which the three of them attempted to estimate the distance between the secondary firing location and the blast area. Mr Large counted the number of holes from the edge of the blast area to the firing location and on that basis estimated the distance to be 340m. I pause to note that he estimated the distance to be 320m in his handwritten witness statement on the day of the incident and was recorded as referring to "about 30 holes" on the video. In his evidence, he said that the holes were spaced about 10m apart and that he counted 34 holes.
5. Mr Large's evidence was that the three shotfirer's determined that the secondary firing was a safe location to fire from, but that he did not consider before the blast that it only had one point of ingress and egress. He accepted that if the wind changed it could have caused the workers to have no way of escaping fumes from the blast. Mr Large thought that the secondary firing location was safe because he had never seen a hole explode like that before. After the blast, Mr Large described driving further south and as far east as they could to avoid the dust plume caused by the blast, which I infer was accompanied by fumes.
6. When Mr Large arrived at the secondary firing location with Mr Fitzgerald and Mr Sinnett, Mr Fisher and Mr Chaplin were already there setting up the camera to film the blast. Mr Large attended to setting up the sender box with the assistance of Mr Fitzgerald.
7. I pause to note that Mr Large was very shaken by the incident and continued to suffer the after-effects of it. He requested that the sound of the blast be muted on the video when it was played it court because he still finds it triggering.
8. After the blast, Mr Large gave evidence that he told Inspector Macpherson in the meeting that his "interpretation" of the CFE Procedure was that the PEZ applied to the pit crew, but not to shotfirers and authorised persons because that is the way it had always been since he started work at the Mine.
9. In his experience as a shotfirer, he said, "It's still a zone, occasionally we fired inside 500(m)". Whether he did so or not was based on the view of the shot, (which I infer was a reference to line of sight), if it was a non-el detonation which was impacted by the length of shocktube rolls and the geography of the site, such as the location of ramps and dumps. Mr Large estimated that 5-10% of shots were fired from within the PEZ. Later on this topic, Mr Large recounted that he told his Orica training class that shots at the Mine were fired from inside the PEZ if they needed to be, or if not from outside the PEZ.
10. Mr Large's evidence was that Mr Fisher, Mr Chaplin and Mr Price had each been present at a firing location when a shot was fired from within the PEZ.
11. Mr Large gave evidence that he had raised the discrepancy between the application of the PEZ to "all personnel" and the actual practice at the Mine on a number of occasions with Mr Price. On these occasions, he was told by Mr Price to, "just keep doing what you are doing". I pause to note that Mr Price's evidence did not support this claim by Mr Large and that Mr Large accepted in cross-examination that he did not make such an allegation in his: 1. interview with Inspector Brock; 2. conference with the lawyers for the prosecution, or 3. evidence before Judge Russell SC in the proceedings against Mr Chaplin.
12. Mr Large was taken to records of assessments conducted during his Orica training, in particular where he answered questions relating to exclusion zones. He sought to qualify those answers by reference to his interpretation that those exclusion zones did not apply to shotfirers and authorised persons, including an acceptance of the statement "ensure the blast zone is clear of all personnel". He was then taken to a reference to AS 2187 as a "compliance document' containing information and rules on the handling of explosives. He accepted that he would have looked at AS 2187 during the course of the Orica training if it was mentioned in the assessment material, but he could not remember what was in it. He made no mention of Appendix L. He was taken to a reference to compliance with site specific safety procedures in his practical assessment, but again he applied his interpretation of the PEZ in the CFE Procedure.
13. In cross-examination, Mr Large stated that his recollection of 17 May 2017 was vague. He had refreshed his memory by reading his record of interview with Inspector Brock on the morning that he was called to give evidence. Mr Large accepted that post 17 May 2027 he had discussed with Mr Fitzgerald the reasons for not complying with the PEZ, including their recollections of the content of the Orica training which were discussed before they were interviewed by Inspector Brock. His evidence was that no-one from the Regulator told him that he could not discuss his evidence with the other members of the blast crew and that he had continued to discuss the matter with Mr Fitzgerald until up to a year before he gave evidence (about November 2020) and with Mr Sinnett until just before he was due to give evidence in the Chaplin proceedings (about April or May 2021).
14. Mr Large accepted that the conditions of his BEUL included an obligation that all activities involving explosives were required to be carried out in a manner that ensured the safety and security of all persons and property exposed to risks from the use or handling of explosives. He understood this to be an independent statutory duty owed by him as a licence holder. He also agreed that his appointment as a shotfirer required him to comply with his obligations under the Explosives Act 2003 and the Explosives Regulation 2013.
15. Mr Large was taken in some detail to the practical assessment booklet for his Orica training course that set out the items to be demonstrated by the candidate to achieve the practical component of the course. He accepted that as part of the Orica training that he was taught that a shot had to be fired in accordance with the site-specific procedure, which in this case was the CFE Procedure.
16. Mr Large accepted that the shotfirer was responsible for his or her own safety as well as the safety of authorised persons after the shot was handed over by the Blast Controller. He agreed that the workers at the Mine were trained to intervene to prevent an unsafe work practice that could potentially injure or kill someone.
17. Mr Large agreed that the video depicted that the blast crew were in the path of the fumes and that they left the area to avoid exposure.
18. Mr Large gave evidence that he did not recall being taught about the content of Appendix L, but he recalled there was in class discussion about it, suggesting that it took precedence over the CFE Procedure. He did not elaborate on the content of the discussion. I pause to note that the prosecutor did not lead any evidence from Orica trainers about the content of the Surface Shotfiring Course.
19. Mr Large agreed that he received induction training at the Mine that was refreshed from time to time. He accepted that the induction training conveyed that workers were required to comply with safety rules and procedures and if they did not that they could be disciplined or have their employment terminated. He conceded that immediately after the incident, when he called his wife to say he would be late, that he thought that his job was in jeopardy. Mr Large accepted that his appointments as a blast guard and a shotfirer required him to comply with the SMS. He accepted that the risk assessment of a task might need to be reconsidered if circumstances changed. He agreed that an example of that could include the decision to change a firing location.
20. He ultimately accepted in cross-examination that the CFE Procedure did not provide for any exceptions to the PEZ and that as such members of the blast crew were required to be outside the PEZ. This included the concession that the CFE Procedure was "crystal clear". He accepted that he had trained other workers on the content of the CFE Procedure and agreed that he had not told them that there was any exception to its content.
21. Mr Large was obviously highly regarded at MCO. He was appointed a number of positions that carried with them a high degree of responsibility for safety, including as a shotfirer and as a magazine keeper. He was a qualified assessor and trainer. His evidence demonstrated that he had a detailed knowledge of the safety procedures at the Mine. He had signed a significant number of appointments that reiterated the requirements to comply with applicable legislation, the SMS and MCO's policies and procedures. I find it hard to accept that he preferred his own interpretation of the CFE Procedure and the content of the Orica training on the applicability of the PEZ. This is especially so when he was not relying on the express terms of Appendix L to do so. As I understood his evidence, his only knowledge of Appendix L was what he was told anecdotally by other students in his Orica training class. By his own evidence, his practice was to fire from within the PEZ only if It was necessary to do so and on a small percentage of occasions. His evidence was similar in this respect to Mr Price's evidence, which I will come to. I formed the view that his estimate of 5-10% was a guess impacted by confirmation bias and was probably higher than the reality.
22. Mr Large presented as a tentative witness which surprised me by reference to his experience as a trainer and assessor and my expectation of his knowledge of the relevant policies and procedures. I formed the impression that his evidence was corrupted by reference to his extensive discussions in the lead up to the hearing. I am satisfied that he ultimately capitulated in cross-examination and I do not accept his evidence that there was a common practice at the Mine of firing shots from within the PEZ. I also do not accept his evidence that he raised the discrepancy referred to in [246] with Mr Price before the incident.

