Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339 | Case summary

Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339 | Case summary | Zoe

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Appeal - Occupational health and safety - Mine - Inrush of water - Death of four miners by drowning - Multiple prosecutions under Occupational Health and Safety Act 1983 - Reliance by defendants on inaccurate plans showing wrong location of old workings full of water - Multiple failures to ensure safety - Two corporate defendants and three personal defendants found guilty at first instance of offences under s 15(1), s 16(1) and s 50(1) of Occupational Health and Safety Act 1983 - Sentences imposed - Appeals by all of the defendants - Whether proceedings at first instance a nullity- Autrefois convict - double jeopardy - Duplicity - Abuse of process - Elements of the offences - Essential factual elements of offences - Risk - Potential risk -Consideration of when risk arose - Implications for charges of when risk arose -Expert evidence - Whether trial judge entitled to rely on evidence of experts - Causation - Consideration of each of the alleged failures to ensure safety and whether any error at first instance - Derivative failures to ensure safety - Absolute liability - Whether statutory defences made out - Concerned in the management of the corporation - Sentencing - Totality - Consideration of penalties imposed at first instance - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Conduct of prosecutor - Section 51A of Occupational Health and Safety Act 1983 - Costs CATCHWORDS: Occupational health and safety - Appeal - Mine - Inrush of water - Death of four miners by drowning - Multiple prosecutions under Occupational Health and Safety Act 1983 - Reliance by defendants on inaccurate plans showing wrong location of old workings full of water - Multiple failures to ensure safety - Two corporate defendants and three personal defendants found guilty at first instance of offences under s 15(1), s 16(1) and s 50(1) of Occupational Health and Safety Act 1983 - Sentences imposed - Appeals by all of the defendants - Whether proceedings at first instance a nullity- Autrefois convict - double jeopardy - Duplicity - Abuse of process - Elements of the offences - Essential factual elements of offences - Risk - Potential risk -Consideration of when risk arose - Implications for charges of when risk arose -Expert evidence - Whether trial judge entitled to rely on evidence of experts - Causation - Consideration of each of the alleged failures to ensure safety and whether any error at first instance - Derivative failures to ensure safety - Absolute liability - Whether statutory defences made out - Concerned in the management of the corporation - Sentencing - Totality - Consideration of penalties imposed at first instance - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Conduct of prosecutor - Section 51A of Occupational Health and Safety Act 1983 - Costs

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ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [1997] NSWIRComm 60 Austin Rover Group Ltd v Her Majesty's Inspector of Factories [1990] 1 AC 619 Azzopardi v The Queen (2001) 205 CLR 50 Barron v Attorney-General for New South Wales (1987) 10 NSWLR 215 Barton & Anor v The Queen & Anor (1980) 147 CLR 75 Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416 Beckwith v The Queen (1976) 135 CLR 569 Binskin v Watson (1990) 12 MVR 282 Booth Proprietary Limited v Bartlett [1956] AR (NSW) 720 Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Bull and others v Attorney-General for New South Wales (1913) 17 CLR 370 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Chamberlain v The Queen (No. 2) (1983) 153 CLR 521 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Cooling (1989) 44 A Crim R 171 Coombs v Patrick Stevedores (2002) 118 IR 401 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Daly Smith Corporation (Aust) Pty Ltd & Anor v WorkCover Authority (NSW) [2006] HCA Trans 475 (1 September 2006) Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 De Romanis v Sibraa [1977] 2 NSWLR 264 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions v Merriman [1973] AC 584 Dodd & Dodd (1991) 56 A Crim R 451 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 EPA v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Exparte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt.1) (NSW) 286 Exparte Bignell (1915) 32 WN (NSW) 91 Fardon v Attorney General for the State of Queensland (2004) 210 ALR 50 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (No 3) (1997) 77 FCR 153 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Glass v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 Graeme John Leslie Carn (1982) 5 A Crim R 466 Griffin and Anor v Marsh (1994) 34 NSWLR 104 Harrison v National Coal Board [1951] AC 639 Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120 Haynes v CI & D Manufacturing Pty Ltd; Callaghan v CI & D Industries Pty Ltd (No 2) (1995) 60 IR 455 Haynes v CI &D Manufacturing Pty Ltd; Callaghan v CI & D Industries Pty Ltd (1995) 60 IR 149 He Kaw Teh v The Queen (1984) 157 CLR 523 Hookham v The Queen (1994) 181 CLR 450 Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279 Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277 Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 Inspector Yeung v Wideform Constructions Pty Ltd [2003] NSWIRComm 380 Island Maritime Ltd v Filipowski; Kulkarni v Filipowski (2006) 228 ALR 1 Jayne v National Coal Board [1963] 2 All ER 220 Jemmison v Priddle [1972] 2 WLR 293 John L Pty Ltd v Attorney-General (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kable v Director of Public Prosecutions of NSW (1996) 189 CLR 51 Kennedy-Taylor v WorkCover Authority (2000) 102 IR 57 Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172 Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40 Lim Chin Aik v Reginiam [1963] AC 160 Mainbrace v WorkCover Authority (2000) 102 IR 84 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Maxwell v The Queen (1996) 184 CLR 501 McCarthy v Coldair Ltd (1951) 2 TLR 1226 McEndoo v The Queen (1980) 5 A Crim R 52 McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 CASES CITED: Morrison v Powercoal Pty Ltd and Anor (2004) 137 IR 253 Nesmat Pty Ltd v WorkCover (NSW) (1998) 87 IR 312 Newbury v Smith (1991) 36 IR 314 O'Sullivan v Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Pearce v The Queen (1998) 194 CLR 610 Pereira v Director of Public Prosecutions (1988) 82 ALR 217 Powercoal Pty Ltd and Anor v Industrial Relations Commission of NSW & Rodney Dale Morrison (2005) 156 A Crim R 269; 145 IR 327 R v Dossi (1918) 13 Cr.App R 158 R v Mai (1992) 26 NSWLR 371 R v Router (1977) 14 ALR 365 R v Stringer (2000) 116 A Crim R 198 R v Stuckey (1959) 76 WN (NSW) 560 R v Wampfler (1987) 11 NSWLR 541 Ridge Consolidated v WorkCover (2002) 115 IR 78 Seda Pty Ltd v WorkCover Authority of New South Wales (Inspector James) (2003) 130 IR 47 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Sheen v Fields (1984) 51 ALR 345 Smith v Moody [1903] 1 KB 56 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 SPCC v Tallow Products Pty Ltd (1992) 65 A Crim R 509 State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 State Transit Authority (NSW) v Guillarte (2003) 123 IR 237 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2003] NSWIRComm 470 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 392 T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 The Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 The King v Adams (1935) 53 CLR 563 The Queen v De Simoni (1981) 147 CLR 383 Von Lieven v Stewart (1990) 21 NSWLR 52 Walker v Bletchley Flettons Ltd (1937) 1 All ER 170 Waugh v Kippen (1986) 160 CLR 156 Weissensteiner v The Queen (1993) 178 CLR 217 Wemyss v Hopkins (1875) LR 10 QB 378 Williams v Spautz (1992) 174 CLR 509 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority (NSW) v Fletcher Constructions (2002) 123 IR 121 WorkCover Authority (NSW) v Josef (2004) 137 IR 241 WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 WorkCover Authority (NSW) v McDonalds (1999) 95 IR 383 WorkCover Authority (NSW) v Profab Industries (2000) 49 NSWLR 700 WorkCover Authority (NSW) v State Police (NSW) (No 2) (2001) 104 IR 268 WorkCover Authority (NSW) v Thiess Contractors (1996) 85 IR 12 WorkCover Authority (NSW) v T V & Y Pty Ltd (2005) 146 IR 458 WorkCover Authority (NSW) v Walco Hoist (No 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 WorkCover Authority of New South Wales (Inspector Glass) v Flexible Packaging (Australia) Pty Ltd (2005) 144 IR 385 WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 WorkCover Authority of New South Wales (Inspector Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante (2003) 126 IR 1 WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors [2003] NSWIRComm 452 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 WorkCover Authority v Cleary Bros (2001) 110 IR 182 WorkCover Authority v Coffey Engineering (2001) 110 IR 447 WorkCover Authority v Concrete Constructions (1999) 98 IR 362 WorkCover Authority v Newcastle Wallsend (2002) 116 IR 283 WorkCover Authority v Plastachem (2001) 110 IR 351 WorkCover v Kellogg (Aust) (No 1) (1999) 101 IR 239 WorkCover v Re-car Consolidated Ind (1999) 88 IR 173

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JUDGMENT of WALTON J, VICE PRESIDENT and BOLAND J 5 A. INTRODUCTION 5 B. THE CHARGES 7 C. BACKGROUND FACTS 11 Chronology 19 D. FINDINGS AT FIRST INSTANCE IN RESPECT OF LIABILITY 19 E. DETERMINATIONS ON SENTENCE AT FIRST INSTANCE 22 NWCC and OPL 22 RICHARD PORTEOUS 26 JONATHAN ROMCKE 27 MARK ROBINSON 29 F. COSTS DETERMINATION AT FIRST INSTANCE 30 G. THE APPEALS 31 H. ISSUES ON APPEAL 35 NWCC and OPL 35 RICHARD PORTEOUS 38 JONATHAN ROMCKE 39 MARK ROBINSON 40 INTERLOCUTORY JUDGMENTS OF WRIGHT J 41 I. THRESHOLD ISSUES FOR DETERMINATION ON APPEAL 41 WHETHER PROCEEDINGS VALIDLY COMMENCED 41 WHETHER PLEA IN BAR AVAILABLE TO APPELLANTS 56 Findings at first instance 56 Appellants' submissions 58 Respondent's submissions 59 The charges 60 Plea of autrefois convict not available in summary proceedings 61 Pearce v The Queen 61 Elements of an offence 65 Section 49A of OHS Act 68 Boral Gas 71 The three charges under s 15(1) against NWCC 77 Elements of the offences 80 Section 16(1) charges 86 ABUSE OF PROCESS 87 OPL AND MR PORTEOUS 88 CORONIAL REPORT 88 J. EXPERT EVIDENCE 89 RELIANCE ON MR ADAM 89 EVIDENCE OF PROFESSOR THOMAS 117 K. LIABILITY - CORPORATE APPELLANTS 121 ALLEGED FAILURES 123 Planning, Research and Assessment Charges: Alleged breach by NWCC of ss 15(1) and 16(1) of the Act (3200/00, 3203/00) 124 Planning, Research and Assessment charges: Alleged breach by OPL of ss 15(1) and 16(1) of the OHS Act (3206/00 and 3209/00) 183 System of work charges: Alleged breach by NWCC of ss 15(1) and 16(1) of the OHS Act (3199/00; 3202/00) 185 System of work charges: Alleged breach by OPL of ss 15(1) and 16(1) of the OHS Act (3205/00; 3208/00) 192 Night Shift charges: Alleged breach by NWCC of s 15(1) and 16(1) of the Act (Matter No's 3198/00 and 3201/00) 192 Night shift charges: alleged breaches by OPL arising under ss 15(1) and 16(1) of the Act (Matter Nos 3204/00; 3207/00) 194 L. RISK 195 M. SECTION 53 DEFENCES 214 N. PERSONAL APPELLANTS 230 CONCERNED IN THE MANAGEMENT 230 RICHARD PORTEOUS 235 Lack of authority or power in relation to management 236 Failure to make a distinction between NWCC and OPL 241 Failed to give proper weight to the evidence as to Mr Porteous' lack of authority or power in relation to the failures 241 MARK ROBINSON 246 Coal Mines Regulation (Survey and Plan) Regulation 1984 and the operation of s 33(2) of the OHS Act 247 Failure to make a distinction between NWCC and OPL 248 Reliance on statutory mine surveyor role and sufficient weight not given to other evidence 249 JONATHAN ROMCKE 253 Mr Romcke not working at Gretley when risk arose 254 Erroneously construed s 50 of the OHS Act 261 Lack of authority or power in relation to management; Mr Romcke not a General Mine Manager 261 Erred in finding that any failure by the corporate appellants was responsible for a risk from the old, wrongly depicted, workings; only the DMR was responsible for perpetrating the error 265 STATUTORY DEFENCES 266 O. SENTENCING JUDGMENT 270 CORPORATE APPELLANTS 271 RICHARD PORTEOUS 283 MARK ROBINSON 285 JONATHAN ROMCKE 286 P. SUMMARY OF FINDINGS 294 Q. ORDERS 305

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1 On 14 November 1996, Ted Batterham, John Hunter, Mark Kaiser and Damon Murray were conducting underground coalmining operations using a continuous miner at the Gretley Colliery, Wallsend in this State of New South Wales. At about 5.30 am a hole opened up at the coalface at which they were working and a great force of water came flooding through the hole from abandoned workings known as the Young Wallsend Colliery old workings. The force of water engulfed the four workers and caused their death by drowning. A further four mineworkers - Jay Franklin, John McCallum, Steve Brown and Wayne Nicholls - were in the crib room at the time of the inrush and survived. 2 In addition to a coronial inquest, a judicial inquiry was conducted into the incident. On 28 February 2000, Inspector Stephen Finlay McMartin of the WorkCover Authority of New South Wales laid 52 charges against two corporate defendants, namely, the Newcastle Wallsend Coal Company Pty Ltd (NWCC) and Oakbridge Pty Ltd (OPL) as well as eight personal defendants: Richard Myles Porteous; Phillip John Pritchard; Michael Francis Alston; Mark Robinson; Jonathan Erik Humphries Romcke; Michael John Coffey; Christopher Wayne Nicholls; and, Terence Shacklady. The summonses alleged offences arising under ss 15(1), 16(1) and 50(1) of the Occupational Health and Safety Act 1983 (the "OHS Act" or "1983 Act"). Mr McMartin brought the proceedings, with the written consent of the Minister for Industrial Relations, purportedly pursuant to s 48(1)(c) of the OHS Act. On 5 July 2000, the prosecutor filed further documents in the Registry seeking to lay another 52 charges against the defendants. The solicitor for the prosecutor informed the defendants by letter that the refiling had been necessary "as there may have been an error by the IRC Registry in the processing of documents that were filed on 28 February 2000". 3 In the course of proceedings, the defendants filed two notices of motion seeking various orders, including orders that the summonses be struck out, dismissed or permanently stayed. In WorkCover v Newcastle Wallsend (2002) 116 IR 283, Wright J, President, in an interlocutory judgment, rejected the defendants' submissions that: (a) proceedings had not been validly commenced because the applications for summonses were made to the Industrial Registrar and not to a judge of the Commission in Court Session; (b) the applications for summonses failed to comply with s 49(4) of the Act; (c) the summonses issued by the Industrial Registrar were of no legal effect; and, (d) the applications were invalid on the basis that the accompanying prosecutor's affidavits were not properly or validly sworn. Wright J also directed the prosecution to file and serve a document setting out the form of orders sought under s 4(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967. 4 In a judgment given on 25 August 2004 in relation to the costs of the 2002 interlocutory proceedings heard by his Honour, Wright J made the following ruling and orders: (1) (a) The corporate defendants, Newcastle Wallsend Coal Company Pty Limited and Oakbridge Pty Limited shall jointly and severally pay 80 per cent of the costs of the prosecutor of the interlocutory proceedings which costs may be assessed in default of agreement. (b) There shall be no order for costs otherwise. (2) The rulings as to the costs of the interlocutory proceedings, shall to the extent considered appropriate by the trial judge, be incorporated into the final costs orders in the proceedings and the prosecutor shall within eight weeks of today provide to the defendant and the Court a detailed assessment of his costs of the interlocutory proceedings.

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12 The associated s 50(1) charges involving the personal defendants are likewise identified relevant to one or all of the three specified time periods. The correlation between them and the ss15(1) and 16(1) charges involving the corporate defendants is that with each of the ss15(1) or 16(1) charges, there is a corresponding s50(1) charge alleged with respect to one or more of the personal defendants identifying similar particularised persons and failures. The s50 charges allege the necessary additional element for an offence under s50(1), that is, that the named defendant, being a person concerned in the management of the relevant corporation, is deemed to have contravened the same section of the Act. 13 The eight personal defendants were, at relevant times, occupying statutory positions at the Gretley Colliery arising under the Coal Mines Regulation Act 1982 (CMRA 1982). They were as follows: (i) Mr Richard Porteous was the Statutory Mine Manager at Gretley at the time of the inrush on 14 November 1996. He was appointed Mine Manager at Gretley on 28 October 1994. Mr Porteous is charged with 12 offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act over the three identified charge periods. (ii) Mr Jonathan Romcke was the Statutory Mine Manager at Gretley between June 1993 and 28 October 1994. After he left Gretley, Mr Romcke was appointed Statutory Mine Manager at another colliery within the Oakbridge group. Mr Romcke is charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act covering the type 3 charge period between about 22 March 1994 and the end of the night shift on 14 November 1996. ... (iv) Mr Mark Robinson was the statutory Mine Surveyor for a number of relevant periods: 25 September 1995 - 6 October 1995; 18 December 1995 - 21 January 1996; 30 January 1996 - 4 March 1996; 1 April 1996 - 30 June 1996 and 1 July 1996 - 31 December 1996. The initial intermittent nature of Mr Robinson's appointment as statutory Mine Surveyor was because of the absence through illness of Mr Michael Murray, his predecessor as statutory Mine Surveyor. Mr Murray was, by all accounts, on extended sick leave from September 1995 onwards. He died in October 1996. Following Mr Murray's death, steps were taken to formally appoint Mr Robinson as statutory Mine Surveyor on a fulltime basis. That process was undertaken in October 1996. Mr Robinson is charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act covering the type 3 charge period between about 22 March 1994 and the end of the night shift finishing at 7:30am on 14 November 1996.

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It was conceded by the corporate appellants the Gretley Colliery was a place of work for OPL. 14 Mr Porteous and Mr Romcke were statutory Mine Managers for the Gretley Colliery and were employed by OPL. Clause 8(1) of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 imposed upon a Mine Manager the duty to prevent any inrush into the workings of noxious gas from disused workings or of water. Section 37(2)(h) of the Coal Mines Regulation Act 1982 ("CMR Act") required the Mine Manager to take such steps as may be necessary to ensure that at all times the Manager was in possession of all available information regarding disused excavations or workings in the vicinity of the mine. 15 Mr Robinson was appointed as the statutory Mine Surveyor at the Gretley Colliery for the following periods: 25/9/95 to 6/10/95; 18/12/95 to 21/1/96; 30/1/96 to 4/3/96; 1/4/96 to 30/6/96; and, 1/7/96 to 31/12/96. He was employed at all times by OPL. Up to 1 October 1996 Mr Robinson was employed as a casual employee. 16 Mr Batterham, one of those killed, was employed by NWCC. The other deceased were employed by United Mining Support Services Pty Limited and worked under contract for NWCC. 17 In 1995 NWCC had gained approval from the Chief Inspector of Mines to utilise the miniwall mining method in order to mine a number of coal panels at the Gretley Colliery. One of those panels, referred to as "MW 50/51", was where the inrush occurred on 14 November 1996. Before the process of miniwall mining extraction could begin it was necessary for preparatory development work to be done. That development work involved the creation of roadways and cut-throughs within the designated coal panels. It was that development work that was being undertaken in 50/51 panel when the inrush occurred. 18 The lease held by the NWCC in relation to the Gretley Colliery (Coal Lease No. 1343) involved areas that had been previously mined. One of those areas was the Young Wallsend Colliery old workings. The mine in those workings ceased operations in 1892 and was closed down. In 1907, the mine was dewatered and coal mining resumed until 1912 or thereabouts when it closed again. But it was not until 1928 that the Young Wallsend Colliery was formally declared abandoned by the New South Wales Department of Mines. 19 The Young Wallsend Colliery consisted of mining activity (the extent of which was in dispute) in two seams of coal - the Young Wallsend Seam and the Borehole Seam. The Young Wallsend Seam was about 450 to 460 feet below the surface. The Borehole Seam was about 520 to 530 feet below the surface. There was a distance between the Young Wallsend Seam and the Borehole Seam of approximately 18 metres. Mining activities at the Gretley Colliery in 50/51 panel at the time of the inrush were in the Young Wallsend Seam. 20 In attempting to ascertain the presence or otherwise of the old workings relevant to their planned mining activities, mine management at Gretley obtained from the Department of Mineral Resources ("DMR") copies of the mine plans relevant to the old workings of the Young Wallsend Colliery. We reproduce below two of the plans that are of central significance in these proceedings and known as Sheet 2 and Sheet 3. These two plans were drawn from a third sheet, Sheet 1, which is also reproduced below. The purpose in reproducing the Sheets was not to provide all of the detail in the originals but simply to provide some assistance in understanding the written descriptions in this judgment.

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45 As the numbering would suggest, there was also Sheet 1 to RT523. That consisted of the old workings of the Young Wallsend Colliery depicted on the one Sheet superimposed on each other. The import of RT523 Sheet 1 to the proceedings before me is considered in more detail further in this judgment. 46 As has now been established, the depiction of the purported Top and Bottom Seam workings in RT523 Sheets 3 and 2, obtained from the DMR, were wrong. Evidence called by the prosecution would strongly point to the conclusion that, predominantly, the red and black workings depicted in RT523 Sheet 1 were in one seam, the Young Wallsend Seam. Further, evidence given about a drilling survey from 50/51 panel after the inrush would suggest that very limited workings existed in the Borehole Seam. That is another issue I will return to in more detail in due course. 47 The workings depicted in RT523 Sheets 2 and 3 as workings of the Young Wallsend Colliery in a Top and Bottom Seam were not only wrong but proved to have disastrous consequences. As was established after the inrush, the south eastern boundary of the old workings of the Young Wallsend Colliery in the Young Wallsend Seam were always 100 metres or more closer to the proposed mining activity boundaries for 50/51 panel than the official mine plans for Gretley Colliery were depicting at all relevant times. 22 Referring to the shift on which the incident occurred, Staunton J observed: 53 The night shift (or dog watch) in 50/51 panel on 13/14 November 1996 commenced at 11:30pm on 13 November and finished at 7:30am on 14 November. Evidence about the events of that shift was given by the members of the crew who survived the inrush of water and gas. Their evidence is essentially undisputed. 23 Her Honour referred to the evidence of a number of persons present on the night shift on 14 November 1996. Mr Franklin was one of those: 64 Mr Franklin worked on the continuous miner for an hour to an hour and a half when the cable broke. The cable carried the power supply to the continuous miner. That problem with the cable necessitated a delay in work of some one and a half to two hours while an electrician was called for. Mr Franklin and Mr McCallum then left in a mpv (motor powered vehicle) to get a new cable. They returned with that, the new cable was installed and steps were taken to recommence work. By this time it was approximately 4:00am or shortly after. Mr Franklin went to the crib room with Mr McCallum while the remaining members of the team set about the task of recommencing the operation of the continuous miner together with the shuttle cars.

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67 Mr Franklin, Mr Nicholls and Mr Bernard went to the crib room of C heading at 6 cut-through in 50/51 panel. Mr Franklin was directed to try and make phone contact with 52/53 panel to tell them of the problem. Mr Bernard and Mr Nicholls went towards the face of C heading along the travelling road of B heading. Mr Franklin was unable to make phone contact because of problems with the phone. Shortly thereafter Mr Bernard returned and according to Mr Franklin said words to the effect that 'My methanometer is off the scale here and the place is virtually full of gas and if we don't get out of here, we're goners.' 68 According to Mr Franklin, Mr McCallum, who had gone towards the face of C heading when he (Mr Franklin) and Mr Nicholls had departed outbye in the mpv, was seen staggering outbye along B heading in obvious distress. They waited for him to stagger further towards them. According to Mr Franklin, Mr McCallum was having a fair bit of trouble breathing. Mr Franklin, Mr Bernard, Mr Nicholls and Mr McCallum all got into the mpv and drove out to the main travelling road. Mr Bernard was dropped off at a point near 52/53 panel. Mr Franklin, Mr Nicholls and Mr McCallum made their way out of the pit. On the way they encountered Mr Phillip Pritchard, the Under Manager of the mine for the night shift. 69 Mr Franklin saw no evidence of unusual water in 50/51 panel before the inrush either before the day of the inrush or at or about the time of the inrush. 24 At [99]-[100] Staunton J observed in relation to the water and gas which inundated the mine that: 99 It is not in dispute that there was an inrush and that that inrush occurred when the continuous miner holed into old workings. Those old workings were clearly full of water. That the water flowed with considerable force is evident by the fact that, after the inrush, the Joy Continuous Miner, weighing some 45 tonnes, was located about 20 metres inbye the shuttle and positioned diagonally across C heading. The switches on the control panel of the miner indicated that the machine was probably being operated when the power went off.

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979 For the reasons I have given, I am satisfied beyond reasonable doubt that the following personal defendants were persons concerned in the management of the respective corporations and, pursuant to the provisions of s 50(1) of the Act, they are deemed to have committed the same offences as the corporations, having failed to satisfy the onus placed upon them as provided in s 50(1)(a) and (b) of the Act. (i) Richard Myles Porteous with respect to IRC Matter No's 3210/00, 3211/00, 3213/00, 3214/00, 3216/00, 3217/00, 3219/00 and 3220/00: I find the offences proved with respect to the further particulars and failures as determined in the corresponding corporate defendant charges arising under ss 15(1) and 16(1) of the Act. With respect to IRC Matter No's 3212/00, 3215/00, 3218/00 and 3221/00, I find the offences proved with respect to the further particulars as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded, I find failures (a), (b), (e), (g), (h) and (i) established as against Mr Porteous. That finding accords with Mr Porteous' period of employment as General and Statutory Mine Manager at Gretley. (ii) Jonathan Erik Humphries Romcke with respect to IRC Matter No's 3234/00, 3235/00, 3236/00 and 3237/00: I find the offences proved with respect to the further particulars as determined in the corresponding corporate defendant charges arising under ss 15(1) and 16(1) of the Act. In relation to the failures as pleaded I find failures (a), (b), (c), (d), (g), (h) and (i) established as against Mr Romcke. That finding accords with Mr Romcke's period of employment as General and Statutory Mine Manager at Gretley. (iii) Mark Robinson with respect to IRC Matter No's 3230/00, 3231/00, 3232/00 and 3233/00. I find the offences proved with respect to the further particulars as determined in the corresponding corporate charges arising under ss 15(1) and 16(1) of the Act. In relation to the failures as pleaded, I find the failures (a), (b), (f), (g), (h) and (i) established as against Mr Robinson. That finding accords with Mr Robinson's period of employment as Mine Surveyor at Gretley.

[105]

(c) in whose favour an order for costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. (1A) An appeal against an order referred to in subsection (1) (c) may only be made with the leave of the Court of Criminal Appeal. (2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. (3), (3A) (Repealed) (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. (5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1). (6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody. 35 The proper approach to an appeal under s 5AA of the Criminal Appeal Act is, as the Full Bench explained in Seda Pty Ltd v WorkCover Authority of New South Wales (Inspector James) (2003) 130 IR 47 at [14]-[16], as an appeal stricto sensu: In P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102, the Full Bench of this Court considered the nature of an appeal under s 5AA in the following terms: 12 As a result of the amendment to the section by the legislature effective from September 2000, the principles on appeal are accordingly not those set out in cases such as Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326, Fletcher Constructions Australia Limited v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 and Capral Aluminium v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 which depend upon an earlier form of s 5AA.

[109]

37 There were an extensive number of issues raised on appeal by counsel for all of the appellants. We should note that Mr B D Hodgkinson SC with Ms W Thompson of counsel appeared for NWCC, OPL, Mr Porteous and Mr Robinson. Mr R Buchanan QC, with Mr M Shume of counsel, appeared for Mr Romcke. The prosecution was represented by Mr S Crawshaw SC and Mr B Docking of counsel. NWCC and OPL 38 It is convenient at this point to summarise the issues raised by the appellants that we are required to address in these proceedings. Firstly, in relation to NWCC: (1) No valid commencement of proceedings . No valid application has ever been made to the Commission to commence the matters. As a consequence, no proceedings having been commenced at any time, the matters are a nullity and should be dismissed. (2) Plea in bar . A plea in bar (in the nature of autrefois convict) is available to all but one of the prosecutions under s 15(1) and all but one of the prosecutions under s 16(1). It may be appropriate to provide the respondent with the opportunity to elect which of the matters he wishes to proceed with. The rest of the orders made in the matters should be set aside. (3) Circumstantial evidence . The respondent's case was not supported in any respect by direct evidence but rather was based on circumstantial evidence. The circumstantial evidence did not sustain a finding of guilt. No conviction may be based on circumstantial evidence unless the circumstances exclude any hypothesis consistent with innocence. (4) Coronial report. Staunton J referred to and relied on the Coroner's Report. The Report was not an exhibit before her Honour and it made up no part of the evidence that her Honour was entitled to consider. It was not possible to determine how much influence the material contained in the Report had in relation to the various findings expressed in her Honour's judgment. As a consequence the reliance on the material, it not being evidence, represented an error on the part of her Honour and vitiated the entirety of the liability judgment. (5) Risk . On the evidence, there was no risk to the health and safety of the mineworkers in the form of an inrush of water and/or dangerous gases prior to 12 November 1996 because the barrier of coal between the old workings and the Gretley Mine had not reached a thickness of 20 metres or less. Staunton J found there was no risk between 22 March 1994 and 16 September 1996. The evidence did not support a finding in any of the charges that a risk existed as from September 1996; the extraction of panel 50/51 at this point in time was some 369 metres from the site of the inrush. Throughout her judgment Staunton J only made findings in relation to "potential risk". The obligation created by s 15(1) and s 16(1) is directed at obviating actual risk to health and safety in the workplace. (6) Causation . Staunton J misunderstood the causation necessary for any act or omission to give rise to a contravention of the Act. Her Honour misconstrued ss 15 and 16 as providing for an offence in circumstances where the act or omission of the employer was not causative of the risk to health, safety and welfare of employees and non-employees. Further and in the alternative, her Honour misunderstood the risk to employees and non-employees as being a risk of inrush without determining whether such risk, if it existed, was caused by an act or omission of the employer in relation to any employee or non-employee working in the designated areas where work was to be, and was in fact, performed. (7) Reliance on evidence of Mr Adam . Staunton J erred in relying on the evidence of Mr Adam to the extent that she did. Mr Adam could not properly be regarded as an expert on surveying practices in the 1990s; his report had a number of inconsistencies and was based on flawed premises. The trial judge did not give sufficient weight to the matters conceded by Mr Adam in cross-examination. (8) Reliance on evidence of Professor Thomas. The trial judge relied upon Professor Thomas in respect of a matter outside the areas that she accepted he could properly express an opinion, that being the need to include a depiction of the workings in both seams of the Young Wallsend Colliery on a single mining map relevant to Gretley. Her Honour also relied on Professor Thomas' views on how Sheet 1 should be interpreted. Having not established Professor Thomas had specialised knowledge and was, therefore, an expert in this area, his opinion should not have been received or, in the alternative, given little or no weight. (9) Risk Assessment. Staunton J erred in finding there was a failure to plan by way of risk assessment for the development of 50/51 panel and a failure to carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. (10) Type 2 charges - Systems of work. Staunton J erred in finding the alleged failures (a), (b), (c), (d), (e), (f), (i), (j) and (k) of the Type 2 charges had been made out. (11) Type 1 charges - Night shift. Staunton J erred in finding the alleged failures (a) - (e) of the Type 1 charges had been made out. (12) Section 53 defences. The trial judge erred in holding that the defences available under s 53(a) and s 53(b) had not been made out. (13) Penalty . The trial judge treated the course of conduct of NWCC and OPL in the operation of the Gretley Colliery as being a single course of conduct at least in so far as that conduct constituted a breach. However, in imposing separate penalties on each of the corporate appellants the effect was to penalise a single course of conduct twice. As a consequence the penalties imposed were manifestly excessive. Further, the penalties imposed do not represent the proper application of the totality principle.

[112]

JONATHAN ROMCKE 42 Mr Romcke was deemed to have contravened the same provisions of the Act as NWCC and OPL in relation to the planning, research and assessment charges on the basis that he was concerned in the management of those corporations: s 50. As was the case with Mr Porteous, Mr Romcke, on appeal, adopted the position of the two corporate appellants in contending there had been no contravention. Additionally, Mr Romcke contended Staunton J erred in that her Honour: (1) Found that the offence occurred when the appellant was not working at Gretley Colliery when the risk of inrush arose; (2) Erroneously construed s 50 of the OHS Act; (3) Failed to give proper weight to the evidence as to the appellant's lack of authority or power in relation to management and found that the appellant was a General Mine manager; (4) Erred in finding that failure by the corporate appellants was responsible for a risk from the old, wrongly depicted, workings. Mr Romcke contended that only the DMR was responsible for perpetrating the error; (5) Erred in the application of the defences; and, (6) Erred in relation to penalty. MARK ROBINSON 43 Mr Robinson was deemed to have contravened the same provisions of the Act as NWCC and OPL in respect of the planning, research and assessment charges on the basis that he was concerned in the management of those corporations: s 50. In this respect, on appeal, he adopted the position of the two corporate appellants in contending there had been no contravention. In addition, Mr Robinson contended that the trial judge erred in that her Honour: (1) Erroneously construed s 50 of the OHS Act; (2) Erred in dismissing the availability of any defence under the Coal Mines Regulation (Survey and Plan) Regulation 1984 and the operation of s 33(2) of the OHS Act; (3) Found that he was concerned in the management of both NWCC and OPL without making any distinction between the two corporations; (4) Erred in relying upon the statutory Mine Surveyor role and did not give sufficient weight to other evidence; (5) Did not apply the statutory defences, particularly s 53 to him; and, (6) Erred in relation to penalty. 44 In relation to the alleged erroneous construction of s 50, the appellant filed supplementary submissions accepting that the Full Bench was bound by the decision of the Court of Appeal in Powercoal (CA). Nonetheless, the appellant formally pressed its submissions going to the meaning of the words "concerned in the management of the corporation".

[115]

47 At the time that these proceedings were originally commenced they were governed by the provisions of the 1983 OHS Act, since repealed and replaced by the current 2000 Act. 48 Section 48 of the 1983 Act provided, relevantly, that: proceedings for an offence against this Act or the regulations may be instituted only…. (a) with the written consent of the Minister or a prescribed officer…. 49 It was common ground that the prosecutor, the respondent in these appeal proceedings, had commenced the proceedings with the written consent of "the Minister" and that the proceedings were commenced on no other basis and by reference to no other authority. 50 Section 15 of the Interpretation Act 1987 is in the following terms: s 15 Minister (1) In any Act or instrument: (a) a reference to a Minister is a reference to a Minister of the Crown, and (b) a reference to a particular Minister includes a reference to any other Minister who is acting for or on behalf of the Minister. (2) In any Act, a reference to "the Minister" is a reference to: (a) the Minister administering the Act, (b) if different Ministers are administering the Act in different respects, the Minister administering the Act in the relevant respect, (c) if different Ministers are administering different portions of the Act, the Minister administering the relevant portion of the Act, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act, any one of the Ministers administering the Act or portion of the Act. (3) In any instrument, a reference to "the Minister" is a reference to: (a) the Minister administering the Act under which the instrument is made, (b) if different Ministers are administering that Act in different respect, the Minister administering that Act in the respect in relation to which the instrument is made, (c) if different Ministers are administering different portions of that Act, the Minister administering the portion of that Act under which the instrument is made, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act, any one of the Ministers administering the Act or the portion of the Act under which the instrument is made.