Evidence of Peter Sinnett

1. Mr Sinnett was employed as an appointed shotfirer in support crew B at the Mine. He commenced work for the defendant through a labour hire company in December 2015. Mr Sinnett had worked in the mining industry since about 2011, working first at Ulan Underground Mine as an underground miner then at Wilpinjong Mine as a bench assistant on the shot crew. When he came to the Mine he worked as a bench hand and acted as a blast guard before being appointed as a shotfirer and Blast Controller.
2. On the day of the incident, a pre-blast meeting occurred at the edge of the blast area involving the members of the blast crew. Mr Sinnett did not participate in the pre-blast meeting because he was occupied connecting some old ordinance that was approaching its use-by date so that it would be destroyed in the blast. He heard bits and pieces of what was discussed at the pre-blast meeting, but in particular that the shot would be fired from south of the blast area at what became the secondary firing location, rather than from the primary firing location which was to the north of the blast area. Mr Sinnett expressed some concern that the secondary firing location would be downwind of the blast, putting the blast crew potentially in the path of fumes. Mr Chaplin pointed out that the kestrel that had been set up at the blast area showed the wind blowing across the shot and that a position to the south of the blast area would not necessarily be in the direct path.
3. Mr Sinnett gave evidence that whilst driving to the secondary firing location with Mr Fitzgerald and Mr Large, Mr Large gave a rough estimate of the distance between the firing location and the shot as being approximately 300 metres based on the number of blast holes. In this respect, Mr Sinnett stated that other than using the odometer sometimes and relying on the blast maps, the distance between the blast area and the firing location for a particular blast would be calculated by "guessing" using the procedure employed by Mr Large. Mr Sinnett stated that up until 17 May 2017, the quality and clarity of the blast maps varied, but after the incident, the quality of the maps was improved through the use of aerial photographs taken from a drone.
4. As to the significance of 300 metres, Mr Sinnett stated that "we just thought it was a…safe distance away from the shot". He did not recall any discussion about the selection of the secondary firing location. On the way to the secondary firing location, Mr Sinnett drove the vehicle past where Mr Fisher's vehicle was parked. He motioned to Mr Fisher and Mr Chaplin to follow him further away from the blast area. Mr Sinnett stopped the vehicle at a position that became the secondary firing location.
5. Immediately after the blast, the blast crew got into the vehicles and drove further south to get away from the dust plume and fumes generated by the blast.
6. In the meeting with Inspector Macpherson that took place following the incident, Mr Sinnett recalled that himself and others including Mr Fitzgerald and Mr Large had spoken of the "practice" of firing shots from within the PEZ. Mr Sinnett testified that himself, Mr Fitzgerald and Mr Large all said that they "commonly practised firing inside the [PEZ]."
7. Mr Sinnett was taken to the CFE-SWP Assessment completed by him on 2 November 2016, in which he stated that the PEZ was 500m. Mr Sinnett testified that in that training session, Mr Fitzgerald said to Mr Fisher, "we should put In there that we fire from within the 500m". To which Mr Fisher responded "Everyone knows what you guys do. Just write the answer." Mr Sinnett stated that he understood the term "personnel" used in the CFE-SWP to refer to "all mine workers except the people that were with the shotfirer at the firing location." He stated that his understanding of where the shotfirer and authorised persons could be "was up to the shotfirer's discretion", and that the term "shotfirer's discretion" referred to the shotfirer's prerogative to choose the firing location. Mr Sinnett stated that up until 17 May 2017, when he was firing the blast, he exercised the shotfirer's discretion, and estimated that when he or Mr Fitzgerald were acting as the shotfirer, they fired from within the PEZ approximately half of the time.
8. Mr Sinnett gave evidence that he was not trained on the concept of "shotfirer's discretion" in the course of his BEUL training delivered by an external training provider, Mine Resilience or at the Mine. He said that his understanding of it came from word of mouth on the job at another mine.
9. In cross-examination, Mr Sinnett accepted that he had a statutory duty to comply with the conditions of his BEUL, which could be suspended or revoked if he acted in acted in an unsafe manner whilst acting as a shotfirer. He agreed that he and the other members of the blast crew were concerned after the incident that they might lose their jobs as a result of the incident.
10. Mr Sinnett agreed that it was a condition of his employment that he comply with all lawful directions by the Mine and act in accordance with the Mine's policies, practices and procedures, including those relating to WHS on which he had been trained prior to 17 May 2017. He agreed that as a shotfirer he had a senior role with important safety responsibilities, including supervision of other workers, that had to be performed to avoid the potential for serious injury or death.
11. Mr Sinnett accepted that there had been a lot of discussions amongst the members of the blast crew concerning their recollections of the incident, in the period between the incident and the day on which he gave evidence. This included many discussions between himself and Mr Fitzgerald, including discussions about their recollections of what Mr Fitzgerald said to Mr Fisher in the CFE-SWP training assessment on 2 November 2016.
12. Mr Sinnett was taken to his assessments on the CFE-SWP completed by him on 2 November 2016. He accepted that the CFE-SWP was expressed as applying to "all personnel" and that he knew that at the time. He agreed that he correctly identified the PEZ as 500m and that he did not seek to qualify his relevant answers by reference to a "shotfirer's discretion".
13. Mr Sinnett accepted that the CFE Procedure was expressed to apply to all personnel conducting blasting operations at the Mine and that it did not provide an exception of the shotfirer and authorised persons. He identified in his written assessment on the CFE Procedure dated 27 December 2016 that he had correctly identified the PEZ as 500m and did not include a statement relating to a "shotfirer's discretion".
14. Mr Sinnett agreed that the CFE Procedure was clear in its terms and that it did not make any provision for exceptions to the term "all personnel" that would have allowed personnel to be within the PEZ.
15. Mr Sinnett denied the proposition that his evidence of what occurred in the training session on 2 November 2016 was untrue. He accepted that in a conference with the prosecution's lawyers on 6 May 2021 that he could not recall that training session. His evidence was that he had remembered what was said by Mr Fitzgerald after 6 May 2021 and prior to 15 September 2021, when he gave evidence, and that his recollection was not crystal clear but he did not accept that he was mistaken.
16. Mr Sinnett testified that he had discussed with Mr Fitzgerald, prior to giving evidence, what was said to Mr Fisher at the training session and that they each had different recollections of it. He could not recall what the differences were but alleged that the "spine" of the recollections was similar.
17. Mr Sinnett was taken to the record of interview with Inspector Brock that took place on 19 September 2017. At that time, in answer to a question if he had ever been instructed that he was permitted to be within the PEZ, he said: Last time we went through the charging and firing SWPs reported up to Deon and it says 300, 500, why don't we write in at the shotfirer's discretion because we, everyone knows that we fire inside it. Why don't we just have that on there just in case something does go wrong? And we sort of just got pushed and rushed through all that sort of stuff and he sort of dismissed it and said oh look everyone knows what, what you guys do anyway, that's, that's what the blast crews always done so we don't need that there.
18. Mr Sinnett testified that he did not recall if he told Inspector Macpherson or anyone involved in his disciplinary meeting or the investigation leading to the IIR, what was alleged to have been said by Mr Fisher on 2 November 2016. He denied the proposition that he made up what he told Inspector Brock at a time after he knew that Mr Fisher had resigned.
19. Mr Sinnett gave evidence that after the incident, in the period when the blast crew were waiting for Inspector Macpherson to arrive that he spoke to Phil Oswald and Sam Byrnes from Orica, in the presence of Mr Fitzgerald in the car park at the Mine. In that conversation, Mr Sinnett's evidence was that the "shotfirer's discretion" was raised by Mr Oswald to be part of the Orica training. Mr Sinnett did not recall any mention of the Australian Standard or Appendix L at that time. Mr Oswald came to the administration building later in the day and had found a supportive reference on his computer. In re-examination, Mr Sinnett said Mr Oswald provided that document to Mr Fisher.
20. Mr Sinnett accepted in cross-examination that by firing the shot from within the PEZ on the day of the incident was contrary to the content of the CFE Procedure and the training he had received on it, but he interpreted earlier training as permitting him to fire shots from within the PEZ.
21. I have difficulty reconciling Mr Sinnett's evidence on the applicability of the PEZ. His evidence was to the effect that he understood what was done by reference to what he was told when he worked at the Wilpingjong Mine, but that he understood the content of the CFE-SWP and the CFE Procedure and the training on those procedures was that the PEZ applied to all personnel. He recalled some mention the concept of the "shotfirer's discretion" during his BEUL training but did not have a specific recollection of being shown Appendix L at that time or before the incident. He did not suggest that Mr Oswald's reference was to Appendix L. I am satisfied that Mr Sinnett was not seeking to apply the words of Appendix L in the course of his work as a shotfirer including on 17 May 2017, because he did not have sufficient knowledge of its content to do so. His explanation of how he chose a firing location was thoroughly unconvincing, it did not seem to take into account any of his training either, to obtain his BEUL or at the Mine.
22. I am satisfied that Mr Sinnett had an interest in giving the evidence that he did, to deflect blame from himself and Mr Fitzgerald and to be consistent with what he told Inspector Brock. I am satisfied that Mr Sinnett's evidence was significantly influenced by his discussions with others, mostly Mr Fitzgerald, that took place after the incident and that his evidence on the crucial point was reconstructed. I do not accept his evidence that there was a discussion with Mr Fisher on 2 November 2016 as to the applicability of the PEZ to shotfirers and authorised persons.
23. I note that Mr Sinnett's estimate of how often he and Mr Fitzgerald fired from within the PEZ differed from that of Mr Fitzgerald and the other witnesses.
24. Mr Sinnett's evidence when taken to its logical conclusion was that the PEZ could be ignored by the shotfirers if they exercised their discretion to do so. I do not accept that Mr Sinnett did so when working as a shotfirer at the Mine. This was also inconsistent with the evidence of less interested witnesses, such as Mr Large and Mr Price, whose evidence was to the effect that the PEZ could be infringed if it was necessary to do so, for example to achieve a line of sight to the blast area.
25. Overall, I do not accept Mr Sinnett's evidence that there was a common practice at the Mine of firing shots from within the PEZ.