[116]

51 After the proceedings had commenced, the appellants submitted before Staunton J that the respondent had proceeded on the basis of the consent of the Minister for Industrial Relations, whereas the consent should have in fact been given by the Minister for Mineral Resources. It was argued before Staunton J that anything to do with mines, and in particular coalmines, was administered by the latter Minister. The appellants contended that the matter was governed by s 15(2)(b) of the Interpretation Act. These assertions had been resisted by the respondent, who submitted that the relevant provision of the Interpretation Act was s 15(2)(c) and that the appropriate Minister had signed the consent. 52 Shortly after the matter was raised in the proceedings before Staunton J, the 2000 Act was amended by enactment of the Occupational Health and Safety Amendment (Prosecutions) Act 2003. This Amendment Act had the effect of amending s 106 of the 2000 Act and the transitional provisions of the 2000 Act as they applied to proceedings originally commenced under the 1983 Act but which had not concluded prior to the commencement of the operation of the 2000 Act. 53 Relevantly, as amended by the 2003 Amendment Act, s 106 of the 2000 Act is now in the following terms: s 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer. 54 The principal relevant amendment for the purpose of these proceedings is the reference to "a" Minister of the Crown as enabling the institution of proceedings by way of written consent. 55 Part 3 of Schedule 3 of the 2000 Act, as amended by the 2003 Amendment Act, is in the following terms: cl. 18 Definitions In this Part: "amending Act" means the Occupational Health and Safety Amendment (Prosecutions) Act 2003 . "former Act" means the Occupational Health and Safety Act 1983 . "proceedings" includes purported proceedings. "terminated" includes stayed, dismissed or not proceeded with for any other reason (including nullity). cl. 19 Application of amendments to offences (1) Section 106, as amended by the amending Act, extends to proceedings relating to offences under this Act or the regulations committed before the commencement of the amending Act. (2) Section 106, as amended by the amending Act, extends (by the operation of clause 13) to proceedings relating to offences under the former Act or regulations under that Act. (3) This clause applies whether any proceedings referred to in this clause were or are instituted before, on or after the commencement of the amending Act or are pending on that commencement. (4) In the case of proceedings instituted under section 48 of the former Act before that commencement, section 48 (1) (a) of that Act is to be construed as if a reference to the Minister in that paragraph was and always had been a reference to any Minister of the Crown. (5) In the case of any proceedings referred to in this clause that were instituted before that commencement, any such proceedings are taken to have been validly instituted, and to have always been validly instituted, if they were consented to by a Minister of the Crown.

[117]

cl. 20 Terminated proceedings (1) This clause applies to proceedings terminated in the Industrial Relations Commission before the commencement of the amending Act if: (a) the proceedings related to alleged offences under this Act or the former Act or the regulations under those Acts, and (b) the proceedings were consented to by a Minister of the Crown and were terminated merely because the proceedings were invalidly instituted, and (c) the proceedings would have been taken to have been validly instituted if the amending Act had commenced before the proceedings were terminated. (2) Any such proceedings may be recommenced, on the basis of the applications and other documents by which those proceedings were last commenced and without any further consent being required, whether or not the time for commencing such proceedings has expired under this or any other Act and despite any changes to the manner of commencing proceedings since they were last commenced. (3) If any terminated proceedings are recommenced, any thing done in the terminated proceedings (other than the termination of the proceedings) is taken to have been done in the recommenced proceedings. 56 The respondent submitted that the 2003 Amendment Act validated the institution of the prosecution, if the institution of the prosecution was otherwise invalid. That, it was submitted, was the clear purpose and effect of cl 19 of Part 3 of Schedule 3 of the 2000 Act. That this was the purpose and effect, it was submitted, was confirmed by cl 20, which revived such proceedings, even if the Court has terminated them. It was also confirmed by the Explanatory Note and the Second Reading Speech accompanying the 2003 Amendment Act, it was submitted. 57 In our opinion, the respondent was correct in submitting the 2003 Amendment Act validated the institution of the prosecution if the institution of the prosecution was otherwise invalid. We consider the correctness of the respondent's position is evident on the face of cl 19. The proceedings before Staunton J were instituted under s 48 of the 1983 Act, before the commencement of the 2003 Amendment Act and had been instituted at the time of that commencement. In such case, the reference to the Minister in s 48(1)(a) is deemed to have been a reference to any Minister of the Crown. Those proceedings by subclause (5) are taken to have been validly instituted and to have always been validly instituted.

[121]

However, the Government has decided to take the unusual step of placing the issue beyond doubt to ensure that the prosecutions in this very important matter can be tested on their merits rather than fail for a technical reason. Accordingly, the bill has been introduced at this very late stage in the current parliamentary session to have the matter dealt with as a matter of urgency. The bill makes it clear that any Minister can consent to a prosecution under the Occupational Health and Safety Act. It will overcome any similar problems that may arise in the future. It will ensure that the Gretley prosecutions proceed on their merits without being compromised by this technical administrative issue. I commend the bill to the House. 59 Similarly, the Explanatory Notes to the Bill stated: The object of this Bill is to amend the Occupational Health and Safety Act 2000 (the Principal Act) to enable any Minister of the Crown to consent to a prosecution for an offence under that Act or under the former Occupational Health and Safety Act 1983 (the former Act) and to extend the effect of the amendments to current proceedings. The amendments will extend to proceedings relating to the death of miners at Gretley Colliery. ... Schedule 1 [4] extends the operation of the provisions amended by the proposed Act to proceedings for offences under the Principal Act and the former Act, or regulations under those Acts, that were or are instituted before, on or after the commencement of the amendments, whether or not proceedings are pending on that commencement. It also provides for references to the Minister in the provisions relating to the commencement of prosecutions under the former Act to be construed as references to any Minister of the Crown and validates the institution of existing proceedings if they were consented to by a Minister of the Crown. The amendments also provide for proceedings for offences under the Principal Act or the former Act, or regulations under those Acts, which were previously terminated merely because the proceedings were incorrectly instituted to be able to be recommenced if those proceedings would have been taken to have been valid under the Principal Act, as amended by the proposed Act. The proceedings may be recommenced, relying on the original processes, even if the time for commencing proceedings has expired or the manner of commencing proceedings has changed. Things done in the terminated proceedings are taken to have been done in any recommenced proceedings.

[122]

60 NWCC contended that the proceedings before Staunton J were invalidly commenced and, as such, were a nullity. It was submitted that for the amending legislation to retrospectively cure the defect in the consent given to commence these proceedings it was necessary for "proceedings" to have been "instituted under section 48 of the former Act". That was not the case, as there was no valid authority to commence them, it was submitted. 61 In relation to cl 20 of Part 3 of Schedule 3 of the 2000 Act it was submitted that provision was limited to "proceedings terminated in the Industrial Relations Commission before the commencement of the amending Act" (appellants' emphasis). It was contended that the circumstances in which cl 20 applied were as follows: if the proceedings related to alleged offences under the repealed 1983 Act (or the present 2000 Act) and the proceedings required consent by a Minister of the Crown and were terminated because the proceedings were invalidly instituted, then the proceedings would have been taken to be validly instituted if the amending legislation had commenced before the proceedings were terminated. The present proceedings were not terminated because of an invalid ministerial consent either before or after the commencement of the amending legislation. It followed that the provisions of cl 20 do not apply to these proceedings. 62 It was further submitted for NWCC that should cl 19(4) and (5) of the amending legislation be held to operate so as to cure the defect in the ministerial consent relied upon by the appellant, such a view would offend the principles enunciated in Kable v Director of Public Prosecutions for (NSW) (1996) 189 CLR 51. 63 In this respect, NWCC contended that the provisions of cl 19(4) and (5) were extraordinary in that they sought to remedy criminal proceedings before a court retrospectively so as to cure a defect raised by the appellant in the course of a trial and to be determined by the Court. While not worded to be limited to apply only to the appellants' case, cl 19(4) and (5) were directed only at these proceedings. It was submitted there were no other proceedings before the Court purportedly commenced before the 2003 Amendment Act that were said to have been commenced on the authority of the (or a) Minister, or any proceedings in which a similar challenge had been made to validity based upon authorised consent. In that the amendments affect, at least in respect of cases commenced before 3 December 2003, only the Gretley proceedings, the legislation has to be seen as contrary to the principles enunciated in Kable, it was submitted.

[123]

64 We consider the respondent was correct in submitting that until an objection to consent is raised and a court determines an order instituting the proceedings is a nullity, the presumption of regularity applies and the proceedings must be treated as valid. In the proceedings before Staunton J, the prospect that the appellants would argue that there was some defect in the consents, was first raised by the appellants in correspondence to the respondent dated 27 October 2003. That correspondence did not specify the alleged defect. The respondent brought the correspondence to the trial judge's attention on 30 October 2003. 65 On 17 November 2003 the trial judge determined that the consent issue should be determined before the case proceeded further. On 18 November 2003 the appellants outlined their argument that the consents were given by the wrong Minister. The respondent was granted an adjournment to prepare a response. 66 The proceedings recommenced on 1 December 2003. On that day the respondent filed in court a Notice of Motion that the matter of the validity of the consents be referred to a Full Bench of the Commission in Court Session to consider questions of law. On 2 December 2003 the respondent put submissions on the Notice of Motion. In seeking a reference to a Full Bench the respondent outlined the argument that the consents were valid and foreshadowed evidence relevant to the issue. 67 The argument was not further developed and the evidence was not heard after the 2003 Amendment Act passed through both Houses of Parliament on 2 December 2003. After the passing into law of that legislation, the trial judge expressed the view that the legislation rendered the argument from the appellants on the consent issue redundant. The appellants did not put any contrary view to the trial judge at the time. 68 Thus, before the question of whether the proceedings were a nullity was heard and determined it was overtaken by the amendments to the 2000 Act and no further issue was taken by the appellant in relation to that Amendment Act until this appeal. An analogy can be drawn with the finding in Cooling (1989) 44 A Crim R 171. In that case, at 174, Thomas J held that if a court disregarded, or failed to observe limitation provisions that affect the right to bring proceedings, a resultant criminal conviction was not a nullity. The conviction was held to be valid until the Court set it aside. If the proceedings were a nullity from the outset, the proceedings would have had no legal existence and the Court would have been powerless to deal with it. This would lead to the type of absurd situation described by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 388-389.

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74 The decision in Kable indicates that legislation dealing with the preventive detention of an individual offender could be considered unconstitutional by the High Court; it could draw the Court into what was in substance a political exercise: Fardon v Attorney General for the State of Queensland (2004) 210 ALR 50; 78 ALJR 1519 at [16] per Gleeson CJ. 75 Fardon was another case of a prisoner due for imminent release but in respect of whom an interim detention order had been sought under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q). The majority of the High Court (Kirby J dissenting) held that s 13 of that Act was valid. In Fardon, McHugh J stated: [36] It is a serious constitutional mistake to think that either Kable or the Constitution assimilates State courts or their judges and officers with federal courts and their judges and officers. The Constitution provides for an integrated court system. But that does not mean that what federal courts cannot do, State courts cannot do. Australia is governed by a federal, not a unitary, system of government. As Knox CJ, Rich and Dixon JJ pointed out in Le Mesurier v Connor (1929) 42 CLR 481 at 495-496: The Parliament may create Federal Courts, and over them and their organization it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised. When a Court has been erected, its jurisdiction, whether in respect of place, person or subject matter, may be enlarged or restricted. The extent of the jurisdiction of a State Court would naturally be determined by State Law. ... [41] The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.

[135]

84 It was submitted for the corporate appellants that a plea in bar (in the nature of autrefois convict) was available to all but one of the prosecutions. It was noted that each of the appellants was charged with three offences under s 15(1) and three offences under s 16(1). As each of the three charges under the two provisions contained the same elements it was submitted that: [A] determination ought be made as to which of the s 15(1) matters is to be proceeded with and that the same position ought be made clear in relation to the s 16(1) matters. In the first instance it may be appropriate to provide an opportunity to the Prosecutor to elect which of the matters it wishes to proceed with. The rest of the orders made in the matters should be set aside. 85 Senior counsel for the corporate appellants submitted her Honour was correct in her reliance on the test set out in Pearce v The Queen (1998) 194 CLR 610 and on the operation of s 49A of the OHS Act. However, it was asserted that ultimately the test in Pearce was misapplied and, in that regard, her Honour erred. 86 It was contended that Staunton J confused the relevance of different charges being laid under different statutory provisions (ss 15 and 16) which contained different elements but arose out of the same factual circumstances, and the consequence of dividing what was essentially the one charge under each of the respective provisions of ss 15 and 16 of the OHS Act into three different time periods. Senior counsel submitted that if any additional particulars were relied upon to capture the overall criminality alleged against the corporate appellants, such particulars could have been included in the one charge. Her Honour further erred, it was submitted, in determining that any unfairness to the corporate appellants that arose from this artifice could be remedied in the sentencing process. 87 It was submitted that s 49A does not give an unfettered right to a prosecutor to lay charges in a manner that offends the common law principles of a plea in bar or procedural fairness. Nor does it allow a defendant to be punished twice for what can be regarded as the same offence. 88 Senior counsel submitted that in Pearce (at [28]) the Court concluded that the relevant test in determining whether a plea in bar was available to a defendant was to look at the elements of the offences and whether the offences required proof of a fact which the other did not. In the proceedings before Staunton J, it was submitted, her Honour focused on the evidence relied upon by the respondent to found the charges, not the elements of the offence in determining that there was no issue of double jeopardy (and hence no plea in bar made out) and in so doing erred. Respondent's submissions

[136]

89 For the respondent it was submitted: There is no submission made by the appellant as to any error by the trial judge. However, the appellant suggests ... that on appeal, after conviction, matters not be proceeded with or an election be made by the respondent. The respondent submits that the submission should not be entertained. If the appellant seriously wished to make such an application, it was appropriately made at least before the close of the prosecution case, not on appeal or during its final submissions, as occurred at first instance. Alternatively, the respondent relied on the following matters: (a) There was no overlap in the essential factual ingredient of the time between the night shift charges and the systems of work charges. (b) The essential factual ingredient of the manner of the research, assessment and planning charges was different from the night shift charges and the system of work charges. (c) It was clear that each of the s 15(1) and s 16(1) offences contains an element that the other did not. The obligations owed to the employees under s 15 and to the non-employees under s 16 were clearly distinct. (d) Section 49A of the OHS Act permitted more than one contravention arising out of the same factual circumstances to be charged as separate offences. Using the reasoning of Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 102 it is a pleading rule that permits the collection of several offences known to the law under one count or charge or requires (or here permits) that they be separately expressed in individual counts or charges. (e) No unfairness arose in that the appellant knew in detail what case it had to meet and was able to frame and put their defence fully and in the detail (they chose to). The charges 90 In the proceedings before Staunton J there were, in essence, three different types of charges brought, each of them relating to different aspects of the corporate appellants' operations by reference to activities undertaken over different periods of time. Type 1 charges related to offences alleged to have occurred on 13 and 14 November 1996, known as the "night shift charges". Type 2 charges related to offences alleged to have occurred from 16 September 1996 and up to the commencement of the night shift, and were referred to as the "system of work charges". Type 3 charges related to offences alleged to have occurred between about 22 March 1994 and the end of the night shift of 14 November 1996, and were referred to as the "planning, research and assessment charges". In the case of the two corporate appellants, they were each charged with breaches of both s 15 and s 16 of the OHS Act. The charges under s 15(1) and s 16(1) laid against NWCC are set out in the table in annexure A. The charges against OPL were not relevantly different to those laid against NWCC.

[138]

91 A plea of autrefois convict is not available in summary proceedings: See SPCC v Tallow Products Pty Ltd (1992) 65 A Crim R 509. However, an analogous principle does apply in cases in summary jurisdiction: see discussion by Gummow and Hayne JJ in Island Maritime Limited v Filipowski; Kulkarni v Filipowski (2006) 228 ALR 1 commencing at [34]. There is no doubt that the rule against double jeopardy extends to summary trials: Wemyss v Hopkins (1875) LR 10 QB 378; Island Maritime Limited v Filipowski; Kulkarni v Filipowski. We do not consider there is any bar to us quashing or varying the decision at first instance, or any aspect of it, if we find the rule against double jeopardy has been breached, or staying the medium and short period charges that occurred within the same time period as the long term charges. Pearce v The Queen 92 Pearce v The Queen is the leading High Court authority on double jeopardy. In Pearce the appellant was charged on indictment with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him. These charges were counts 9 and 10 on the indictment and alleged offences against ss 33 and 110 of the Crimes Act 1900 (NSW). The two charges arose out of a single episode. The appellant broke into the victim's home and beat him. 93 In their judgment the majority (McHugh, Hayne and Callinan JJ) noted the elements of the offences charged against the appellant overlapped but they were not identical. The offence under s 33 required a specific intent to do grievous bodily harm; the offence under s 110 did not. The latter section required only an intention to do the acts that caused the harm. The offence under s 110 required a breaking and entering; the offence under s 33 did not. 94 At [18]-[21] the majority stated (references omitted): 18 It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for "substantially the same" offence, or for an offence the "gist" or "gravamen" of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins, for the "same matter". It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. 19 Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are "substantially" the same; and secondly, the attempt to identify the "sameness" of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real. 20 In each of Chia Gee v Martin and Li Wan Quai v Christie, Griffith CJ identified the test for whether a plea in bar would lie as being "whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first". At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

[139]

21 Further, when it is said that it is enough if the offences are "substantially" the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration. 95 After referring to Wemyss, the majority stated at [25]-[27] (references omitted): 25 Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor? 26 Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a plea. In any event, such a test would, as we have said, shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence. It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused. 27 Reference to the recent course of decisions of the Supreme Court of the United States on the Fifth Amendment lends force to these conclusions. In Blockburger v United States the Court held that: "... where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 96 The majority concluded at [28] that: Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld. 97 As to the question of a stay, the majority determined as follows (references omitted): 29 Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen. 30 The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily. 31 There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately. 32 It follows that the primary judge was right to conclude that the proceedings on the indictment (or counts 9 and 10 in particular) should not be stayed. 98 Contrary to the tenor of the decision of Hunt CJ in R v Mai (1992) 26 NSWLR 371 at 386-387 (which preceded Pearce), it is clear from this extract (and paragraph [28] of the High Court decision) that although views may differ as to the advisability of a particular course of action, it is within the prosecution's discretion to decide what charges should be laid and prosecuted; that no plea in bar will be available if each offence requires proof of a fact which the other does not; and that, failing the availability of a plea in bar, there may be circumstances in which an offender can establish an abuse of process. Elements of an offence

[140]

99 The elements of an offence referred to in Pearce are not only the legal elements but include the essential factual ingredients. The appellants confined themselves in their argument to a comparison of the legal elements and to that extent we consider they were wrong. 100 In John L Pty Ltd v Attorney-General (1987) 163 CLR 508 at 519-520, Mason CJ, Deane and Dawson JJ stated: One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence (see, e.g., Smith v. Moody (1903) 1 KB 56, at p 60; Johnson v. Miller (1937) 59 CLR 467, at pp 486-487, 501; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280). It is, however, unnecessary to pursue that particular question here since, putting to one side s.6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence. 101 Referring with approval to what Mahoney JA stated in De Romanis v Sibraa [1977] 2 NSWLR 264 at 291, the majority in John L observed: In De Romanis v. Sibraa (1977) 2 NSWLR 264, at p 291, Mahoney J.A. correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented (at pp.291-292): "In Johnson v. Miller (1937) 59 CLR 467, at p 486 Dixon J. saw the decision in Smith v. Moody (1903) 1 KB 56, at pp 61, 63 as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J. (1937) 59 CLR 467, at p.501 referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason (1964) 81 WN (Pt.1) (NSW) 286, at pp 290, 291. ... These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it." 102 It is important to understand how it was that the information laid in John L was ultimately found to be defective by the majority. This was explained at 520-521: As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the "material particular" in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. The impugned statement was the expression of a present intention to engage in future conduct, namely, to give 1000 litres of free petrol to customers "buying a car over $3,000.00" during the coming week-end. It would appear from the transcript of submissions made in the Court of Criminal Appeal that the informant relied upon the failure of the appellant to give some or all of those customers the promised free petrol. But those facts, even had they been included in the information, would not have indicated whether the statement was alleged to be false or misleading because at the relevant time the appellant lacked the intention to carry out its promise or for some other reason. The relevant time was, as the information recognized, the time at which the statement was made. At the most those facts would, in the absence of explanation of them, amount to evidence of lack of intention. But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the "manner of the (appellant's) acts or omissions" (cf. per Dixon J., Johnson v. Miller, at p 486) or to provide "fair information and reasonable particularity as to the nature of the offence charged" (per McTiernan J., ibid., at p 501). In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the "material particular" in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision. The only such statutory provision which is suggested by the respondent Attorney-General to have had that effect is s.6 of the Summary Jurisdiction Act. The majority held that the defect in the information was not overcome by s 6 of the Summary Jurisdiction Act: see 521-522. 103 It will be insufficient, in our opinion, to frame a charge under s 15(1) and s 16(1) of the OHS Act merely in terms of the language of those provisions. It will be necessary to specify the 'the time, place, and manner of the defendant's acts or omissions' (per Dixon J in Johnson v Miller at 486) or to provide 'fair information and reasonable particularity as to the nature of the offence charged' (per McTiernan J, ibid, at 501). The time, place and manner of a defendant's acts or omissions are fundamental considerations in determining whether multiple offences with which a defendant may have been charged are the same. 104 In Tallow Products, Abadee J stated at 534: [F]or the purposes of determining whether the matter falls within the established scope of the rule against double jeopardy, the Court in R v Dodd was prepared to look at the substance of the two relevant offences in terms of the particulars of the charge in the light of the facts of the case. In Environment Protection Authority v Australian Iron & Steel Pty Ltd , the decision was reached by reference settled principle, again expressed in terms of double jeopardy for the same "offence" or "substantially the same offence" (albeit, not in form) by examining the nature of the two statutory offences in "light of the particulars of the charges". 105 An examination of the judgments in Dodd & Dodd (see (1991) 56 A Crim R 451 at 457) and EPA v Australian Iron & Steel (see (1992) 28 NSWLR 502 at 509) indicates that Abadee J was, with respect, correct in his observation that in those cases consideration was given to the substance of the offences in terms of the particulars of the charges. We do not consider the requirement to look at the substance of the charges is inconsistent with the ratio in Pearce. 106 We also note the observation by Gleeson CJ in Dodd & Dodd at 457: In Australia it is not law that a person cannot be prosecuted for a number of offences just because they all arise out of the same act or course of conduct. Section 49A of OHS Act 107 In relation to the last matter, it is necessary to refer to the provisions of s 49A of the OHS Act, which commenced on 1 November 1997: 49A. Multiple contraventions of Part 3 (1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

[144]

53 In order to assist in establishing the purpose or object underlying the amendment (and consistent with the provisions of s 33 and s 34 of the Interpretation Act 1987) it is appropriate to consider what was said by the Honourable J W Shaw (Attorney-General and Minister for Industrial Relations) upon the Second Reading of the Bill. Relevantly, the Minister stated: To assist in prosecutions of offences under the Act, the Bill gives prosecutors the option of charging several breaches of one of the general duties as a single offence, if they arose out of the same factual circumstances. For example, a serious incident at a workplace may involve a breach of the employer's general statutory obligation to provide a safe and healthy workplace in several respects, such as failure to provide training, failure to set up a safe system of work, failure to ensure equipment is safe, failure to provide personal protective equipment to workers and failure to provide adequate supervision. Under the existing case precedents, it is unclear if each of these related contraventions would have to be charged as a separate breach of s 15 of the Act, which would complicate court proceedings, and lead to much repetition of the factual circumstances of the incident. The new procedure will allow for simplified proceedings, where all the breaches which arise from the same factual circumstances can be charged as a single offence. The change will allow the various breaches to be given their due weight in the calculation of penalty, as the court will no longer treat one offence as the major breach, and other breaches as aggravating factors rather than contraventions in their own right. The test for similarity of breaches - that they must arise from the same factual circumstances - is not intended to be overly technical or restrictive. In the example previously mentioned, it would refer to all failures by the employer to ensure health, safety and welfare which are relevant to the factual circumstances of the incident or risk (Hansard of the Debates of the Legislative Council, 14 May 1997, 8501)

[148]

112 In Boral Gas the respondent had laid three informations against the appellant for alleged breaches of ss 15, 16 and 17(1)(a) respectively, of the OHS Act. The appellant had submitted on appeal that each information was invalid because it failed to specify the essential ingredients of the alleged offence and should have been dismissed or permanently stayed for that reason. The appellant further contended that each information, having regard to the particulars of each charge later furnished by the respondent, was ambiguous and charged more than one offence; it was, therefore, bad for duplicity or uncertainty and the respondent should have been required to select, prior to trial, only one particular offence in respect of each information. 113 Hill and Hungerford JJ, in separate judgments, held that whilst s 15(1) of the Act created one general duty, each act or omission constituting a failure of a duty specified in s 15(2) or otherwise breaching s 15(1), was a separate offence under the section. In this respect Hill J held at 389-390: The gist of the offence created by s .15 is not, in my opinion, the single act or omission of failing to observe a general duty to maintain at all times a safe working environment for employees which may possess one or more of a number of characteristics or features, but each particular act or omission which amounts to a failure to maintain that environment. Each act or omission which constitutes a failure specified in s .15(2) or otherwise amounts to a breach of the duty under s .15(1) is, in my opinion, a separate offence under the section. 114 Hungerford J expressed his opinion in the following terms at 416: On its face, my view is that s. 15 in sub-s.(1) creates but one offence, namely the failure of an employer to "ensure the health, safety and welfare at work of all his employees." Sub-section (2), in its terms, sets out a number and variety of ways in which that single offence may be committed; such ways, I emphasise, are put in the alternative so that any one of them, if made out, may constitute the single offence in sub-s.(1), although if each be made out then the corresponding number of separate offences against sub-s.(1) will be committed. Marks J. held that s. 15 (1) created but one offence and the manner in which a breach occurred was provided by way of the examples in sub-s.(2). I do not agree. I view each of the lettered pars.(a) to (f) in sub-s.(2) as constituting separate and discrete means, albeit in some cases being in a similar fact situation, by which an employer may commit one or more separate offences against sub-s.(1) and in respect of each of which separate charges would have to be made to avoid duplicity. 115 Fisher CJ took a different view to the majority in respect of s 15. His Honour stated at 367: It has also been argued that each separate allegation contributing to an offence under s. 15 (1) should be the subject of a separate information. The structure of the Act itself does not seem consistent with that approach and experience itself does not suggest that the problem of duplicity is or is perceived to be a problem any more than it was at Common Law.

[150]

Most accidents have multiple causation. This case as the particulars show is typical. Some matters are breaches of safe working practice, safe working codes and regulations under other statutes. The device of bringing the central allegations together under one count, under s. 15 , is inherent in the structure of the Act itself and a long tradition of industrial litigation. Every dangerous machinery count can be presented as a breach of legislative standards (s.27 of the Factories and Shops Act ), a failure to employ a safe system of work, a failure to supply safe plant and machinery, a failure adequately to train an employee in safe work practices, a failure to warn and advise, to name but a few. 116 Section 15 of the OHS Act states: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

[151]

117 We do not consider there can any longer be doubt that whilst s 15(1) of the Act creates one general duty, each act or omission constituting a failure of a duty specified in s 15(2) or otherwise breaching s 15(1), may be a separate offence under the section. That is not the case with s 16, which is in the following terms: 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. (2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. (3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 118 As Hill J held in Boral Gas at 395: The provisions of s .16(1) are, on their face, in marked contrast to those of s. 15(1) and (2). In my opinion, s .16(1) creates only one offence where, on a particular occasion, an employer fails to ensure that persons not in his employment are not exposed to risks arising from the conduct of his undertaking or operations while they are at the employer's place of work notwithstanding that the conduct of the undertaking or operations at that point exposes different persons to different risks which arise in a variety of ways. In my opinion, the gist of the offence created by s. 16(1) is that of the employer exposing persons not in his employment to risks to their health or safety while at his place of work. The act or omission resulting in the exposure of persons to risks to their health or safety may arise in one or more of a number of ways. In other words, the prohibited act or omission may possess one or more characteristics and proof of the existence, at a particular time, of several risks and several causes of risks, each to different persons or groups of persons, will establish only one contravention of the section. 119 It followed from the majority judgments in Boral Gas that where there was more than one contravention of s 15(1) by a person arising out of the same factual circumstances, the contraventions were to be charged as separate offences. The contraventions were exemplified in s 15(2) so that, for example, where an incident giving rise to a prosecution involved both a failure by an employer to provide or maintain plant and systems of work that were safe and without risks to health and a failure to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, the two contraventions were to be charged as separate offences. Upon the consequential amendment to the OHS Act that is s 49A, where there is more than one contravention of s 15(1) or s 16(1) by a person arising out of the same factual circumstances, the contraventions may be charged as a single offence or separate offences.

[180]

127 It is clear from Pearce that in considering the question of double jeopardy what is necessary is an analysis of, and comparison between, the elements of the offences under consideration. The legal elements of the s 15(1) offences are necessarily the same given that each of the charges was laid under s 15(1). That was also the case in respect of the s 16(1) offences. As we have already explained, however, one must have regard also to the essential factual elements. As Hill J observed in Boral Gas at 379: It is necessary for an information under s .15 to specify, in addition to other fundamentals of the alleged offence, how or in what manner it took place; it must adequately identify the particular act or omission which is alleged to constitute the offence. (See Smith v. Moody [1903] 1 KB 56 at p.60; Ex parte Lovell; Re Buckley (supra) at 173; De Romanis v Sibraa [1977] 2 NSWLR 264 ; John L Pty Ltd and Stanton .) All factual elements of the offence must be specified as well as all legal elements. If one of the particular failures set out in s .15(2) is relied upon, then that failure and its content should be specified in the information. If the alleged failure is of a kind not contained in pars (a) to (f) of s 15(2), but otherwise contravenes s 15(1), then the nature and manner of that failure should be set out. It is fundamental that a defendant know the precise act or omission alleged to constitute the offence charged so that he may plead to it. At the lowest, if it were to be the case, and it is here, that the appellant is charged with contravention of s .15 because, inter alia, it failed "(c) to provide such information, instruction, training and supervision ... necessary to ensure the health and safety at work of ... employees", then that should be specified in the information. In addition, in my opinion, the information should identify with reasonable particularity the nature and content of the particular failure including whether it was a failure to provide the necessary information, the necessary instruction, the necessary training and/or the necessary supervision. 128 The question that must be asked in the context of whether NWCC was twice placed in jeopardy is whether each of the s 15(1) (and s 16(1)) offences with which NWCC was charged required proof of a fact which the other did not: Pearce at [28]. The judgment of Lord Morris of Borth-y-Gest in Director of Public Prosecutions v Merriman [1973] AC 584 is not to the point. Not only is Pearce the leading Australian authority on double jeopardy but in Merriman his Lordship stated (at 590): The point of law that is raised in the appeal may be thus stated. The count in the indictment coupled the two accused together in a charge of wounding with intent. Is it the law that in those circumstances if one accused pleads guilty to the offence the other accused can only be convicted if he is found to have acted jointly and cannot be convicted if, though it is found that he did wound with intent, his deed was committed independently? 129 Taking, first, the s 15(1) charges. Whilst there was some overlap in the manner of NWCC's failures to ensure the safety of its employees, there were important differences in the night shift charges and the system of work charges. Five of the failures that were made out at first instance were the same in both charges but in the system of work charge there were allegations of six other failures to ensure safety on the part of the employer that were not alleged in the night shift charge. Further, these two charges are distinguishable by the fact that the alleged failures to ensure safety occurred in different time frames. 130 It was alleged in relation to the night shift that on 13 and 14 November 1996 the relevant place of work or work environment was not maintained in a condition that was without risks to health and safety and welfare. NWCC's failures in this respect were identified in the essential particulars in 14(a) to (e) of the charges. The respondent contended the night shift charges were framed having regard to s 15(2)(d) and (e) of the OHS Act. 131 In relation to the system of work charges, it was alleged that between about 16 September 1996 and until the commencement of the night shift on 13 November 1996, NWCC did not provide or maintain systems of work that were without risks to health, safety and welfare. The appellant's failures in this respect were identified in the essential particulars in 10(a) to (l) of the charges. The respondent contended the system of work charges were framed having regard to s 15(2)(a) of the OHS Act. 132 Importantly, if it is accepted that the s 15(1) night shift and system of work charges are based on the different exemplars in s 15(2) and that is what the appellants understood to be the case, there could be no double jeopardy in the light of s 49A. If contraventions of s 15(1) are framed in terms of the exemplars in s 15(2), or are unmistakeably based on the exemplars and that is understood to be so by a defendant such that it knows the case it has to meet, the contraventions may each be charged as a separate offence and there will be no double jeopardy where more than one offence (each understood to be alleging a different contravention) is charged arising out of the same factual circumstances. 133 As to NWCC's awareness of how the respondent was prosecuting the charges, it was made apparent to the appellant at first instance that the respondent was relying on different aspects of the primary facts in laying the two sets of night shift and systems of work charges and did so by relating the charges to different aspects of s 15(2). In the interlocutory proceedings before Wright J the respondent spelt out how the three types of charges were to be distinguished: (1) The night shift on 13 and 14 November 1996 as a place of work or work environment was not maintained in a condition that was without risks to health and safety and welfare is drawn in part from s 15(2)(d) and (e) and also contravenes s 15(1). (2) The period of working and developing 50/51 panel between about 16 September 1996 and until the commencement of the night shift on 13 November 1996 as there was not provided or maintained systems of work that were without risks to health, safety and welfare is drawn from s 15(2)(a). (3) The planning, research and assessment activities undertaken between about 22 March 1994 to 14 November 1996, which did not ensure health, safety and welfare, otherwise contravenes s 15(1).

[181]

134 Moreover, as we have already observed, an essential factual element in the two charges was time; the respondent had to prove the alleged failures, or at least one of them, occurred within the different timeframes alleged in each of the two charges in order to make out the charge. This was different to the circumstances in EPA v Australian Iron & Steel where although the two charges were laid under different statutes, the offences were in substance held to be the same and both occurred at the same time. It could not be said that the night shift charges and the system of work charges are, in substance, the same. Each requires different facts to be proved. 135 It should not be accepted uncritically, however, that because multiple offences charged under s 15(1) were alleged to have occurred at different times that the appellant, therefore, was not placed in double jeopardy. For example, in Harvey Mai at 386 Hunt CJ at CL commented: It is difficult to imagine how it could ever be proper for the Crown to charge an accused… separately for each successive day that the single offence continued. 136 That is not the case here but the fact that the system of work and night shift charges abut one another in a temporal sense raises the inquiry about why it was the offences could not have been charged as one continuing offence and whether, in charging two offences, the charges were duplicitous. 137 The answer lies in those features of the two charges that distinguish them from each other. The s 15(1) night shift charge relates to the shift during which the inrush actually occurred and the risk to which the three deceased employees were subjected to. It was alleged that NWCC failed in five respects to ensure the safety of the employees on that shift. The charge was based on s 15(2)(d) and (e) of the OHS Act, that is the place of work or work environment on the night shift on 13 and 14 November 1996 was not maintained in a condition that was without risk to health, safety and welfare. 138 The s 15(1) system of work charge relates to the period between about 16 September 1996 and the beginning of the night shift on 13 November 1996 when employees were required to work on the development of a roadway known as "C" heading in 50/51 panel. It was alleged that NWCC failed in 12 respects (seven of these were not referred to in the night shift charge) to ensure the health and safety of employees working on the roadway. The charge was based on s 15(2)(a) of the OHS Act, that is, between about 16 September 1996 and the beginning of the night shift on 13 November 1996 there was not provided or maintained systems of work that were without risks to health, safety and welfare. 139 That a number of the proven failures in both the system of work and night shift charges were the same failures, in order to avoid double punishment it was open to the trial judge to take this into account in the sentencing phase of the prosecution by considering the totality of the appellants' criminality: see Pearce at [34]-[50]. We will discuss this matter later in the judgment but we consider that Staunton J did have regard to the duplication of the five failures in the night shift and system of work charges and, in sentencing, dealt with this appropriately. 140 In relation to the s 15(1) planning, research and assessment charge, whilst it covered the same period as the other two charges it was directed at completely different aspects of the primary facts. The "gist or gravamen of the offence" (see EPA v Australian Iron & Steel at 508 per Gleeson CJ) related to the appellant's failures to plan, to research the location of the old workings and to assess the risk of inrush.

[182]

141 We consider there is no relevant duplication involving the s 15(1) planning and assessment charge. That charge obviously required the proof of facts that the other two charges did not. Upon the proper reading of the charges laid, the alleged failures in the different charges cannot be seen as mere particulars; they are essential ingredients of the charge - in much the same way as the material particular was found to be so in John L - going to how it was said the offence was committed. In the absence of any allegation about how NWCC was said to have committed the offences, the offences could not be made out; no causal connection could be found between the act or omission of the appellant and the risk to health and safety; and, NWCC would not have been in a position to be able to answer the allegations. None of the alleged failures in the planning and assessment charge duplicate the alleged failures in the other two charges. 142 The appellants had submitted that if the Court was satisfied that there was a breach in relation to the planning and research charges (the long period charges), then the proper course would be to stay the other charges (that is, the night shift and system of work charges that occurred within the same time period as the long period charges). If there were a breach in relation to the planning, etc., charges and the Court was to stay the other two charges we would be depriving the respondent of his right to pursue charges that reflect the overall criminality of the appellants. Section 16(1) charges 143 In relation to the charges under s 16(1), pursuant to s 49A of the OHS Act more than one contravention of s 16 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. Section 16(1) does not identify the contraventions that may constitute a breach of the general duty to ensure safety as is the case with ss 15(1) and (2). However, in our opinion, there is no reason why what is a contravention of s 15(1) could not also be a contravention of s 16(1): see the discussion by Wright J, President in WorkCover Authority v Concrete Constructions (1999) 98 IR 362 at 372-373. At 373 his Honour held: Thus, when the practical circumstances envisaged by the form of s16(1) are considered, and the evident purpose of the provision is identified, it does not follow, as the defendant contends, that the use of language derived in whole or part from words in s15(2) is inappropriate to describe offences said to arise under section 16(1), or a summons using such words is thereby invalid. Whilst it is to be accepted that the language of parts of s15 derives from the common law (see for example, the discussion by Fisher CJ in Boral Gas at 153) the fact that important features of s16 (namely "its terms, its essential elements, its field of operation and its common law jurisprudential background" - as referred to in the defendant's submissions) may not be applicable to s15 is, for present purposes, irrelevant. What is relevant is that both s15 and s16 impose statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different. 144 The s 16(1) charges are framed in similar terms to their s 15(1) counterparts but, of course, "the identity of the persons the object of the obligations specified is different". We do not consider it is necessary to take a different view in relation to the s 16(1) charges to that we have taken in relation to the s 15(1) charges in the context of our consideration of double jeopardy. 145 We find that no plea in bar or the analogous principle applicable in summary proceedings was available to the appellants and no issue of double jeopardy arises.

[184]

150 NWCC submitted Staunton J referred to and relied upon the Coroner's Report at [6] of her liability judgment. It was submitted that the Report was not an exhibit before her Honour and, accordingly, it made up no part of the evidence that her Honour was entitled to consider. 151 It was further submitted by NWCC: Her Honour's reference to and consideration of the Coroner's Report indicates that in reaching the views expressed in the Judgment her Honour has had regard to material not before her in the Trial. Given the extensive nature of the Coroner's Report, it is not possible to determine how much influence the material contained therein has had in relation to the various findings expressed in her Honour's extensive Judgment. As a consequence the reliance upon this material, it not being evidence, represents an error on the part of her Honour and vitiates the entirety of the Judgment. 152 Properly understood, the reasons given by her Honour for the various findings made and conclusions reached in the liability judgment do not indicate the Coroner's Report or the Judicial Inquiry influenced her Honour. The references made by her Honour to these matters were at [5], [6], [107], [490] and [809] of the judgment and were incidental to the narrative of the judgment. For example: 107 The Coroner's medical reports record that the cause of death of each of the deceased was drowning. and 490 That may be so but I believe that submission must be considered in light of the circumstances prevailing at the time the file was located. The holing-in with its fatal consequences had occurred. A judicial inquiry to be followed by a coroner's inquest was in train. There was a significant and understandable public interest in determining the causes of the tragedy. The role of the DMR and it's files was critical and I have no doubt the DMR was under a degree of pressure to respond quickly, leaving no stone unturned, to locate all files in relation to the Young Wallsend Colliery. That factor in itself would have added an impetus to the task that may otherwise not have existed if the request had been made in the normal course of business. 153 No inference can be drawn from those references that the trial judge was relying on the Coroner's Report or the Judicial Inquiry, except by way of background reference. J. EXPERT EVIDENCE RELIANCE ON MR ADAM

[185]

154 A significant aspect of the appeal concerned the appellants' challenge to the evidence of Mr Adam. Given the importance of that evidence to the submissions concerning risk and causation, it is appropriate to first review the appellants' arguments concerning Mr Adam. 155 Mr Adam's evidence was that a competent surveyor, examining RT523 Sheet 2 and Sheet 3, would conclude that the depiction of the Young Wallsend Colliery workings on Sheet 2 and Sheet 3 could not be relied upon to accurately depict the location and extent of those workings. He stated that he "would have grave doubts about the accuracy of the information contained on these two plans". His reasons for this opinion are outlined in paragraphs 82 to 85 of his statement. In summary those reasons were: (a) It is more likely that sheets 2 and 3 of RT523 show the results of two separate surveys of the same seam. (b) The lack of detail shown in the plan of the top seam suggests that it has not been drawn from a proper survey conducted by a competent surveyor. (c) There are variations and inconsistencies in the workings shown on sheet 2 and 3. (d) The bottom seam plan is not complete. (e) The top seam plan is regular in shape, unlike the bottom seam plan which appears far more random in structure and appears to be more consistent with the normal layout of hand workings. (f) The top seam plan refers to "top seam worked" rather than "top seam workings". (g) The top seam plan shows a number of lines across the workings the significance of which are not apparent. (h) The workings in the south-eastern region between the two sets of headings do not make sense. Sections which indicate solid coal can also represent open roadways. (i) The reference to a second seam as shown at the staple shaft but there was no indicated connection to the workings of a second seam. 156 Mr Adam's evidence was the subject of considerable criticism by the appellants. It was contended that: Mr Adam had very limited and dated experience in both practical surveying and in the management of a mine; he should not have been accepted as an expert in mine surveying; his "opinions" were not based on specialised expert knowledge but on a combination of speculation, inference, personal and second hand views; the trial judge did not give sufficient weight in her findings to the matters conceded by Mr Adam in cross-examination; Mr Adam prepared a report that had a number of inconsistencies and was based on flawed premises, in particular, he formed the view that there was only one seam worked without seeing the original Sheet 1 and did not revise his opinions as to the existence of one seam after seeing the DMR file MS 28/7067 that established there were two sets of workings at the Young Wallsend Colliery and maintained, despite all of the evidence to the contrary, that only one seam was worked; and, Mr Adam's views in a number of respects were formed only with the benefit of hindsight, thus reliance on his evidence regarding what a competent surveyor should have been alive to prior to the inrush was an unsatisfactory foundation upon which Staunton J based her conclusions. 157 Staunton J also relied on Professor Thomas in relation to what her Honour considered to be the anomalies represented on Sheet 1 but she does not explain how or to what extent. Her Honour did, however, place reliance on Professor Thomas' evidence regarding Sheets 2 and 3: [470].

[187]

160 Staunton J considered very carefully Mr Adam's qualifications and experience in accepting him as an expert witness in mine surveying and mine management, not only in her substantive judgment on liability but in an interlocutory judgment of 4 November 2003: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2003] NSWIRComm 392. We have considered all of the material relied upon by her Honour in reaching her conclusions regarding Mr Adam's experience in practical surveying and in the management of a mine and we see no error in that regard except that her Honour appears to have been under the misapprehension that Mr Adam at some point in his career held the position of Mine Manager (see [167]). Given that the critical aspects of Mr Adam's evidence related to his surveying qualifications and experience, we do not consider the mistaken view of her Honour regarding Mr Adam's experience as a Mine Manager relevantly affects the validity of her findings regarding his evidence overall. 161 As to the appellants' submission that the level of practical experience possessed by Mr Adam must be regarded as very limited and relevant only to the periods in which he conducted surveys, that is, 1955-1973, her Honour stated at [171]: 171 I have to say that in making such a submission, counsel for the defendants has conveniently chosen to totally ignore the expertise and knowledge gained by Mr Adam during that period up to 1975 and the role of Mr Adam in the area of mine surveying education from 1975 to the present where, as his statement asserts, and about which he was not challenged, he taught and supervised mine survey trainees in the area of mining technology and mine survey practice. As Mr Adam's employment history states and his statement attests, he continued in that educational role including that involving mine survey trainees from the mid 1970's up until December 1991. As he also stated, following his resignation from TAFE and at the request of TAFE, he continued to supervise a small group of mine survey students for a further year. He has also lectured and conducted field exercises for Wollongong University in the area of mine survey practice, mining machinery application and mining legislation.

[190]

Her Honour's findings at [177]-[178] were entirely open to her. 163 We note that in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2003] NSWIRComm 392, Staunton J considered, amongst other matters, objections raised on behalf of the appellants to the admissibility of Mr Adams' expert witness statement. Her Honour found at [9] that: I am satisfied that Mr Adam does have specialised knowledge and expertise in the area of mine management and mine surveying and that, on a prima facie reading of his statement, the opinions he expresses are based wholly or substantially on that expertise. 164 Staunton J also considered whether Mr Adam's statement complied with Schedule K of the Supreme Court Rules 1970 in accordance with the principles enunciated by Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. In her 2003 interlocutory judgment Staunton J stated at [15]-[17]: 15 As I indicated earlier, on an initial reading of his statement, structured as it is, Mr Adam's statement has the appearance of compliance. It may be that at the end of the day the opinions he expresses, relying on the facts, matters and assumptions that he does, cannot be identified and properly and relevantly established in a suitable evidentiary way. [16] If Mr Adam's statement is to be challenged in that way, as it has been, more has to be done by the defendants than simply assert that proposition. Mr Adam's statement must be tested in accordance with the principles expressed by Hayden JA in Makita , referred to above. That process of testing can and should be done by the evidence and cross-examination of Mr Adam that goes directly to those issues. Only then can the court come to a concluded view as to the evidentiary soundness or otherwise of Mr Adam's opinions and the weight to be attached to such opinions. [17] On this issue, I am of the view that the proper course would be to have Mr Adam give evidence and be cross-examined as to the basis of his opinions in accordance with the principles required to be satisfied and as expressed by Hayden JA in Makita . 165 In the substantive judgment, the trial judge accepted Mr Adam as an expert, stating at [175]: While his opinions on some issues were challenged, they were not undermined in any significant way such as to persuade me that the opinion evidence he gave in the area of mine surveying and mine management was based on anything other than his own specialised knowledge and expertise and that the opinions he expressed were based wholly or substantially on that expertise when taken together with the facts, matters and assumptions on which his opinion was based. I consider the opinions he expressed as being fundamentally sound and essentially correct such that I can rely upon them.

[212]

178 Mr Adam said in his statement that, prior to preparing his observations and conclusions, he viewed the original record tracing and that he considered that original amongst other documents and information. Nothing we can see in the cross-examination of Mr Adam changes or undermines what Mr Adam said in his statement. That Mr Adam did not view Sheet 1 after the judicial inquiry for the purpose of refreshing his memory in relation to the proceedings before Staunton J and relied on a colour photocopy for that purpose, does not detract from the proposition that, in forming his opinions, he did so based, amongst other things, on the original Sheet 1. 179 It was next put that Mr Adam did not revise his opinions as to the existence of one seam after seeing the DMR file MS 28/7067, which conclusively established that there were two sets of workings at the Young Wallsend Colliery and maintained, despite all of the evidence to the contrary, that only one seam was worked. 180 As to that proposition, we consider it is flawed in two respects: First, it was not established "conclusively" that there were two sets of workings at the Young Wallsend Colliery; and, secondly that, whilst Mr Adam's preferred thesis was that there were workings in only one seam, the top seam, he was prepared to concede the possibility of workings in two seams. That documents in MS 28/7067 indicated there were working in two seams (in the reverse order shown on Sheets 2 and 3) cannot be taken as conclusive proof of two sets of workings. What provides the uncertainty about the workings in the two seams is the result of the post inrush drilling that, at the very least, indicated that neither the arrowhead nor oval shaped workings existed in the bottom or borehole seam. This was conceded by senior counsel for NWCC in the proceedings before Staunton J. It was Mr Adam's opinion that all that had been done in the bottom seam was some limited opening out work that did not constitute mining of the seam. The drilling results were consistent with this view. None of the holes drilled post inrush produced results that were consistent with arrowhead workings in the bottom seam but the results were consistent with only limited opening out work in the bottom seam. The drilling also strongly suggested that the arrowhead workings were in the top seam. 181 Mr Adam also gave evidence about the documents he viewed in file MS 28/7067. He acknowledged that the material indicated that in 1911 and 1912 there were workings in two seams in the Young Wallsend Colliery, the oval shaped workings being depicted in the bottom seam and the arrowhead workings in the top seam, which was the reverse of what was shown on Sheets 2 and 3. Mr Adam, nevertheless, adhered to his preferred view that the workings were in one seam and that when considered as a whole, the material in MS 28/7067 did not unequivocally support the depictions that there were workings in two seams. The following exchange took place in Mr Adam's evidence in chief: Q. In looking at [exhibit] P_074, being the file [MS 28/7067], could you find any record in that file which explained - and I think A18 [depiction of oval shaped workings in bottom seam and arrowhead workings in top seam] is dated in the period July/August 1911 - the workings in the borehole seam? A. No, I can't, because all of the earlier documents refer only to one set of workings. Then there appears to be a gap. There is some correspondence there relating to some issues of encroachment and non-payment of royalties, but with respect to the workings of the mine and the survey information, there is just a gap. On the latter period of that gap, which we pick up as being about the time that A18 is written, there is this presumption that there are two seams of workings. That's the first time that I was able to find any reference to two seams and certainly nothing in the documents in between showed that anything had happened. In fact, it's my understanding, reading this, that the mine was, for a major part of that, actually closed down. ... MR DOCKING: Q. Does that indicate to you any support for your understanding that the work was in the Young Wallsend seam as opposed to the borehole seam, at least as at the date of this document? A. It does. I refer particularly to the section to which you referred called "Upcast Shaft", three lines from the bottom. It says: Is intended to sink to the lower seam, but no definite time for commencing this work has been decided on.

[213]

Which I would interpret that as saying that up to the date of this letter, being 15 October 1909, there was no work conducted in any other seam other than the top or Young Wallsend seam. 182 Whilst there was no conclusive evidence that there were no workings in the bottom seam, the weight of the material we have considered in the evidence would suggest there were no workings beyond limited opening out of the shaft. The weight of the material would also strongly indicate that the arrowhead workings were in the top seam. Far from impugning Mr Adam's credibility and objectivity in so far as he adhered to his preferred view that the arrowhead and oval shaped workings were in the one seam, namely, the top seam, we consider, at worst his view remains a matter of some conjecture - that is, it cannot be said he was right or wrong - and at best, Mr Adam was right. There is no basis upon which we could reach a conclusion in this appeal that there were, in fact, extensive workings in two seams and that, therefore, Mr Adam was so inexpert or misguided that the whole of his evidence must fall under suspicion as to its reliability. That the material in 1911 and 1912 showed there were workings in two seams is not conclusive proof that it was so any more than Sheets 2 and 3 in 1980 showed the same, albeit in the reverse order. This is especially the case in light of the drilling results. 183 A further criticism of Mr Adam, referred to above, was that he misinterpreted Sheet 1 by referring to a seam thickness, which is actually a date and failed to identify blue markings. It is correct that Mr Adam did misinterpret a colour copy of Sheet 1 in the manner contended by NWCC. The error would appear to have derived from the difficulty in making out the print of what Mr Adam considered to be a seam thickness rather than a date of 5 December 1910. Mr Adam read it as "5 feet 10"". The implication of that was put by Mr Hodgkinson as follows: Mr Adam, for instance, until he was cross-examined, having gone through an inquiry where sheet 1 was prominent and where his evidence was required in relation to sheet 1, he had misread an entry on sheet 1. That must throw some doubt as to the attention he had paid to it. It certainly throws doubt as to whether or not his evidence can provide a standard by which you judge all other surveyors and by which you assess the activities of the other surveyors who had been involved in the process but had not had the luxury of knowing of an inrush.

[214]

184 If there had been more instances of misinterpretation than those identified by senior counsel for the appellant it may have been a cause to question Mr Adam's level of attention to what was depicted on the colour copy of Sheet 1. But the error made does not lead to an apprehension that Mr Adam was mistaken in his overall interpretation of Sheet 1. 185 The date of 5 December 1910, we note, was handwritten in red ink across the ends of cut throughs and headings on the arrowhead workings in the south eastern corner and it was put to Mr Adam in cross-examination that the date was written in such a manner that it depicted, in effect, an abandonment plan in that area of the workings. Mr Adam accepted it may have but he also indicated that there could have been further workings after the date had been inserted and there was no way of knowing whether that area of the working had been abandoned on 5 December 1910 or further workings had occurred. Notably, Mr Adam pointed out in addition to a date, he would have expected to see a line around the outside of the workings and a date to show the workings had been abandoned. There was no line. Moreover, he noted that the date of 5 December 1910 had not been written across all of the workings including a roadway. Mr Adam said in his evidence in cross-examination: While ever he [the surveyor] leaves that roadway open, it is an indication that he believes that that roadway has not been completed, has not reached the boundary that was set as part of the mine design. There is a potential for that because all of the roadways that it's still open-ended and not ruled off. 186 That there was no definitive indication on Sheet 1 that the arrowhead workings had been completely abandoned adds, in our view, to the uncertainty about what Sheet 1 depicted. That a date had been written across the openings of certain cut-throughs and headings but not the roadway must raise some questions about what was represented on Sheet 1, especially given the care that needed to be taken in interpreting plans of old workings. This issue was referred to in the 1908 text, "Practical Coal Mining by Leading Experts in Mining and Engineering under the Editorship of W S Boulton" (referred to in the evidence of Professor Thomas) where it was stated: Boring towards Old Workings - Plans of old workings can seldom be relied upon for any degree of accuracy, as not only were old-time miners somewhat neglectful of the variation of the compass-needle, but they were also generally behindhand in the matter of keeping the plans of the workings up to date. For these reasons mining engineers should exercise a very great amount of care, and should use every precaution against possible danger from accidental holing.

[225]

Q. Then, having gone to particular chapters, you got certain extracts? A. That's correct. 189 In the course of his oral submissions on appeal, senior counsel for NWCC tendered a table identifying certain conclusions reached by Staunton J in her judgment on liability and references to transcript pages where Mr Adam had given evidence that senior counsel contended was not taken into proper consideration by her Honour in arriving at her conclusions. Thirteen instances were identified. By far the majority of the matters referred to in the transcript pages related to the cross-examination of Mr Adam, and the questions asked of him were obviously designed to attack his opinion that the old workings consisted of only one seam. Under cross-examination, Mr Adam made some concessions regarding matters he may have overlooked or may not have considered as objectively as possible, but in our opinion they were not concessions that undermined his thesis or his credibility as an expert witness. Mr Adam's opinion regarding one seam was supportable and as we have found was likely to have been correct to the extent that in the bottom seam the only mining undertaken was limited opening out work. 190 The observations made by the trial judge regarding Mr Adam, and the evidence he gave, we find were open to her Honour and there was no misjudgement on her part in considering that the opinions expressed by Mr Adam were "fundamentally sound". At [175] her Honour stated: 175 Having considered Mr Adams' evidence in the light of subsequent cross examination, I have no cause to question my initial assessment of him as being an 'honest, forthright and considered witness.' While his opinions on some issues were challenged, they were not undermined in any significant way such as to persuade me that the opinion evidence he gave in the area of mine surveying and mine management was based on anything other than his own specialised knowledge and expertise and that the opinions he expressed were based wholly or substantially on that expertise when taken together with the facts, matters and assumptions on which his opinion was based. I consider the opinions he expressed as being fundamentally sound and essentially correct such that I can rely upon them. 191 Another strong attack on Mr Adam was that referred to by Staunton J at [179] of her judgment: 179 Counsel for the defendants also submitted on more than one occasion that the tenor of Mr Adam's evidence was overwhelmingly that of evidence given with the benefit of hindsight and could not be considered evidence that was able to objectively view the matters that were before him from any perspective other than that of a person being overwhelmed by the events of the inrush and very much from the perspective of hindsight influenced by that event. 192 The issue of hindsight was strongly pressed on appeal. Senior counsel for Mr Romcke, Mr Buchanan QC, submitted: On the approach taken by Mr Adam, and adopted by Staunton J, the DMR itself (through its Mapping Branch and its surveyors and draftsmen) should have been the first to identify the possibility of error. The fact that, before the inrush no one including the DMR doubted the plans is telling. It does not suggest negligence, criminal failing, want of care or lack of professionalism on the part of staff at the mine. On the contrary, it provides a reason to recognise and soberly assess the influence which hindsight can bring to the investigation of a tragedy. Minds bent on finding explanations and attributing responsibility may too readily substitute the illumination of hindsight, produced by intensive investigation of the specific circumstances, for what may be known before the event. A premise that all accidents are knowable and preventable in advance of their occurrence (a proposition which finds no support in human experience) does not reflect reality. A failure to foresee the future does not bespeak want of care. 193 Mr Buchanan went so far as to submit, "every criticism and every finding is made with the benefit of hindsight." Mr Buchanan referred to the decision of Hill J in WorkCover v Maitland City Council (1998) 83 IR 362 at 381: Even if the view were taken that the risk to Mr Scoles arose from the conduct of the employer's undertaking, I consider that it was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. In my opinion the actions of Mr Scoles were not reasonably foreseeable. As Mr Fitness said in evidence: the cockerel box procedure is a safe one if the person operating the cockerel box watches what he is doing "but then again you are not looking for no one to jump on, are you?". It does not follow, in my view, from the fact that the Council had standing instructions forbidding employees on penalty of dismissal, to, amongst other things, mount or dismount moving vehicles, that it was reasonably foreseeable that a person would run across the road and attempt to climb onto the back of the cockerel box of a truck on which he was not employed, while it was reversing and laying blue metal on recently laid hot bitumen. If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. After all, in 1993 three personnel employed by Workcover as experts in relation to the matter of safety in the workplace did not foresee any dangers or risks arising from the cockerel box itself and the systems of work involved in its operation. 194 Mr Hodgkinson for the other appellants contended: It is clear from the evidence that all those persons being expert in the surveying field, including the DMR personnel, also considered the positioning of the Young Wallsend old workings as depicted in Sheets 2 and 3 of RT523 was correct. It is only with the benefit of hindsight that a contrary conclusion can be drawn. In particular, the view that any amount of research would have identified the error created and perpetrated by the DMR when Sheets 2 and 3 were published is only available with the benefit of hindsight. Any assessment undertaken after the inrush had occurred is undertaken in light of the knowledge that there had been a holing in to the old Young Wallsend workings and that as a consequence, Sheets 2 and 3 must have been inaccurate in their depiction of the old workings. With this starting point any investigator is in fact undertaking the task of establishing the degree of inaccuracy of those plans and the reason for that inaccuracy. They are not undertaking the same task that would have presented itself to a person preparing the mining plan for the first time prior to the inrush. There was no available information that would have informed a person otherwise.

[226]

And further: Notably, when the DMR considered the s.138 Application from the Appellant it did not have or see a need to have recourse to Sheet 1 but relied on Sheets 2 & 3. As to whether Sheet 1 had been examined by either Mr Tilden or Mr Murray her Honour did not consider the proposition that either or both surveyors could have formed the same interpretation as to the placement of the seams as represented by Sheets 2 & 3 of RT523. Her Honour concluded that the failure to examine Sheet 1 'exacerbated' the alleged failure. It is only with the benefit of hindsight and access to DMR 28/7067 that Mr Adam and Professor Thomas postulated alternative views. It was not so apparent (particularly that they did not have the benefit of hindsight) that Sheets 2 & 3 were incorrect or not to be relied upon to Inspector Flett, Mr McKensey, the Chief Inspector of Coal Mines or any of the Appellant's employees all of whom had considerably more expertise and experience in mining and surveying than Mr Adam or Professor Thomas. 195 Mr Adam denied in his evidence that the fact of the inrush influenced his approach to the plans of the old workings. He stated that had he been a surveyor at the mine prior to that inrush, he would have taken the approach explained in his evidence. Staunton J accepted Mr Adam's evidence on this point. At [182] her Honour stated: 182 Overall, I considered Mr Adam to be an impressive witness. In saying that, not only do I consider him to have the attributes I have already mentioned, but I observed that he readily conceded alternative possibilities to the opinion he expressed notwithstanding that he consistently returned to the overall opinions he had expressed as being the conclusions that he had reached on the information before him and the basis and assumptions on which he formed that opinion. His preparedness to accept alternative possibilities to various propositions that were put to him in relation to possible interpretations of RT523 Sheets 1, 2 and 3 did not, in my view, diminish the overall weight of his opinion. If anything, it added to what I consider to be the objectivity that Mr Adam brought to his evidence that he was prepared to concede to alternative possibilities but that at the end of the day he returned to what he considered to be the strongest and most likely conclusions that he drew in expressing his opinions. Indeed, in expressing the ultimate opinion that he held, if there was one other compelling factor to emerge from the opinions he expressed, it was that a proper consideration of RT523 Sheets 1, 2 and 3, from the perspective of a mine surveyor, raised as many questions as it answered. That, to me, is the nub of Mr Adams' opinion. That is, there is no one concluded view that one can come to such as to be satisfied as to the accuracy of RT523 Sheets 2 and 3 and which the defendants could have felt confident in relying upon in planning their mining activities at Gretley. 196 The point of the appellants' submissions on hindsight was that if it were not for the foreknowledge possessed by Mr Adam regarding the fact of the inrush, he would not have posited his theory that the workings in the Young Wallsend Colliery were workings in only one seam, namely, the top seam. It was submitted no person whose responsibility encompassed a consideration of what existed in the old workings, including Mr Romcke, Mr Porteous, Mr Murray, Mr Tilden, Mr Robinson, Inspector Flett, the Chief Inspector of Mines and those who had produced Sheets 2 and 3 within the DMR, considered there were workings in the top seam only. All of them, which included experienced and competent surveyors, accepted Sheets 2 and 3 as accurately depicting the old workings. 197 The appellants' submissions were, in effect, that the irresistible conclusion must be that, in arriving at his view, Mr Adam was influenced by the fact of the inrush. That is to say, the starting point of Mr Adam's consideration was the inrush and he worked back from there. Without the inrush it was submitted, the error that existed on Sheets 2 and 3 would have been undiscoverable.

[227]

198 We note, of course, that Mr Adam was not alone in his view that that the red and black markings on Sheet 1 represented workings in one seam. Professor Thomas stated in his statement: I think that if the mine surveyors had looked at sheet 1 rationally, in relation to 1900-1913 practices, they should have reasoned that the red and black workings were contiguous and in the same seam, regardless of not consulting archives, which they should have consulted in any case. 199 In considering the hindsight issue we would observe that: (1) Mr Adam was an expert witness of very considerable experience in surveying. The proposition that Mr Adam's experience was dated in that he was not familiar with the latest surveying techniques or practices especially the use of computers does not raise real doubt about his capacity to read and interpret Sheets 1, 2 and 3, given the date of their origin. Sheet 1 was produced in the early 20th century whereas Sheets 2 and 3 were produced in 1979 or 1980. (2) Staunton J considered Mr Adam to be an impressive witness - an "honest, forthright and considered witness". Whilst we did not have the advantage Staunton J had in viewing Mr Adam giving his evidence, we have no reservation about her Honour's conclusion having considered in detail the transcript of the proceedings at first instance. (3) Mr Adam denied he had been influenced by the fact of the inrush in forming his opinions about Sheets 2 and 3. (4) Mr Adam was able to identify aspects of the plans on Sheets 2 and 3 that led him to consider they showed the results of two separate surveys of the same seam and that there were grave doubts about the accuracy of the information contained on the two plans. The problematic aspects identified by Mr Adam were not invented or manufactured but represented real uncertainties about what Sheets 2 and 3 depicted. (5) Mr Adam conceded that it was possible that Sheets 1, 2 and 3 depicted workings in two seams but adhered to his preferred view. He was not dogmatic in maintaining his view about one seam. (6) Professor Thomas considered there were aspects of Sheets 2 and 3 that were "worrying" or should have been viewed with suspicion. Staunton J was satisfied that Professor Thomas was able to express an expert opinion on the problems that existed in relation to Sheets 2 and 3 having regard to his specialised knowledge, expertise and extensive experience in the field of mining generally and the reading and interpretation of mine plans. (7) Mr Flett, a District Inspector with the DMR stated that he looked at Sheets 2 and 3 (on sepia paper) at the Gretley Colliery office in about December 1993 and "accepted" they were the correct plans showing the workings in the two seams. Mr Flett was not called as an expert witness and could not be regarded as such. We have the impression from his evidence that his examination of the two sheets was no more than cursory and that he accepted them as correct for the reason they were Departmental plans and not because he undertook a close look at them from a surveyor's perspective. (8) Mr McKensey, the Chief Inspector of Coal Mines said that in January 1995 he recalled seeing a copy of Sheet 3 and had no reason to "believe it to be inaccurate." Mr McKensey was not called as an expert witness in relation to reading and interpreting mine plans and like Mr Flett there was no evidence Mr McKensey undertook a close look at Sheet 3 from a surveyor's perspective. (9) Neither the evidence of Mr Flett nor Mr McKensey can be taken as contradicting in any relevant way the evidence of Mr Adam that there were indications on the face of Sheets 2 and 3 that led him to conclude there were doubts about the accuracy of the two sheets. Moreover, it was not the role of Mr McKensey or Mr Flett to take responsibility for the actions of the appellants. The DMR acted upon the certification of the coal mine surveyor and Mine Manager as to the accuracy of the mine plan and were not required to carry out any independent assessment. The evidence of Mr Flett and Mr McKensey adds no substance to the submission that Mr Adam formed his views in hindsight because the weight of opinion was against his. (10) That officers within the DMR (about whom there was no evidence) interpreted Sheet 1 based on Sheets 2 and 3 in about 1980 in a manner contrary to Mr Adam's interpretation adds no substance to the proposition Mr Adam formed his views in hindsight. It is not known whether the officers concerned were surveyors or whether the work on Sheets 2 and 3 was done by a person or persons with only tracing skills. It is to be noted that whoever translated Sheet 1 onto Sheets 2 and 3 did so in the reverse to how Sheet 1 was interpreted in 1911 and 1912 on the documents in the file MS 28/7067. That circumstance would not provide a fact finder with any confidence the DMR correctly interpreted Sheet 1 in 1980 when it was traced onto Sheets 2 and 3. (11) Reference was made to Mr T House, who was the Chief Draftsman in the DMR's Mapping Section in 1980. He was the principal officer of that section. On 13 May 1980 he sent a minute to the Chief Inspector of Coal Mines and the Under Secretary of the Department seeking permission to supply BHP with transparent copies of plans of the workings of the abandoned Young Wallsend Colliery. In that Minute he said, inter alia : The Young Wallsend Colliery worked in both the Borehole and Young Wallsend seams until 1912. It was officially abandoned in 1928. The workings of both seams (which directly overlay each other) are shown by differing colours on the one plan of abandonment. i.e. R.T.523. There was no evidence from Mr House about who prepared Sheets 2 and 3. The fact that Mr House noted "the workings of both seams" and that the workings overlaid each other adds little to the appellant's contentions about Mr Adam being isolated in his view about workings being only in one seam. In the absence of evidence from Mr House we do not know the basis upon which he arrived at his view. We note the appellants' criticism that the respondent had given notice that it was going to call Mr House but ultimately did not do so. It would seem this was, in fact, not the case and nor was there any application by counsel for the appellants that the trial judge should direct the prosecutor to call Mr House. (12) Neither Mr Romcke nor Mr Porteous were surveyors and any evidence they may have given about their views as to the accuracy or reliability of Sheets 2 and 3 would need to have been weighed against the expert evidence of Mr Adam and to a lesser extent, Professor Thomas. It must be a matter of some conjecture that the evidence of Mr Porteous and Mr Romcke would have been preferred to the evidence of Mr Adam in relation to his interpretation of Sheets 2 and 3 from the perspective of a surveyor. Consequently, it cannot be said, unequivocally, that because neither Mr Romcke nor Mr Porteous apparently found fault with Sheets 2 and 3, that this was a factor which strengthened the proposition that the weight of opinion was against Mr Adam. (13) The only surveyors apart from Mr Adam who, the evidence indicates, would have examined Sheets 2 and 3 in the context of having to be satisfied about their reliability or accuracy were Mr Tilden, Mr Murray and Mr Robinson. None of these persons gave evidence. And whilst no adverse inference can be drawn from that fact the position is that we have the expert evidence of Mr Adam and no expert evidence contradicting it. We fail to see in those circumstances how a submission could be sustained that, because the evidence indicates that Messrs Tilden, Murray and Robinson examined Sheets 2 and 3 and apparently found no fault with it, this must be taken as constituting expert opinion outweighing that of Mr Adam. It may have been that Mr Murray, Mr Tilden and Mr Robinson examined Sheets 2 and 3 with the utmost diligence. But it may also have been the case that they did not and simply accepted that because Sheets 2 and 3 were sourced from the DMR they must be accurate and reliable. This is not to say we are drawing an adverse inference because no evidence was taken from these three persons; all we are demonstrating is the lack of substance in the submissions of the appellants that the weight of opinion was against Mr Adam. 200 We consider Staunton J was entitled to regard Mr Adam as an expert on mine surveying practices relevant to Sheet 1 that was produced in the early 20th century and Sheets 2 and 3 that were produced in 1979 or 1980 and that he was a reliable witness for the reasons her Honour expressed at [179]-[182] of her liability judgment. 201 We are unable to accept the submission by the appellants that there was nothing about Sheets 2 and 3 that would cause a competent surveyor to have any doubts about its reliability. Even if it were accepted that not all of the problems identified by Mr Adam in relation to Sheets 2 and 3 reflected uncertainty about what was depicted, there were sufficient questions raised by Mr Adam that, in our assessment, should have raised in the mind of a competent surveyor some degree of doubt that required further consideration and investigation. As Mr Adam said in his evidence, "the accuracy of old plans must always be questioned until proved".