Evidence of Brett Fitzgerald

1. Mr Fitzgerald began working in the mining industry in or around 2008, commencing as a labourer for Orica. He remained in this job for two years, before moving to Downer Blasting, where he worked in the blast crew. He commenced working at the Mine in 2012 as a bench hand on the blast crew. He was appointed as a shotfirer and magazine keeper on 17 June 2015. In 2017, he worked at Wilpinjong Mine for around three months before returning to the Mine. Mr Fitzgerald held a BEUL and a security clearance.
2. After the pre-start meeting, Mr Fitzgerald went to the magazine to get the explosives with Mr Sinnett, after which they went to the shot with Mr Toohey, Mr Morris and Mr Large in the B1 utility. Upon arriving at the site, they began by throwing out the surface detonators and tying in the shot. Mr Fitzgerald and Mr Large then inspected the shot to ensure everything was tied in and there were no slumped holes.
3. Mr Fitzgerald gave evidence that he, Mr Large and Mr Sinnett were all acting as shotfirers on 17 May 2017 and that this caused some confusion as to who was doing what task. Mr Fitzgerald made the call over the radio to fire the shot, Mr Sinnett prepared the "gear" and Mr Large pressed the button that fired the shot. Mr Fitzgerald was nominated as the appointed shotfirer. He gave evidence that he did not know this prior to the incident, but rather found out later when he looked at the Map. This was not discussed at the prestart meeting, as they do not get the Map for prestart meetings. They received the Map at the blast area and left in on the dashboard of the vehicle.
4. Mr Fitzgerald, Mr Sinnett and Mr Large determined the primary firing location. Mr Fitzgerald gave evidence that the firing location had to have a direct line of sight between the detonation boxes. They also checked the wind direction with a kestrel and observed that the wind was blowing across the shot.
5. Prior to leaving the blast area, Mr Fitzgerald spoke to Mr Chaplin about where he was going to fire the shot from. Mr Chaplin asked if they could fire the shot from the south so that he could film it. The secondary firing location to the south of the blast area was chosen that was estimated to be 300m from the blast area. This estimate was based on Mr Large counting holes between the blast area and the secondary firing location. Mr Fitzgerald's evidence was that 300m was a distance he "liked to fire from". He did not make any estimate of the distance for himself on the day of the incident. Mr Fitzgerald believed that the wind was blowing across the shot and that the secondary firing location would not be in the direct path of fumes from the blast.
6. On the way to the secondary firing location, Mr Sinnett drove past where Mr Chaplin and Mr Fisher had stopped. Mr Fisher followed Mr Sinnett to the secondary firing location. At the secondary firing location, Mr Fitzgerald and Mr Large set up the detonation box.
7. After the blast, Mr Fitzgerald got into the vehicle and Mr Sinnett drove further way to get away from the dust generated by the blast. Mr Fitzgerald was frightened and shaken by the incident and described his mind as "blank" afterwards.
8. After the blast, the workers went back to the administration building and completed handwritten statements and drug and alcohol testing. There were told to stay until an inspector from the Regulator arrived.
9. At some point in the afternoon, Mr Fitzgerald went to sit in his car. He ran into Sam Byrnes a supervisor from Orica in the car park and spoke to her. Later on that day he was shown an Australian Standard by Phil Oswald, Orica's Area Manager. He gave evidence that it was the first time that he had seen the Australian Standard, but had been told in the past by Troy Samuels, an Orica trainer, that it contained an exception for shotfirers to stand within an exclusion zone and that a shotfirer had a discretion of where to fire a shot from.
10. Mr Fitzgerald attended the meeting with Inspector Macpherson but could not recall what was said at it.
11. Mr Fitzgerald estimated that he fired 80-90% of non-el shots from within the PEZ, but for electronic shots they would go to the lookout that had a direct line of sight to the blast area.
12. Mr Fitzgerald gave evidence that on 2 November 2016 at a training session on the CFE-SWP he asked Mr Fisher, in the presence of Mr Sinnett and Mr Clarke if the PEZ applied to shotfirers. To which Mr Fisher replied, words to the effect, "Just keep doing what youse are doing".
13. In cross-examination, Mr Fitzgerald accepted that his Orica training referred to the importance of site-specific safety rules in relation to exclusion zones.
14. Mr Fitzgerald first recalled hearing about the Australian Standard containing an exception which allowed shotfirers to remain within the PEZ when firing the shot during his Orica training with Mr Samuels. Mr Fitzgerald gave evidence that Mr Samuels told him during training that the relevant Australian Standard gave shotfirers the discretion to fire from where they wanted. Mr Fitzgerald first saw the relevant Australian Standard after the incident, when it was shown to him by Mr Oswald
15. Mr Fitzgerald was taken to a number of his training documents. On 11 November 2016, Mr Fitzgerald completed the training document titled, 'Charging and firing blasts standard work practice assessment'. In filling out this document, Mr Fitzgerald was required to list the exclusion zones for personnel and equipment. On 16 November 2016, Mr Fitzgerald asked Mr Fisher whether the 500m exclusion zone included shotfirers. Mr Fisher told Mr Fitzgerald, "We know what you do. Just keep doing what you are doing". Mr Clarke, and Mr Sinnett were in the room when Mr Fitzgerald raised this issue. Ms Healey may have also been there. Prior to the incident, Mr Fitzgerald believed that the PEZ did not apply to shotfirers. Mr Fitzgerald denied that he discussed his recollections of this training with Mr Sinnett prior to giving evidence.
16. Mr Price was with the shotfirers for most shots, and shotfirers were often within the PEZ. Mr Fitzgerald was also taken to a training document titled "Theory Assessment Charging and Firing of Explosives", which he completed in January 2017. In this training document, he was required to list the minimum blast exclusion zones, which he identified as 300m for equipment and 500m for personnel. Mr Fitzgerald gave evidence that he did not believe that shotfirers were considered "personnel" for the purposes of the exclusion zone, based on his experience that shotfirers never complied with the exclusion zone.
17. At the time of the incident, Mr Chaplin was in the process of improving the Maps, which Mr Fitzgerald described as "poor".
18. Mr Fitzgerald admitted to having discussions with Mr Sinnett about the incident prior to Mr Sinnett giving evidence in Court.
19. Mr Fitzgerald gave evidence that he was not aware of his duty under the Explosives Regulations to report serious incidents relating to his BEUL. Mr Fitzgerald did not report the incident of 17 May 2017 to the Regulator. He knew that his BEUL could be cancelled if he breached certain provisions of the Explosives Act.
20. Mr Fitzgerald admitted that he was not wearing a hard hat on the day of the incident. Mr Fitzgerald gave evidence that he did not believe that he had to wear a hard hat in the blast area because he had never worn one.
21. In cross-examination, Mr Fitzgerald was taken to the surface shotfiring operations training he underwent with Orica in 2013. He conceded that as part of this training he was taught that it was necessary for him to know the relevant site safety procedures in respect of shotfiring and that this was important when preparing the charge. He was aware that he needed to closely follow site procedures in respect of blasting. He also acknowledged that his training at MCO addressed exclusion zones and guarding requirements. He recognised the importance of clearing the blast area to minimise the risk of flyrock or other debris injuring personnel.
22. Mr Fitzgerald admitted in cross-examination that he was responsible, as the appointed shotfirer, for managing the safe conduct of all charging activities, for the preparation and checking of the shot, and for all personnel if there was no Blast Controller. His evidence was that the Blast Controller was responsible for clearing the PEZ, but that the shotfirer was responsible for choosing the firing location and making sure it was outside of the PEZ, if it applied to shotfirers and authorised persons.
23. Mr Fitzgerald admitted that he did not know the distance that they fired from on the day of the incident. He accepted that, from his training as a shotfirer and his licence requirements, he needed to know the distance that the shot was being fired from to minimise the risk of injury or fatality to any personnel. He accepted that he had the legal obligation to control and fire the shot.
24. Mr Fitzgerald knew that noxious gas could injure or kill people and that was why they evacuated the blast area on 17 May 2017. He agreed that he had to consider wind direction and the potential for fume when selecting where to take the shot from.
25. Mr Fitzgerald maintained that he was taught in Orica training that shotfirers could fire from within the PEZ. However, he conceded that the Orica training was that he needed to comply with site procedures in relation to exclusion zones, because of the risks associated with non-compliance.
26. Mr Fitzgerald admitted that the incident on 17 May 2017 was a serious one.
27. I do not accept Mr Fitzgerald's evidence that he raised the applicability of the PEZ to shotfirers on 2 November 2016 for the following reasons. Mr Fitzgerald did not raise such an allegation in the immediate aftermath of the incident or during the internal investigation of it. The first time he made this allegation was about 10 months after the incident in his interview with Inspector Brock, which was at a time after he had discussed the matter with Mr Sinnett. I prefer the evidence of Mr Fisher given before Judge Russell SC and myself that the conversation did not occur. I also note that none of the other witnesses present, including Mr Clarke, but with the exception Mr Sinnett gave similar evidence. Mr Sinnett's evidence was contaminated for the same reasons as Mr Fitzgerald's evidence on this issue. Further, there were some inconsistencies between the recollections of Mr Fitzgerald and Mr Sinnett on this important discussion.
28. Mr Fitzgerald was a poor witness. His maintenance of the position that a shotfirer could fire shots from within the PEZ was far from convincing. His evidence was internally inconsistent. He relied on the content of Appendix L but had never seen it. He accepted that the Orica training placed significance on the CFE Procedure, but to take his evidence to a logical conclusion, he ignored it. His evidence was hard to follow, partly because he was taken to many topics in random order both in chief and in cross-examination. At times he bordered on being argumentative. He sought to rely on assertions that could not be tested, such as that there were other shotfirers at the Mine that trained him to fire from wherever he wanted to, but those persons were not called to give evidence. It was clear from his evidence and Mr Sinnett's evidence that they had many discussions about the incident and what their evidence would be prior to giving evidence. Further, the incident had a significant impact on Mr Fitzgerald and his memory of the events.
29. Overall, Mr Fitzgerald presented as an advocate for the existence of the common practice and not as a disinterested and reliable witness. His presentation as a witness was so poor that I have placed almost no weight on his evidence.

Evidence of Darren Price

1. Mr Price was the Drill and Blast Co-Ordinator. He commenced employment with MCO in about September 2009, working initially as an OCE and then as the Drill and Blast Co-Ordinator from about 2012. Mr Price had about 30 years' experience in the mining industry, working exclusively in open cut mines in roles including machine operator, fitter, shotfirer, drill and blast supervisor and OCE. Mr Price held a BEUL and an OCE ticket. As the Drill and Blast Co-Ordinator, Mr Price dealt with the day-to-day organisation of drill and blast activities and supervision of the blast crews. At the time of the incident Mr Price reported to Mr Fisher. When he was rostered to work, he would act as the Blast Controller and did so on the day of the incident.
2. Mr Price's evidence was that, on the day of the incident, he was part of a discussion as to the firing location at the pre-blast meeting, although he could not recall who suggested the initial firing location. He was told that the shot would be fired from a north-easterly direction, slightly down from the position marked as blast guard 2 on the Blast Control Plan Map. Mr Price found out after the incident that the original firing location that was proposed by Mr Fitzgerald at the blast meeting was later changed to a position south-west of the blast area.
3. Whether Mr Price would attend the firing location, when acting as the Blast Controller, depended on how big the clearance area was and how long it took make sure people and equipment were outside of the relevant exclusion zones and then hand over the control of the shot to the shotfirer to fire the shot. Mr Price's evidence was that the people who were required to be outside of the blast of the PEZ did not include the shotfirers responsible for firing the shot. In clearing the PEZ, he did not remove the shotfirers or people with them. Mr Price only partially observed the shot. He saw that it created a lot of dust and contained one "high hole which was an ejection sort of higher than the rest of the uniform shot" but was not aware that an incident had occurred until after the "all-clear" had been given. Mr Oliphant approached him at the north-eastern area of the shot and told him that an incident had occurred. They travelled together to where the blast crew were.
4. Mr Price's evidence was that up until 17 May 2017, the firing location was determined by the shotfirer, who had to take into account a number of factors when selecting an appropriate firing location but was broadly entitled to select a firing location that they deemed to be safe. Mr Price's understanding was that this discretion came from the Australian Standard, which formed part of his Orica training to obtain his shotfirer's licence.
5. Before 17 May 2017, Mr Price said that shotfirers took steps to estimate the location of the PEZ but it was not measured accurately, at that time. He said that there were a number of methods used including using the trip metre on a vehicle, identifying landmarks on the maps or for non-el blasts using rolls of shocktube that were 500 metres long. There were usually a number of potential firing locations available and its was up to the shotfirer to determine which one was a safe location to fire from. Due to the inaccuracy of the measuring methods available, Mr Price's evidence was that a firing location could have been within the PEZ or outside it.
6. Mr Price gave evidence that when he was acting as the shotfirer that he "would have on occasions" fired shots from within the PEZ, if for example he was using a dump (mound of dirt) to get a view to the blast area. He gave evidence that he may have fired a shot from within the PEZ on a small coal shot (where there was less risk because less explosive was used), but this was qualified by his words, "maybe not". He gave this evidence by reference to his recollection of the blasts that occurred at the Mine in the nine years prior to the incident. He gave evidence that there "would have been" times when members of Mine management were present at a firing location that was within the PEZ.
7. Mr Price gave evidence that prior to the incident that he had never discussed the applicability of the PEZ to shotfirers and authorised personnel with anyone at the Mine and that topic had never been raised by anyone in a training session in his presence.
8. In cross-examination, Mr Price accepted that part of his responsibilities as the Drill and Blast Co-ordinator included ensuring compliance with the safety and health management systems in place at the Mine. He agreed that there was never any training at MCO to the effect that shotfirers could determine a firing location within the PEZ. Mr Price accepted that prior to the incident, no one had ever raised any issue of confusion or uncertainty as to whether shotfirers could be within the PEZ or the definition of "all personnel" as it appeared in the CFE procedure. He agreed that none of MCO's policies mentioned the concept of "shotfirer's discretion" or referred to the Australian Standard as an exception to the application of the PEZ. He accepted that the workers at the Mine were trained that they were required to comply with safety policies and procedures and that they could stop work if they thought that something unsafe was occurring.
9. Mr Price accepted that the PEZ and FMZ were critical isolation controls to protect workers from the risks posed by flyrock and fumes. Over the years he had been involved in formal processes at the Mine such as the Audit and the Risk Assessment where those control measures were discussed and agreed on.
10. He was taken to MCO's Communication and Consultation Procedure (the CC Procedure). He agreed that it required all workers at the Mine to engage in open and honest communications relating to matters of safety and set out the pathways through which safety matters could be raised and acted on by a person at any level of the organisation. He accepted that the CC Procedure was essential to the safe operation of the Mine because management could not know everything that occurred at the Mine and they relied on the provision of information by the workers as to the existence of potential hazards.
11. Mr Price's evidence was that it was general practice that a shotfirer would communicate any change in the planned firing location. He said had the blast crew communicated to him prior to firing the shot that they were going to change the planned location to where they actually fired the shot from, he would have stopped it and not handed over the shot because he considered the firing location to be a poor one because there was no escape from that location if something went wrong.
12. After being shown a video of the blast he agreed that he had some concerns arising from it. First, he had never seen Mr Fitzgerald unilaterally alter the position from where a shot was to be fired without consulting him as the Blast Controller. Second, he had never seen Mr Fitzgerald take a shot from a location where there was only one way in and one way out. Third, he had never seen Mr Fitzgerald take a shot from a location when he, as the Blast Controller, did not know where the shot was being taken from. Fourth, Mr Fitzgerald had never indicated to him that he was confused as to whether he was the appointed shotfirer for the day or that he was acting in that role with other shotfirers.
13. I found it difficult to reconcile Mr Price's evidence. Doing the best I can, he seemed to accept that prior to the incident, shotfirers tried to observe the PEZ but though inaccurate measurement they may not necessarily succeed. Alternatively, there were occasions where line of sight may have required departure from the PEZ. However, in all cases a shotfirer had the responsibility to take into account a number of complex, overlapping factors to determine a safe firing location. The answers he gave in cross-examination about the plain words of the CFE Procedure and the other procedures at Mine stood in stark contrast to the vagaries of his evidence in chief, where he referred to an undefined and unbounded shotfirer's discretion which may or may not be applied. His evidence about what occurred at the Mine prior to the incident seemed to refer to a 9-year period. In my view that evidence was imprecise, lacked objective detail and was unreliable. It was also not particularly relevant by reference to the recency of the CFE Procedure. I am satisfied that Mr Price sought to qualify his evidence in chief to protect the shotfirers involved in the incident and that I cannot place much weight on it. I understood his evidence to be that the shotfirers were required to observe the PEZ and took steps to do so, but that there may have been occasions over a nine year period where it was not observed, but he could not provide any particular examples. I am also satisfied that by reference to Mr Price's extensive reliance on the phrase "would have" that his evidence was substantially reconstructed.

Evidence of Deon Fisher

1. Mr Fisher's background is set out at [67] to [78] above and I will not repeat those matters.
2. Mr Fisher estimated that he had been present at the firing location between 10 and 20 times as at the date of the incident. There were other occasions, perhaps 20-30, where he observed the blast from another location. When he observed a blast, he wanted to see how it performed and if there were fumes generated by the blast. He did not observe every blast because he had other duties to attend to.
3. Mr Fisher was responsible for the safety training of the blast crews, including the development and review of procedures and the conduct of risk assessments, underlying those procedures. He was also required to undertake safety observations under the SO Procedure as well as the general day-to-day supervision of the blast crews.
4. At the secondary firing location, on the day of the incident, Mr Fisher gave evidence that he had a recollection of saying to Mr Chaplin something along the lines that the blast crews were standing too close to the blast area, but he could not recall the significance of other comments on the video recording. At the time of the blast, Mr Fisher put faith in the shotfirers to choose a safe firing location, because they had more experience than he did. Overall, Mr Fisher had very little recall of what occurred after the flyrock incident on the day that it occurred.
5. About a week after the incident, Mr Fisher was called to the Mine for a meeting. He attended a meeting with Mr Oliphant, Mr Arnold and Mr Archinal. He was given the choice of resigning or being terminated. He understood that this was a result of being present and allowing the blast crew to be within 500m of the blast area when firing the shot. Mr Fisher stated at the meeting that his belief was that he was entitled to be with the shotfirer at the firing location.
6. Mr Fisher gave evidence that during his role as Drill and Blast Superintendent he asked one of the shotfirers why they could stand within the PEZ. He was referred to a piece of legislation and was told that their external training said that they could fire from a location that they deemed to be safe. His recollection was that he was referred to the Australian Standard that applied to shotfiring. He accepted that the document was a reputable document and that he was satisfied with the answer he received.
7. Mr Fisher's evidence was that on occasions when he attended the firing location that the majority of times the shotfirers stood within the PEZ, but he could not give a percentage. He recalled attending the firing location for a coal shot in OC2, with a lady from head office, and that the firing location was very close to the blast area. He thought that the blast occurred about two months after his appointment as superintendent, in May or June 2016, and that the firing location was about 300m from the blast area. He could not recall any other specific occasion. He agreed that on occasions when he did not attend the firing location that there were times when he observed the shotfirer to be within the PEZ but could not recall any specific instances of that. Mr Fisher testified that his observations of shotfirers standing within the PEZ occurred mainly on coal sites at the Mine. It seemed possible to me that this was a reference to "coal shots" at the Mine.
8. After the Audit, Mr Fisher retrained the members of the blast crews on the CFE-SWP, participated in the Risk Assessment and was responsible for the introduction of new procedures at the Mine, including the CFE Procedure. Mr Fisher's evidence was that in the Audit, Inspector Hanlon did not raise any issue with the wording of the CFE-SWP and that during the Risk Assessment no worker raised any issue about the applicability of the PEZ to shotfirers and authorised persons.
9. Mr Fisher's evidence was that no one ever raised during training on the CFE-SWP or the CFE Procedure, if the PEZ applied to shotfirers. He denied in cross-examination having a conversation to this effect with any of the shotfirers, in which he was alleged to have said, "just keep doing what you are doing". It was common ground that he gave similar evidence in earlier proceedings in this Court, before his Honour Judge Russell SC.
10. Mr Fisher was responsible for undertaking safety observations in accordance with the SO Procedure. He could not recall undertaking one on a blast.
11. After Mr Fisher resigned from the Mine, he moved to the Nelson Bay area and established a painting business.
12. In cross-examination, Mr Fisher accepted that he "dropped his guard" on the day of the incident and that he exercised poor judgement. He gave evidence that he was scared by the incident and that as a result some of his conduct was inappropriate. He did not believe that he had done anything wrong up until he was called in for the disciplinary meeting.
13. Mr Fisher accepted that he assumed that the secondary firing location had been chosen by the shotfirers and that they were doing their job properly when they did so.
14. After he lost his job at the Mine, Mr Fisher gave evidence that he was angry with, and disappointed in, MCO.
15. Mr Fisher agreed that the wording of the CFE Procedure did not provide for an exemption for the shotfirers and authorised persons to be in the PEZ. He also agreed that the CFE Procedure provided that the PEZ could be enlarged, but not reduced, and that the size of the PEZ had been consistent for a long time.
16. Mr Fisher testified that he took safety at the Mine very seriously. He accepted that the shotfirers were licenced and had specialist training to carry out their role.
17. Mr Fisher accepted that he had signed a number of appointment documents at the Mine that made reference to a number of sources of legislation and policies that he was required to comply with whilst undertaking his duties at the Mine, including as a blast guard, an OCE and a trainer/assessor.
18. He understood that as a blast guard his role was to keep personnel out of the PEZ. He accepted that anyone within the PEZ, including the shotfirers, were at risk of harm from flyrock.
19. He understood that his role as an OCE included ensuring that the open cut mining operation complied with all relevant statutory requirements and to ensure that all workers were aware of their obligations. He accepted that the workers at the Mine were trained to stop work and to seek help, if they thought that what they were doing was unsafe.
20. Mr Fisher testified that he had little recollection of what he did at the Mine, because he was now busy with running a business that engaged 40 employees and raising with four young children at home and coping with the stress from both of those things. He largely relied on the content of documents and did not have much recollection of the events that they referred to.
21. Mr Fisher accepted that on the day of the incident that he was in breach of a mandatory safety procedure of the Mine, for which he could have been terminated. He accepted at the time of giving his evidence that the flyrock incident on 17 May 2017 was the fault of the shotfirers.
22. Mr Fisher accepted that he received considerable assistance from Mr Chaplin in undertaking the technical aspects of his role as the Drill and Blast Superintendent and relied on the shotfirers for their knowledge and expertise. He acknowledged that he was able to approach senior employees at the Mine if he had a problem.
23. On the day of the incident, Mr Fisher testified that he was not aware that the shotfirers were going to depart from the PEZ, EEZ and FMZ marked on the Map.
24. Mr Fisher was taken through the control measures identified in the Risk Assessment relating to the hazard posed by flyrock. His evidence was that nothing was hidden in a risk assessment and that any issue would have been drawn out by reference to the experience of the people involved. He believed that because it was a common practice for the firing location to be within the PEZ, it was not raised in the risk assessment. He accepted that no worker raised during the risk assessment process that shotfirers stood within the PEZ when firing a shot.
25. Mr Fisher accepted that he told Inspector Brock in his interview with him on 4 June 2018 that he was not aware of any occasions when either Mr Oliphant, Mr Craig, Mr Arnold or Mr Archinal were present at a firing location that was within the PEZ.
26. Mr Fisher presented as an honest witness who was trying to do his best to tell the truth. His evidence demonstrated that he was a diligent and careful supervisor, who took matters of safety seriously. Whilst he did not have extensive experience in drill and blast activities, he demonstrated a streetwise understanding of the processes. For example, when he detected that shots were being fired from within the PEZ he questioned the shotfirers and was shown Appendix L, which he accepted as a reasonable basis for their actions.
27. I am satisfied that he had to rely on the expertise of Mr Chaplin to undertake the technical, financial and planning tasks of the Superintendent role. I am also satisfied that because he did not hold a BEUL that he had to rely on the knowledge and experience of the shotfirers in relation to blasting operations. He was not required to undertake day-to-day supervision of the blast crews. This was undertaken by Mr Price. Overall, the evidence demonstrated that Mr Fisher had significant skills and gravitas as a leader and a proven history of achieving his relevant production goals safely. I am also satisfied that he was gaining on the job experience in the Superintendent role.
28. There was an element of conflation in Mr Fisher's evidence. He appeared to reason backwards that because the workers were within the PEZ on the day of the incident because they told him that they had a legitimate justification for doing so and therefore it must have always been the case. His evidence appeared to be focussed on justifying what occurred on the day of the incident to protect the members of the blast crew, rather than focussing on what he had seen or knew from his own experience. In reality, he had very little experience of being present at the firing location during his whole time at the Mine. He did not have any understanding of the relevant procedures until he became the Drill and Blast Superintendent. He did not hold a BEUL and had not undertaken the Orica training. His recollection of firing shots from within the PEZ appeared to be better in his evidence compared to his recollection on 4 June 2018 during his interview with Inspector Brock.
29. I do not accept Mr Fisher's evidence about the risk assessment process. This was the precise time when the issue of the applicability of the PEZ to shotfirers should have come out. Mr Fisher accepted that the PEZ was an isolation control intended to remove personnel from the source of danger and it did not matter what those personnel were employed to do.
30. Mr Fisher had a legitimate reason for interpreting that the PEZ did not apply to the shotfirers, because he was shown Appendix L and had not been trained on the Australian Standard. He accepted in his evidence that interpretation was wrong, by reference to what he knew now, which I infer included what happened in the near miss incident.
31. It was reasonable for Mr Fisher to think that he was unfairly made a scapegoat for the incident. Notwithstanding that, I did not consider him to be a witness with an agenda to give adverse evidence against the defendant. To the contrary, I thought that his evidence was generally reliable, but to some extent reconstructed by reference to what he was trying to justify. The tenor of his evidence that shots were regularly fired from within the PEZ was inconsistent with his lack of recall on 4 June 2018 when he was interviewed. I have not placed much weight on Mr Fisher's assertions as to the common practice at the Mine, which in my view are to a significant extent reconstructed by reference to the version of events he wanted the Court to accept.