[232]

204 It does not appear that, at first instance, the appellants took any objection to the evidence of Professor Thomas concerning Sheets 2 and 3 and did no more than challenge the weight that should have been given to that evidence. 205 Staunton J described Professor Thomas' qualifications and experience at [183]-[192] of her liability judgment. Given Professor Thomas' background and his extensive experience in the coalmining industry, it was open to her Honour to accept his evidence going to his observations regarding Sheets 2 and 3 and to give that evidence the weight that she did. 206 The appellants pointed to what they considered to be inconsistencies between the evidence of Professor Thomas and Mr Adam regarding Sheets 2 and 3: As to the anomalies relied upon by her Honour in Sheets 2 & 3 there is little if any weight given to the fact that different interpretations were given by Mr Adam and Professor Thomas. Examples are that Mr Adam stated that the arrow head depicted in Sheet 2 was incomplete whereas Professor Thomas stated that the shape was quite common in the late 1800's and early 1900's. Professor Thomas also stated that such mines typically had a low output and were worked sporadically. Another significant difference in opinion existed between Mr Adam and Professor Thomas over the possibility of the workings being ventilated and the description of a shaft as a pit pony stable. In other words, there was no basis on the evidence for the determination made by her Honour that the anomalies held to be 'apparent' on the face of Sheets 2 & 3 indicated what her Honour determined. What is clear and apparent however is that the anomalies referred to never indicated that the seams were depicted in the reverse order. Her Honour erred in relying on that evidence to determine the guilt of the Appellant. 207 Staunton J, in her liability judgment, acknowledged there were differences in the opinions of Mr Adam and Professor Thomas. However, at [471] her Honour stated: 471 There was no suggestion nor could there be that the opinions expressed by Mr Adam and Professor Thomas in relation to Sheets 2 and 3 were anything other than their expert opinions expressed independently of each other. While there may be some differences between them, the opinions expressed by Mr Adam and Professor Thomas in relation to Sheets 2 and 3 are similar in one fundamental respect. That is, both of them express significant reservations about Sheets 2 and 3 in a number of important areas pertinent to accuracy and pertinent to the extent to which they could be relied upon without question. To put it another way, a careful consideration of Sheets 2 and 3 by a competent surveyor would raise a number of important questions that required further information and research before Sheets 2 and 3 could be accepted as accurately depicting the Young Wallsend old workings. 208 We do not consider the differences in opinion relied upon by the appellants detracted from either expert's credibility or objectivity in relation to their interpretation of Sheets 2 and 3. That there were some differences is not surprising given what we consider were the difficulties in interpreting the two Sheets. In any event, we are not convinced the matters referred to by the appellants all amounted to inconsistencies. 209 One of the alleged inconsistencies related to ventilation. As the respondent submitted, both Mr Adam and Professor Thomas gave evidence in their reports that because there is only one roadway joining the workings in one arrowhead to the other arrowhead then a question arose about the ventilation of the mine. In cross-examination it was put to both witnesses that it was possible to ventilate a mine using one roadway by creating a barrier within the roadway. Professor Thomas acknowledged the possibility but gave evidence that it was a dangerous practice that was not used at the time. Mr Adam also conceded that it may be done. Consequently, there was no inconsistency in the evidence of the two experts on this matter. 210 We consider her Honour was entitled to rely on the evidence of Professor Thomas referred to at [470]-[471] of her judgment on liability and for the reasons she gave in those paragraphs. 211 Nothing that has been put by the appellants would lead us to the view that Mr Adam and Professor Thomas had not identified a number of soundly based reservations about the reliability of Sheets 1, 2 and 3 that raised a number of questions requiring further information and research before they could be accepted as accurately depicting the Young Wallsend old workings. In other words, we accept that anomalies and inconsistencies were identified on Sheets 2 and 3 and that viewing Sheet 1 did not resolve those anomalies and inconsistencies. Indeed, it is open to conclude viewing Sheet 1 raised further questions about the reliability of RT523. 212 We have considered the issue of the reliability of Sheets 1, 2 and 3 very carefully in light of the appellants' submissions regarding the evidence of Mr Adam and Professor Thomas. The evidence of Mr Adam and Professor Thomas regarding the anomalies and inconsistencies on Sheets 1, 2 and 3 leads us to a conclusion that it would have been necessary, in order to resolve those anomalies and inconsistencies, to search out other sources of information that might have been available.

[234]

This passage has been approved by the Full Bench in WorkCover (NSW) v Fletcher Constructions (2002) 123 IR 121 at [101], State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [27] and in State Transit Auth (NSW) v Guillarte (2003) 123 IR 237 at 238. (See also WorkCover Authority v McDonalds (1999) 95 IR 383 at 439-440.) 214 Although the issue was not raised by either party in these proceedings, it is pertinent at this juncture to comment briefly upon one other matter of principle: the absolute nature of liability under ss 15 and 16, referred to in remarks by Basten JA in Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172 at [146]. While there has been, at times, variance in the language used, the settled authority of this court plainly establishes that liability is absolute as the Full Bench observed recently in Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355 at [49]. (See also Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 449; WorkCover v Coffey Engineering (2001) 110 IR 447 at [16]-[17]; Ridge Consolidated v WorkCover (2002) 115 IR 78 at [32]; WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at [58]; Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 at [97]; WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 at [45]; Daly Smith Corporation (Aust) Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Mansell) (2006) 151 IR 173 at [33]; Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277 at [54]; and Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 at [148]). This stems from the unconditional, objective nature of the liability (see Shannon v Comalco Aluminium Pty Ltd (1986) 19 IR 358 at 470; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120 - 121; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50; ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [1997] NSWIRComm 60; Ferguson v Nelmac Pty Limited (1999) 92 IR 188; WorkCover Authority (NSW) v State Police (NSW) (No2 (2001) 104 IR 268 at [20]; and McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241); the exclusive nature of the defences available under s 53 (allowing no countervailing defence of honest and reasonable mistake of fact - see, for example Kelloggs (No 1) at 259 and Inspector Wolf v Rockdale Beef Pty Ltd at [147]); and the important social purposes of the Occupational Health and Safety Act and its successor, discussed by the Full Bench in WorkCover v T V & Y Pty Ltd (2005) 146 IR 458 at [7]; Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416 at [27]; Glass v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 at [77]). (For a detailed discussion of the distinction between absolute and strict liability offences, see, for example, R v Wampfler (1987) 11 NSWLR 541 at 546; Griffin and Anor v Marsh (1994) 34 NSWLR 104 at 114-117; He Kaw Teh v The Queen (1985) 157 CLR 523 at 529-530; Binskin v Watson (1990) 12 MVR 282; Von Lieven v Stewart (1990) 21 NSWLR 52; Principles of Criminal Law, S Bronitt and B McSherry, 2005, Lawbook Co at 189-190; and Criminal Defences D O'Connor and PA Fairall, 3rd ed, Butterworths, 31-71). 215 With those general principles governing the liability imposed by ss 15 and 16 in mind, we turn to consider the appellants' detailed submissions challenging her Honour's findings pertaining to failures, risk and causation. Although each is a facet of liability, it is appropriate, given the manner in which the appeal has been argued, to analyse them separately.

[242]

225 The notation referring to Mr E. Thomas arose from work performed by Mr Thomas as a Mining Surveyor with the Department of Mines (as it then was) in 1909. There are, however, entries made on the red drawings in Sheet 1 that refer to dates after 1909, the latest being 1912. 226 Depicted on RT Sheet 1 were the old Young Wallsend mine workings. There were two such depictions - one in black and one in red. Both of the workings appeared to depict areas of coal that had been extracted. The two sets of workings appeared to overlay each other. In doing so, the red workings extended beyond the boundaries of the black workings, particularly in the north-western and south-eastern boundaries. The top seam appeared to be indicated as being at a depth of 460 feet. The bottom seam appeared to be indicated as being at a depth of 521 feet. 227 As the evidence revealed, the origin of Sheets 2 and 3 was a request made to the DMR by BHP in February 1980. In making its request, BHP stated it wanted one copy of each of the workings of Young Wallsend Colliery, Young Wallsend Seam and Young Wallsend Colliery, Borehole Seam. Both Sheets 2 and 3 bear the inscription: Traced from Record Tracing 21 March 1892. 228 In response to BHP's request, the DMR produced Sheets 2 and 3. Sheets 2 and 3 separated the red and black mine workings depicted on Sheet 1. The workings depicted in black on Sheet 1 (the oval shaped workings) were reproduced on Sheet 3 with the heading "Young Wallsend Coal Workings Top Seam". Those workings were understood by the appellants to be workings in the Young Wallsend Seam. 229 RT523 Sheet 2 reproduced the workings depicted in red on Sheet 1 with the heading "Young Wallsend Coal Workings Bottom Seam". The workings were referred to as the two arrowhead shaped workings. Prior to the inrush, reference to the Bottom Seam on Sheet 2 was understood by the appellants to be workings in the Borehole Seam. There was believed to be an 18-metre distance between the Young Wallsend Seam and the Borehole Seam.

[247]

Available sources of information to verify Sheets 2 and 3 233 It is necessary to be clear about the trial judge's findings regarding what her Honour considered to be the sources of information that were available and which needed to have been assessed by NWCC regarding the location and extent of the Young Wallsend old workings rather than limit its reliance to Sheets 2 and 3. 234 First, Sheet 1. Staunton J found that NWCC did not have a copy of, nor did it view, RT523 Sheet 1. The various bases upon which her Honour arrived at that conclusion may be shortly stated as follows: (1) There was no evidence that Mr Murray, initially and primarily responsible for researching available sources and information as to the location and extent of the Young Wallsend old workings, viewed RT523 Sheet 1. In arriving at this conclusion Staunton J placed some weight on the evidence of Ms Roberts who said that to her knowledge, neither Mr Murray nor Mr Robinson, as Mine Surveyors at Gretley, came to the DMR offices while she was there to access or obtain a copy of RT523 Sheet 1. Further, her Honour accepted the evidence that, if Mr Murray or somebody else on behalf of NWCC had wanted to view Sheet 1, they would have had ready access to it if they had gone to the DMR and requested it. (2) There was no specific evidence that indicated that Mr Robinson, once having received the copies of the mine plans from the Mine Subsidence Board, took any particular steps that resulted in a fundamental reappraisal of the accuracy of RT523 Sheets 2 and 3. (3) NWCC chose to call no evidence that would assist the Court in understanding what steps it did take to research the Young Wallsend old workings. The inference that arose from the failure of Mr Romcke and Mr Porteous to give evidence was that in relation to the alleged failure in particular (a) of the planning and assessment charges, the inferences the Court was asked to draw from the facts established were inferences it could more safely rely upon in coming to the conclusions that it did. (4) After the inrush, when Mr Price, NWCC's chief surveyor, produced a large number of mine plans and maps from the Gretley survey office, no copy of Sheet 1 was produced. Further, Mr Price gave evidence that before the inrush and before undertaking the search of the Gretley survey office, he had never seen a copy of RT523 Sheet 1. Mr Foley had never seen Sheet 1 before the inrush. Mr Foley was employed at Gretley as the Assistant Surveyor in 1996 and had held that position since 1981. On his evidence, which was unchallenged, he was familiar with the contents of the various file plans held in the survey office at Gretley. (5) As part of its preparation the respondent served two summonses for production dated 14 October 2003. One was returnable by NWCC, the other by OPL. The summonses required the production of any copy of RT523 Sheet 1 that was held by Gretley Colliery, NWCC or OPL before 14 November 1996. No such document has been produced by NWCC or OPL. 235 Secondly, her Honour considered that even if NWCC had viewed Sheet 1 this, by itself, would not have constituted proper research of available sources and information. Her Honour found that there was no certainty (nor could there sensibly be) about the interpretation of Sheet 1 ([463]); if Sheet 1 had been obtained a mine surveyor would immediately be alerted to the anomalies and irregularities in Sheet 1 (which were not resolved by Sheets 2 and 3: [459] and [465]) and question the basis of the decision to separate and depict the red and black workings in Sheets 2 and 3 ([400], [464]). Similarly, questions would be raised concerning the precise import of the red and black workings on Sheet 1 ([388]); the absence of any legend or survey notations; and whether Sheet 1 depicted work in one or two seams (and if two, which one was which). 236 Not only did Staunton J find that viewing Sheet 1 would have been insufficient: her Honour found that if, contrary to her earlier finding, somebody on behalf of NWCC did peruse Sheet 1, that would exacerbate the company's failure (for the reasons described above) because Sheet 1 presented a real puzzle to the uninformed observer, and to an informed observer, it highlighted significant inconsistencies and anomalies in relation to the depiction of Sheets 2 and 3 such as to raise concerns as to their accuracy ([812]). Any careful consideration of Sheet 1 should have caused NWCC to go further in its inquiries in order to be certain as to the accuracy of Sheets 2 and 3 ([509]).

[251]

245 As to file Ms 28/7067, it was located in State Archives after the inrush. Her Honour found that it was not possible to conclude that NWCC could have accessed the file prior to the inrush. However, the trial judge found this did not mean Mr Murray, or somebody on his behalf, should not have attempted to retrieve the file. Her Honour considered that "[E]very effort should have been made to do so and a formal request made to the DMR for its production." 246 It was the trial judge's opinion that in the absence of any copy of the entry from the Abandonment Register relevant to the Young Wallsend Colliery within NWCC's survey office or elsewhere, the strong inference was that no steps were taken by NWCC to make any request to the DMR to locate the referenced files mentioned in that Register. Her Honour observed that: If Mr Murray or others on behalf of NWCC had located and examined file Ms 28/7067, based on Mr Adam's evidence, alarm bells would have rung as to the accuracy and reliability of Sheets 2 and 3. 247 The "alarm bells" would have been set off, according to Staunton J, by what was described by her Honour at [496] of the liability judgment: Mr Adam pointed to mine tracings within the file that show a complete reversal of what is depicted in Sheets 2 and 3. That much is patently self evident to the casual observer. There is nothing in the file to explain any workings in the Borehole Seam let alone the fact that the depictions that were there had the arrow shaped workings in the Young Wallsend Seam and the oval shaped workings in the Borehole Seam. Indeed, further documentation in the file pointed to further uncertainty as to the extent of the workings, particularly as to whether they were in one or two seams. 248 Another area that her Honour appears to have considered as supporting her finding that NWCC had failed to properly research the location and extent of the Young Wallsend old workings, was that no survey field book, notes, calculations or files were able to be located within the survey office at Gretley. Her Honour considered that such documentation would have been owned by NWCC and it would be expected to be part of the business records of Gretley. Staunton J considered that, more significantly, in taking over from Mr Murray in 1995 and substantively in 1996, it would have been expected Mr Robinson would have inherited a file from Mr Murray containing the field book, survey notes, calculations and other relevant documentation relating to the Young Wallsend Colliery old workings and its incorporation into the mine plans for Gretley. The trial judge considered that it was no answer for NWCC to assert that the use of computerised mapping systems obviated the need for any documented notes. Her Honour found there should have been at least some record of those notes on the computer system and probably evidence of manual calculations to confirm the order of magnitude of the information determined by the computer calculations.

[252]

249 A further source of information Staunton J considered would have been available to NWCC about the location and extent of the Young Wallsend Colliery workings was publications that recorded the workings of the Young Wallsend Colliery. Her Honour referred to the evidence of Mr Adam that in turn referred to a number of texts and relevant newspaper articles which, when considered in totality, raised some doubt as to the extent of mining activity that did take place in the Borehole Seam before the Young Wallsend Colliery closed in 1912. 250 In respect of these publications her Honour stated at [513]: The defendant did not have a copy of or view RT523 Sheet 1. That being the case, it was reasonable to assume that no steps would have been taken such as the researching of diverse publications relevant to the history and development of the Young Wallsend Colliery. Reasoning of trial judge 251 It may be seen that the trial judge's reasoning process was that first, her Honour was satisfied NWCC relied on Sheets 2 and 3 of RT523 as accurately reflecting the Young Wallsend old workings when it planned its mining activities at Gretley. Secondly, Staunton J considered that a careful consideration of Sheets 2 and 3 by a competent surveyor would raise a number of important questions that required further information and research before Sheets 2 and 3 could be accepted as accurately depicting the old workings. Thirdly, her Honour found that it was imperative that Sheet 1 be viewed for a number of reasons including the legislative requirement to have regard to all available information and because Sheets 2 and 3 presented glaring inconsistencies. Fourthly, because the geological plans in NWCC's possession depicted that both the Young Wallsend and Borehole Seam were in reverse seam order to that as depicted in RT523 Sheets 2 and 3, those plans raised the question of the accuracy of Sheets 2 and 3. 252 Fifthly, that neither NWCC nor its relevant managers viewed Sheet 1, a finding based on the considerations summarised earlier. But even if they did, the expert evidence was that Sheet 1 disclosed a number of anomalies that threw considerable doubt as to the depiction of Sheets 2 and 3 as being workings in the seams respectively identified as the Top and Bottom Seam.

[256]

257 Indeed, there were statutory obligations on the Mine Manager to ensure that the information he was using was accurate. Section 37(2)(h) of the CMR Act provided that the Mine Manager shall: (h) take such steps as may be necessary to ensure that at all times the manager is in possession of all available information relevant to the behaviour of strata surrounding the mine and its relationship to the safe working of the mine and all available information regarding disused excavations or workings in the vicinity of the mine. 258 Also, as Staunton J observed, the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation at subclauses 8(1) and (2) addresses the Mine Manager's responsibilities in the prevention of inrush. Subclause (3) provides: In fulfilling the duties imposed by subclause (2), the manager of a mine shall have regard to such information as may be available from the Department or the Department of Mineral Resources in addition to any other information available to the manager. 259 The absolute obligation on the Mine Manager to ensure that at all times he or she was in possession of all available information relevant to disused excavations or workings in the vicinity of the mine and was to have regard to information from the DMR and "any other information available to the manager", was entirely consistent with the nature of the duties faced by NWCC under ss 15 and 16 of the OHS Act to ensure health and safety. If NWCC was to ensure the safety of workers in the mine it was necessary for it to be completely satisfied that it had paid regard to all of the relevant, available information bearing on the location of the old workings in order to ensure it knew with as much precision as possible where those old workings were and in order to avoid any risk of inrush. Whether Mr Murray viewed Sheet 1 260 Staunton J found that neither NWCC nor Mr Murray had a copy of, nor did they view, Sheet 1 of RT523. It is necessary to examine the bases upon which her Honour arrived at that finding. First, the finding that NWCC (and Mr Murray) did not have a copy of Sheet 1. On its own, this finding does not provide the basis for an adverse inference to be drawn against NWCC. That neither NWCC nor Mr Murray had a copy of Sheet 1 is not surprising given the fact that Sheets 2 and 3 were prepared because Sheet 1 was in such a fragile state that made photography difficult. Sheets 2 and 3 were obviously, albeit wrongly, drawn from Sheet 1 and meant to depict what was on Sheet 1. Whilst Sheet 1 was available to be viewed at the DMR a reasonable inference is that if someone was seeking to research the Young Wallsend old workings they would have been provided with Sheets 2 and 3 of RT523 but not Sheet 1 as was the case with BHP in 1980 (although, as we have noted, this would not exhaust relevant inquiries). 261 As for the proposition there was no evidence that Mr Murray viewed Sheet 1, this was so. Mr Murray had died and was not available to give evidence. There was no other evidence indicating that Mr Murray had viewed Sheet 1. Staunton J noted that Miss Roberts had given evidence that neither Mr Murray nor Mr Robinson, as Mine Surveyors at Gretley, came to the DMR offices while she was there to access or obtain a copy of RT523 Sheet 1. Her Honour, acknowledged, however, this evidence by itself would not be conclusive but when considered together with the other circumstances the trial judge referred to, it pointed to "the very persuasive conclusion that the defendant did not have a copy of RT523 Sheet 1 as a starting point in its research and planning of mining activities at Gretley." 262 Against this, however, another inference that may have been available was that Mr Murray did undertake his own investigation and research that may have involved viewing Sheet 1 at the DMR office when Ms Roberts was not present, or viewed Sheet 1 at the DMR's Newcastle office where Sheet 1 was available on microfiche. Having viewed Sheet 1, it is reasonably open to conclude that Mr Murray may have come to the same mistaken view as the DMR about what Sheet 1 depicted, and that it was accurately represented on Sheets 2 and 3.

[258]

Failure of Messrs Romcke and Robinson to give evidence 264 Staunton J referred to the fact that neither Mr Romcke nor Mr Porteous gave evidence (including evidence about whether they viewed Sheet 1). Her Honour considered that the inference that arose from this failure to give evidence was that, in relation to the alleged failure to properly research the location of the old workings, the inferences she was asked to draw from the facts established were inferences she could more safely rely upon in coming to the conclusions that her Honour did. In coming to this view her Honour relied on the decision in Weissensteiner v The Queen (1993) 178 CLR 217. The passage upon which her Honour apparently relied was at 228-229 per Mason CJ, Deane and Dawson JJ: However, the appellant argued that, just as it is impermissible for the trial judge to suggest that inferences adverse to the accused may be drawn from a previous exercise of the right to silence, so it is impermissible for the trial judge to suggest that inferences adverse to the accused which are available to be drawn from the facts proved by the Crown may be drawn more safely when the accused does not give evidence of relevant facts which must be within his or her knowledge. We do not agree. There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge. In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence. 265 In the later case of Azzopardi v The Queen (2001) 205 CLR 50, in commenting on Weissensteiner, the majority (Gaudron, Gummow, Kirby, Hayne JJ) observed: 61 What was important in Weissensteiner , and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that were sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial. ... 68 It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. 266 Weissensteiner and Azzopardi were concerned with directions by a trial judge to a jury in criminal proceedings and appear not to regulate how a trier of fact or appellate court may reason: Cross on Evidence, 7th Australian edition, Butterworths, 2004 at 48. In any event, we doubt whether Weissensteiner has any application to the proof of charges against NWCC.

[259]

267 Staunton J drew the inferences she did against NWCC partly on the basis of the failure of Mr Romcke and Mr Porteous to give evidence. Certain facts were established by direct evidence as to the involvement of Mr Romcke and Mr Porteous as Mine Managers in drawing up mine plans for submission to the Chief Inspector of Mines for his approval to undertake miniwall mining extraction. The signatures of Mr Romcke and Mr Porteous were on the respective plans. Both men signed mine plans depicting the Young Wallsend Colliery old workings as depicted in RT523 Sheet 3, that is, the purported Top Seam that represented the oval shaped workings. 268 From this, Staunton J considered that: Mr Romcke and Mr Porteous would be able to give evidence of relevant facts and circumstances directly pertinent to the creation of those mine plans, the extent to which the Young Wallsend old workings were depicted and what discussions, if any, they would have had with Mr Murray as Mine Surveyor in order to satisfy themselves as to the accuracy of the mine plan depicting the location of the old workings. They are matters that would be within the sole knowledge of Mr Romcke and Mr Porteous, as Mine Managers. 269 Relying on Weissensteiner, Staunton J considered that the failure of Mr Romcke and Mr Porteous to give evidence allowed her to draw what was an adverse inference to the extent that the inferences her Honour was asked to draw by the prosecution from the facts established were inferences against NWCC she could more safely rely upon in coming to the conclusions that she did. 270 Weissensteiner was very narrow in its application. We do not consider that it can be applied to circumstances where an accused natural person may be perceived to have certain knowledge known only to the accused and a failure by the accused to disclose that knowledge may be used to assess the prosecution case against a corporate defendant that was charged with an offence arising out of the same factual circumstances applying to the accused, on the basis that the accused did not offer evidence of any hypothesis or explanation which was consistent with the innocence of the corporate defendant. For instance, the accused natural person might be maintaining a right to silence because of a view that the prosecution's case against him or her is deficient and that the accused should rely on the burden cast upon the prosecution to prove its case beyond reasonable doubt. In those circumstances, there cannot be any adverse inference drawn against the corporate defendant on the authority of Weissensteiner.

[262]

Abandonment Register 273 That leads us to consider the issue of the Abandonment Register, which Staunton J found was the next logical place to research after the Record Tracings: [475]. Her Honour considered it was reasonable that recourse would be had to the Abandonment Register, with a view to ascertaining the final position in relation to the Young Wallsend old workings. 274 Staunton J accepted the prosecution's submission that the compelling inference was that NWCC never considered the Abandonment Register within the DMR in relation to the Young Wallsend old workings: [483]. Her Honour based this conclusion, it would appear, on two considerations, firstly, Mr Price did not find a copy of the relevant entry from the Abandonment Register during his search of the Gretley survey office after the inrush and secondly, no relevant copy of the Abandonment Register was produced by NWCC or OPL in response to a summons for production dated 14 October 2003. 275 NWCC's challenge to her Honour's findings regarding the Abandonment Register was in the following terms: [H]er Honour has not considered a number of significant circumstances that may have provided another explanation for the non-production of certain documents and as a consequence would not allow the drawing of the inferences ultimately relied upon by her Honour. Those circumstances include, but are not limited to: (i) the history of proceedings which involve the collection of a significant amount of documentation including all that were available at Gretley for a lengthy Inquiry and subsequent Coronial Inquest; (ii) a separate investigation by the DMR involving its powers to compel production of documents; and (iii) the fact that after the inrush a large number of documents were produced from the Gretley Survey Office. The other piece of evidence relied on in this area by her Honour was Mr Price's best recollection that he did not find a copy of the Abandonment Register during his search of the Gretley office after the inrush. This recollection does not exclude the possibility that Mr Price did find the Abandonment Register but can now not recollect doing so. In combination this evidence is not sufficient to discharge the appropriate legal test so as to raise an inference against a defendant in a criminal trial. There was no evidence to identify exactly which documents were produced from the Gretley survey office, where those documents went, which documents had been retained by the DMR and others, or which documents form part of the process of investigation for the preparation of the Inquiry and Coronial process so as to establish conclusively that the Abandonment Register had not been found and later misplaced during these various investigation processes. Mr Price's recollection given in evidence some six plus years after the investigation of what he had undertaken in the Gretley survey office is hardly conclusive and cannot either itself or in combination, support the inference her Honour has drawn. Further, there was no basis for her Honour to conclude that the Abandonment Register had not been accessed by either Mr Tilden or Mr Murray. 276 We consider NWCC was correct, at least in so far as the possibility that someone from NWCC may have viewed the Abandonment Register. It has not been established beyond reasonable doubt that NWCC never considered the Abandonment Register within the DMR in relation to the Young Wallsend old workings. It is conceivable that someone from NWCC could have accessed the Abandonment Register at the DMR and upon requesting access to file Ms 28/7067, which was referred to in the Register, was advised it could not be located. It will be recalled that Staunton J found that, notwithstanding that the file Ms 28/7067 had been discovered in State Archives after the inrush, it was not possible to conclude with any certainty: [T]hat, first of all, the defendant or somebody on its behalf would have been able to make the request directly to State Archives in 1994 or thereabouts. Secondly, if the request had been made by the DMR following a request from the defendant in or about 1994 or earlier, I am not satisfied that one could further conclude with sufficient certainty that the file Ms 28/7067 would have been located.

[273]

(g) There was no reason to suspect that further workings in the Young Wallsend Colliery did not take place after the dates appearing on the plan; there was the potential for other workings because 5 December 1910 was written around roadways that were still open-ended and not ruled off. Field Notes 284 Mr Adam gave evidence that when Gretley Colliery was working towards the old workings that were full of water, he would expect that Gretley Colliery management would have files containing field notes and associated calculations which would show the basis upon which they made their decisions about the relevant positions of the old and new collieries: [498]. No such survey field book, notes, calculations or files were able to be located within the survey office at Gretley: [500]. Staunton J considered this to be an understandable cause of concern. 285 There was some confusion before her Honour about whether the field notes and calculation sheets referred to by Mr Adam in his evidence were references to notes and calculations made at about the turn of the 19th Century involving, perhaps, Mr Mine Surveyor Thomas, or were references to notes and calculations made more contemporaneously about the time of the inrush in 1996. 286 An examination of the transcript before her Honour suggests that Mr Adam was referring to both periods but there is no doubt that Mr Adam was of the view that he would have expected to see field notes incorporating calculations and other relevant data to support the decisions ultimately made in relation to the surveying of current mine workings and the checking of old workings, that is, contemporaneous notes and calculations. Mr Adam said in his evidence that he would have expected that Gretley Colliery management would have files containing field notes and associated calculations which would show the basis upon which they made their decisions about the relevant positions of the old and new collieries. 287 It would appear that the absence of any field notes was taken by Staunton J to support an inference that there was a failure to properly research the location and extent of the Young Wallsend old workings. Mr Adam stated in his evidence that: It is the role of the surveyor to measure, to make calculations and to determine the relevant positions of various features. For such an important event such as the potential joining of two collieries I would expect these calculations to be filed or recorded. If reliance was placed at Gretley Colliery on computer based calculations, there should at least be some record of those on the computer system and probably evidence of manual calculations to confirm the order of magnitude of the information determined by the computer calculations. 288 At [500] Staunton J observed: Such documentation [field notes, etc] would be owned by the defendant and it would be expected to be part of the business records of Gretley. More significantly, one would have expected Mr Robinson to have it at his fingertips. That is, in taking over from Mr Murray in 1995 and substantively in 1996, it would be expected he would have inherited a file from Mr Murray containing the field book, survey notes, calculations and other relevant documentation relating to the Young Wallsend Colliery old workings and its incorporation into the mine plans for Gretley. It is no answer, in my view, for counsel on behalf of the defendants to assert that the use of computerised mapping systems obviated the need for any documented notes. On this point, I accept the opinion expressed by Mr Adam on this issue as nothing more than self evident. That is, that there should be at least some record of those on the computer system and probably evidence of manual calculations to confirm the order of magnitude of the information determined by the computer calculations. 289 What we are left to wonder is how the absence of the field book, survey notes and calculations relating to the old workings amounts to a failure to properly research the location and extent of the Young Wallsend old workings. It may be they were essential to proper research but there is no evidence that was the case. 290 It would appear from the evidence that the depiction of the old workings were entered onto computer software at Gretley Mine by Mr Tilden or Mr Murray. The depiction corresponded with known surface features such as the Integrated Survey Grid (ISG) points, the lease boundaries and the surveyed location of the old workings airshaft. This was permitted under s 2.4 of the Survey and Drafting Instructions for Coal Mines Surveyors (Underground) 1984, which states that a mine plan is to be based on the ISG Survey System. What we do not know, and we do not consider Staunton J could have found, is whether this computer based work, for instance, made the need for field survey notes and manual calculations redundant. 291 We do not consider the absence of a field book, survey notes and calculations relating to the old workings were sufficient to support an inference beyond reasonable doubt that NWCC failed to properly research the location and extent of the Young Wallsend old workings.

[276]

507 In short, as Mr Adam pointed out, a reading of the material, which he himself referred to would reveal significant inconsistencies as to what was being reported in relation to the extent of active, working in the Borehole Seam and what was depicted in Sheet 2. I would agree. 295 In the context of our finding that Sheets 1, 2 and 3 threw up anomalies and inconsistencies, which in order to answer them satisfactorily required further information and research, the texts and newspaper articles referred to by her Honour were a legitimate and proper line of inquiry. Further, access to the newspaper articles and texts was found to be relatively easy, as the evidence of Mr McMartin showed. If the line of inquiry had been followed it would have raised the question in the mind of a reasonable person that, while a shaft had been sunk to the Borehole Seam with the intention of being extensively worked, was it the case that ultimately only limited work was undertaken in the Borehole Seam and certainly not to the extent that RT523 Sheet 2 would suggest? Further, as the respondent submitted, certain of the publications would have provided warning signals that the extremities of the south-eastern arrowhead were mined in the Young Wallsend seam, not the Borehole seam of the Young Wallsend Colliery. For example, the publication Youngy Then & Now (The Story of Young Wallsend/Edgeworth) made reference to "At the beginning of 1912 … The Company planned to work the previously undeveloped Borehole Seam" (our emphasis). The dates on Sheet 2 include dates in 1910 and 1911. There is an obvious inconsistency between an undeveloped borehole seam at the beginning of 1912 and a plan that shows considerable development up to 1911. Moreover, the book by F Danvers Power, Coalfields and Collieries of Australia published in 1912, accurately identifies in Chapter XV on "THE NEWCASTLE COALFIELD" that the Young Wallsend Colliery was worked in the Young Wallsend Seam, not the Borehole seam. 296 It appeared to be contended by the appellant that there was no evidence that someone from NWCC did not follow up a line of inquiry that looked at relevant texts and newspaper articles, which leaves open that possibility and raises reasonable doubt. But, in any event, it was submitted by the appellants that reliance on historical texts and newspaper clippings could not be a substitute for reliance on official plans. It was submitted regulation 8(3) of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 required that a manager must have regard to the information produced by the DMR, in this case, Sheets 2 and 3. It was submitted that, in the circumstances, when there was no indication from the DMR that there was a doubt as to the accuracy of Sheets 2 and 3, the acceptance of the information contained on those plans was appropriate. Such an attitude, it was submitted, was enhanced when the other information available was consistent with Sheets 2 and 3 as published by the DMR. As we earlier observed, the other information may have been derived either from Sheet 1 - the source of information for Sheets 2 and 3 - or Sheets 2 and 3 themselves. As such it would not provide independent confirmation of the accuracy of Sheets 2 and 3. 297 We have addressed this issue earlier in our judgment in some detail but we would add that NWCC apparently takes the view that it was entitled to rely on Sheets 2 and 3 because they had been produced by the DMR, the DMR had not indicated any uncertainty about the information contained on the Sheets and the Sheets were consistent with other information published by the DMR. Whilst there must be very serious concern about the role of the DMR in providing inaccurate information without qualification and, notwithstanding, escaping prosecution, as Staunton J observed at [466], and with which we agree: While it is reasonable to presume that such information [provided by the DMR] would generally be correct, that in no way removes the defendant's independent obligation to ensure the accuracy of the information released relevant to its obligations under the OHSA and the CMRA 1982 as associated health and safety legislation. In this case that meant critically scrutinising Sheets 2 and 3 and seeking the all important background information to satisfy itself about the background information that caused Sheets 2 and 3 to be depicted in the way they were. 298 The position we take regarding NWCC's contentions is that if NWCC had researched texts and newspaper articles it is a reasonable inference to draw beyond reasonable doubt they would have come across the same material as Mr McMartin did and to which Mr Adam referred in his evidence. That material would have raised a reasonable doubt within the minds of managers and surveyors within NWCC as to the reliability of Sheets 2 and 3 of RT523. It would not have proven that Sheets 2 and 3 were inaccurate but given the anomalies and inconsistencies on the face of those sheets, the contradicting information in the texts and newspaper articles and the non-existence of an abandonment plan, it would not have been safe for NWCC to proceed in reliance on Sheets 2 and 3 alone. NWCC would have either needed to conduct further assessment and research or, alternatively, have abandoned mining in the vicinity of the old workings. 299 In our opinion, the inference is available that NWCC did not carry out any research into relevant texts or newspaper articles. There is no evidence that they did; there is no room for reasonable doubt that they may have, because if they had it would have raised such a strong warning that Sheets 2 and 3 might not be reliable that NWCC would not have proceeded to rely upon Sheets 2 and 3 to the extent it did. 300 Whilst we consider her Honour erred in a number of respects that we have identified, in arriving at the finding that particular (a) of the planning, research and assessment charges had been made out, her Honour's ultimate conclusion was correct: NWCC failed to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings, namely, the Young Wallsend coal workings.