Evidence of Michael Chaplin

1. Mr Chaplin was a Consulting Mining Engineer specialising in drill and blast. He had a Bachelor of Mining Engineering from Ballarat University and a Graduate Certificate in Applied Finance.
2. At the date of the incident, Mr Chaplin was working as the Drill and Blast Engineer, on a one-year contract that commenced in August or September 2016. He took over from the previous Drill and Blast Engineer, George Ware. Before that Mr Chaplin was engaged at the Mine from about June 2016, to assist Mr Fisher in his role as Drill and Blast Superintendent. At the date of the incident, Mr Chaplin had 12 years' experience in the mining industry, and had worked at a number of mines in Queensland, New South Wales, Western Australia and Tasmania, most often as a Drill and Blast Engineer but also in roles such as a Technical Services Representative and Principal's Representative. Mr Chaplin also had a BEUL.
3. In his initial role at the Mine, Mr Chaplin set up a spreadsheet to manage the analysis of the required resources to undertake the blasting activities at the Mine. The management of blasting resources was ordinarily a task of the Drill and Blast Superintendent, but Mr Chaplin set up the system to demonstrate to Mr Fisher how that was done and to make it easier for him to learn the requisite tasks and take control of. At the time, Mr Chaplin became aware, from what he was told and what he observed, hat Mr Fisher had limited computer literacy and a limited knowledge of drill and blast activities. Mr Chaplin did not recall being told about Mr Fisher's background at the Mine prior to his appointment as Drill and Blast Superintendent.
4. Mr Chaplin's role as Drill and Blast Engineer involved the preparation of the technical components of blasts, including preparing certain pre-blast checklists and other design documents including the Map, and performing certain due diligence tasks.
5. For the blast scheduled for 17 May 2017, Mr Chaplin prepared the Map. He sued software to create the EEZ, PEZ and FMZ markings on it. The FMZ was intended to represent where fumes could travel by reference to the predicted wind direction. Mr Chaplin usually liaised with Mr Price as to the blast guard locations because their positioning was the responsibility of the Blast Controller.
6. On the day of the incident, Mr Chaplin attended the blast area with Mr Fisher. He was tasked with filming the blast and had two video cameras with him for that purpose. At the blast area, Mr Chaplin asked Mr Fitzgerald where he was going to fire the shot from and whether he wanted to fire the shot from the south-western end of the blast area where Mr Chaplin was going to set up the video cameras, but he could not recall Mr Fitzgerald's response.
7. Mr Chaplin's evidence was that the firing location was determined by the shotfirer, taking into account all relevant considerations, in what he described as the "shotfirer's call". Mr Chaplin gave evidence that there was a kestrel set up at the blast area, but he did not recall anything being said about it. Mr Chaplin's evidence was that the location of the camera to the SW of the blast area was optimal by reference to the initiation design in which the blast was intended to move to the NE, meaning that if the camera was located to the NE it would film the first few holes detonating, but then would be obstructed by the dust plume and the footage would not show how the blast performed. He said that when he made the enquiry of Mr Fitzgerald, he was not considering the safety of that firing location because that was not part of his responsibility.
8. In the period leading up to 17 May 2017, Mr Chaplin attended the firing location on occasions, but not often. When he did not attend the firing location he observed the blast from the lookout or other vantage points. He gave evidence that on occasions he could see from those vantage points that the firing location was within the PEZ.
9. Elaborating on the term "shotfirer's call", Mr Chaplin gave evidence that as an engineer he applied the Australian Standard, and he assumed by what he saw that the shotfirers were applying the terms of Appendix L that permitted shotfirers and authorised persons to be within a specified exclusion zone. Mr Chaplin agreed that Appendix L did not provide much guidance on the selection of a safe firing location that was within an exclusion zone.
10. Mr Chaplin opined that the blast ejected from one hole causing the flyrock incident as a result of inadequate stemming of the hole, which could have been prevented by measuring the amount of stemming material put into each hole using the meter installed on the stemming trucks.
11. On 23 May 2017 Mr Craig sent a letter to Mr Chaplin terminating the contract with Mr Chaplin's service company, on the basis that the investigation found that there was a significant safety breach of the PEZ and FMZ. Mr Chaplin's last day of attendance at the Mine was 17 May 2017.
12. Prior to 17 May 2017, Mr Chaplin had been asked to go through the Mine's procedures, including the CFE Procedure. He did not do so prior to the incident and he did not attend any training session on the CFE Procedure. At the time of the incident, Mr Chaplin understood the PEZ to be 500m, to which he applied the proviso contained in Appendix L, that the shotfirer and authorised persons could be within that exclusion zone "at a point of safety". Mr Chaplin testified that he recalled being at a firing location that was within the PEZ that was attended by a female commercial manager from the corporate office, at about the time when MCO was changing explosives supplier but could not recall when that was.
13. In cross-examination, Mr Chaplin denied suggesting to Mr Fitzgerald that he should fire from a location that was south of the blast area, as opposed to asking him to do so. Mr Chaplin agreed that he did not record such a question in his notes made shortly after the incident. Mr Chaplin denied making up his evidence on this issue and about the best vantage point for the camera.
14. He denied editing the video that he filed to avoid implicating himself and the other workers in wrongdoing, in relation to the incident.
15. Mr Chaplin gave evidence that his comment "we just won't do it again" on the video was a reference to firing from within the PEZ. He disagreed that he knew that the shot should not have been fired from within the PEZ at the time and denied giving false evidence about that.
16. Mr Chaplin accepted that he was responsible for preparing the Map and that he did not say anything about the secondary firing location being within the PEZ or the FMZ.
17. Mr Chaplin agreed that in his role as Drill and Blast Engineer at the Mine that he had significant safety responsibilities. This included following a very careful process in designing blasts and taking into consideration that there was always a potential for things to go wrong when working with explosives. He accepted that workers at the Mine relied on him to ensure that blasting was carried out safely.
18. Mr Chaplin's evidence was that flyrock incidents are extremely rare if a blast is loaded in accordance with its design and are caused by discontinuities in loading holes, such as bridging or geological characteristics, that lead to energy release through the path of least resistance.
19. Mr Chaplin had not been trained on the CFE Procedure, despite a number of requests that he undertake specified training modules as a matter of urgency. He accepted that he should have done so. He accepted that he knew what the PEZ and EEZ were on the day of the incident because he marked them on the Map.
20. Mr Chaplin could not explain how a "predetermined and protected" firing location could be arrived at in applying AS 2187. He agreed that his concept of "shotfirer's call" did not permit a shotfirer to arbitrarily choose any firing location within the PEZ. His evidence was that the word "protected", was vague and could have, for example, referred to a number of things, including physical protection provided by a steel structure. He accepted that the application of Appendix L would have depended on the site-specific procedures.
21. Mr Chaplin denied that the 500m distance was of significance to him immediately following the blast.
22. Mr Chaplin prepared the Map and knew or should have known where the PEZ and FMZ were marked on it. I am satisfied that he knew at the time of firing the shot that the secondary firing location was within the PEZ and FMZ marked on the Map. I do not accept his evidence that 500m was irrelevant to him immediately after the blast because it is directly inconsistent with what he said in the contemporaneous recording.
23. Mr Chaplin did not have a working knowledge of the CFE Procedure because he had not read it or been trained on it before the incident. Accordingly, his views on it and its interaction with Appendix L need to be considered on that basis. He accepted that the content of site-specific procedures would have been relevant to considering how to apply the provisions of Appendix L. In my view, he has never put himself in the position to comment.
24. Overall, it was apparent that Mr Chaplin was displeased about having his contract terminated by the Mine and being prosecuted for his part in the incident. His adverse views about MCO management came through in his evidence. I do not consider him to be an impartial witness. I do not believe he was dishonest in relation to the matters where that was put to him,
25. I accept Mr Chaplin's evidence that the flyrock incident was caused by inadequate stemming of the hole.
26. Overall, Mr Chaplin's evidence as to the common practice issue lacked detail and he came across as an advocate for the proposition that Appendix L excused the blast crew from complying with the PEZ, notwithstanding his accepted lack of knowledge of the terms of the CFE Procedure. I am satisfied that Mr Chaplin's ill-informed views, referred to him as the "shotfirer's call" immediately after the incident was the genesis of the justification for the incident put forward to Inspector Macpherson and later the Mine by the members of the blast crew.
27. I have not placed much weight on Mr Chaplin's evidence on the common practice issue.

Evidence of Nicholas Craig

1. At the time of the incident, Mr Craig was the Open Cut Technical Services Manager at the Mine, having commenced working at the Mine in that role in 2015. He was a qualified Mining Engineer and had worked in a number of Mines since 2004 in Australia and Indonesia. Mr Fisher reported to Mr Craig, who in turn reported to Mr Archinal.
2. Mr Craig was involved in the Risk Assessment that led to the development of the CFE Procedure. Mr Craig's evidence was that the PEZ applied to all personnel and that no concerns were raised with him or during the Risk Assessment process or the training on the CFE Procedure that there was any concern about the applicability of the PEZ.
3. Mr Craig's evidence was that to his observation, on the occasions that he was present at the firing location, that shots were not fired from within the PEZ. He stated that if he had seen that occurring or knew that it was occurring, that he would have stopped the work because it was dangerous to allow it to continue. The PEZ, he said, was a critical control to ensure the safety of any person at the Mine, to isolate them from the potential sources of flyrock.
4. Mr Craig was a part of the investigation team who prepared the IIR. He did not agree with the conclusion of other members of the investigation team that there was a common practice of firing shots from within the PEZ but was overruled by Mr Arnold or Mr Archinal on this issue.
5. Mr Craig was a good witness. His evidence was considered and precise. I am satisfied that I should accept his evidence.

Evidence of Tim Oliphant

1. Mr Oliphant was the Open Cut Mine Manager and statutory Mine Engineering Manager at MCO and had occupied those positions since he commenced work at the Mine in late 2016. Mr Oliphant was a qualified Mining Engineer and held Certificates of Competency in various matters in Queensland and New South Wales. Mr Oliphant was a qualified shotfirer in Queensland, but this qualification had lapsed. Prior to commencing work at the Mine, Mr Oliphant worked at other open cut mines in Queensland, New South Wales and the United States, in positions such as mining and technical services manager, mining superintendent, production engineer and drill and blast engineer. Mr Oliphant had extensive experience in the mining industry dating back to January 2002.
2. Mr Oliphant was the statutory Mine manager at MCO. A number of positions reported to him directly or through a supervisor or superintendent. At the time of the incident, Mr Oliphant did not have any responsibilities for drill and blast activities at the Mine, with the drill and blast crews reporting to the Technical Services Manager, Mr Craig. Following the incident, organisational changes were made so that the drill and blast crews then reported to Mr Oliphant as the Open Cut Mine Manager.
3. Mr Oliphant was onsite on the day of the incident and was informed of it via a telephone call from Mr Fisher shortly after the incident. Mr Oliphant attended the blast area immediately and reported the incident through the Regulator at about 1.54pm on the afternoon of 17 May 2017. In the days following, Mr Oliphant had a number of discussions with the people involved, took photos of the incident site and began gathering evidence for the purposes of the internal investigation.
4. Mr Oliphant first attended the site where the light vehicles were parked, which he was told was the firing location.
5. Mr Oliphant's evidence was that he was told by certain members of the blast crew that they believed that the firing location was appropriate on the basis of "shotfirer's discretion" and Appendix L of AS 2187. Mr Oliphant could not recall being told anything during those discussions about whether the blast crew had fired a shot from within the PEZ on previous occasions. Mr Oliphant's evidence was that the references in the IIR to firing from within the PEZ being a "common practice" of the Mine were based on the statements and interviews with the blast crew, which were conducted as part of the investigation.
6. In cross-examination Mr Oliphant stated that the PEZ had been 500 metres in the relevant procedure since he started work at the Mine. His understanding was that the PEZ applied to all personnel including those conducting the blasting operations at the Mine.
7. Mr Oliphant stated that prior to the incident nobody at the Mine had raised any uncertainty as to the scope of the CFE procedure, had asked whether it applied to blast crews or had stated that a shotfirer had a discretion to be within the PEZ or to ignore any other part of the procedure. Mr Oliphant's evidence was that exclusion zones were a fundamental critical safety control to mitigate against the risk of injury or death from flyrock or fumes and that one of the purposes of the Blast Control Plan Map which identified the PEZ and the EEZ was to determine a safe firing location. Mr Oliphant's evidence was that no one involved in conducting the Audit or the Risk Assessment had raised any concerns with him about the wording of the PEZ or any related safety controls contained in MCO's policies prior to the incident.
8. Mr Oliphant's evidence was that the reference to the "practice" of firing a shot from within the PEZ was based on the assertions that the blast crew, rather than any finding of the investigation team. To Mr Oliphant's knowledge, none of the statements or interviews provided by members of the blast crew provided any details as to other dates or times on which shots had been fired from within the PEZ.
9. Mr Oliphant was a thoughtful and considered witness. He was careful not to speculate on matters, particularly if there was a contemporaneous record available for him to look at. His experience and technical knowledge were obvious from his evidence. I accept his evidence that he believed that the PEZ applied to the shotfirers and authorised persons and that it was observed by them. I am satisfied that this evidence was corroborated by what he said and did after the incident.

Evidence of Grant Arnold

1. Mr Arnold commenced at the Mine in 2015 as the Human Resources Manager. In about mid 2016 he was also appointed as the Health, Safety, Training and Environment Manager. He had worked in human resources and safety roles in 1998 in the mining, construction and infrastructure industries.
2. Mr Arnold gave evidence that prior to 17 May 2017 that he was not aware that there was any issue relating to the applicability of the PEZ to shotfirers and authorised persons. He was also unaware of the alleged common practice.
3. His understanding was that the CFE Procedure stated that the safe distance for personnel was 500m and he expected that any assessment of a safe firing location would involve compliance with the PEZ. In other words, an assessment undertaken pursuant to Appendix L would take the site-specific procedure, being the CFE Procedure, into account.
4. Mr Arnold was an impressive witness with extensive experience in safety related matters. I accept his evidence.

Evidence of Inspector Hanlon

1. Inspector Hanlon had 37 years' experience in the mining industry as a qualified engineer. He had expertise in drill and blast operations and held a BEUL, was a qualified OCE and had worked as a statutory Mine Manager. He was employed by the Regulator between March 2015 and April 2018 and was responsible for Explosive Security. In 2018, he was appointed the Open Cut Manager at Wambo Coal Mine where he remained until 2021. At the time of the hearing, he was a self-employed mining consultant.
2. Inspector Hanlon's understanding of the CFE Procedure was that the PEZ and the EEZ were established once the shot was loaded and ready to fire. In Inspector Hanlon's experience, about 50% of mines had adopted procedures that permitted certain personnel to be within the PEZ when a shot was fired, as long as the conditions specified in the relevant procedure were complied with. This was the position at Mt Arthur Coal Mine when Inspector Hanlon worked there After the incident, Inspector Hanlon had a telephone conversation with Inspector Macpherson, where he told Inspector Macpherson about his experience and they discussed Appendix L.
3. In Inspector Hanlon's opinion, the determination of a "predetermined protected location" involved consideration of the various factors to be taken into account and required some form of additional review for personnel to be permitted to be within the PEZ when a shot was fired.
4. In July 2017, Inspector Hanlon gave a presentation about the incident at an industry Drill and Blast Forum. His view, which he presented at the forum, was that the CFE Procedure clearly stated that no person was permitted to be within the PEZ at the time of firing the shot. Inspector Hanlon told the forum that the incident was caused by a "customary practice" at the Mine that had developed and was not detected because there were no prior safety incidents arising from it. His understanding, gained from the evidence of compliance with the prohibition notice and discussions with Mr Oliphant, was that the members of the blast crew had all been trained on the relevant safe work procedure and that no-one from management had seen the customary practice or challenged it.
5. In cross-examination, Inspector Hanlon accepted that he had not detected any problems with the content of MCO's written procedures, including the CFE Procedure, during the course of the Audit, and that if he did, he would have raised it. Inspector Hanlon agreed that the written assessments on the CFE-SWP, that he had been provided with in compliance with the prohibition notice, satisfied him that the blast crews had been adequately trained on the requirements of the PEZ and the EEZ.
6. Inspector Hanlon accepted that the term "all personnel" was sufficient to extend the requirements of the PEZ to the blast crew. He also accepted that the Wambo Coal Mine procedures were similarly worded, and he was not asked in his capacity as the Open Cut Manager at the Wambo Coal Mine to rewrite its policy to make specific reference to members of the blast crew.
7. After being shown the video of the blast, Inspector Hanlon stated that he failed to understand why the blast crew decided to stand where they were when the shot was fired or why they had not been charged with a breach of duty owed by workers pursuant to s 28 of the Act.
8. Inspector Hanlon's evidence was that the provisions of Appendix L were not brought to his attention during the Audit as something that was being used to read down the provisions of the CFE Procedure or any other MCO procedure.
9. Inspector Hanlon was an impressive witness whose evidence conveyed his wealth of mining experience. His answers were careful and considered. I am satisfied that he was trying to do his best to tell the truth and that I should accept his evidence.