[281]

(f) A risk to safety that exists independently of the defendant (such as a violent criminal) may increase or become more serious as a consequence of the employer's acts or omissions. In that way, the defendant's failure may materially contribute to the risk: see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]. 302 Staunton J was satisfied that a causal nexus was established to the risk to safety as pleaded. In this respect her Honour found at [515]: The reliance by the defendant on Sheets 2 and 3 as the basis for their planning of mining activities at Gretley, and in 50/51 panel in particular, created a potential and real risk to the health and safety of its employees working in 50/51 panel. That risk was the potential risk of inrush of water and/or dangerous gases. Whilesoever the defendant continued to mine in 50/51 panel relying on Sheets 2 and 3 as the basis for their planning, that potential risk was ever present. 303 In relation to the s 15 planning, research and assessment charges, the risk pleaded was that between about 22 March 1994 and the end of the night shift finishing at 7:30 am on 14 November 1996 NWCC's employees were exposed to a risk to their health and safety - that being a risk of inrush of water and/or dangerous gases into the Gretley Mine from the Young Wallsend old workings. In relation to the s 16 planning, research and assessment charges, the risk pleaded was in similar terms, noting that the risk was in relation to persons not in NWCC's employment. 304 As we discuss later, under the separate heading "Risk", we have found that the risk to health and safety arising from an inrush did not arise until 29 October 1996. NWCC's failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings, namely, the Young Wallsend coal workings, meant that it continued during the period of 29 October to 14 November 1996 to rely on Sheets 2 and 3 of RT523. Reliance on those Sheets meant that there was a risk of inrush because Sheets 2 and 3 did not accurately depict the location and extent of the old workings. In our opinion, the failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings was causative of the risk to health and safety of workers, that being a risk of inrush of water and/or dangerous gases into the Gretley Mine from the Young Wallsend old workings. 305 That the DMR provided NWCC with Sheets 2 and 3 and may have thereby contributed to the risk does not absolve NWCC of liability. It is not necessary to find that the act or omission of a defendant was the cause of the risk arising but rather, the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way": The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [50].

[286]

306 Failures (b)-(e) of the planning and assessment charges were dealt with together by Staunton J because of the common factual element that underpinned them. That being the alleged failure by NWCC to accurately depict the location and extent of the Young Wallsend coal workings on any of those mine plans specifically identified [516]. 307 Her Honour was critical of what she regarded as "unnecessary duplicity" in pleading the alleged failures given that: [O]nce it is established that the defendant failed to accurately depict the Young Wallsend old workings on the initial mine plan for Gretley, then they would continue to do it on all future mine plans, whole or part thereof, that were subsequently produced relevant to Gretley and 50/51 panel in particular": [518]. 308 The trial judge considered that "the obvious duplication in relation to these failures (b) to (e) inclusive can be properly addressed to the extent necessary as part of the sentencing process": [531]. 309 Staunton J found that on the mine plans used at Gretley (including the mine section plan concerning 50/51 panel relied upon by the miners working underground) and on the three plans sent to the DMR, there was an inaccurate depiction of the location and extent of the Young Wallsend Colliery workings in two respects: (i) the depiction of presumed workings in the Young Wallsend and Borehole Seams, relying as they did on RT523 Sheets 2 and 3; and, (ii) the full extent of the presumed Young Wallsend Colliery old workings in both the Young Wallsend and Borehole Seams were never depicted on any mine plan for Gretley in a way that would have been a constant reminder for mine officials and employees of that fact, having regard to the need to be alert to the danger of inrush and the presence of water in 50/51 panel: [529]. 310 It was submitted for NWCC that the trial judge determined, contrary to the statutory requirements set out in Regulation 13(2)(a) of the Coal Mines Regulation (Survey and Plan) Regulation and the OHS Act, that the representation of each seam on a different mine plan (and not on the same plan) was not sufficient to discharge the appellant's obligations under the occupational health and safety legislation. It was submitted that in this respect her Honour erred in law. 311 In this regard Staunton J found at [527]-[528]: On a strict application of clause 13(3)(b) of the Survey and Plan Regulation , the only abandoned or discontinued workings of the Young Wallsend old workings required to be shown on the Gretley Mine plan or sections thereof was the presumed old workings in the Young Wallsend Seam. That is, the workings as depicted on RT523 Sheet 3.

[290]

(h) A failure to carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. 317 Noting that failure (f) was not pressed, Staunton J dealt with the other two failures together because they centred on risk assessment. Her Honour found that the two failures had been made out and that they were causally related to the identified risk to the employees' safety, the risk of inrush. 318 NWCC contended that there were a number of errors in her Honour's consideration of failures (g) and (h) such that her findings that the failures had been established were wrong. 319 As to failure (g), NWCC submitted: (1) It was said by her Honour that knowledge of the risk by those working in 50/51 Panel "may well" have prompted NWCC to respond more quickly and pro-actively to report some unusual water. This finding leaves room for doubt, which must be found in favour of the appellants. (2) Inspector Buggy's evidence was very simplistic and the general nature of his evidence was no more than a statement of general principles found in any text. It fails to apply the principles to a specific work situation and to take into account the nature of the mining planned and its relationship to the old workings. Inspector Buggy's expertise as a relatively inexperienced WorkCover Inspector, and his evidence, had little if any relevance to the present proceedings and did not form a sufficient factual basis on which her Honour was entitled to rely to form the conclusions ultimately reached. (3) S taunton J discounted the impact of the s 138(1) Application on the basis that its role as being akin to risk assessment or an inappropriate risk assessment process was not put to Inspector Buggy. This observation by her Honour upon which she relied ultimately to make her finding was inconsistent with the basis upon which Mr Buggy's evidence was introduced. Mr Buggy was introduced as a person who did not purport to have an expertise in specific aspects of risk assessment relevant to the underground coal mining industry in 1996. (4) Inspector Buggy's evidence was not introduced so as to be able to comment upon an Application made under the CMR Act and particularly to s 138(1). Inspector Buggy had no specialised knowledge or practical experience in relation to the mining industry and it was inappropriate for him to express an opinion in relation to the application of s 138(1) of the CMR Act and in that he did so it should be rejected. (5) The failure by the appellants to put questions to Inspector Buggy who was not qualified to comment on those questions or express an opinion in relation to them cannot therefore be relied upon by her Honour to dismiss the proposition that the application made pursuant to s 138(1) of the CMR Act was consistent with the general principles enunciated by Inspector Buggy and that process was akin to risk assessment. (6) Staunton J noted NWCC's submission that the s 138(1) process was akin to a risk assessment. Her Honour found there was no evidence contained within the s 138(1) Application that would point to a planned and systematic approach to assessing and analysing the risks inherent in undertaking mining activity in 50/51 panel that involved ongoing consultation and communication with those involved in the mining activities within the panel and a documented process that identified the risks and the risk control measures to be adopted by all concerned working within 50/51 panel. Mr Buggy's evidence referred to "ongoing consultation and communication". This was a matter that Inspector Buggy had raised in relation to "risk management systems". Whilst Inspector Buggy had dealt with principles of risk management, that matter was separate to and not part of the subject matter of particular (g), which was limited to "risk assessment". It followed that it was not a matter relevant to a finding that particular (g) had been made out. Accordingly her Honour was in error to rely upon it. (7) Staunton J found, "The only party who ultimately came to view the s 138(1) Application was the DMR..." The DMR was not the only party to have viewed the s 138(1) Application. That Application had been prepared on the evidence by a number of persons including Mr Murray on behalf of the appellant. (8) The DMR was required to, and it can be accepted did, assess the risk associated with mining in the vicinity of old workings being the Young Wallsend Colliery which was known to be full of water. This proposition is made all the stronger by consideration of the specific provisions in s139 of the CMR Act. (9) The s 138 Application involved risk assessment and in particular, the assessment related to the possibility of inrush from the Young Wallsend old workings. That assessment was undertaken, firstly, by persons in the preparation of the Application and consideration in the course of that activity was specifically given to the risk of inrush. Further, the DMR through its District Inspector had been involved in the preparation process and had raised, considered and accepted as appropriate the answers given in relation to the issue of safety arising from potential of inrush. That is, the District Inspector had been involved in a risk assessment process in relation to the very risk alleged in these proceedings and had come to the view that the s 138(1) Application represented an appropriate and safe way of dealing with that risk. (10) An important assessment was made by the DMR through its Chief Inspector, with access to all his resources, of the s 138 Application and in particular the risk occasioned by the position of the Young Wallsend old workings and the possibility of inrush. The Chief Inspector was required to assess the application in light of that risk both as a consequence of the provisions of the CMR Act and as a consequence of the fact that it had been raised specifically with him as part of the Application. It follows that the DMR through its Chief Inspector had undertaken an assessment of the risk of inrush occasioned by the position of the Young Wallsend old workings prior to approving the s 138(1) Application.

[291]

320 As to the first of the appellant's propositions, it is not a fair reading of her Honour's conclusions to submit that she left room for doubt. Staunton J went on in the paragraph to which the appellant referred ([551]) to say she agreed with the respondent's submission that a risk assessment: [W]ould have led to pro-active action by the corporate defendants to ensure the health and safety of persons at Gretley and in particular those working in 50/51 panel, such as obtaining information on the old workings, drilling ahead, issuing instructions to employees and other persons at risk, setting an appropriate barrier on the basis that the location and extent of the workings was not known with certainty, or alternately draining the workings or abandoning work in these relatively short panels. 321 The second proposition represented an attack on Mr Buggy's expertise and his evidence. As to his expertise, the trial judge found in an interlocutory judgment in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 470 at [15] and [26]: By November 1996, Inspector Buggy had been with the WorkCover Authority for just on two years. During that time he had completed a Diploma of Injury and Illness Management and Prevention with the WorkCover Authority in 1995. That, it seems, was a prerequisite for all inspectors employed by WorkCover. In short, it would be fair to say, the bulk of Inspector Buggy's knowledge and expertise in the area of risk assessment and risk management has been obtained from 1996 onwards. That he is now being asked to project his current accumulated knowledge and expertise back to 1996 and, in doing so, somehow discounting or ignoring the past seven years to a precise point in his overall memory as to expertise and knowledge at that time is, on any view, fraught with great difficulty. I accept that Inspector Buggy has generally sought to do so but that does not discount the caution that I believe should accompany the receipt of his opinions expressed in 2003 as to what were the standards applying in risk management and risk assessment in 1996 except in the most general of terms. ... Inspector Buggy's field of specialised knowledge is the general principles of risk management and risk assessment. He has no specialised knowledge or practical experience as to the proper application of the general principles of risk management and risk assessment in the mining industry either as applicable in 2003 or, I would conclude, in 1996.

[293]

323 What the trial judge derived from the evidence of Inspector Buggy was the need for a systematic and documented approach to risk analysis and risk assessment that would include, amongst other things: · A commitment to establish, implement and review risk management systems; · A program to implement risk management practice; · Determined criteria against which risks are to be evaluated and the choice of analyses; · A means of consultation and communicating information; · A process of risk identification (as a basis for analysis); · A process of risk assessment (including analysis and evaluation); · A mechanism for implementing risk controls (priorities, time frames & responsibilities); · A process of review. 324 At [539] the trial judge referred to the evidence of Mr John Pala, former Mine Manager at Gretley between August 1991 and June 1993. That evidence was as to risk assessments but not of an expert nature. In relation to that evidence the trial judge said at [540]: That process described by Mr Pala, howsoever condensed, clearly involved a systemic approach to risk assessment. That approach accords with the evidence of Inspector Buggy … 325 We consider the trial judge's acceptance of the evidence of Inspector Buggy, within the limits her Honour identified, was unexceptional. Moreover, we note NWCC was itself prepared to accept the Inspector's evidence to the extent it supported the appellant's contention that the s 138 Application process was akin to a risk assessment. 326 The third, fourth and fifth of the above propositions argued by NWCC, go to Staunton J's observations at [544] and [545] of her liability judgment that the appellant could not rely on the submission that Inspector Buggy's evidence about what constituted a risk assessment showed that the s 138 process was akin to a risk assessment because "such a proposition was never put to Inspector Buggy to enable him to comment." Even if we accept the appellant's submission on this point, Staunton J went on to find there was no evidence contained within the s 138(1) Application that would point to a planned and systematic approach to assessing and analysing the risks inherent in undertaking mining activity in 50/51 panel that involved ongoing consultation and communication with those involved in the mining activities within the panel and a documented process that identified the risks and the risk control measures to be adopted by all concerned working within 50/51 panel: [545]. 327 Senior counsel for NWCC sought to make the point that in finding the s138 process was not akin to a risk assessment her Honour referred to a risk assessment as involving "ongoing consultation and communication" and that this element was missing from the s 138 process. However, it was submitted, ongoing consultation and communication was a matter that Inspector Buggy had raised in relation to "risk management systems". Whilst Inspector Buggy had dealt with principles of risk management, that matter was separate to and not part of the subject matter of particular (g), which was limited to "risk assessment". It followed, it was submitted, that it was not a matter relevant to a finding that particular (g) had been made out. 328 An examination of the submissions of NWCC at first instance indicates that the appellant considered that a component of risk analysis was regular communications amongst managers and with Deputies, tradespeople and operators. Mr Pala's evidence in cross-examination was that regular meetings were held to discuss, amongst other matters, risk assessments, and those meetings might involve a cross-section of people including "deputies, tradesmen, and operators". In any event, it seems to us a matter of plain common sense that the process of risk assessment in an underground coal mine should necessarily involve a continuous dialogue between and amongst those responsible for safety, which in our opinion, would include every person working underground as well as managers, surveyors and others that carry a statutory responsibility for safety. Indeed, this was the import of the appellant's submissions at first instance - that this dialogue was constantly occurring. 329 NWCC next submitted the DMR was required to, and did, assess the risk associated with mining in the vicinity of old workings being the Young Wallsend Colliery that was known to be full of water. On 6 September 1994, an application under s 138(1) of the CMR Act was made by NWCC and signed by Mr Romcke, the then Mine Manager of Gretley. The application included the plan titled "The Newcastle Wallsend Coal Company Pty Limited Gretley Colliery: Mw 35-36 Approved Plan" drawn to a scale of 1:4000, dated 31 July 1994 prepared by Mr Murray (ex P19A). The purpose was to seek DMR approval for second workings in the form of the proposed extraction of mini-wall panels Nos 39 - 45. However, as the respondent correctly submitted, the DMR did not approve, and was not required to approve under s 138(1), the first workings in the form of development work in 50/51 panel, which took place using the bord and pillar method for the purpose of making underground roadways and cut-throughs in solid coal, including between about 16 September 1996 to 14 November 1996 (see liability judgment at [133]-[152]). 330 The appellant submitted the DMR's District Inspector, Mr Flett, had been involved in a risk assessment process in relation to the very risk alleged in these proceedings and had come to the view that the s 138(1) Application represented an appropriate and safe way of dealing with that risk. We will come more directly to the s 138 Application shortly, but it cannot be said that Mr Flett's acceptance in August 1994 of a 50-metre barrier between the Gretley Mine and the old workings constituted a "planned and systematic approach to assessing and analysing the risks". It was NWCC's responsibility to ensure the health and safety of persons working in 50/51 panel and as part of that responsibility a risk assessment was an essential prerequisite. The responsibility for conducting a risk assessment could not be delegated, to any degree, to the DMR. 331 It was submitted for NWCC that the s 138 Application involved risk assessment and in particular, the assessment related to the possibility of inrush from the Young Wallsend old workings. That assessment, it was submitted, was undertaken firstly by persons in the preparation of the Application and consideration in the course of that activity was specifically given to the risk of inrush. Further, the DMR through its District Inspector, had been involved in the preparation process and had raised, considered and accepted as appropriate, the answers given in relation to the issue of safety arising from potential of inrush. 332 We have dealt with the role of the DMR and its District Inspector. In essence, the extent of the risk assessment inherent in the s 138 Application was an assessment based on Sheets 2 and 3 that working in the vicinity of old workings full of water constituted a risk to health and safety. The solution was to drill ahead within a given distance of the presumed location of the old workings and to leave a barrier of 50 metres. 333 We agree with what the trial judge said of the appellant's risk assessment at [550]-[551] of the judgment on liability: Given the nature of the risk, an adequate risk assessment would have encompassed much more than acknowledging the presence of the old workings and the intention to leave a barrier. In identifying risk as being the risk of inrush from water and/or dangerous gases, the consequences of such a risk would have been identified as death or injury to workers. This would have highlighted as a risk prevention strategy the need to ensure that the depiction of the Young Wallsend old workings could be relied upon without question as to their accuracy.

[294]

The requirement to be satisfied as to that was paramount. Further, such a requirement would have, should have, put the defendant on notice as to the need to obtain every available piece of information relevant to those old workings. Further, the consultative and communication process with the employees working in 50/51 panel would have alerted them to be particularly vigilant in acting upon and/or following through in relation to matters that might otherwise be considered within acceptable parameters. For example, knowing of the risk, having addressed it in a systematic way and put in place strategies to deal with the risk of inrush may well have prompted the defendant to respond more quickly and proactively to the reports of unusual water emanating in C heading in 50/51 panel toward the end of October and the first week of November 1996. The extent to which a proper risk assessment would have identified and prioritised the risk of inrush might not have been evident in such a process but, as was said in Mainbrace at [73] it 'would have at least raised the issue in the mind of the assessor'. As the prosecution submitted, and I agree: If during or after a risk assessment had been carried out on the development of the miniwall panels around the YWC, the risk assessor asked himself or herself whether any action was required to ensure the health and safety of persons working in 50/51 panel the answer would inevitably have been 'yes'. For example, the consequences of an inrush occurring in the Gretley Colliery from the workings of YWC would obviously be identified as death or injuries to workers. It would then be obvious that the location and extent of the YWC would want to be known. This would have led to pro-active action by the corporate defendants to ensure the health and safety of persons at Gretley and in particular those working in 50/51 panel, such as obtaining information on the old workings, drilling ahead, issuing instructions to employees and other persons at risk, setting an appropriate barrier on the basis that the location and extent of the workings was not known with certainty, or alternately draining the workings or abandoning work in these relatively short panels. 334 In our opinion, there was an overwhelming and misguided reliance by NWCC on Sheets 2 and 3 of RT523 that blinded the appellant to the taking of such necessary precautions as a comprehensive and systematic assessment of the risk. Contrary to the appellant's submissions, it was not entitled to rely solely on Sheets 2 and 3 as being unquestionably accurate and reliable. Reliance on Sheets 2 and 3 cannot be accepted as a substitute for a proper risk assessment. 335 The appellant complained that it had been held to have breached its obligations by failing to conduct a risk assessment at a point in time when all of the information available to it indicated that the old workings did not pose a risk as a result of the distance of them from the mining activity. The point, however, is that the appellant did not have all of the available information as it was required to and, in fact, did not seek out all of the available information. The appellant knew that it was working in the vicinity of old workings full of water and knew that this posed the risk of inrush of water, should its mining activities approach the old workings. The issue was whether, in relation to failure (g), the appellant, failed to plan by way of a risk assessment for the development of 50/51 panel knowing of that risk. 336 To ask whether some additional thing should have alerted the appellant to the need to undertake a risk assessment is to put the cart before the horse. The failure to undertake an adequate risk assessment meant that the appellant simply relied on Sheets 2 and 3 as the sole source of information about the location of the old workings. An adequate risk assessment would have identified the risk as a catastrophic one that would have inevitably meant the death of any miner working in the vicinity of the old workings if they were holed. An appreciation of this fact would have meant that the location of the old workings had to be certain. This, in turn, would have led to greater circumspection in unquestioning reliance on Sheets 2 and 3. We would add this observation: A proper risk assessment based on the approach of the Full Bench in Mainbrace v WorkCover (2000) 102 IR 84 at [73]-[74], would have led the appellant to show on the mine working plans not only the presumed location of the workings in the Young Wallsend seam but also the Borehole seam. The significance of this was referred to by Professor Thomas in his evidence: If the deputy's section plan, and the other working plans of the Young Wallsend seam displayed at Gretley Colliery, had carried the outlines of the presumed Borehole seam workings in the YWC and its warning barrier, all the discussions about water trickling in from the floor would have had a very different impact. Rightly or wrongly for which seam they were in, water from the floor near the edge of workings supposed to be 18 m below should have raised far more alarm than for workings supposed to be over 100 metres further away.

[295]

337 We do not consider there was any error on the part of the trial judge in finding that failure (g) had been made out. As to causation and failure (g), her Honour found as follows: I am satisfied in the first instance that the failure to plan by way of risk assessment for the development of 50/51 panel is causally related to the identified risk to the employee's safety, the risk of inrush. A primary step in such a risk assessment process, when done in consultation and communication with the employees concerned, would have undoubtedly identified the Young Wallsend old workings as a hazard and the risk to safety as being the risk of inrush. A risk control strategy would have included the need for accuracy as to the location of those workings and the need to have a documented systematic approach to deal with the risk to safety identified. A failure to undertake this risk assessment process in relation to 50/51 panel undoubtedly potentiated the risk to safety by not alerting the persons working in 50/51 panel to those matters that a proper assessment would have identified and in which they would have been involved and informed. 338 Undoubtedly, as we have found, a significant cause of the risk of inrush was NWCC's misguided reliance on Sheets 2 and 3 (and Sheet 1 if it is assumed this was viewed by the appellant) and its failure to ensure those plans were accurate. But another substantial cause was the failure to plan by way of risk assessment for the development of 50/51 panel. 339 Failure (h) was a failure to carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. 340 Essentially, what Staunton J found in accepting that failure (h) had been made out was that NWCC had ''paper systems'' dealing with emergency procedures and the like but that they were not implemented and maintained in NWCC's daily operations. 341 NWCC submitted there was no factual basis for the conclusions reached by the trial judge in relation to failure (h). Further, it was submitted her Honour had not properly assessed the evidence and, at least in part, appeared to have reversed the onus. In this latter respect, it was contended that her Honour found that there was no evidence to show that any steps had been undertaken by the appellant subsequent to the safety audit and prior to the inrush to develop a plan and undertake any simulated emergency response in order to deal with a major incident such as an inrush. This finding, it was submitted, appeared to reverse the onus in that her Honour did not find that those things were not done, or that the evidence identified the fact that they were not done. Her Honour merely stated that there is no evidence to say that they were done, it was submitted. As this was a matter going to liability, the onus always rested on the respondent and as a consequence her Honour's reliance upon that finding even in part in relation to finding that this matter was made out in respect of the breach alleged was in error. The same submission as to a reversal of the onus was made about her Honour's finding in [556] of the liability judgment, namely: No direct evidence was received from any witness who worked at the Gretley Mine as to their knowledge of and reliance upon the Emergency Procedure Document. 342 The aspects of her Honour's judgment to which we understand NWCC was referring in submitting there had been a reversal of the onus of proof were at [565] and [566]: First, there is no evidence to show that any steps were undertaken by the defendant subsequent to the safety audit and prior to the inrush to develop a plan and undertake any simulated emergency response in order to deal with a major incident such as an inrush (or explosion for that matter)...

[304]

Q. As far as anything? A. Well, I looked at the plans now and again. I was mainly taking instructions from the deputy as to what we were doing on that particular night, or whatever, or on any occasion. Q. Right. What about in relation to the old workings? Did you see any old workings on any plans that you remember? A. No, no. 346 The evidence of Messrs Nicholls, McCallum and Brown was to a similar effect, that is to say that while they were aware that the panel was heading towards old workings from talk around the pit and maps that were on display on the surface of the mine, they had little or no knowledge about the state of the workings; they were not told or given any instructions by mine officials in relation to the old workings; they were not told, for example, that the workings were full of water; and, none of these miners were told to be vigilant for signs of water. If an assessment of the risks in the event of an inrush of water and/or dangerous gases had been carried out it would have been a necessary concomitant step to advise the miners about the old workings, that they were full of water and to be on the lookout for signs of water. In other words, it is impossible to envisage a risk assessment having been carried out in relation to the existence of the old workings that were known to be full of water and no training or instruction given to miners in the event of an inrush of water and/or gases. A risk assessment under those circumstances would have been entirely pointless. 347 It is apparent that immediately after the inrush occurred none of the surviving miners had any inkling of the source of the water and gases that engulfed the mine. It is a reasonable inference to draw to the necessary standard that no assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases was undertaken because if it had been it would have been an essential element of that assessment for the appellant to advise miners of the emergency course of action to be taken in the event of inrush. At [570] Staunton J found that: [A]t the time of the inrush, the reaction of the crew who survived reflected their lack of knowledge about the old workings in their responses at the time of the inrush. That is, not knowing where the water was coming from and not realising the direction of the flow. I accept that the reaction of the crew who survived, notwithstanding the relative suddenness of events when the inrush occurred, was such as to leave them ill prepared as to what to do and uninformed as to the dangers they were confronting immediately following the inrush. That was particularly so in relation to Mr McCallum. In short, the emergency preparedness was inadequate and inadequately documented. 348 Mr McCallum had been sent back by Mr Pritchard, the under-manager, to 7 cut through. This instruction was after Mr McCallum had advised Mr Pritchard that the water was coming through the bottom of the "stopping" in the crib room and that he had been to the corner of 7 cut through already and could not see any men. Mr McCallum was overcome by the gases from the old workings but managed to make his way back to the crib room. 349 A risk assessment would have taken into account the potential danger of gases from the old workings and miners could have been warned about that danger. No consideration at all appears to have been given to the prospect of Mr McCallum being overcome by gas in going back to 7 cut-through because, it may be reasonably inferred, no assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases was undertaken by NWCC, and in the absence of any such assessment, miners were not aware of the risk of an inrush of water and gases from the old workings.

[315]

359 As we did with the planning, research and assessment charges, we propose to treat the two system of work charges against NWCC under ss 15(1) and 16(1) together, there being no material difference between the two charges other than one refers to the risk arising in respect of employees and the other refers to persons other than employees being exposed to a risk to their health and safety. Further, the time period pleaded for these offences was between about 16 September 1996 and 11.30 pm on 13 November 1996. 360 The particularised failures in relation to the system of work charges were as follows: (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (b) Allowing the operation and use of the continuous miner at the face of "C" heading. (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. (d) A failure to ensure that there was any adequate barrier between where the employees were working and the Young Wallsend coal workings. (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. (f) A failure to test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings. (g) Allowing mining operations to proceed in 50/51 panel without draining the Young Wallsend coal workings. (h) A failure to investigate, adequately or at all, the Deputies written reports on 1 November 1996, 4 November 1996 and 13 November 1996 and two oral reports on 4 November 1996. (i) A failure to inform Deputies, the employees and other mine workers that 50/51 panel was heading towards the Young Wallsend coal workings. (j) A failure to inform Deputies, the employees and other mine workers that the Young Wallsend coal workings were full of water and under a head of pressure. (k) A failure to instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. (l) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees.

[317]

362 Her Honour accepted that but for the reliance on Sheets 2 and 3 for the depiction of the old workings, the appellants would have planned the mining activities in panel 50/51 so that there was no risk to safety ([634]). That inference was available from the evidence about NWCC's prior actions and its intentions to leave a barrier of 50 metres and to drill ahead. But for the incorrect information contained in the record tracing and other documents held by the mine there would be no contravention by the appellants in relation to failures particularised as (a) - (f) ([635]). 363 That her Honour described failures (a) - (f) of the system of work charges as derivative failures, did not negate the fact that they were failures nonetheless (see [755]). 364 NWCC submitted on the appeal that for the reasons it had submitted in relation to the planning, research and assessment charges, the finding of guilt by her Honour for the system of work charges for failures (a) - (f) should not be allowed to stand. 365 The alleged failures (a)-(c) of the system of work charges were, in our view, matters of objective fact. NWCC did allow the employees to work in the area of 50/51 panel and in particular in "C" heading, it did allow the operation and use of the continuous miner at the face of "C" heading and it did fail to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. These acts and omissions meant that the health and safety of workers in "C" heading on 12 and 13 November 1996 was at risk. 366 In relation to failure (d), that being a failure to ensure that there was any adequate barrier between where the employees were working and the Young Wallsend coal workings, her Honour found, and we agree (as we discuss later in the context of risk), that an appropriate barrier was 50 metres. By the night shift on 12 November 1996 the barrier was 49 metres and became progressively less as work continued. The failure was clearly made out and the causal nexus established. 367 In relation to failure (e) - a failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings and failure (f) - a failure to test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings, cl 9 of the Coal Mines Regulation (Methods and Systems of working - Underground Mines) Regulation required that bore holes must be drilled ahead when approaching within 50 metres of a place likely to contain an accumulation of water or noxious gases, or within 50 metres of not examined disused workings not found to be free from any accumulation of water or noxious gas ([643]). 368 Under cl 37 of the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation an under-manager of a mine shall, to the extent of the under-manager's jurisdiction, ensure that the provisions of cl 9 of the Coal Mines Regulation (Methods and Systems of working - Underground Mines) Regulation are observed. As the respondent submitted, it was an objective fact that from the night shift on 12 November 1996 (if not before) that the precaution, step or measure in the minimum requirements of these regulations, namely, drilling ahead, be taken. The drilling did not happen. We find no error in relation to her Honour's findings in respect of failures (e) and (f) of the system of work charges. 369 In relation to failures (i), (j) and (k), NWCC submitted her Honour made the finding that the Deputies and mine workers should have been made aware of the full extent of the presumed old workings. However, it was submitted, this finding was inconsistent with the findings made by her Honour that even if relevant mining officials and mine workers were informed of the presumed old workings to the Borehole seam, it could not be concluded that that would make a difference to the way which reports of water were investigated ([690]). It was contended that the inconsistencies between these two findings provided sufficient doubt that must be applied in favour of the appellants, and, accordingly, no breach should, or could properly to the relevant standard, have been found. 370 At [712]-[716] of the liability judgment Staunton J emphasised the obligation upon an employer to guard against potential risk, and found that, independently of the planning failure (that is, regardless of the appellants' failure to plan the exact location of the abandoned workings), particulars (i), (j) and (k) could give rise to a breach of the Act. Her Honour found as follows: 712 The defendants submit that the alleged particularised failures (i), (j) and (k) cannot be said to have caused the risk of inrush, being the risk to safety pleaded by the prosecution. I disagree. The causal relationship of those failures to the risk as pleaded, when viewed in conjunction with the defendants primary failure to properly research the location and extent of the Young Wallsend old workings are self evident. But, in my view, they can also stand alone. In circumstances where there are presumed known old workings such as the Borehole Seam workings, the obligation to ensure a safe system of work requires an employer to guard against potential risk. Known old workings full of water 18 metres from where current mining activity was in progress were, on any considered view, a potential risk. The consequences of any potential inrush were too great to ignore with impunity. As Professor Thomas said: Potentially hazardous events are supposed to be anticipated so that officials and men would be warned fully of any potential dangers and would be looking out for any unusual signs, and would immediately warn senior officials.

[324]

371 The reliance by the appellant on what it regarded as inconsistencies in her Honour's findings (mine workers etc., should have been made aware of the full extent of the presumed old workings but this would have made no difference to the way which reports of water were investigated) is not a basis upon which to reject the trial judge's findings in relation to failures (i)-(k). The causal nexus that must be established is between the appellant's acts or omissions and the risk. 372 The omissions in this case involved failures to inform and instruct in relation to the Young Wallsend coal workings and the presence of water in those old workings. The reference to coal workings included the Borehole Seam, which was not depicted on any mine working plan. The failures are made out as an objective fact. Did the failures have a causal connection to the risk of inrush? The observations by her Honour at [690] have to be seen in the light of the trial judge's other observation at [697]: 697 As the conditions in 50/51 panel were understood at the time, the presence of water as reported orally and in the Deputy reports as denoted, was investigated adequately. What I mean by that is that, having regard to the then presumed old workings of the Young Wallsend Colliery, the water reported was, in all the circumstances, not considered excessive or an immediate cause for undue alarm. 373 It is apparent to us that if Deputies and mine workers had been advised of the existence of the Borehole Seam and the presence of water in the old workings it would have brought a new dimension to their consideration of matters relating to the presence of water. After all, depiction of the Borehole Seam on the mine's working plans would have shown that seam to be well within the 50-metre barrier by 12 November 1996. We refer again to Professor Thomas' evidence: Rightly or wrongly for which seam they were in, water from the floor near the edge of workings supposed to be 18 m below should have raised far more alarm than for workings supposed to be over 100 metres further away.

[331]

379 The time period for these charges embraced the night shift that commenced at 11:30 pm on 13 November 1996 until 7:30 am on 14 November 1996. As her Honour noted at [753] the inrush occurred at or about 5:30 am on 14 November 1996. 380 The alleged failures were as follows: (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (b) Allowing the operation and use of the continuous miner at the face of "C" heading. (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. (d) A failure to ensure that there was any, or any adequate, barrier between where the employees were working and the Young Wallsend coal workings. (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. (f) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees 381 It may be seen that the alleged failures (a)-(e) are the same (subject to a minor difference of no consequence in (d)) as those found to have been made out in relation to the system of work charges. At [759] Staunton J stated: 759 For the reasons expressed, I have already determined that the failures particularised in the same terms in the system of work charges have been established against the respective corporate defendants. Subject only to the further particulars of the offences as pleaded, there is nothing to suggest that the particularised failures in all of the four offences charged within the night shift charges are not established as against the respective corporate defendants. Save for some aspects of those further particulars and the temporal component of the night shift of 13/14 November 1996 and those persons employed (or not employed as the case may be) by the respective corporate defendants, the particularised failures identified are simply a continuum of the defendants acts and/or omissions that grounded the corporate defendants failures in the charge period immediately preceding the commencement of the night shift at 11:30pm on 13 November. 382 Staunton J found that the two charges had been made out. Failure (f) had not been made out for the same reason that failure (l) had not been made out in the system of work charges. 383 Given our conclusions in relation to the failures in the system of work charges the same must apply to the night shift charges. We so find.

[339]

388 Secondly, it was submitted the risk did not arise until a point in the mining operation when there was an insufficient barrier of coal between the old Young Wallsend Colliery workings and the Gretley Colliery to prevent such an inrush. On the evidence, it was submitted, the barrier of coal reached a point of less than 20 metres in thickness at some time during the day shift on 12 November 1996. It was contended for the appellants that at no time before that point in the mining operation was any person exposed to a risk to their health and safety arising out of an inrush. While the appellants did not agree that the risk existed past that point, in so many words, they never denied it. Nor can we see any basis upon which they could, given the expert evidence which was, in that respect, unassailable. 389 We shall deal with the latter issue first, because its resolution renders the first issue (for the purposes of this appeal) irrelevant, as we shall explain. 390 As we noted at the commencement of our discussion on liability, a breach of s 15 or s 16 occurs when there is a failure to ensure safety, in the sense of "guaranteeing, securing, or making certain": see Carrington Slipways Pty Ltd v Callaghan at 470. That will occur where the defendant has failed to ensure that workers (or others) are not exposed to a risk to their health and safety and there is a "causal nexus" between that failure and the risk to their health and safety. The Court should be wary of constructing complicated edifices around the concept of "risk" as though interpreting a constitutional provision. There is nothing convoluted in the observation that safety (defined in the Oxford English Dictionary, 2ed, as "The state of being safe; exemption from hurt or injury; freedom from danger") cannot be ensured if a risk (defined in the Oxford English Dictionary, 2ed, as "Hazard, danger; exposure to mischance or peril") is present. Nor should it be elevated to some overriding, independently determinative requirement: it is merely one essential element of the offence, which, along with the other essential elements, must be proven beyond reasonable doubt in order for the charge to be established. 391 As the Court observed in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [130], s 15 of the Act does not refer to the word "risk" in the primary obligation placed upon employers, using it instead in subsection (2) to describe examples of contraventions, should employers fail to provide or maintain plants, systems, places of work or working environments which are "safe and without risks". If a risk is present, it follows that safety has not been ensured; however, in order to determine liability under ss 15 and 16, the question remains whether the employer has relevantly failed, and, if so, whether that failure caused the risk under discussion. As we have noted in the context of causation, it is not necessary to establish a causal connection between the employer's failure and any injury or accident. Needless to say, liability must also be established in terms of the actual charge. 392 In these proceedings, the risk pleaded in each charge was a risk of inrush of water and/or dangerous gases into the Gretley Colliery from the Young Wallsend old workings. 393 Mining in the vicinity of old workings known to be full of water and dangerous gases without accurate information as to the location and extent of those old workings was undoubtedly - from the first day of mining activity based upon the inaccurate plans - a dangerous thing to do. However, following the hearing, the objective facts established that persons were exposed to the risk particularized in the charges once a safe barrier of coal between the old workings in the top seam and the Gretley Colliery in C heading in 50/51 panel had been breached. In other words, although NWCC could not have known the extent of the old workings and how far they extended in the Young Wallsend seam towards the Gretley Colliery, the expert evidence established that persons were not placed at risk of inrush of water and/or dangerous gases into the Gretley Colliery from the Young Wallsend old workings until a point had been passed in the mining operation in 50/51 panel that brought the persons within a distance of the old workings such that it constituted a risk to health and safety. 394 As to the width of the barrier, given the evidence that NWCC intended to leave a barrier of 50 metres between the old workings and the Gretley Mine on the advice of District Inspector Flett of the DMR, and the provisions of cl 9 of the Coal Mines Regulation (Methods and Systems of working - Underground Mines) Regulation (which required that bore holes must be drilled ahead when approaching within 50 metres of a place likely to contain an accumulation of water or noxious gases, or within 50 metres of not examined disused workings not found to be free from any accumulation of water or noxious gas) we consider that the risk of inrush would have been present once employees were working within the 50-metre barrier. 395 We note that it was Mr Hodgkinson's position that, whilst there was evidence to support the proposition that 20 metres of coal was sufficient, he acknowledged that there was also evidence that favoured 50 metres. In this regard, we note the reference by Professor Thomas to the 1908 text "Practical Coal Mining by Leading Experts in Mining and Engineering under the Editorship of W S Boulton" where it was stated: Simple compliance with the letter of the law would in very many cases be far from sufficient, and might easily end in disaster, either from water under excessive pressure bursting through the 5 yards of coal forming the barrier, or from an unexpected holing into the old workings at some point farther distant that 40 yards from their apparent position according to the plan. Where the safety of the whole mine is at stake, it would be folly to run any risk for the sake of saving the expense of driving exploring drifts, and 200 yards from the supposed position of the old workings, would in some cases, not be too great a distance from which to set away the narrow places. 396 The position that appears to have been accepted by both the respondent and the appellants was that, upon the recommencement of work on the night shift of 12 November 1996 (there was a gap where no mining work was performed from 29 October to 12 November), the barrier of coal between the old workings and C heading in 50/51 panel was 49 metres. There being no work performed between 29 October and 12 November 1996, the barrier must have been less that 50 metres at some time on the last shift worked on 29 October 1996. From that point onwards, in our opinion, the risk of inrush was present and safety was no longer ensured. 397 It follows from our conclusion that the safe barrier was breached at some time on 29 October 1996 that the risk was present during each of the charge periods. As we have already endorsed her Honour's findings in relation to the particularized failures (and there was no dispute that those failures occurred in the relevant charge periods) and in relation to the causal connection between each of those failures and the risk of inrush, the appellants' liability under ss 15 and 16 has been established, subject to any available defences under s 53 (or, in the case of the individual appellants, under s 50). 398 The appellants made much of the fact that the risk of inrush was not present for the entire period specified in the "planning" or "systems-based" charges, although the consequences of this submission were never entirely clear. (We disagree with any proposition that the charges must somehow fail if the risk is not present for the entire period, which is tantamount to superimposing a significant limitation on the plain words of ss 15 and 16: that any particularised failure must cause an immediate risk to health or safety. One need only consider cases relating to lead poisoning, asbestos or any other latent risk to see the fallacy of this position).

[340]

399 Although, as we have noted, the appellants did not develop any line of argument in this regard, we have considered the matter for the sake of completeness. It was not suggested that the time period of a charge under the Occupational Health and Safety Act was an essential legal element of the offence such that a failure to demonstrate that the whole period was involved in the breach would result in the charge failing to be proven. We would observe that any such proposition would be inconsistent with Exparte Bignell (1915) 32 WN (NSW) 91, R v Dossi (1918) 13 Cr App R 158 per Atkin J, s 16(2) of the Criminal Procedure Act 1986 and with the decision of the Industrial Commission in Booth Pty Ltd v Bartlett [1956] AR (NSW) 720 (which held, in the context of an absolute statutory obligation, that a variance between the evidence of the date on which a continuing offence was first committed and the first date contained in the information would not warrant the setting aside of a conviction), and in the present matter would be erroneous. We cannot see any justification for imposing such a stricture on the broad, clear words of ss 15 and 16. Just as particulars are not essential elements of an offence, and failure to establish a particular is not fatal to a prosecution (see WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 at [11] and EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484), nor is it essential to an offence under ss 15 or 16 that the risk enure for the whole of the charge period. What is essential is that there be a failure; that it be causally connected to the risk; and that both the failure and the risk occur within the charge period. Unlike Inspector Yeung v Wideform Constructions Pty Ltd [2003] NSWIRComm 380, which dealt with a breach of s 18(1)(b) of the 1983 Act, this case does not fit into any of the four categories referred to by Grove J in R v Stringer (2000) 116 A Crim R 198 at [20] warranting exception to the general rule that a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence. 400 The charge periods must necessarily encompass the commission of the relevant failures and the manifestation of the relevant risk in order to encapsulate these essential ingredients of the offence. In the case of the "planning" charges, those failures commenced when the charge period commenced: on 22 March 1994 NWCC signed Coal Lease 1343 with the DMR relevant to proposed mining activity at the Gretley Colliery and thereby commenced its planning activities which led to what her Honour described as the "primary failure". Similarly, the failures particularized in the systems-based charges could be said to have commenced when mining resumed in 50/51 panel at 4 cut-through in September 1996. 401 There is nothing untoward in commencing the charge period when the failures to be relied upon commenced - indeed, one could describe it as prudent, if not necessary. We cannot see any basis upon which the appellants should be absolved of liability simply because a risk did not enure for the entire charge period if a continuing failure from 1994 onwards to properly research the location of the old workings (to pick one example of the established failures) caused a risk of inrush on 29 October 1996, as we have found. In this case, the risk was present for the entirety of the nightshift charges; for approximately the last quarter of the systems charges; and for just over the last two weeks of the planning charges which spanned two years and nearly eight months (a length of time which reflects the complexity of planning mining operations). The period of time for which a risk is present may, in an appropriate case, have some bearing on sentencing, but does not, simpliciter, affect liability. There are many crimes in which the essential elements may take place over different periods of time (which may also involve delays, rather than following immediately); ss 124 (Fraudulent appropriation), 165 (Agent misappropriating money entrusted to him or her) and 168 (Fraudulent sale of property by agent) of the Crimes Act 1900 provide some examples. There is no arcane requirement of criminal law that all essential elements of an offence must enure for the entire charge period; if this were so, many fraudulent misappropriations would fall outside prosecution. 402 It may be taken from paragraph [342] of her liability judgment and paragraph [69] of her sentencing judgment that Staunton J determined that the risk, that is the risk of inrush, arose in September 1994, once NWCC made its s 138 Application to the DMR on the basis that the appellant had planned mining activity in 50/51 panel relying on Sheets 2 and 3 to accurately depict the old workings. As we have noted above, we consider this finding to be incorrect, but, for the reasons outlined above, do not consider that this error has any bearing on the appellants' liability and it does not constitute a basis for appellate intervention. 403 Finally, we come to the issue of "potential risk". The appellants, relying upon the decision of the Full Bench in Morrison v Powercoal Pty Ltd and Anor, asserted that a reading of Staunton J's liability judgment suggested that her Honour's use of the term "potential risk" was in the context of a risk yet to come into being, at least until mining operations actually approached the site of the inrush. On this basis, the appellants alleged that Staunton J fell into error by determining that the prosecution was only required to establish a "potential risk" of inrush. 404 On the question of "potential risk", we endorse the statement of the Full Bench in Morrison v Powercoal Pty Ltd and Anor at [100]: The particulars in both charges referred to a "a potential risk" of the roof falling in while employees were working at 304 Panel 25 CT in the vicinity of 1,2 and 3 Headings at the Awaba Colliery, Awaba between 15 and 17 July 1998. We do not find the reference to a "potential" risk at all helpful. Either a risk exists or it does not. Section 15(1) is directed to obviating actual risks to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk. Use of the word "potential" could be interpreted as meaning the risk was yet to come into being but it is clear from the appellant's case, both at first instance and on appeal, that what was being alleged was that a risk existed, and that is how we have approached the matter. The frankness with which the Full Bench asserted the important point - either a risk exists or it does not - serves to discourage any unnecessary embellishment concerning this element of the offences. 405 It follows from our preceding discussion concerning liability that even if Staunton J fell into error by determining that the prosecution was only required to establish a "potential risk" of inrush, there would be no different result on appeal. On our conclusions, regardless of any such error, the relevant risk was present in each charge period and, subject to the following discussion of relevant defences, the appellants were properly found to be liable. However, we propose to make some observations on the matter. 406 Staunton J appears to have adopted the term "potential risk" because of its use by both the prosecutor and the defendants in their submissions at first instance. The term itself connotes a risk which is yet to come into being and would not, therefore, attract liability under ss 15 or 16. The manner in which Staunton J used the term in her liability judgment indicates that, as a matter of language, her Honour appears, sometimes, to have misused the term. At [515], for example, her Honour stated: The reliance by the defendant on Sheets 2 and 3 as the basis for their planning of mining activities at Gretley, and in 50/51 panel in particular, created a potential and real risk to the health and safety of its employees working in 50/51 panel. That risk was the potential risk of inrush of water and/or dangerous gases. Whilesoever the defendant continued to mine in 50/51 panel relying on Sheets 2 and 3 as the basis for their planning, that potential risk was ever present. 407 The apparent distinction made by the trial judge between a "real" risk and a "potential" risk in that paragraph would appear to be pointless. We consider that her Honour was using the term "potential risk" to refer to the exposure to mischance or peril, which is what a risk is.

[341]

408 At other times her Honour plainly did not misuse the term. In this regard, her Honour held at [342]: 342 In my view, the potential risk of inrush arose once the defendants commenced their mining activities in 50/51 panel relying on RT523 Sheets 2 and 3 as to the location and extent of the Young Wallsend old workings. The first evidence of that anticipated activity is the application made by NWCC to the DMR in September of 1994 followed by subsequent variation applications in 1995. The actual development work in 50/51 panel up to the point of 4 cut-through was undertaken, as best as can be ascertained, in the period between August 1995 and 16 September 1996. Certainly, it is known that on 16 September 1996 mining activity resumed in 50/51 panel at 4 cut-through. 409 We agree that from that date, when mining commenced in 50/51 panel in reliance upon RT523 Sheets 2 and 3, there was a potential risk of inrush which (on our earlier analysis) became an actual risk on 29 October 1996. In that context, it appears that her Honour was using the term "potential risk" correctly to denote a risk which had yet to come into being. As we have already noted, such a potential risk could not make the appellants criminally liable. However, her Honour was in no doubt, in our view, that one of the elements of s 15 and s 16 was the existence of a risk and that is what her Honour was considering at [334]-[343] of her liability judgment, not merely a risk that had not yet come into existence. At [336] and [515], for example, her Honour referred to the "potential risk" as the "risk of inrush of water and/or dangerous gases". It is clear from these paragraphs, and from her Honour's quotations from Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority at 452 and Haynes v CI & D Manufacturing Pty Limited; Callaghan v CI & D Industries Pty Ltd (No 2) (1995) 60 IR 149 at 157-158, that the trial judge was using the term "potential risk" interchangeably with "risk". This confusion may well have arisen from her Honour's finding (which we consider to have been incorrect) that the "risk" of inrush arose in September 1994 once NWCC made its s 138 Application to the DMR on the basis that the appellant had planned mining activity in 50/51 panel relying on Sheets 2 and 3 to accurately depict the old workings. 410 It was not open to use the terms interchangeably, and to this extent, her Honour was in error. However, on balance, (and noting that it is not strictly relevant for the purposes of this appeal), we do not consider that Staunton J fell into error in the manner contended by the appellants. Her Honour was correct in finding that the prosecution had established particularized failures beyond reasonable doubt, but incorrect in finding that the corporate appellants' liability as a result of those failures arose before anyone was exposed to the particularized risk.

[372]

434 In her liability judgment Staunton J considered the relevant authorities relating to the application of s 53 and, in our opinion, there was no error in that respect. The principles governing the operation of s 53 were stated in WorkCover v Kellogg (Aust) (No 1) and WorkCover Authority v Cleary Bros (2001) 110 IR 182 and have been adopted as the current statement of the law as to the operation of the section by the Full Bench in WorkCover v Coffey Engineering. We wish to make a brief, further summary of the relevant principles. (1) In raising of a defence under s 53 the onus is on the defendant. That onus is a civil onus: see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 432 at 457. (2) A defence under s 53(a) requires the defendant to meet the objective test as to whether it was reasonably practicable for the defendant to have complied with the Act: WorkCover Authority v Cleary (2001) 110 IR 182 at 204; WorkCover v Coffey Engineering at 467. (3) What is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 2 All ER 220 at 224, Shannon v Comalco Aluminium Ltd (at 362), Cleary Bros at 204-207 and Coffey Engineering at 467. (4) Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority v Kellogg (Aust) (No1) (at 259) and Austin Rover Group Ltd v Her Majesty's Inspector of Factories [1990] 1 AC 619; (1989) 2 All ER 1087 (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle ( Cleary Bros at 206-207). (5) The greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if those are expensive or difficult to adopt: Kellogg (Aust) Pty Ltd (1999) 101 IR 239 at 260.

[385]

· Instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. 817 In my view, the defendants have not discharged the onus required to establish it was not reasonably practicable for them to comply with ss 15(1) and 16(1) of the Act. Accordingly, their defence under s 53(a) of the Act must fail. 437 Turning to the question of reasonable foreseeability, in our opinion it is undeniable that the risk of inrush from the old workings was reasonably foreseeable. Indeed, NWCC was aware of the risk at the time it lodged its s 138 Application and in order to avoid the risk intended to drill ahead when, according to Sheets 2 and 3, it was within 100 metres of the old workings, and to maintain a barrier of some 50 metres between the Young Wallsend Seam and the Gretley Mine. 438 The more complicated issue, however, is whether the appellants have proved, on the civil onus, that it was not reasonably practicable for them to ensure the safety of workers in the mine. In addressing this issue we go firstly to submissions by the corporate appellants on appeal under the heading "Planning, research and assessment charges - Section 53(a) defence" where a number of contentions were raised in, we must observe, a somewhat disjointed way, that went to why it was a defence had been made out. The contentions were as follows: (1) The measure taken by the corporate appellants to maintain safety was to leave a sufficient barrier between the old workings and the extraction panels. That measure was approved by the DMR and regarded as a sufficient measure by her Honour. No other measure was required. (2) But for the reliance on the depiction of the old workings in Sheets 2 and 3 the measures taken by the Defendants were otherwise adequate to secure the health and safety of both employees and non-employees. (3) No evidence was available to allow a finding that had the corporate appellants undertaken the type of research proposed by Mr Adam and accepted as appropriate by her Honour, that there would be scepticism as to the depiction of the old workings. (4) The information resources that were said to be available to the corporate appellants by Mr Adam if research had been undertaken did not establish that the depiction of the old workings on Sheets 2 and 3 were incorrect. The historical references and other resources relied on did not conclusively establish doubt as to the accuracy of the DMR record tracings. (5) As to foreseeability, on her Honour's reasoning the relevant issue is whether the risk of an error being contained in the Record Tracings existed or not. It was not whether the risk of inrush was foreseeable. (6) In determining that the risk of inrush was reasonably foreseeable if proper research was not undertaken her Honour impermissibly relied on the text references provided by Mr Adam in his report. (7) There was not a sufficient evidentiary basis for her Honour to expect that the Gretley Mine would be in possession of field notes and survey books created at the turn of the century for a mine that was subsequently abandoned and flooded. (8) It did not follow as a matter of logic that because the Gretley Mine plans depicted the old workings in the same manner as that shown on Sheets 2 and 3 that no research had been undertaken by the corporate appellants. (9) It was not possible, let alone reasonably practicable, to survey the flooded old workings. (10) The depiction on the Gretley Mine plans of the old workings corresponded with known surface features depicted by the ISG grid references, the lease boundaries and the air shafts that had been surveyed. There was no anomaly between these features and the old workings. The information entered and stored on the corporate appellants' computerised programmes was 'survey accurate'. The only inaccuracy identified after the inrush was the depiction of the old workings. (11) There were no physical signs to indicate that the location of the old workings was other than depicted on the mine plan. (12) Sheets 2 and 3 of RT523 did not indicate that there was any uncertainty as to the location of the old workings. The DMR had a practice of drawing a circle around those record tracings where there was some uncertainty. No marking was made on Sheets 2 and 3. (13) The approach taken by Mr Adam and accepted by Staunton J failed to take into account the fact that the DMR did not at the time of the creation of Sheets 2 and 3 identify the possibility of error or uncertainty as to the depiction of the old workings. It is only with the benefit of hindsight and access to the file MS 28/7067 that the error became identifiable. The failure to foresee an error in RT523 Sheets 2 and 3 was not a failure of the kind to deprive the corporate defendants of the defence provided under s 53(a) of the OHS Act. (14) Staunton J found that it was reasonably practicable for the corporate appellants to undertake research to independently verify the accuracy of Sheets 2 and 3 despite accepting that the evidence that the texts and other sources referred to by Mr Adam, Professor Thomas and Mr Buggy ultimately did not provide any conclusive evidence so as to call into question the accuracy or otherwise of Sheets 2 and 3. Further Staunton J was satisfied that such research 'pointed to the real possibility' that Sheets 2 and 3 ought not be relied upon. (15) Her Honour's test that a mere 'possibility' existed that the accuracy of Sheet 2 and 3 may be called into question if further research had been undertaken by the corporate defendants was not a sufficient basis to determine that a defence under s 53(a) of the OHS Act was not made out on the facts. (16) The evidence of Professor Thomas as to the need to depict the Borehole seam on the mine plan as a means of alerting the miners of the old workings was accepted by her Honour despite the existence of an express requirement that only one seam be shown on a mine plan. In any event, the Section 138 Application depicted the Borehole seam. The existence of old workings in the Borehole seam was not a risk to safety as relied on by Staunton J. The proposed miniwall extraction in the seam above the Borehole seam had been approved by the DMR. Her Honour accepted that orbital drilling of the nature advanced by Professor Thomas was not required. (17) Staunton J also accepted that assuming the corporate appellants properly researched the extent and location of the old workings they intended to drill ahead and leave a barrier of 50 metres.

[386]

439 As to the corporate appellants' first contention in the preceding paragraph, the barrier of 50 metres was only adequate if there was certainty about the location and extent of the old workings. We have found that Staunton J was correct in finding the appellants could not have been certain. 440 As to the second contention, the measures taken by the appellants were not otherwise adequate to secure the health and safety of both employees and non-employees. Staunton J was correct in finding, inter alia, there were failures to undertake adequate risk assessments, a failure to drill ahead, failure to inform and instruct Deputies and mine workers about the old workings and the presence of water. 441 As the third and fourth contentions, we have found Staunton J was correct in holding: there was evidence available to allow a finding that had the corporate appellants undertaken the type of research proposed by Mr Adam and accepted as appropriate by her Honour, that there would be scepticism as to the depiction of the old workings; and, the information resources that were said to be available to the corporate appellants by Mr Adam if research had been undertaken did establish that the depiction of the old workings on Sheets 2 and 3 were unreliable. 442 As to the fifth contention relating to foreseeability, the relevant issue is whether the circumstances or causes of the detriment to safety constituting the offence were reasonably foreseeable: Kellogg at 259. 443 Regarding the sixth contention, we have earlier found her Honour was correct in relying on the text references provided by Mr Adam in his report. 444 As to the seventh contention, the relevant field notes and survey books Staunton J was referring to were not those created at the turn of the century but rather notes made during the period 1994 to 1996. We have dealt with that issue in relation to the planning, research and assessment charges. 445 We consider the propositions in the eighth, tenth and eleventh contentions are correct but that does not advance the appellants' defence submissions. As to the ninth contention that it was not possible, let alone reasonably practicable, to survey the flooded old workings, that contention is also correct. However, the proposition that it was not reasonably practicable to physically survey the old workings does not amount to a proposition that it was not reasonably practicable to properly research available sources and information on the location and the extent of the Young Wallsend coal workings.

[387]

446 The twelfth and thirteenth contentions suggest it was a universal practice of the DMR to draw a circle around those record tracings where there was some uncertainty. But the evidence was "it's not on every case" that there was a dotted line or circle around workings to indicate that they may be inaccurate. A free-hand circle or mark was "sometimes" put around some old abandoned workings on the record tracing (evidence of Ms Roberts). Thus, an indication around any old workings was never a universal practice and its insertion was then only discretionary. 447 As to contentions 14 and 15, it was sufficient for her Honour to be satisfied that research to independently verify the accuracy of Sheets 2 and 3 'pointed to the real possibility' that Sheets 2 and 3 ought not be relied upon. That research, indicating as it did that there was a possibility Sheets 2 and 3 could not be relied upon would, in the circumstances, have been sufficient to either decide there was a need to undertake further research to ensure the reliability (or otherwise) of Sheets 2 and 3 or cease mining if the possibility of inaccuracy remained. 448 We do not accept contention 16 for the reasons given earlier in this judgment relating to the need to depict the Borehole Seam on the mine plan as a means of alerting the miners of the old workings. We accept contention 17 but this does not advance the corporate appellants' case under s 53. 449 Returning directly to the issue of reasonable practicability, it is clear on the evidence that the corporate appellants relied on Sheets 2 and 3 in conducting their mining operations. Sheets 2 and 3 were wrong in the manner they depicted the old workings. The arrowhead workings, which were depicted in the Borehole Seam (the lower seam) were in the Young Wallsend seam (the upper seam), which meant that on 14 November 1996 the old workings were 100 metres closer to 50/51 panel than was believed to be the case. On the strength of what was depicted on Sheets 2 and 3, the corporate appellants intended to drill ahead when they were within 100 metres of the old workings to ascertain their precise location and intended to leave a barrier of coal 50 metres wide between the Gretley Mine and the presumed old workings in order to avoid the risk of inrush. The appellants did not get the chance to drill ahead because at approximately 5.30 am on 14 November 2006 the continuous miner holed the old workings and the inrush occurred.

[388]

450 The corporate appellants relied on Sheets 2 and 3 essentially, in our opinion, because they were issued by the DMR and the appellants made the assumption that the Sheets were, therefore, accurate and reliable. There is no doubt on the evidence the corporate appellants were under a duty to do all that they could to avoid an inrush; the consequences of failing to take all of the reasonably practicable steps to avoid such an event were, as this case proved, tragic indeed, with the loss of life of four miners. 451 The primary failure found to have been made out against the corporate appellants was a failure to adequately plan, research and assess the location and extent of the old workings. There was nothing impracticable about the carrying out of this planning, research and assessment. Sheets 2 and 3, on the evidence of Mr Adam and Professor Thomas, raised on their face questions about their accuracy and reliability. That required further investigation so that the corporate appellants could be assured there was no risk of holing the old workings if Sheets 2 and 3 were not accurate as to the location and extent of those old workings. 452 The corporate appellants would have had access to the Abandonment Register, which was available to be viewed at the DMR offices. If it had been viewed it would have indicated that the Young Wallsend Colliery had been declared abandoned on 19 June 1928. The Register also contained a reference to another DMR file, Ms 28/7067. Her Honour found that it was not possible to conclude that NWCC could have accessed the file prior to the inrush. 453 Nevertheless, the absence of an abandonment plan should have been a matter of concern to the appellants if they had viewed the Abandonment Register. No abandonment plan was ever filed with the DMR or its predecessor. Sheets 2 and 3 that were first created in 1980 never constituted the abandonment plan. As we earlier found, unless there was an abandonment plan showing conclusively that the workings had been abandoned, there must be doubt as to whether further work was undertaken beyond the dates shown on the plan. 454 The absence of any abandonment plan should have triggered further investigations by the corporate appellants or, if that led nowhere and doubt remained as to the reliability of Sheets 2 and 3, mining should have been discontinued. Further investigations to resolve any doubt about Sheets 2 and 3 or the cessation of mining were reasonably practicable steps to take to comply with the provisions of ss 15(1) and 16(1) of the OHS Act given the magnitude of the risk.

[389]

455 In relation to the newspaper articles and texts referred to by her Honour in her liability judgment as being sources of information regarding the old workings, we earlier found these were a legitimate and proper line of inquiry and reasonably accessible to the appellants in seeking to resolve the anomalies identified by Mr Adam and Professor Thomas on Sheets 2 and 3. It was reasonably practicable for the corporate appellants to obtain these articles and texts, which as we have found: [W]ould have raised a reasonable doubt within the minds of managers and surveyors within NWCC as to the reliability of Sheets 2 and 3 of RT523. It would not have proven that Sheets 2 and 3 were inaccurate but given the anomalies and inconsistencies on the face of those sheets, the contradicting information in the texts and newspaper articles and the non-existence of an abandonment plan, it would not have been responsible for NWCC to proceed in reliance on Sheets 2 and 3 alone. 456 As to the other measures referred to in the three sets of charges (planning, research and assessment; system of work; and, night shift), such as undertaking risk assessments, test drilling, informing Deputies and mine workers of the old working including the presence of water, her Honour found at [816] that all of them were reasonably practicable steps to take to avoid the risk. We take no different view to that of her Honour. 457 We agree with the trial judge's finding at [817] that the appellants did not discharge the onus required to establish it was not reasonably practicable for them to comply with ss 15(1) and 16(1) of the Act. Accordingly, their defence under s 53(a) of the Act must fail. 458 In relation to the defence under s 53(b) of the OHS Act, Staunton J found that the existence and availability of information on the location and extent of the Young Wallsend Colliery workings was within the control of the appellants. Her Honour held that all of the necessary and relevant information that went to researching the location and extent of the Young Wallsend Colliery old workings was within the control of the appellants in that it was readily accessible by them. 459 As to the appellants' contention that the errors made by the DMR were not under the control of the appellants, her Honour found it was correct. However, the trial judge considered that missed the point because: The defendants are not being held liable for errors made by the DMR. The defendants are being held liable for their failure to properly research the location and extent of the Young Wallsend Colliery workings and, as a consequence of that failure, for the failures that followed. It is of no assistance to the defendants at this point to simply point to the DMR and assert it had no control over the errors it (the DMR) made in preparing Sheets 2 and 3 in the way they did. That may be a proper and understandable factor to be considered within the context of the sentencing process. 460 Staunton J proceeded to find (at [823]) that: [T]he defendants at all times had control over the cause leading to the commission of the offences before the Court. That is, it had control of the means and the experienced personnel to critically appraise the information provided to them by the DMR in Sheets 2 and 3 and to question further. It had the means and the experienced personnel to obtain and/or access and peruse Sheet 1 and the extract of the Abandonment Register. There was no barrier, in my view, to the defendants obtaining that information. Beyond that, it was always within the defendants control to use the experienced and considerable resources at their disposal to undertake what is the primary causative factor in the totality of the proceedings before me, which was the duty to properly research the location and extent of the Young Wallsend old workings. 461 On the appeal, the corporate appellants submitted that Staunton J found that there was no conclusive evidence put before the court that established that Sheets 2 and 3 were inaccurate, apart from the DMR file Ms 28/7067 which was unavailable to the corporate appellants. Nevertheless, her Honour determined that a defence under s 53(b) had not been made out because other information, albeit inconclusive, was available and 'readily accessible'. This finding, it was submitted, failed to take into account the following: (i) The only conclusive information on the accuracy of Sheets 2 and 3 was held in file Ms 28/7067 stored in the State Archives;

[393]

(v) Historical texts and documents that are not prepared by a surveyor ought to be given a lesser weight than those documents prepared by a surveyor and are survey accurate. 462 As to the first matter, the appellants refer to "conclusive information" about the accuracy of Sheets 2 and 3 only being available in the file MS 28/7067, which was not accessible to the appellants on her Honour's findings. It seems to us, however, it was not necessary for the appellants to be in possession of conclusive information that may have confirmed the accuracy, or otherwise, of Sheets 2 and 3. The relevant question was whether there were sufficient doubts about the accuracy of the Sheets that would have required the corporate appellants in conforming with their duty under the OHS Act to investigate further to avoid or reduce the risk. The evidence, as we have concluded, properly allowed her Honour to find that there were anomalies in Sheets 2 and 3 which required further examination in order to minimise risk. What the appellants were bound to do was to conduct investigations for the purpose of resolving those anomalies. If the appellants, after conducting that research were unable to resolve the anomalies because they could not find material that "conclusively" determined the accuracy of Sheets 2 and 3, then they should not have proceeded with the mining operation. If, as we have found, there were anomalies on Sheets 2 and 3 and these anomalies were not resolved by research, it was not open to the appellants to weigh in the balance whether they should prefer Sheets 2 and 3 as providing the basis to proceed with the mining operation as against material that threw some doubt on the reliability of those Sheets. If there was any doubt, given the consequences, mining should not have proceeded. 463 The second matter referred to above we consider was dealt with appropriately by the trial judge. The third matter has really been dealt with in our consideration of the defence under s 53(a). Conducting adequate planning, research and assessment, drilling ahead, undertaking risk assessments, etc., were all within the control of the appellants and reasonably practicable steps to take to avoid the risk of inrush (on any reasonable cost /benefit analysis). 464 As to the fourth matter, that is dealt with by our acceptance of the evidence of Mr Adam and Professor Thomas. The fifth matter goes back to the first; if there were doubts about the reliability of Sheets 2 and 3 - and there should have been on the evidence of Mr Adam and Professor Thomas - it would not be a question of the respective weight to be given the Sheets 2 and 3 vis-à-vis historical texts and documents. If those texts and documents did not resolve the anomalies, or raised even more questions about the reliability of Sheets 2 and 3, the appellants would not, given their obligations in respect of health and safety, be in a position to rely on Sheets 2 and 3. 465 We agree with her Honour's finding that the corporate appellants failed to discharge the onus placed upon them in relation to the defence raised under s 53(b) and, accordingly, it must fail. 466 Hence, given our earlier conclusions concerning liability and s 53(a), it follows that we consider that corporate appellants' challenges regarding the finding of guilt by the trial judge fails and the appeal in this respect should be dismissed. N. PERSONAL APPELLANTS

[436]

496 It was also contended for Mr Porteous that her Honour has given only the most cursory consideration to the application of the defences contained in s 50(1)(b) and (c). The approach adopted by her Honour, it was submitted, was inconsistent with proper legal principle and correct application of the provisions. 497 We have dealt with the issues of drilling ahead and the 50-metre barrier. We do not consider her Honour ignored the evidence in relation to these matters as they affected Mr Porteous. 498 In relation to the s 53 defences being available to a defendant charged under s 50, this question was dealt with by the Full Bench in Morrison v Powercoal and confirmed by the Court of Appeal. The Full Bench's reasoning, as the respondent submitted, was that: (1) It would be incongruous for s 50 to require a contravention by a corporation, deem the same contravention, and then permit the examination, anew, of the availability of a defence under s 53 when its unavailability had already been found in relation to the corporation and deemed in relation to the natural person. (2) Section 50(1) explicitly enumerated two exceptions to the operation of its deeming provision, which do not include defences under s 53, and the use of the word "unless", coupled with the absence of any words of generality used to denote a list which was not closed, makes it clear that these two exceptions were the only exceptions. (3) There would be unnecessary duplication of the defences under s 50(1) and s 53 if both applied. 499 We do not propose to re-consider the issue of whether defences under s 53 were available to the personal appellants in addition to the defences under s 50. We consider the decision of the Full Bench in Morrison v Powercoal was correct in this respect. It is a recent decision of a Full Bench of this Court and exhibits no error; it was confirmed by the Court of Appeal in Powercoal (CA). Furthermore, in Daly Smith Corporation (Aust) Pty Ltd & Anor v WorkCover Authority (NSW) [2006] HCA Trans 475, the High Court recently refused an application for special leave to appeal in which the appellant sought to argue that defences under s 53 should be available to an individual whose guilt arises because of s 50. We can see nothing in the appellants' submissions regarding defences under s 53 that added anything to the submissions regarding the defences under s 50. 500 As to the submission that the trial judge erred by only giving a most cursory examination to the defences contained in s 50(1)(b) and (c), we consider that is not correct. There was no evidence that Mr Porteous used all due diligence to prevent the contravention by the each of the corporate appellants. In those circumstances it is, therefore, unsurprising her Honour's consideration of the matter was not lengthy. As to any submission Mr Porteous was not in a position to influence the conduct of the corporations in relation to their contraventions, it is simply unsustainable given his role and position in the corporations, except as her Honour observed at [963], Mr Porteous could not have been in the position to influence the conduct of the corporations in relation to failures (c) and (d) of the planning research and assessment charges as he was not, during that period, the Mine Manager at Gretley. MARK ROBINSON

[448]

· Surveying services are support services in an organisation and are not normally regarded as key management roles for the whole organisation. Mr Thomas did not regard survey services as "the statutory line of authority" for a mine but rather support services for one or more mines depending on the size of the corporation. Indeed it was not uncommon for a surveying section to be located "offsite". 514 The import of these submissions is that Mr Robinson was a surveyor, not a person concerned in the management of either OPL or NWCC. In considering these aspects of the appellant's submissions it is pertinent to refer again to Powercoal (CA) where it was held that the words "management of the corporation" in s 50(1) should not be read down so as to apply only to central management ([116]). The Chief Justice determined that: The Court is concerned with a person who has a level of complicity in the commission of the offence by the corporation. Such complicity arises in a context where persons in a managerial role could have taken steps to ensure that the object [sic] of the Act are achieved. 515 The objects referred to by his Honour are: (a) to secure the health, safety and welfare of persons at work; (b) to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work; (c) to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs. 516 The question then becomes whether Mr Robinson was in a "managerial role" in NWCC and OPL and whether, in that role, he could have taken steps to ensure the objects referred to above were achieved. 517 We do not consider that it was established beyond reasonable doubt that Mr Robinson was concerned in the management of OPL or NWCC. In our opinion, Mr Robinson's role was not managerial but rather was more akin to that of an advisor or consultant to mine management in relation to surveying. Mr Robinson was more in a support role than a role that involved managing or directing the business of the two corporations. We have come to this view based on the following considerations: (1) A mine surveyor is not charged with any managerial function or responsibility under the Coal Mines Regulation (Survey and Plan) Regulation. This is in sharp contrast to the duties of a Mine Manager under s 37 of the CMR Act. (2) Under cl 7 of the Survey and Plan Regulation the surveyor has control of the surveying and survey drafting staff for the mine but always subject to the instructions of the Mine Manager. Control and supervision of staff (in this case two staff) is not necessarily indicative of a managerial role. (3) That Mr Robinson "prepared mine and mine sections plans as requested and required for diverse activities within the mine and in the preparation for and planning of mining activities at Gretley" and this was "absolutely critical" to the operation of the mine, it did not involve the exercise of a managerial function but rather the exercise of highly specialised skills. (4) That the mine plans produced by a Mine Surveyor are "a decisive factor in decisions taken at corporate level as to the direction and extent of mining operations in a particular area and they are critical to the safe conduct of such operations" does not transform the work of the Surveyor into that of a person concerned with the management of the corporation for the purpose of s 50. (5) That surveying advice "would have a significant impact on decision making at the corporate level in relation to planned mining activity affecting the corporation as a whole" does not transform the work of the Surveyor into that of a person concerned with the management of the corporation for the purpose of s 50. (6) The survey work undertaken by Mr Robinson was not work that could be said to reflect an involvement of Mr Robinson in administering or directing the business or affairs of either OPL or NWCC. (6) Mr Robinson did not participate in General Mine Manager's Meetings. (7) Mr Robinson, as well as being subject to the direction and instruction of the Mine Manager, reported to the Production Manager, Mr Alston. 518 Clearly, Mr Robinson was in a position to take steps to ensure the objects of the OHS Act were met, using the test considered by Spigelman CJ in Powercoal (CA), but that is not sufficient to bring Mr Robinson within the scope of s 50. The legislature has determined that for s 50 to apply the person must be concerned in the management of the relevant corporation, which whilst not limited to central management as the Chief Justice found, nevertheless requires the person to be in a managerial role. We are not satisfied that was the case with Mr Robinson. We consider that Staunton J erred in finding that Mr Robinson was concerned in the management of OPL and NWCC. The conviction of Mr Robinson should be quashed. JONATHAN ROMCKE

[453]

524 It has long been accepted that a causal nexus must also be established between the defendant's acts or omissions and the resulting detriment to the employees' health, safety and welfare. The detriment need not be physical injury or death; it is only necessary to prove to the requisite standard that the employees were placed in a situation of risk by the defendant's acts or omissions in failing to ensure safety, etc: State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121; Haynes v C I & D Manufacturing Pty Ltd; Callaghan v CI & D Industries Pty Ltd (No2) (1995) 60 IR 149 at 157; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449. In other words, the employer may have contravened s 15(1) if, by some act or omission, the employer has created a situation of potential danger to the health, safety and welfare of the employer's employees at work. 525 A similar position exists in respect of s 16(1) of the OHS Act. A defendant will be found to have contravened s 16(1) if it is proven beyond reasonable doubt that the defendant, at the time of the alleged offence, was an employer; if there was a failure to ensure that persons not in the employer's employment were not exposed to risks to their health or safety; and, if the risks arose from the conduct of the employer's undertaking while the persons were at the employer's place of work. A causal nexus must be established between the employer's failure to ensure health or safety and the exposure to risk. 526 In relation to the corporate appellants there could be no doubt, for example, that failure (c) of the planning, research and assessment charges (a failure to accurately depict the location and extent of the YWC old workings on the 6 September 1994), was a failure that, whilst it continued after the risk arose, first came into existence on or about 6 September 1994 when the initial s 138 Application was made to the DMR based on the erroneous Sheets 2 and 3. That failure was causally connected to the risk of inrush that arose much later (on 29 October 1996) but within the time frame of the charges, namely, between 22 March 1994 and 14 November 1996. 527 It was not, and could not, be contended that the Court could only regard failure (c) as a failure that commenced once the risk arose. A risk arises because of a failure to ensure health and safety. The failure must necessarily have occurred prior to the risk arising, and provided the failure alleged to have caused the risk, and the risk itself, both arose within the time frame pleaded in the charge, a defendant is liable to be found guilty of the charge if it is proven beyond reasonable doubt.