The pleaded case on the common practice

1. Paragraph 23 of the Summons pleaded that the defendant knew or ought to have known that the PEZ was not being complied with by some of the shotfirers at the Mine because the defendant: 1. had video footage of blasts that showed shotfirers remaining within the PEZ; 2. knew through Mr Fisher that the shotfirers had queried the interaction between the content of the CFE Procedure and Appendix L; 3. knew that the shotfirers had a mistaken belief that Appendix L provided them with an exemption from compliance with the PEZ; 4. had its supervisors conduct safe act observations of work conducted at the Mine.
2. The evidence fell well short of establishing the facts pleaded in [23] of the Summons, for reasons that follow.
3. First, the prosecutor did not tender any video footage of a blast conducted prior to 17 May 2017 depicting the blast crew remaining within the PEZ.
4. Second, I prefer the evidence of Mr Fisher that none of the shotfirers raised with him the disconnect between the requirements of the CFE Procedure and the provisions of Appendix L. I reject the evidence of Mr Sinnett and Mr Fitzgerald to the contrary for the following reasons. They had extensive discussions about what happened and what their evidence would be in the lead up to the trial. I am satisfied that they had a reason to justify their conduct, that their discussions about their evidence corrupted their recollections and that their evidence was reconstructed on this point. The evidence demonstrated that Mr Fisher conducted himself in a professional and organised manner and I am satisfied that if any important safety issue of the kind under consideration had been raised with him, as alleged, that he would have acted on it.
5. Third, there was no evidence that prior to the incident the defendant was aware that the shotfirers had a mistaken belief about Appendix L. None of the members of the blast crew made any reference to Appendix L until sometime after the incident and it was only relied on after it was brought to their attention immediately after the incident by Mr Chaplin and one of the contractors from Orica. Mr Fitzgerald's evidence was that he had not seen the terms of Appendix L until he was shown the document after the incident. This is supported by the fact that he did not seek to select a "predetermined protected" firing location in accordance with Appendix L by conducting an analysis consistent with the entirety of AS 2187.
6. Fourth, it was common ground that the supervisors of the defendant conducted observations pursuant to the SO Procedure and that they were recorded. There were two observations conducted at the time of firing a shot. There had not been a previous flyrock incident at the Mine and I infer that there were lots of other tasks that were undertaken that were also considered to pose a risk to health and safety risk and thus many activities that might be observed.

The prosecutor's closing argument on the common practice issue

1. In closing submissions, the prosecutor changed tack, contending that the common practice came about as a result of the defendant's historical failures to adequately train the workers on the requirements of the CFE-SWP. The difficulty with this argument was that there was documentary evidence that the members of the blast crew were trained on the requirements of the PEZ and the EEZ referred to in the CFE-SWP in November 2016 and the CFE Procedure in February 2017. The evidence of the witnesses was consistent, in that they all knew that the PEZ was 500m and that was expressed to apply to all personnel in both procedure documents, at least as far back as 2016. On the evidence, I am not satisfied that there was a historical failure in the training provided by the Mine on the PEZ.
2. The prosecutor also sought to rely on the IIR as evidence of an admission of the defendant that there was a common practice of firing shots from within the PEZ prior to the incident. I accept that it was some evidence of an admission, but there are a number of matters to be considered in assessing what weight should be given to the IIR. First, the conclusions expressed in the IIR were based on the information provided to the investigation team by the blast crew. It was not part of the investigation team's process to test the veracity of those statements. I have had the advantage of considering a large volume of relevant contemporaneous documents as well as seeing the witnesses give evidence and be cross-examined. By comparison, the investigation team were given a much smaller set of documents and untested statements by the witnesses. Second, the investigation team did not state the standard of proof they were applying, if any. The purpose of the IIR was narrow, to identify causes of the incident that could be remedied to prevent further incidents that may lead to a risk to the health and safety of the workers. My task requires a more rigorous analysis of the use to which the IIR can be put. In the circumstances, I do not place much weight on the findings of the IIR.

Findings on the common practice issue

1. Taking into account all of the evidence, I am not satisfied that there was a common practice of firing shots from within the PEZ at the Mine for the reasons that follow.
2. The evidence that the common practice existed at the Mine was given by the workers who for the most part had an interest in giving that evidence. For example, Mr Sinnet and Mr Fitzgerald had an interest in justifying what they did on that day. Most of the workers have continuing employment with MCO and they had an interest in sticking to the version that they had previously given in the course of the investigation.
3. The oral evidence was contaminated for the reasons I have already given. The oral evidence was bereft of examples of when shots were fired from within the PEZ and thereby difficult to challenge.
4. There were a number of occasions where the workers gave reconstructed evidence about events and practices at the Mine.
5. There was no independent objective evidence that supported the existence of the common practice. No concrete examples were given about shots fired from within the PEZ, apart from the incident itself. There was an attempt to suggest that an executive from MCO was present at a firing location that was within the PEZ, but that executive was not called to give independent evidence of that occurring. The safe act observations conducted at the Mine did not provide any evidence of non-compliance with the PEZ.
6. The contemporaneous evidence of what was said on the video recording and the content of the handwritten statements did not make any reference to the common practice or contain any information from which an inference might be drawn that the common practice existed. I am satisfied that Mr Chaplin's reference to 500m in the video recording was a reference to the requirements of the PEZ and that he and the other members of the blast crew knew that they were expected to comply with it.
7. The workers had all been trained on the CFE Procedure and had been assessed on their understanding of it. I am satisfied that the members of the blast crew knew the requirements of the PEZ, the EEZ and the FMZ on the day of the incident. A number of the witnesses accepted that they would have expected to be disciplined for non-compliance with the written safety procedures at the Mine, including the CFE Procedure. There was also evidence of previous disciplinary procedures being applied to the shotfirers, where they incurred demerit points for safety breaches.
8. Some of the witnesses accepted in cross-examination that they had not been given any training on Appendix L by MCO or told that it authorised them not to comply with the PEZ. There was a faint suggestion in the evidence that the workers relied on the content of Appendix L to justify their non-compliance with the PEZ, but the evidence on this point was far from convincing. Mr Fitzgerald's evidence was that he was unaware of the provisions of Appendix L until after the incident, and thereby as the responsible shotfirer on the day he was not relying on it. The first suggestion of Appendix L came from Mr Chaplin, who as an engineer, probably had greater knowledge of the Australian Standard. The second mention of it came from Mr Oswald when the workers had returned to the office and were waiting for Inspector Macpherson to arrive. At about this time, Mr Chaplin retrieved a copy of the Australian Standard and it was shown to Mr Oliphant, and probably to the other members of the blast crew prior to Inspector Macpherson's arrival.
9. There had never been any suggestion by the members of the blast crew that Appendix L caused any confusion in the application of the PEZ. There were many formal occasions when that concern could have been raised including the Audit, the Risk Assessment, training sessions on the CFE-SWP and the CFE Procedure. Despite those opportunities, no concerns were raised.
10. The estimates of how often shots were fired from within the PEZ varied widely and were very difficult to reconcile. Of the shotfirers, Mr Large estimated that he fired shots from within the PEZ 5-10% of the time, Mr Fitzgerald estimated 80-90% of the time when they were using shocktube and Mr Sinnett estimated that 50% of shots were fired from within the PEZ. Mr Fitzgerald's evidence as to non-el firing can be put to one side because as at May 2017, most of the detonations at the Mine were electronic. Of the other workers, Mr Toohey estimated that shots were fired from within the PEZ about 25% of the times that he was present at the firing location, bearing in mind that he acted as a blast guard for about 75% of the time. Mr Gorman and Mr Kelly gave evidence that shots were almost always fired from outside the PEZ.
11. The oral evidence regarding non-compliance with the PEZ was imprecise as to the dates on which such alleged breaches occurred. There was no reliable way of assessing the most relevant period, being from February 2017 when the CFE Procedure was introduced. I have placed very little weight on generalised assertions as to historical non-compliance with the PEZ where those assertions could not be placed in time.
12. The interpretation of the CFE Procedure proffered by the witnesses was an affront to common sense. The PEZ was an isolation control measure to remove personnel from the source of the danger. The shotfirers and authorised persons were clearly put at risk of injury from flyrock by failing to comply with the PEZ, as much as any other worker at the Mine would have been if the PEZ did not apply at all. I am satisfied that the workers knew this and that it was unlikely that they would have disregarded the PEZ.
13. The fact that the shotfirers did not try to choose the secondary firing location on the day of the incident by reference to the PEZ, is some evidence that the common practice existed. Ultimately, however, I have not been able to come to a view as to why the shotfirers chose the secondary firing location on the day of the incident, because the oral evidence is unreliable for the reasons I have already set out and I am satisfied that any finding I made based on that evidence was likely to also be unreliable.
14. I am unable to make a finding with any degree of confidence as to how often shots were fired from within the PEZ prior to the incident, if they were at all. Whilst I am prepared to accept that there probably were occasions when it occurred, I cannot say how often it occurred. There is no proper basis on the evidence to infer that firing shots from within the PEZ was a common practice at the Mine. It is reasonably possible that non-compliance with the PEZ was so rare that it would have been very difficult to detect.
15. If there was non-compliance with the PEZ by the shotfirers I find that it was for a very small percentage of the blasts and most likely in the order of 5% as estimated by Mr Large. I am not satisfied that this amounted to a "common practice".
16. To be clear, I am not satisfied beyond reasonable doubt or on the balance of probabilities that the common practice existed at the Mine.

The Elements of the Offence

1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt.
2. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
3. The elements of the offence relating to the breach of the s 19(1) duty are:

• Element 1 The defendant was conducting a business or undertaking;
• Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 2. while the workers were at work in the business or undertaking;
• Element 3 The defendant failed to comply with its health and safety duty; and
• Element 4 The failure exposed an individual to a risk of death or serious injury.