[458]

532 For example, a corporation may be prosecuted for failure to provide instruction to a machine operator on how to isolate a particular machine when the machine needed to be serviced. Servicing takes place every three months. Induction training for the machine operator was supposed to include instruction on isolation of the machine for servicing. The machine operator operates the machine for three months without any exposure to risk then on the day appointed in the servicing schedule, attempts to service the machine but is exposed to risk because he or she has not been instructed how to isolate the machine. One day prior to the operator being exposed to risk, a person concerned in the management of the corporation whose responsibilities included instructing machine operators in isolating machinery to enable servicing to be undertaken, but who has failed to provide the instruction, leaves the corporation. Is it to be said that manager is immune from prosecution because he was not a person concerned in the management of the corporation at the time the risk arose? We do not consider that is the construction to be applied to s 50(1). Section 50(1) commences with the words, "Where a corporation contravenes ..." not "When a corporation contravenes..." The use of the word "Where" suggests that the subclause is concerned with a situation or circumstance, not a timeframe. Although there may be specific factual circumstances where the application of the words "in relation to its contravention" in s 50(1)(b) give rise to a defence, due to an individual's minimal connection to the corporation's contravention, Mr Romcke's appeal was not argued in this way, and nor do we consider, for the reasons discussed below (concerning Mr Romcke's role in relation to the corporate appellants' "primary" failure) that this is such a case. 533 In this case, in respect of the example we have been using, that is, failure (c) of the planning, research and assessment charges, the alleged failure occurred on 6 September 1994. As we have found, Mr Porteous was not the Mine Manager at that time and could not be held liable in respect of failure (c). Mr Romcke, however, was not only concerned in the management of NWCC on 6 September 1994 as we shall see shortly, but he was also directly responsible for submitting the flawed plans to the DMR. Indeed, as Staunton J noted at [905] it was Mr Romcke's signature that accompanied the initial application, under s 138 of the Act, to the DMR in September 1994 where mention is made of the Borehole Seam workings being 'full of water' and, it was asserted, did not pose a 'danger to Gretley workings'. 534 Mr Romcke was also a person concerned in the management of NWCC at the time failures (a), (b) and (d) of the planning, research and assessment charges occurred. Failure (a), it will be recalled, was a failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings including the Young Wallsend coal workings. Failure (b) was a failure to accurately depict the location and the extent of the Young Wallsend coal workings on any of the mine plans. Failure (d) was a failure to accurately depict the location and the extent of the Young Wallsend coal workings on the redrawn plan, which was forwarded to the Department on or about 27 October 1994. Mr Romcke, as Statutory Mine Manager at Gretley, was a person directly concerned in the management of NWCC in respect of each of these failures. 535 It was also contended for Mr Romcke that there was nobody at the relevant place of work prior to 28 October 1994. It was submitted that what became the place of work for the purpose of the charge was, at all times prior to 28 October 1994, a solid mass of coal. The place of work identified in each charge was a roadway (known as 'C' heading) in 50/51 panel. Employees and other mine workers were required to work on the development of that roadway between about 16 September 1996 and 14 November 1996 (when the inrush occurred). It was Mr Romcke's submission that the period so identified commenced almost two years after he left the Gretley mine.

[461]

Lack of authority or power in relation to management; Mr Romcke not a General Mine Manager 540 It was contended that the trial judge made an error in finding that Mr Romcke was a General Mine Manager with corporate duties and responsibilities beyond those of the statutory Mine Manager in the period prior to 28 October 1994. It was further contended that the finding that the appellant was appointed as a General Mine Manager was "vital" or of "critical weight" to the trial judge's reasoning in finding that the appellant was a person concerned in the management of the corporations. 541 It was further submitted, "there was not a shred of evidence that Mr Romcke was concerned in the management of his employer, Oakbridge, whether as Mine Manager at Gretley or otherwise" and that: Neither did the evidence permit Staunton J to be satisfied beyond reasonable doubt that, personal or individual considerations aside, the statutory mine manager at Gretley was, as such, involved in the management of either NWCC or Oakbridge. 542 Going firstly to the question of whether Mr Romcke was a person concerned in the management of NWCC, that corporation owned the Gretley Mine lease. Staunton J made unambiguous findings that NWCC operated the Gretley Mine, albeit in tandem with OPL. Mr Romcke was the Statutory Mine Manager for that mine up to 28 October 1994. His letter of appointment, on NWCC letterhead signed by the General Manager, Mr Gow, indicates the appointment took effect from 11 June 1993. Mr Romcke exercised the functions of a Mine Manager for NWCC. So much is evident from his many dealings on behalf of NWCC with the DMR. 543 Mr Romcke was performing the same statutory role of managing the Gretley Mine as his successor, Mr Porteous. He had full charge and control of all persons employed at the mine and all operations at the mine, including occupational health and safety. Mr Romcke was in a position to ensure the objects of the OHS Act were met. 544 We are satisfied there was sufficient evidence for Staunton J to find beyond reasonable doubt that Mr Romcke was concerned in the management of NWCC as Statutory Mine Manager for the Gretley Mine. 545 We turn to Mr Romcke's role in OPL. Mr Romcke was an employee of OPL. That fact is not disputed. What is disputed is that there was evidence Mr Romcke was a General Mine Manager or that he was concerned in the management of OPL. We cannot find any direct evidence that Mr Romcke held the title of General Mine Manager. The trial Judge appears to have drawn an inference that he held that title from evidence such as that Mr Romcke attended General Manager's Meetings and the evidence of Mr Pala about the practice of the holding of the dual appointments of Statutory Mine Manager and General Mine Manager. 546 The key to whether Mr Romcke was concerned in the management of OPL does not, however, hinge on his title, although that might be a good indicator. The question is whether the facts, or an inference drawn from the facts, support a finding that Mr Romcke was concerned in the management of OPL. 547 There are a number of matters that we have drawn from the liability judgment that point to Mr Romcke being concerned in the management of OPL. These include the following: (1) Mr Jonathan Romcke was the Statutory Mine Manager at Gretley between June 1993 and 28 October 1994. After he left Gretley, Mr Romcke was appointed Statutory Mine Manager and General Mine Manager at Clarence and later Ellalong, other collieries within the Oakbridge group. (2) Mr Romcke's predecessor and successor at Gretley both held the title of both Statutory Mine Manager and General Mine Manager. (3) Mr Romcke participated in OPL corporate safety meetings in August and November 1995 (after he left Gretley). These meetings, attended by the General Mine Managers, set detailed worksite safety policies at OPL mines, including Gretley. (4) Mr Romcke participated in the General Mine Manager's meetings held on a quarterly basis under the Cyprus/OPL management structure. He attended Meetings on the following dates: 10/11 May 1996; 26/27 July 1996; 22/23 August 1996; 24/25 October 1996; 29 November 1996; and, 19 December 1996. The General Mine Manager's meetings set the direction and policy of the mines operating within the corporate matrix of Cyprus/OPL. (5) The General Mine Manager's forum had a major role to play in determining future policy, planning and strategic directions for the mines within their corporate structure as well as in safety issues. (6) One of the issues at General Mine Managers' Meetings to which considerable attention was given was workplace safety. The General Mine Manager's meeting of 26/27 July 1996 includes a section on safety. 548 It may be seen there are a number of references to Mr Romcke's role after he left Gretley. However, at [904] Staunton J stated: In relation to Mr Romcke, the prosecution have also relied upon his participation in the General Mine Manager's meetings and his participation in matters such as safety audits arising from those meetings after he left Gretley, as evidence of his being a person concerned in the management of both corporations - they being NWCC and OPL. I am not persuaded that is an approach that can be relied upon.

[465]

554 It was further submitted that notwithstanding the subsequent decision in Morrison v Powercoal that personal defendants charged with the aid of s 50 are, in common with any other person charged with an offence under the Act, entitled to rely upon the provisions of s 53 in their defence. We have also dealt with this issue earlier in relation to Mr Porteous where we expressed the view, consistent with the Full Bench in Morrison v Powercoal, that the s 53 defences were not available to the personal appellants. Putting that to one side, however, as we noted earlier, Mr Romcke contended he was in no position or under any obligation to disregard Mr Murray's professional opinion or direct that he perform his duties in some different way. Having regard to cl 8 of the Survey and Plan Regulation, it was submitted Mr Romcke was entitled to assume that Mr Murray had no doubt as to the accuracy of plans supplied by the DMR which he had not personally prepared which were relevant to working and operation of the mine and safety. Counsel for Mr Romcke further submitted: It is unreasonable to suggest that responsibility for eventually discovering and correcting the DMR's error lay with Mr Romcke. He had limited opportunity to attend to the issues. He was not at the mine to oversee the actual operation, consider any information then coming to light or modify the mining operations in response. He was entitled to have confidence in the mine surveyor and the DMR. These were not matters over which he had any control or where it was reasonably practicable for him to act. 555 It relation to these submissions, whilst we do not consider the defences under s 53 are independently available to Mr Romcke, we make the following observations: (1) Under cl 8(1) in the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 there was the absolute duty on the Mine Manager to prevent any inrush into the workings of noxious gas from disused workings or of water and under s 37(2)(h) of the CMR Act the Mine Manager shall take such steps as may be necessary to ensure that at all times the manager is in possession of all available information regarding disused excavations or workings in the vicinity of the mine. This reinforces the all-encompassing obligations of the Mine Manager, particularly in relation to safety matters ([893], [906]). (2) Clause 8(g) of the Survey and Plan Regulation provides: (g) where the mine surveyor has any doubt as to the accuracy of any plans, drawings or sections of the mine not prepared by the mine surveyor, or under the supervision of the mine surveyor, which may have an effect upon the working and operation of the mine or the safety of persons at the mine, draw such doubt to the attention of the manager of the mine Staunton J found this was indicative of the ultimate responsibility for the provision of mine plans that are accurate in all respects, as resting upon the manager on behalf of the mine owner ([241]). (3) Mr Romcke brought no evidence to show that it was not reasonably practicable for him to comply with s 15(1) or s 16(1) or any evidence that the contraventions were due to causes over which he had no control and against the happening of which it was impracticable for him to make provision. For example, whilst it was contended that he was entitled to rely on Mr Murray, Mr Romcke brought no evidence to show that it was not reasonably practicable for him to be in possession of all available information regarding the location and extent of the old workings or, in fact, whether he even inquired of Mr Murray whether he was in possession of all of the available information. Given the absolute duty on Mr Romcke in this regard it was not sufficient for him to assume that Mr Murray had done all of the necessary work; he at least had to inquire in this respect, yet Mr Romcke brought no evidence that he made the inquiry or did all that was reasonably practicable to avoid any risk to safety from the old workings.

[478]

Notwithstanding the reference to and adoption of the principles in C I & D in the imposition of penalties, her Honour imposed separate penalties on the corporate Defendants and did not impose a single penalty representing the criminality and then make each of the corporate Defendants responsible for half of that penalty. 572 It was evident from the oral submissions of senior counsel for the corporate appellants that what was being contended was that the two corporate appellants should be treated as one for the purpose of sentencing and any sentence apportioned equally between the two. In that context, the submission was the total penalty on each corporate appellant of $600,000 for the four s 15(1) planning, research and assessment offences and $600,000 for the s 16(1) offences was manifestly excessive. 573 It was further submitted that her Honour had failed to identify for the purpose of the application of the principle of totality, the common elements to be found in the charges between the different types of charges. As a consequence, the penalties imposed did not represent the proper application of the totality principle. 574 Counsel for the corporate appellants submitted (references omitted): The fact that each of the groups of charges had very significant common elements is demonstrated by an analysis of the charges and the particulars found in respect of each of them. The Prosecution conceded that there was established an "overlap" between the failures identified in the system of work and night shift offences and that they plainly contained very substantial common elements. Her Honour identified charges as being part of " an ongoing factual matrix ". Her Honour reiterated comments in relation to the difference between the system of work charges and the night shift charges as being " relatively minor ". In the same extracts her Honour referred to all of the allegations as being "part of the overall system of work". Further, her Honour identified the similarity between the allegations made by the Prosecutor in the "system of work charges and the night shift charges" in the following terms: The fact that the prosecutor pleads it again, and this time denotes it as a 'night shift' charge does not, it seems to me, add one iota to the defendant's ultimate liability as far as the substance and objective seriousness of the defendant's conduct. Her Honour throughout her earlier judgment and the penalty judgment referred to the primary failure as being " to properly research the location and extent of the young Wallsend old workings " and that all other failures alleged were of a derivative nature.

[480]

575 After referring to the consideration of C I & D by Walton J, Vice President in McDonalds at 460, Staunton J stated in her sentencing judgment at [109]-[110]: The differences identified by Walton J, Vice-President in McDonalds concerning the then defendants before him do not exist with respect to the relationship as between NWCC and OPL. If anything, the evidence underscores the 'intimacy' of the relationship between NWCC and OPL that was reflected in the Court's finding in CI&D in relation to Manufacturing and Industries. 110 I believe that, as between NWCC and OPL, their respective culpability is equal in relation to the three categories of offences. To try to do some mathematical breakdown between the two corporations to all of the matters I have considered in concluding the offences proven in order to apportion culpability between them would be flying in the face of the ultimate conclusion I came to with respect to the two corporations. That is, as corporate entities and employers, NWCC and OPL were inextricably involved in the operation of the Gretley Mine. 576 Reading the judgment in C I & D as a whole, it is apparent that the Court in that case regarded the two companies as one and imposed a fine of $30,000, which was then divided equally between the two defendants. 577 Staunton J regarded the approach taken by her as between OPL and NWCC as analogous to that taken by the Full Court of the Industrial Court of New South Wales in C I & D. And whilst her Honour did not take precisely the same approach as that taken in C I & D, the sentencing judge did arrive at a total penalty for both corporations of $800,000 for the four planning, research and assessment offences after applying the principle of totality and then apportioned that amount equally amongst the four offences ($200,000 for each offence). 578 We note that Staunton J did not impose a global penalty encompassing the two corporations from the outset. That is to say, her Honour did not, from the outset, regard the two companies as one, impose a single penalty then divide it equally between the two corporate appellants. In other words, in dealing with the planning, research and assessment charges, her Honour did not impose global penalties of $600,000 for the s 15(1) offences and $600,000 for the s 16(1) offences then divide those amounts equally between the two appellants. Rather, her Honour in taking the approach of assigning a penalty of $300,000 on NWCC and $300,000 on OPL for both the s 15(1) and s 16(1) offences, applied the principle of totality jointly to both appellants and then apportioned a total penalty of $800,000 encompassing both appellants equally amongst the four offences. 579 Staunton J took a similar approach in respect of the assessment of penalties in the system of work and night shift charges. 580 Considering, firstly, the applicability of the approach in C I & D, we have, with respect, some reservations about that approach and do not consider that it can be sustained in the light of the Full Bench's recent examination of the principles of totality in Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279 at [7]-[15]. In that case the Full Bench reiterated the doubt about that approach raised in WorkCover Authority v McDonalds at [264] and made it clear that (i) the principle of totality should not be applied to more than one corporate defendant no matter how closely related and (ii) would not require the sentencing of defendants to be undertaken upon the basis that they were effectively treated as a single entity facing two charges. 581 In the present appeal, the corporate appellants were two separate (albeit related) entities, both having a duty to ensure the safety of employees and non-employees under s 15(1) and s 16(1) of the OHS Act and in respect of whom the usual principles of sentencing and the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 should apply, notwithstanding they were "inextricably integrated" in the operation of the Gretley Mine. 582 It is clear that the corporate appellants operated the Gretley Mine in some sort of combination that Staunton J was not able to identify with any precision but it is also clear that the two companies had separate roles and employed different employees at the Mine to whom they owed separate duties to ensure safety. We do not consider it could be concluded that one corporate appellant was the alter ego of the other. The corporate appellants were not treated as one entity for the purpose of determining liability and for the purpose of sentencing they should not have been treated as one entity.

[481]

583 Turning next to the approach taken by Staunton J to sentencing, we do not consider it was the correct approach. There were two errors. Firstly, the whole of the penalty assessment process in respect of the two companies should have been kept separate. Secondly, by dividing up the sentencing process and dealing with totality three times in respect of the three sets of offences, her Honour erred. 584 The correct approach to sentencing involved taking each of the six offences for one of the corporate appellants and, having regard to all of the relevant circumstances including the objective and subjective factors, arriving at a separate penalty for each offence. It would then have been open to the sentencing judge to apply the totality principle, which requires consideration of the overall criminality involved in the offences for each defendant and which requires that regard be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate: Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [37]. Once the totality principle had been applied it will then usually be appropriate to fix separate penalties for each offence. 585 This process would then be repeated for the other corporate appellant having regard also to questions of parity or consistency in sentencing. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [62]. 586 It becomes necessary to consider whether the errors made by Staunton J in the penalty assessment process led her Honour into further error in respect of the amount of fines imposed on the two corporate appellants. In order to determine whether there have been errors in respect of the fines imposed, it is necessary for us to objectively re-sentence the corporate appellants following an independent review of the circumstances of the case, using the sentencing judgment of Staunton J as no more than a guide. 587 The fines imposed were as follows: NWCC Matter NoInitial fineAdjusted fine for totality S 15(1) - 3198/00 (type 1)$75,000$40,000 - 3199/00 (type 2)$200,000$125,000 - 3200/00 (type 3)$300,000$200,000

[484]

588 In respect of parity, Staunton J considered that the culpability of OPL was equal to that of NWCC: [144] of the sentencing judgment. We consider on the material before her Honour that the sentencing judge was correct in coming to this conclusion. In respect of the overall criminality of the two appellants and whether it was reflected in the penalties that were imposed, we have given careful consideration to all of the relevant factors, objective and subjective, and in doing so have taken into account the reasoning process of Staunton J. In that respect there can be no doubt the offences were serious. It cannot be overlooked that the risk of inrush of water and dangerous gases in an underground mine whilst miners are present would have to be classed as amongst the gravest imaginable. If the inrush occurs it means almost certain death for those in the vicinity of the holing in, as was the case for the four mineworkers at Gretley. 589 The type 3 offences were considered by her Honour to be the most serious. These offences involved a failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings, failure to accurately depict the location and the extent of the Young Wallsend coal workings on mine plans, failures in respect of risk assessments and a failure to plan by means of test drilling to establish the location and the extent of the Young Wallsend coal workings. These are serious failures on the part of the corporate defendants even in circumstances where it was the DMR that provided the wrong information about the Young Wallsend old workings and where the corporate appellants were entitled to feel a justifiable sense of grievance that it was they who were prosecuted and not the DMR. 590 All of the type 3 failures for which the corporate appellants were found to have been responsible by Staunton J can be properly laid at the feet of these two appellants. There is no escaping the fact, for instance, there was a fundamentally flawed reliance on material provided by the DMR in circumstances where there were indications on that material that demanded further inquiry by the appellants in order for them to ensure there would be no possibility of employees and non-employees being exposed to a risk that threatened death by drowning or poisoning or asphyxiation from dangerous gases. 591 Staunton J considered the type 2 offences to be less serious, apparently because her Honour regarded the offences as "derivative" of the type 3 offences but, nonetheless, offences in their own right: See [86] of the sentencing judgment. As for the type 1 offences her Honour found as follows: 87 Undoubtedly the night shift of 13/14 November 1996 represented the period when the potential risk to safety was at its greatest immediacy of creating actual harm to the employees concerned. Nevertheless, the night shift offence, in my view, did not, of and by itself, create that potential of immediate and real risk of harm. As the genesis of the potential risk to safety in the first instance, the primary failure to research the location and extent of YWC did. Also, as the prosecution have pleaded it, the planning, research and assessment offence embraces the period of the night shift offence. On that basis alone, encompassing the primary failure as I have identified it, is also the offence that represents the greatest culpability of the defendants. 592 Staunton J noted the overlap between the type 1 and type 2 offences and sought to accommodate that overlap by significantly discounting the penalty for the type 1 offences. 593 We do not consider the initial penalties arrived at by the sentencing judge were manifestly excessive. In this respect, we note what the Full Bench said in WorkCover Authority v (2001) 110 IR 351: [51] The meaning of manifest inadequacy of sentence was discussed in the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at 325 as follows:

[486]

[52] It is apparent from their Honours' discussion that there is a distinction between specified material error in the sentencing judge's approach or reasoning ( House v The King errors) and error on the face of the judgment demonstrated by the sentencing judge's conclusion, such as a manifestly inadequate or excessive sentence. 594 Having independently considered the objective and subjective factors in order to re-sentence the corporate appellants in the light of the sentencing errors pertaining to her Honour's application of the principle of totality, we do not consider that those errors produced the wrong result. We consider a penalty of $730,000 for the six offences committed by each of the corporate appellants was an appropriate and just outcome. 595 Finally, as we noted at the commencement of our review of the parties' submissions concerning the sentencing judgment, we do not consider that, in the particular circumstances of this case, her Honour's error in relation to the commencement of the risk warrants any reduction in sentence (apart from Mr Romcke's case which we discuss below). 596 We have endorsed her Honour's findings in relation to each of the failures established beyond reasonable doubt. The result of these failures was the creation of a risk of such gravity, and the commission of offences of such catastrophic proportions, that we do not accept, in these circumstances, (except in the case of Mr Romcke due to a combination of factors), that lighter sentences should be imposed as a result of our finding that the miners were exposed to the risk of inrush (which almost certainly meant the risk of death) for 16 days instead of 26 months in relation to the planning charges or instead of two months in relation to the systems charges. 597 In the ultimate analysis, all of the failures attributed to the corporate appellants, regardless of when they occurred, were manifest and operative at the time the breach occurred. Moreover, the gravity of the risk caused by each contributing failure was constant regardless of the delay between the failure and the risk. Whether the risk arose immediately after the failure (as in the nightshift charges) or many months after the failure (as in the planning charges), the shorter period of time for which the risk was present does not diminish the severity of the offence. The failure in the planning charges to properly research the location and extent of the Young Wallsend old workings, which gave rise to a risk of inrush more than two years later, was as objectively serious as the failure in the nightshift charges to ensure that there was an adequate barrier, which gave rise to an immediate risk. Even if our finding of a later manifestation of risk could be said to have any impact at all on the corporate appellants' culpability, it would be of the most marginal kind in the circumstances of this matter and would not warrant re-sentencing.

[487]

598 Mr Porteous was found to have committed 12 offences spread over the three identified charge periods pursuant to the provisions of ss 15(1) and s 16(1) of the Act respectively, together with the deeming provisions of s 50. However, failures (c) and (d) of the planning, research and assessment offences were found not to have been applicable to Mr Porteous ([149] of the sentencing judgment). A penalty of $35,000 was determined as appropriate in respect of each of four planning, research and assessment charges giving a total of $140,000. Applying the principle of totality and, as well, parity between the culpability of the corporate appellants, a total penalty of $42,000 was imposed. It was apportioned equally between the four offences or $10,500 for each offence. All systems of work charges and the night shift charges were proved and discharged without conviction and penalty in accordance with the provisions of s 10 of the Crimes (Sentencing Procedure) Act. The maximum penalty for each offence was $50,000. 599 As to the application of s 10 of the Crimes (Sentencing Procedure) Act, her Honour stated: 198 Mr Porteous' culpability arises by dint of his position as Mine Manager and his failure to ensure that all steps were taken to research the location and extent of the YWC. On any view the planning, research and assessment offences are the substantive or major offences encompassing that culpability. As well, the planning, research and assessment offence period encompass the system of work and night shift offence periods. Although the failures pleaded in relation to the latter offences differ from the failures pleaded in the planning, research and assessment offences, they are predominantly of a derivative nature arising from the major offence failures to research the location and extent of the YWC. There are also substantial common elements between the system of work and night shift offences. 199 Given the need to address totality and real danger of double jeopardy if I were to proceed to deal with all twelve offences applying to Mr Porteous, I consider that dealing with his offences in this way will ensure there is no element, or little prospect, of double jeopardy arising. As well, I believe such an approach is, in all the circumstances relating to Mr Porteous, a just and fair outcome in assessing his overall culpability. In his case, the recording of twelve convictions with the imposition of twelve relatively small penalties with all the attendant difficulties of totality and double jeopardy to consider, serves no useful legal or social purpose, it seems to me. What is more significant is the determination of a penalty (with the accompanying convictions) that properly reflects Mr Porteous' culpability and society's retribution for those offences. On balance, I believe that the discretion inherent in s 10 and the provisions of s 10(3)(d) allow considerations such as the approach I propose... 600 It was submitted for Mr Porteous that in all of the circumstances, the penalties imposed on him were manifestly excessive and failed to take proper account of: his culpability; the excessive number of charges and the duplicity thereby created; the relationship between OPL and NWCC in the operation of the Gretley Mine; the overlap between the s 15 and s 16 charges; and, the subjective mitigating factors operating in favour of Mr Porteous. 601 As to Mr Porteous' culpability, we note his evidence in the sentencing proceedings and identified by the respondent in its written submissions to the following effect: (a) He told Mr Murray that they should stay away from the old workings. (b) He knew of the dangers of inrush of water. (c) He heard reports that there was water in 50/51 panel in November 1996 and spoke with Deputy McLean. (d) He didn't ascertain if Surveyors Murray or Robinson had all information available from the DMR about the old workings. (e) He looked at RT523 Sheets 2 & 3. (f) He discussed with Mr Murray the unusual shape of the old workings but did not pursue the matter in any way. (g) He did not inspect the Abandonment Register. (h) He did not find out if there was an abandonment plan. (i) He did not go to State Archives. Nor did he ascertain if a surveyor had been to the State Archives. (j) He did not determine whether the surveyors had done any historical research. (l) He took responsibility as manager for the offences found to have been committed. 602 Whilst we consider $35,000 was at the top end of the range of penalty available for each of the type 3 offences, we do not consider it was manifestly excessive given all of the relevant considerations. 603 As to the submission regarding duplicity and the associated contentions, the danger of double jeopardy and ensuring a just and fair outcome was obviously in the forefront of her Honour's thinking given the way the sentencing judge dealt with the type 1 and 2 offences, that is by applying the provisions of s 10 of Crimes (Sentencing Procedure) Act. The exercise of her Honour's discretion in that respect was open to Staunton J and we do not consider it constituted error.

[498]

615 As it was observed by the Full Bench in WorkCover Authority (NSW) v Josef (2004) 137 IR 241: [23] Sections 15 and 16 of the Act both place an absolute obligation on employers to ensure health and safety at the workplace. As is well known, s15 imposes that obligation in relation to the employer's employees whereas s16 imposes the same obligation with respect to persons who are not the employer's employees while they are at the place of work. They are separate and distinct offences and are required to be considered as such. That the factual circumstances giving rise to acts and omissions constituting the offences under ss15 and 16 often arise from the same factual matrix, does not alter the fundamental proposition that they are not alternative offences in the sense that one may stand in the place of the other. As well, there is an essential element that distinguishes them that cannot be overcome in any direct alternative sense. That is the obligation arising with respect to employees in s15(1) as distinct from non-employees in s16(1). 616 In relation to the two NWCC-related contraventions, the penalties imposed on Mr Romcke were $25,000 for each offence. With the application of the totality principle, these amounts were each reduced to $7,500. 617 In our view, the combination of her Honour's errors in relation to the time the risk arose (given the particular features of Mr Romcke's case, including the limited nature of his involvement in the actual commission of the crimes) and in relation to Mr Romcke's involvement with OPL, meant that it was not possible for her Honour to properly exercise her discretion in the task of sentencing Mr Romcke (including the task of applying the principles of totality, which necessarily involves consideration of the overall criminality). It is necessary for us to consider the appropriate penalty, if any, to be imposed. 618 Although we are mindful of the Full Bench's decisions to the effect that the discretion available under s 10 would be rarely available in significant offences against the legislation (see WorkCover Authority (NSW) v Profab (2000) 49 NSWLR 700; 100 IR 64 and WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101), it is important to bear in mind that each matter requiring consideration under s 10 needs to be assessed in the light of its own particular circumstances: WorkCover (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 at 430 and Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 at [174]. 619 In this case, Mr Buchanan submitted that Mr Romcke should be treated as Mr Foster was in Morrison v Powercoal (No 3). In relation to Mr Foster the Full Bench identified a number of considerations weighing in favour of applying s 10 of the Crimes (Sentencing Procedure) Act. These were: (1) The opportunity for Mr Foster to became completely familiar with the mine and its operations was limited.

[501]

(4) Mr Foster was not involved in the critical planning stages where decisions were made about assessment procedure in relation to mining conditions and the process of recording and notification of conditions in the mine. (5) In respect of the reporting and notification charge, Mr Foster deposed that there was nothing in the reporting system in place before the accident that alerted him to a risk arising from the instability of the roof. 620 The Full Bench found at [140]: 140 We consider that, in the circumstances, it would be quite artificial and wrong to arrive at a finding that Mr Foster should carry the same weight of culpability as the corporate respondent in terms of the objective seriousness of the offences. Given Mr Foster's short duration as manager, and the size and nature of the task of coming to terms with the operations of the mine and the planning and processes that had been put in place prior to him taking up his role as manager, he necessarily had to rely to a significant extent on the judgment and advice of others. Moreover, it is readily apparent that Mr Foster had a strong commitment to occupational health and safety and afforded it a high priority in carrying out his responsibilities in the short period between March 1998 and 17 July when the incident occurred. 621 We would assess the seriousness of the offences in these appeal proceedings as considerably greater than those in Morrison v Powercoal. However, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant: WorkCover (NSW) v Walco Hoist (No 2) (2000) 99 IR 163. In our view, in this case, Mr Romcke's personal culpability is markedly less than that of NWCC. Although it is true that Mr Romcke was present and involved in the planning of the development of the mine, was aware of the risk of inrush of water from the old workings, and failed to be in possession of all available information regarding disused excavations or workings in the vicinity of the mine, the extent to which he was involved in the actual commission of the offence was significantly limited. Although he has been found guilty by virtue of the deeming provisions of s 50(1), his criminal culpability must be regarded as diminished by virtue of the fact he left the role of mine manager with NWCC on 28 October 1994. 622 Moreover, Mr Romcke has an otherwise unblemished record (with a relatively long standing role in mine management positions), was found to be a person of good character, conscientious and committed to issues relating to workplace safety, and Staunton J specifically found that there was no need for specific deterrence in his case. No challenge was made to this finding. 623 In re-sentencing Mr Romcke, we have given serious consideration to rejecting counsel's submissions concerning s 10 due to her Honour's findings in the sentencing judgment at [235]-[236] that there was no evidence of contrition on Mr Romcke's part, and that Mr Romcke accepts little, if any, responsibility for what has occurred. However, notwithstanding that in most cases lack of contrition would make a significant difference, when one looks at the true extent of the objective and subjective factors in this case, as we have, we do not think that contrition should be the determinative factor (particularly when re-sentencing on appeal). 624 Finally, we note the appellants' (including Mr Romcke's) submissions on appeal that Staunton J had failed to give proper weight to the DMR's role in providing the wrong information to the appellants. Mr Romcke submitted that Staunton J had, misguidedly, attributed to the defendants all the responsibility for the inrush in circumstances where the DMR escaped prosecution. 625 In Nesmat Pty Ltd v WorkCover (NSW) (1998) 87 IR 312, a Full Bench of the Court considered that the absence of prosecution against the other parties upon whom a defendant had reasonably relied meant that the sentence imposed upon the defendant may give rise to a justifiable sense of injustice. We adopt the analysis of Nesmat and Wong v Melinda Group Pty Ltd (1998) 82 IR 118 in WorkCover Authority v McDonalds at 437 which was affirmed by the President in Walco (No 2) who stated at [33]: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.