The Relevant Law

1. The offence is one of strict liability: section 12A of the Act.
2. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor, or an employee of a contractor or subcontractor: section 7 of the Act.
3. A duty provided for by the Act is not transferable: s 14 of the Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the Standard required: section 16 of the Act.
4. The content of the duty is set out in section 19 of the Act, which relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
5. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.
6. The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
7. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.
8. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].
9. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].
10. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.
11. "Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters, including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
12. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
13. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
14. The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.
15. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
16. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
17. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
18. A duty holder must have a proactive approach to safety issues. The question is not, did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
19. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
20. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties, then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers, but duty holders must conduct operations on the basis that such acts will occur and must be guarded against to the fullest extent practicable.
21. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
22. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste, through to foolish disregard for personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].
23. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.
24. The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.

Causation

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

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

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

The pleaded risk

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

The likelihood of the risk occurring

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

The degree of harm

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

The defendant's knowledge of the risk

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

Cost of the particularised measures

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

The common practice issue

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

The particulars of breach of duty

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

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

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

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

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

Express direction and training on it

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

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

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

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

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

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

1. Notwithstanding the wording of this particular, the prosecutor advanced a number of ways of satisfying it. First, that Mr Price and Mr Fisher as the relevant supervisors did not enforce compliance with the PEZ. Second, that the safe act observations completed at the Mine in the two-year period prior to the incident pursuant to the SO Procedure were inadequate. And, finally, that the Mine should have required post-blast logging of the firing location of each blast.
2. As to the first contention, applying s 244 of the Act, the conduct of Mr Price and Mr Fisher was conduct of the defendant, which may be sufficient to make it liable for a breach of its s 19(1) duty: Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 at [84]-[99] (Cavanagh J, with whom Gleeson JA and Garling J agreed). However, in this case there are other matters to be considered.
3. The first contention must be evaluated in the light of my finding on the common practice issue. In dealing with Mr Price, it follows that the only relevant date for his failure to enforce the PEZ is on 17 May 2017.
4. On the day of the incident, Mr Price was told that the blast would be fired from the primary firing location to the north of the blast area, which he understood to be outside of the PEZ and the FMZ marked on the Map. He was attending to his duties as the Blast Controller when the secondary firing location was agreed to and selected by Mr Fitzgerald. Mr Price was not informed of the change to the firing location or given an opportunity to comment on it. He did not attend the secondary firing location because he was required to attend to other duties. I am not satisfied that Mr Price's actions on the day of the incident amounted to a failure to enforce the PEZ as the Drill and Blast Co-ordinator.
5. Mr Fisher's evidence on this point, which I accept, was that he had raised with the shotfirers on an earlier occasion why they fired shots from within the PEZ. He was told that they were authorised to do so by relevant legislation and he was shown a document, which I infer was a copy of Appendix L.
6. Mr Fisher did not hold a BEUL and it was reasonable for him to accept what he had been told by experienced workers who did. On the day of the incident, I accept that while he thought they were close the blast area it was difficult to judge and that he relied on the experienced shotfirers to comply with their statutory duties and the applicable rules.
7. The second contention was that the safe act observations undertaken in the two-year period before the incident were inadequate. The prosecutor's submission was that of the 39 safe act observation records produced for the relevant period that only two related to the high-risk activity of firing a shot and that based on Mr Fisher's evidence that the safe act observations were poorly perceived at the Mine, because they were akin to "dobbing" on other departments.
8. There is a considerable degree of hindsight reasoning in the prosecutor's submission on this point. There were undoubtedly a number of dangerous tasks undertaken at the Mine that could have been the subject of an observation and the reasons why some tasks were selected for close supervision was not explored in any depth in the evidence of the relevant supervisors. It should be noted that there were no previous flyrock incidents at the Mine, and there were multiple OC blasts conducted each week. I am satisfied that the vast majority of shots were fired from outside of the PEZ and thereby the PEZ was an effective control measure that did not warrant any particular priority over other tasks and that this was reflected in the proportion of observations relating to that activity.
9. As to the perception of the SO Procedure at the Mine, I am not satisfied that it was of any significance. Many critical safety procedures are resisted or resented by workers and sometimes management. They can be perceived as inconvenient or a waste of time, however, the effectiveness of the procedure may or may not be impacted by such sentiments. I am not satisfied on the evidence that the perception of the SO Procedure at the Mine made it ineffective. I am satisfied that the supervisors who were asked about the SO Procedure applied it as it was intended and created documents to record the content of the observations that could be followed up on, if necessary. For the reasons given, I do not accept that prior to 2 November 2016 that the workers had not been trained on the CFE-SWP and the requirements of the EEZ and PEZ. It follows that I do not accept that the supervisors were not capable of ensuring compliance with those requirements, because there was in effect no written procedure in place.
10. The third contention related to post-blast logging of the firing location which was a recommendation made in the IIR and implemented at the Mine following the incident. The prosecution contended that it was a simple and inexpensive step that could have been taken and given the primacy of the PEZ as a control measure, it would have provided a method of checking for compliance with the PEZ.
11. Whilst I accept that the post-logging of the firing location was a simple and inexpensive step that could have been taken, I am not satisfied beyond reasonable doubt that it would have had the required impact on safety for the reasons that follow.
12. It was not reasonably practicable to choose a firing location until immediately prior to firing a shot, because the predicted weather conditions may have changed. Logging the firing location, after the shot was fired, would not have assisted the shotfirers to choose a safe firing location.
13. For the reasons already given, I am satisfied that the shotfirers knew that the CFE Procedure provided that all personnel were required to be outside of the PEZ and that there were serious consequences for non-compliance with the Mine's written safety procedures. In my view, it is likely that the marking of the PEZ on the Map would have influenced the shotfirers to mark firing locations on the Map that were outside of the PEZ, irrespective of the actual firing location. As a result, it is unlikely that this step would have produced a reliable means of ensuring compliance with the PEZ.
14. I am not satisfied beyond reasonable doubt that the defendant was in breach of its s 19(1) duty by failing to take the step provided for in [28.1.2] of the Summons.

Provision of a measuring device

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

Map quality

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

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

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

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

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

Conclusion on Element 3

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

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

1. The applicable principles were not in dispute and are set out at [461]-[464] above.
2. For the reasons given, I have found that the defendant did not breach its s 19(1) duty by failing to take the pleaded measures. If I am wrong on any of those findings, I am also not satisfied that the prosecutor has established that any of those failures were a significant or substantial cause of the blast crew being exposed to a risk of serious injury or death for the reasons that follow.
3. I have made, and now make, the following relevant findings of fact to the causation issue: 1. the shotfirers knew that the PEZ applied to them and authorised persons; 2. the Map clearly set out the PEZ and the FMZ to be observed when firing the shot; 3. the shotfirers knew they were within the PEZ at the secondary firing location; 4. the primary firing location was outside the PEZ and the FMZ; 5. at the primary firing location there was no risk that the fumes from the blast would be blown towards the blast crew; 6. the shotfirers did not adequately consider if the secondary firing location was safe to fire from; 7. the positioning of the video camera was not a relevant consideration in choosing the secondary firing location; 8. the shotfirers were not relying on Appendix L to select the secondary firing location. The shotfirers knew that the CFE Procedure did not refer to Appendix L. Mr Fitzgerald and Mr Large knew that the Orica training stated that exclusion zones were to be set in accordance with the site-specific procedure, being in this case the CFE Procedure; 9. the shotfirers knew that MCO required them to comply with their statutory obligations and the requirements of all safe work procedures at the Mine, including the CFE Procedure, or they were at risk of the termination of their employment; 10. the shotfirers knew that the PEZ was an isolation control designed to remove people from a location where they could be harmed and that failure to do so put whoever was left in the PEZ at risk of death or serious injury.
4. Had the shotfirers complied with the statutory obligations of their BEULs, and/or the CFE Procedure the near miss incident would not have occurred.
5. The most immediate cause of the blast crew being exposed to the risk was the failure by the shotfirers to comply with the terms of the CFE Procedure that they had been adequately and extensively trained on.
6. Further, MCO had in place a series of robust systems to ensure that the workers complied with the terms of the CFE Procedure, including the SO Procedure, the appointment system, the Codes of Conduct, the CC Procedure and disciplinary processes.
7. If I am wrong in my conclusion and there was a common practice at the Mine of firing shots from within the PEZ, then the most significant cause of the belief that it was an acceptable practice, came from a misapplication of Appendix L of AS 2187.
8. The express words of Appendix L were misleading if they were not read in context. If I had accepted the evidence that the shotfirers relied on Appendix L as the justification for firing shots from within the PEZ, then it was clear that the shotfirers did not understand the need to choose a "protected" firing location by reference to all of the relevant factors that could have impacted the generation of flyrock. The shotfirer's evidence was that Appendix L allowed them to fire shots from within the PEZ at a location that they deemed to be safe. They did not engage in any particular analysis of the relevant factors to arrive at a "safe" location or understand that they needed to do so. The words of Appendix L were too permissive and did not convey the need to consider context or the site-specific procedures, including that those procedures might override the exception provided for by Appendix L.
9. Further, it was also clear that whilst the Orica training referred to the significance of site-specific procedures, it did not state that those site-specific rules could include a countermanding of the exception provide for in Appendix L.
10. I am satisfied that the CFE Procedure was clear. It was expressed to refer to "all personnel" for obvious reasons, being that any person not complying with the isolation control provided for by the PEZ was at risk of injury or death from flyrock, which could not be accurately predicted because of the unpredictable nature of explosions. Their identification as a shotfirer or authorised person did not make the risk disappear.
11. If there was a common practice of non-compliance with the PEZ, it occurred because of the poorly expressed exemption provided for by Appendix L and the failure of Orica to train the shotfirers that site-specific procedures could override Appendix L. In my view these were both intervening factors that preclude a finding that any omission of MCO was a substantial and significant cause of the blast crew being exposed to a risk of death or serious injury.

Conclusion on Element 4

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

Conclusion and Orders

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
2. I find the defendant not guilty.
3. The Second Amended Summons is dismissed.
4. I order that the prosecutor is to pay the defendant's costs of the proceedings as agreed or assessed pursuant to s257G Criminal Procedure Act 1986.
5. Exhibits are returned. NOTATION
6. The Court notes this was an appropriate matter for the retention of senior and junior counsel by both parties given the length and complexity of the proceedings.

Endnotes

1. Emphasis in the original.
2. Emphasis in the original.

Amendments 09 August 2023 - Final orders added on cover sheet. 09 August 2023 - [196] replaced the words "during the course of the trial" with "until final submissions" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2023