[575]

(3) In relation to Mr Robinson, we tend to the view he should have his costs of the appeal against the judgment and orders of Staunton J and at first instance. JUDGMENT OF MARKS J 633 In these proceedings, I have had the advantage of reading the majority judgment of Walton J, Vice President, and Boland J in draft. I am indebted to their Honours for the comprehensive manner in which that judgment deals with all of the issues in the proceedings, including relevant factual material. This has saved me from dealing with many matters in some detail and I shall refrain from setting out all of the factual background that applied to the proceedings. It will be sufficient, therefore, to deal only with those particular factual matters that are relevant for the purposes of my judgment. 634 I should state that there are many matters that are dealt with in the majority judgment with which I am in complete agreement. This includes the material dealing with the validity of the commencement of the proceedings, the unavailability of the plea of autrefoit acquit and their Honours' discussion of the provisions of s 49A of the Occupational Health and Safety Act 1983 ("the Act"). 635 I commence by making some observations concerning the formulation of the charges brought by the prosecution against each of the defendants. For this purpose I need to make reference, albeit briefly, to some background factual material: 1) The defendant, Newcastle Wallsend Coal Company Pty Ltd ("NWCC") was granted a coal lease to the Gretley mine in 1994. That company was wholly owned by the defendant Oakbridge Pty Ltd ("OPL"). NWCC had obtained maps and other information from the Department of Mineral Resources that indicated the position of an abandoned coal mine near the Gretley mine. Those maps were incorrect and the abandoned coal mine was in fact much closer to the proposed Gretley mining operations than had been envisaged by anyone associated with either of the corporate defendants. They had determined that they would only conduct mining operations at the Gretley colliery in circumstances where there was a 100-metre barrier between their operations and what they thought was the extent of the abandoned coal mine. 2) At all times, these defendants knew that the abandoned coal mine was full of water and that if its area was breached then this would create a dangerous situation. They had determined that once they had reached a point that was 50 metres from what they thought was the boundary of the abandoned workings, they would undertake a drilling program to endeavour to locate them accurately. 3) By 29 October 1996, the mining operations had in fact come within 50 metres of the old abandoned workings.

[586]

637 As against each of the corporate defendants with respect to the breaches of both ss 15 and 16, three charges were levelled that differed substantially by reference to the period covered in each of the three charges, as well as some matters of details. So that the discussion that follows may be understood, I set out below in tabular form each of the charges including the particulars of the charge brought against the defendant NWCC under s 15. This document substantially reproduces part of a document handed up by Mr Hodgkinson SC, counsel for the corporate defendant in the appeal proceedings. The charges are representative of the charges under ss 15 and 16 of the Act brought against both corporate defendants. It is part of Annexure A to the majority judgment. Summons Prosecution Summons Prosecution Summons Prosecution 3198/2000 (Night Shift) 3199/2000 (System of Work) 3200/2000 (Planning, Research and Assessment) THE CHARGE: On 13 November 1996 and 14 November 1996 at the Gretley Colliery, Bulkara Street, Wallsend, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular

[589]

And the proceedings in respect of the offence are instituted pursuant to Section 49(4) of the Occupational Health and Safety Act 1983. The particulars of the charge are: The particulars of the charge are: The particulars of the charge are: 1. The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973, whereas the lease was granted pursuant to the Mining Act 1992. 1. The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973, whereas the lease was granted pursuant to the Mining Act 1992. 1. The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973, whereas the lease was granted pursuant to the Mining Act 1992. 2. For the purpose of the Coal Mines Regulation Act 1982, the defendant was the owner of the Gretley mine. 2. For the purpose of the Coal Mines Regulation Act 1982, the defendant was the owner of the Gretley mine 2. For the purpose of the Coal Mines Regulation Act 1982, the defendant was the owner of the Gretley mine 3. The defendant was the operator of the Gretley mine. 3. The defendant was the operator of the Gretley mine. 3. The defendant was the operator of the Gretley mine. 4. The defendant employed 4. Between about 16 September 1996 and about 13 November 1996 the defendant employed 4. Between about 22 March 1994 and 14 November 1996 the defendant employed Darren Wayne Atkins, Edward Samuel Batterham, Dallas Bellamy, Clive Arthur Bernard, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, Bernard Francis Brown, Alistair Buchanan McLean, Wayne Charles Nicholls, Ian Robert Nunns and Barry Neville Stewart ("the employees") at the Gretley mine Darren Wayne Atkins, Edward Samuel Batterham, Dallas Bellamy, Clive Arthur Bernard, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, Bernard Francis Brown, Alistair Buchanan McLean, Wayne Charles Nicholls, Ian Robert Nunns and Barry Neville Stewart ("the employees"), at the Gretley mine. Edward Samuel Batterham, Frederick Jay Franklin and Wayne Charles Nicholls ("the employees") at the Gretley mine on the night shift of 13 November 1996 and 14 November 1996. 5. On or about 6 September 1994 an application was submitted to the Department of Mineral Resources ("the Department") being an "Application for Approval to Use the Miniwall Mining Methods for Panels MW39 to MW45". On or about 27 October 1994, a redrawn plan was forwarded to the Department. 6. The Application was approved on 5 January 1995 7. On or about 11 August 1995, a variation was submitted to the Department being a "Variation of Approval to Extract Miniwall Panels MW39 - 45". 8. The Variation was approved on 1 September 1995. MW 44 - 45 later became MW 50 -51 ("50/51 panel"). 5. There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. 5. There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. 9. There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal mine workings including the Young Wallsend coal workings. 6. The employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of the Gretley mine call 50/51 panel. 6. Between about 16 September 1996 and about 13 November 1996 the employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of the Gretley mine called 50/51 panel 10. Between 16 September 1996 and about 14 November 1996 the employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in 50/51 panel 7. 50/51 panel was being developed in the direction of the Young Wallsend coal workings. 7. 50/51 panel was being developed in the direction of the Young Wallsend coal workings 11. 50/51 panel was being developed in the direction of the Young Wallsend coal workings. 8. The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. 8. The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. 12. The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel 9. The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. 9. The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. 13. The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. 10. On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. 14. On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. 11. The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. 15. The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. 12. On 14 November 1996, Mr Batterham suffered fatal injuries as he was swept away and drowned by the inrush of water. 16. On 14 November 1996, Mr Batterham and three other mineworkers suffered fatal injuries as he was swept away and drowned by the inrush of water. 13. On 14 November 1996, Mr Nicholls and Mr Franklin were exposed to the risk of injury. 13. On 14 November 1996, Mr Nicholls and Mr Franklin and two other mineworkers were exposed to the risk of injury. 14.The defendant failed in any or all of the following aspects: 10. The Defendant failed in any or all of the following aspects: 10. The Defendant failed in any or all of the following aspects: (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (b) Allowing the operation and use of the continuous miner at the face of "C" heading (b) Allowing the operation and use of the continuous miner at the face of "C" heading (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings (d) A failure to ensure that there was any, or any adequate, barrier between where the employees were working and the Young Wallsend coal workings (d) A failure to ensure that there was any, or any adequate, barrier between where the employees were working and the Young Wallsend coal workings (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings including Young Wallsend coal workings (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings including Young Wallsend coal workings (f) A failure to test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings (g) Allowing mining operations to proceed in 50/51 panel without draining the Young Wallsend coal workings. (h) A failure to investigate, adequately or at all, the Deputies written reports on 1 November 1996, 4 November 1996 and 13 November 1996 and two oral reports on 4 November 1996 (i) A failure to inform Deputies, the employees and other mine workers that 50/51 panel was heading towards the Young Wallsend coal workings (j) A failure to inform Deputies, the employees and other mine workers that the Young Wallsend coal workings were full of water and under a head of pressure (k) A failure to instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. (a) failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings including Young Wallsend coal workings. (b) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on any of the mine plans. (c) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Application submitted to the Department on or about 6 September 1994. d) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the redrawn plan, which was forwarded to the Department on or about 27 October 1994. (e) failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Variation submitted to the Department on or about 11 August 1995. (f) A failure to undertake planning by way of a risk assessment for the development of the Gretley mine. (g) A failure to plan by way of risk assessment for the development of 50/51 panel. (h) A failure to carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. (i) A failure to plan by means of test drilling, to establish the location and the extent of the Young Wallsend coal workings, prior to the development of 50/51 panel (j) A failure to ensure such steps were taken as may be necessary to prevent inrush of water and/or dangerous gases (f) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees (l) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees 15. There was a causal nexus between the risk to the health, safety and welfare of employees as dealt with in paragraph 5 and any, or all, of the defendant's failures as dealt with in paragraph 14. 11. There was a causal nexus between the risk to the health, safety and welfare of the employees as dealt with in paragraph 5, and any, or all, of the aspects of the defendant's failures as dealt with in paragraph 10 19. There was a causal nexus between the risk to the health and safety of the employees as dealt with in paragraph 9 and any, or all, of the aspects of the defendant's failures as dealt with in paragraph 18.

[590]

638 It is necessary to examine each of the charges and the particulars and compare them. It is convenient to commence with the planning, research and assessment charge that extends during the period 22 March 1994 and 14 November 1996. This is to be contrasted with the system of work charge that specifies a period between 16 September and 13 November 1996. There is an allegation that during the respective periods, of which there is some overlap, there was a failure to ensure the health, safety and welfare of the same named employees. The third charge, the night shift charge, is confined to the period 13 and 14 November 1996 and only three employees are named, all of whom are also named in the other two charges. 639 Particulars (1) to (4) contained within each of the charges are, for all intents and purposes, identical save for the dates in particular (4) and the named employees, which replicate the dates and employees referred to within each charge proper. 640 In the planning, research and assessment charge, there is a particular that refers to the making of an application for mining. Apart from that, paragraph (9) of that charge replicates paragraphs (5) of each of the other two charges. Furthermore, paragraphs (11) to (13) of the planning, research and assessment charge are in identical terms to paragraphs (7) to (9) of the other two charges. Each of the night shift and planning, research and assessment charges particularises the holing in which occurred on 14 November 1996. The system of work charge does not refer to this. However, given the remaining particulars and given the material that preceded that part of the particulars, it is clear that the allegation contained within the system of work charge must be based upon what occurred in the holing in incident. 641 There is then a continued factual narration in the planning, research and assessment charge and the night shift charge that deals with the circumstances of what occurred on 14 November 1996 and contains names of affected employees. There is no such particularity in the system of work charge. 642 The remaining particulars, apart from an allegation of causal nexus that is common to each of the charges, deal with specific allegations of the way in which the defendant is said to have breached its statutory duty. It is necessary to consider each of these particular allegations in the context of each of the charges. 643 It will be observed that particulars (a) to (e) in both the night shift and system of work charges are identical. There are some additional particulars contained in the system of work charge. It is not necessary to deal with particulars (g) and (h) because they were not found to be proven. Particular (f) is in similar terms to particular (e) in that the maintenance of an adequate barrier from the old coal mine workings must involve the location of those workings as referred to in particular (f). Particulars (i) to (k) refer to a failure to inform persons working at the mine that the operation was "heading towards" the abandoned workings, those workings were full of water etc and that they should be vigilant to look for signs of water. These are allegations that are not contained within any of the other charges. It is not necessary to refer to particulars (f) of the night shift charge and (l) of the system of work charge because these were also found not to have been proven. Paragraphs (15) and (11) respectively of these two charges and paragraph (19) of the planning, research and assessment charge are in identical terms, that is a broad allegation of a causal nexus between the risk and the conduct of the defendant. 644 The planning, research and assessment charge contains particulars that are not found in the other charges. It is not necessary to deal with particulars (f) and (j) as these were found not to be proven. Particulars (a) to (e) go to the failure to locate with precision the old abandoned workings. Each one is, in my opinion, a variation on the other as to a matter of detail only. For example, particular (a) refers to research that should have been undertaken to locate those old workings. Particulars (b), (c), (d) and (e) all refer to a failure to accurately depict the location of the old workings on the mine plans generally and at particular stages when plans and variations were submitted. 645 Particular (i) is the same as particular (e) of the night shift and system of work charges. This leaves, therefore, particulars (g) and (h) of the planning, research and assessment charge which allege a failure to plan by way of risk assessment generally with respect to that area and a failure to carry out an assessment of risks in particular by reference to inrush of water and/or dangerous gases. 646 If one considers, therefore, all of the three charges, the periods covered and the particulars, it will be seen that there is a great deal of overlap not only as to dates but also as to the allegations made. 647 No explanation was proffered by the prosecution as to why it sought to formulate the charges in this way. This multiplicity of charges was levelled against each of the corporate defendants with respect to each of the s 15 and s 16 prosecutions brought against each of them, accounting for a total of 12 charges against both corporate defendants. The same multiplicity of charges was levelled against the personal defendants. In addition to the two corporate defendants, there were eight personal defendants. There was a total of 52 charges in all with which Staunton J had to deal. A Multiplicity of Charges 648 Multiple contraventions of a provision of the Act are permitted by reason of s 49A. The provisions of that section and a discussion about it commence at [107] of the majority judgment and it is not necessary that I repeat any of that material. I do, however, refer in particular to the extract of the judgment of Haylen J in Coombes v Patrick Stevedore (2002) 118 IR 401, which is contained within [108] of the majority judgment. That extract makes it clear that the purpose for the introduction of s 49A was to avoid the technical considerations that arose from the Boral judgment discussed at [111] and following of the joint judgment. That is, in order to avoid debate about whether each and every breach of a particular contained within s 15(2) of the Act constituted a separate offence and had to be the subject of a separate initiating process, s 49A permitted all breaches arising from the same factual circumstances to be charged as a single offence. As I understand the purpose for the introduction of the s 49A into the Act, it was to enhance a more simplified method of initiating prosecutions under the Act. It was not intended to render prosecutions more complicated. It was not intended, in my opinion, to allow the proliferation of charges and particulars as is found in these proceedings, reference to which I shall return later in these reasons for judgment. 649 Perhaps with some degree of prescience for these proceedings, I discussed the question of multiplicity and judicial attitudes to the unnecessary multiplication of charges in WorkCover v Re-car Consolidated Ind (1999) 88 IR 173. At 189 and following I said: "In his submissions Mr Phillips relied in particular on some observations made by Hunt CJ at CL in the New South Wales Court of Criminal Appeal in R v Mai & Anor (1992) 26 NSWLR 371. A provision of the Commonwealth Customs Act had made it an offence of being in possession or attempting to obtain possession of prohibited imports. The defendant had been charged with both possession and seemingly on the previous day attempted possession, on virtually the same facts. In the course of his judgment (with which Enderby and Allen JJ agreed) his Honour said: 'The attempted possession charge, although technically referring to a different day, is virtually based upon the same facts. It is difficult to imagine how it could ever be proper for the Crown to charge an accused with either possession or attempted possession separately for each successive day that the single offence continued. I am frankly not impressed by the suggested distinction that one charge is for actual possession and the other is for attempted possession, when the latter was also available in relation to the first charge - so that the intention is the same in each case. The jury were correctly directed that they may take Mai's custody of the block the next day into account when determining whether he had the common purpose with Tran to possess the heroin upon which the possession charge was based. In my view, the additional charge was not justified in this case.' Fifteen years ago, this Court said that there was no sound reason why separate charges should be laid under s233B where they are based on the same facts: R v Router (1977) 14 ALR 365 at 377. In Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; 82 ALR 217; 35 A Crim R 382 (another s233B case), the High Court reinforced that view. They said (at 3; 220-385): '... If both charges relate to the one set of facts and the only issue appears to be the accused's knowledge of what is in his possession, the preferable course is to charge the second count in the indictment as alternative to the first count: cf R v Router (1977) 14 ALR 365 at 377.' The matter was, it seems, not explored further in the High Court because the sentence imposed on the second count was made concurrent with that imposed on the first count. From the Crown's spirited justification of the practice of double charging demonstrated in the present case, it unfortunately appears that the Commonwealth prosecution authorities are unwilling to accept the continued disapproval of that practice indicated by the courts. In my view, trial judges should be firm in rejecting such a practice where in reality the additional charge is based upon the same facts. It is unlikely to cause prejudice to an accused if the second count is amended during the course of the trial to become an alternative to the first. If the Crown refuses to amend, the judge has power to stay the indictment so far as the second count is concerned, upon the ground that the prejudice to which the accused is exposed of being convicted upon both is unacceptable because of the reasonable possibility that he will suffer greater punishment than would be warranted if he were convicted upon only one: cf Barton v The Queen (1980) 147 CLR 75 and Barron v Attorney-General for New South Wales (1987) 10 NSWLR 215. It will be for the judge in each case to determine whether the decision to grant such a stay will produce such prejudice as to require also the discharge of the jury in relation to the remaining counts. In my respectful view, the judge in the present case should have required the Crown to amend the second count by making it an alternative to the first and, in the event of the Crown's refusal to do so, he should have stayed the indictment so far as the second count was concerned. There would, however, have been no prejudice in this case of the kind which would have warranted the discharge of the jury in relation to the other charges. The judge's refusal to require the Crown to amend was, nevertheless, a discretionary decision for the judge to make and nothing has been shown to suggest that this exercise of his discretion led to an injustice to Mai such as to warrant this Court interfering with that decision." (at 386-387). There is no doubt that as a superior court of record this Court has an inherent or implied jurisdiction to stay its proceedings for abuse of process. Observations contained within the joint judgment in Wallace v The Queen previously referred to must cast doubt on the approach of Hunt CJ at CL in R v Mai . At paragraphs 30 to 31 their Honours said: '30. The decision about what charges should be laid and prosecuted is for the prosecution ( Maxwell v The Queen (1996) 184 CLR 501 at 512 per Dawson and McHugh JJ, 534 per Gaudron and Gummow JJ.) Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily. 31. There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose cf Williams v Spautz (1992) 174 CLR 509. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni (1981) 147 CLR 383, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.' It seems from what was stated succinctly by their Honours that prima facie no complaint can be levelled where a prosecutor seeks to cover the totality of criminal conduct arising out of one event or a series of events where the various offences charged contain different elements. Such is the case here. The only caveat is that charges should not be multiplied unnecessarily. It seems to me that once it is acknowledged that all of the material contained within s15(2) is capable of creating and does in fact create different offences, the laying of multiple charges becomes more explicable. While the genesis for the laying of the charges can be sheeted home to the one event, there are nevertheless different elements in each of the three remaining charges, the nature of which I have already described. Whilst these differences may include a degree of subtlety, I am not persuaded that the existence of concurrent charges in the circumstances of these proceedings constitutes an abuse of process or that I can accuse the prosecutor of having multiplied the charges unnecessarily." (pp 189 - 191)

[591]

The reference to Wallace v the Queen is incorrect. The reference should have been Pearce v The Queen (1998) 194 CLR 610. 650 What I had in mind in the last paragraph extracted above are circumstances that might be illustrated by a hypothetical situation. Assuming, in a factory, the factory owner installs machinery that is not adequately guarded and is therefore intrinsically unsafe for anyone to use. Assuming also that there is employed to operate that machinery a person who is neither trained in the safe operation of the machinery (assuming this to be possible), instructed about the dangers associated with the use of that machinery, and is not supervised in any way in the use of the machinery. Assume also that the safe operation of the machinery might be enhanced by the provision of some form of safety equipment such as gloves and this equipment is also not provided. In these circumstances it would, in my opinion, be appropriate for a prosecutor to bring proceedings against the employer under s 15 of the Act alleging separately and specifically not only the intrinsically unsafe equipment but also the failure to train, instruct, supervise and make available safety equipment. All of these matters describe the totality of the criminality of the conduct of that hypothetical employer. It is in this sense that it cannot be asserted that there is an unnecessary or inappropriate multiplicity of charges. It is in this sense that the existence of concurrent charges would therefore be seen to be appropriate and which would not in any way call for any adverse comment by any judicial officer. These are, in my opinion, the circumstances contemplated by the legislature when s 49A was introduced into the Act. That is, more than one contravention of s 15 will have arisen out of the same factual circumstances and may be charged, within the one set of proceedings, as separate offences. 651 However, as I shall demonstrate, the circumstances which I have referred to in the hypothetical example above are relevantly distinguishable from those which apply in the context of these proceedings and do offend against the concerns express by Hunt CJ at CL in Mai and the admonition of the High Court in Pearce that charges should not be multiplied unnecessarily. 652 In my opinion, the issue should be determined by reference to good common sense and by considerations of what is fair in all the circumstances. This approach was espoused by Lord Morris of Borth-y-Gest in Director of Public Prosecutions v Merriman at p 593 his Lordship said: "The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery CJ in a case where it was being considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 2 WLR 293, 298. I agree respectfully with Lord Widgery CJ that it will be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances. In the present case it was not at any time suggested, and in my view could not reasonably have been suggested, that count 1 was open to objection because evidence was to be tendered that the respondent stabbed Mr Parry more than once." 653 For reasons that will become clear, I intend approaching this aspect of the proceedings in a manner that is different from that adopted in the majority judgment. I shall do so with the benefit of hindsight, by reference to the findings of Staunton J in those judgments of her Honour that are under appeal. I should add that I agree with the majority judgment and with the approach adopted by Staunton J at first instance that it would not have been appropriate at the commencement of the proceedings to have compelled the prosecution to elect as to which of the charges and as to which of the particulars within the charges the prosecutor would be relying upon. However, for reasons that I shall shortly develop, that situation changed at least by the end of the trial before Staunton J. 654 It is now necessary to deal with a number of factual findings and their impact upon the proceedings and the manner in which they were constituted by the way in which the summonses were drafted. I agree with the conclusion expressed in the majority judgment that there was no risk to the health and safety of persons so as to give rise to a breach of ss 15(1) and 16(1) of the Act until a barrier of 50 metres between the mining operations in the Gretley mine and the abandoned workings had occurred. This may be dated as at 29 October 1996 for the reasons expressed in the majority judgment. However, I respectfully disagree with the consequences that such a finding has on the proceedings. The Legislative Framework 655 Before considering this matter, I need to refer briefly to the legislative framework in which ss 15 and 16 operate and the nature of those offences. They have been described variously as imposing either strict liability or absolute liability. The issue is to be determined as a matter of statutory construction, including the consequences and the impact upon the availability of defences and that which the prosecution needs to prove. There is a useful discussion of the distinction in the judgment of Hunt CJ at CL in the New South Wales Court of Criminal Appeal in Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120 commencing at p 129. 656 The matter was referred to succinctly by Dawson J in the High Court of Australia in He Kaw Teh v The Queen (1985) 157 CLR 523. At pp. 594-5 his Honour said: "Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly. See Lim Chin Aik v. The Queen [1963] AC 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders." 657 Since coming into effect, it has been accepted that ss 15 and 16 create offences of absolute liability in that it is not necessary for the prosecution to prove any "guilty knowledge" or intention to breach those provisions. This matter is fully discussed in the majority judgment commencing at [213]. 658 The provisions of ss 15(1) and 16(1) are framed in terms directed to a positive obligation to bring about a particular state of affairs. That is, one which has been described as guaranteeing the health, safety and welfare at work of employees (s15(1)) and guaranteeing that persons who were not employees are not exposed to risks to health or safety from the conduct of an undertaking while at a specified place of work (s 16(1)). By contrast, s 15(2) details a number of circumstances by which an employer may be said to have contravened s 15(1) framed by reference to a failure to comply with or provide for certain matters. It may be observed that ss 15(1) and 16(1) are framed in a manner that is not usually encountered in the area of criminal law, including crimes created by statute. The more usually encountered situation is that which is found in s 15(2). This latter situation is of the kind dealt with by the High Court of Australia in He Kaw Teh. It is directed to a particular situation by which an offence is created. The contrast is with a failure to ensure in the sense of guaranteeing that a particular state of affairs exists. 659 The next point follows on from the previous point. S 15(2) in general terms and s 16(1) in specific terms refer to risks to health and risks to health and safety respectively. These provisions have been construed since the legislation commenced operation as being directed to circumstances where a risk to health and safety occurs. This seems clear from the provisions of ss 15(2) and 16. In applying s 15(2) to the manner in which s 15(1) operates, it follows as a matter of logic that there will have been a failure to ensure the health, safety and welfare of employees if there is a risk to the health or safety of an employee as opposed to the actual sustaining of some deleterious impact upon the health of an employee. 660 The obligations created by ss 15 and 16 are imposed on employers and self-employed persons. They are required to ensure, in the sense of guarantee, a particular state of affairs. Without taking into account any defences available by reason of s 53 of the Act, it is necessary, as an essential ingredient of a breach of these provisions that the failure to ensure that the relevant state of affairs is maintained must be brought about by the employer or self-employed person. This has been described as a requirement that there be a causal nexus between the breach and some conduct whether by way of positive act or omission on the part of a defendant. Obviously, if beyond any matter over which a defendant could exercise any control or about which a defendant could possibly have some understanding as to its occurrence, circumstances arise which bring about a risk to health or safety, it might be said that there was no causal nexus between any conduct of the defendant either by way of act or omission and the creation of any such risk. An obvious example is a risk of injury created to an employee by a terrorist act unrelated in any way to any activity or failure to act on the part of the defendant and about which the defendant could not have possibly had any knowledge or with respect to which the defendant could not be said to have failed to take any preventative action. This observation is made in a general sense. Obviously, there may be circumstances in which the creation of a risk to health even at the hands of terrorists may be said to have brought about a breach of these provisions as, for example, where a warning had been given by authorities and which had been relevantly ignored by a defendant. 661 I mention again that the observation made above is made in a general sense. It does not take into account the possible difficulties in the construction and application of the legislation adverted to by Basten JA in Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172. At [146], his Honour said: "The jurisprudence in the Industrial Court has given significant weight to the fact that reasonable practicability and questions of control are dealt with by way of the defence provided to the employer by s 53. Although the structure of the legislative scheme is a significant consideration, it does not dictate the conclusion that the liability imposed by ss 15 and 16 is in each case absolute. Taken literally, s 15 requires an employer to ensure that workers do not fall sick, suffer strokes or heart attacks or die at work, even for reasons entirely unrelated to the work environment. That construction is not adopted, because it would not be sensible in the statutory context. Similarly, it appears that the obligation does not extend to the removal of risks which are so remote as to be speculative. That exclusion might extend to the risk of events which, though remote, are statistically predictable. But if the obligation is not taken to include its full literal extent, by what principle is that construction achieved? Whether the obligation extended to conduct of which the employer was not aware and of which it could not be said that it should reasonably have been aware, is a question of construction to be determined at least with reference to the principles discussed in the cases referred to above. The Court was not taken to any authority in the Industrial Court which addressed those principles." Risk an Essential Ingredient

[593]

663 These observations are consistent with the approach generally adopted by the authorities when dealing with legislation designed to enhance industrial safety. For example, in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, Dawson, Toohey and Gaudron JJ referred to a machine as being a dangerous part of the workplace if it was "a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur" citing with approval an extract from Walker v Bletchley Flettons Ltd (1937) 1 All ER 170 at 175. 664 In Sheen v Fields (1984) 51 ALR 345, Gibbs CJ in the High Court of Australia, when dealing with legislation which, admittedly, referred to the "likelihood of injury", accepted the view that "likelihood" meant "something less than probability but more than a remote possibility." In Waugh v Kippen (1986) 160 CLR 156, Gibbs CJ, Mason, Wilson and Dawson JJ in the High Court of Australia construed a phrase in industrial legislation "likely to cause risk of injury" as requiring an employer "to protect an employee from the risk of injury by preventing a situation from occurring where such a risk is likely." (At p 166). 665 I would conclude, therefore, that the appropriate approach in assessing whether there has been a breach of the overall and absolute obligation created by s 15(1) or a breach of the more specific obligations created by ss 15(2) and 16(1), is to look to a risk to health and safety that exists in a real and effective sense rather than a risk that is "remote" or "potential". "Clear and present danger" is probably too strong in describing what is required, but it provides an example of a risk that is obviously within these provisions. 666 It is an essential ingredient of each of the offences under ss 15 and 16 of the Act that the defendant shall have failed to ensure the health, safety and welfare etc of the persons protected by each of the sections. It is only at that stage that any criminality arises under either of those sections. Unless and until there exists a risk of the requisite kind as I have described it, which is relevant for the application of these sections, no breach of either of these sections can have been committed. This is because an essential legal and factual ingredient of these offences will be missing. Absent the presence of any such risk, there can have been no failure to ensure as contemplated by the sections. Until 29 October 1996 what existed was a potential for a breach of ss 15 and 16. Up to that date, there existed a safe barrier between the mining operations and the abandoned workings. Accordingly, so much of the charges, being the planning, research and assessment charges that alleged a breach in a period prior to 29 October 1996 of either ss 15 or 16, must fail because there did not then exist any circumstances that created a breach. Of course, all of the preparatory work undertaken by the corporate defendants prior to that time will explain how it is that the defendants came to breach the relevant provisions, such breach not occurring prior to 29 October 1996. It is information that may be proffered by way of explanation so as to evaluate the objective seriousness of the offence and, if relevant, any question of mitigation. 667 The same situation would apply to a motor vehicle driver found guilty of driving a motor vehicle while exceeding the prescribed concentration of alcohol in his or her blood. The fact that that driver may, some hours earlier, have consumed an excessive amount of alcohol at a hotel would not, per se, constitute any offence by reference to the charge laid. In the same way, that driver in making his or her way from the hotel to the car, even with the intention of driving it, would not have committed that offence prior to entering the vehicle. Another example applies in the case of a builder who dispatches some employees to work on the roof of a building under construction. Assume that the employer fails to send with the employees any safety equipment in the nature of hard hats, safety harnesses and the like. Whilst travelling to the site there would not be any breach of the Act. The situation will differ upon arrival at the site depending upon whether there was any protocol in place that would prohibit the employees concerned from commencing work without the authority of another person. If so, no breach may have been committed until authority is given to the employees concerned, assuming that they were aware of the protocol. Once, of course, the employees commenced to undertake their work and, in all probability, entered the building site itself without a hard hat etc, a breach will have occurred. 668 In my opinion, the same situation applies in the context of these proceedings; that is, if the defendants committed any crimes constituted by breaching ss 15 and 16 of the Act, they were committed on and after 29 October 1996. In the absence of any particular conduct of the defendants between 29 October 1996 and 14 November 1996 that would, of itself, constitute a separate and distinct breach of s 15 or s 16 as particularised, it is my opinion that the criminal conduct of each of the corporate defendants did not alter in any relevant sense. That is, between 29 October 1996 and 14 November 1996 the criminal conduct of the defendants may be seen as the continuing course of mining operations in a direction towards the abandoned workings. I shall seek to demonstrate that this is the situation by reference to the findings of Staunton J. Planning, research and assessment charge 669 I commence a consideration of the planning, research and assessment charge as against the defendant NWCC by observing that there having been no criminal conduct prior to 29 October 1996, this would lead, in my opinion, to all of the allegations contained within particulars (a) to (e) being dismissed because they relate to matters which occurred prior to 29 October 1996. No breach occurred until there was a risk to health and safety created when the 50-metre barrier was breached. 670 As I have previously indicated particular (f) was dismissed. It is next necessary to deal with the allegations of a failure to plan by way of risk assessment and carry out a risk assessment as contained within particulars (g) and (h). Before dealing with this aspect, I should state that there can be no doubt, as was accepted by Staunton J, that when planning for the mining operation the defendant was aware of the existence of the abandoned workings and that they were full of water. The only reason why the defendant failed to accurately depict the location of the old workings was that it relied solely on maps produced to it by the Department of Mineral Resources as accurately depicting the location of the abandoned workings. Those maps were wrong. 671 Staunton J commenced her consideration of these matters by noting that the defendant had carried out a number of risk analyses and risk assessments concerning a number of matters and was familiar with the process. These included a risk assessment for dewatering another abandoned area. Even allowing for the defendant's protocol of endeavouring to leave a sufficient barrier between where its mining operations were being carried on and the old workings, as it knew their location, her Honour concluded that "given the nature of the risk, a proper and adequate risk assessment should have been undertaken in relation to the mining activity to be undertaken in 50/51 panel." With respect, such a hypothesis is postulated on the basis of "the nature of the risk" which was not known to the defendant. It is one thing to assign criminality to a failure to carry out a risk assessment in circumstances where it is appropriate that that should be undertaken, but here the failure can only be ascribed to the fact that the defendant did not know of the location of the abandoned workings. Accordingly, in the context of her Honour's reference to the awareness of the defendant of the risk assessment process and the need to undertake that process, it may be concluded that the only reason why a proper and adequate risk assessment was not carried out was that the defendant did not appreciate the location of the abandoned workings and their proximity to its mining operations. The converse conclusion is that if the defendant had known the correct location of the abandoned workings, it would have conducted a risk assessment. 672 Her Honour's reasoning led her to conclude that the failure of the defendant to undertake a risk assessment caused the risk to safety because if the risk assessment had been carried out, it would have caused the defendant to take such steps as would have ensured that it would have identified the correct location of the abandoned workings. Such a conclusion does not, in my opinion, follow logically from the manner in which her Honour approached this matter, nor does it of itself justify a conclusion that the failure to carry out a risk assessment at some time after 29 October 1996 in some way enhanced or increased the criminality of the defendant. There is no evidence that anything occurred prior to 14 November 1996 that should have alerted the defendant to the need to undertake a risk assessment directed at the location of the abandoned workings. 673 In addressing her Honour as to particular (h), counsel for the prosecutor asserted that there had been a failure to carry out an assessment of the risk to health, safety and welfare of employees in the event of an inrush of water and/or dangerous gases. It was said that before the inrush a risk assessment should have already identified what the crew involved in an inrush should do in that event. In this regard, the prosecutor relied upon the fact that one of the employees was requested to investigate the area from where the inrush had come and in doing so was overcome by dangerous gases. 674 In dealing with this matter, Staunton J referred to the fact that there was in existence an emergency procedure document a section of which dealt with what was to occur in the event of a major incident including explosion and inrush of water. It included the evacuation of the mine. Her Honour concluded, however, that "there is nothing in the document that I observed that is directed to the actual employees at the site of the major incident, telling them what to do in the event of an incident such as explosion or inrush of water." Her Honour then made a number of observations about the lack of evidence concerning this emergency procedure document and what was known about it and what steps were taken by or on behalf of the defendant after a safety audit was completed in October 1994. Her Honour concluded "But there was no risk assessment policy produced and no document dealing with emergency preparedness apart from the emergency procedure document already referred to." In particular, in connection with particular (h), her Honour said: "On the question of causation in relation to failure (h), I accept the proposition as advanced by the prosecution that, at the time of the inrush, the reaction of the crew who survived reflected their lack of knowledge about the old workings in their responses at the time of the inrush. That is, not knowing where the water was coming from and not realising the direction of the flow. I accept that the reaction of the crew who survived, notwithstanding the relative suddenness of events when the inrush occurred, was such as to leave them ill prepared as to what to do and uninformed as to the dangers they were confronting immediately following the inrush. That was particularly so in relation to Mr McCallum. In short, the emergency preparedness was inadequate and inadequately documented. As was said by the Full Bench in Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 at 72: 'The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe.'" 675 Earlier in her Honour's judgment, Staunton J had set out the relevant evidence concerning the inrush that occurred on 14 November 1996. In particular, her Honour summarised evidence given by Messrs Franklin, Nicholls, McCallum, Bernard and Pritchard. That evidence was to the effect that the miners who survived the inrush were in general terms in the crib room and witnessed a wall of water that caused the door of the crib room to burst open and the crib room to flood. The evidence is indicative that the persons concerned made efforts to locate the source of the water and to ensure that the area was evacuated. In particular, there was evidence that the employees concerned soon recognised the presence of methane gas and there is nothing in the evidence that is indicative of any failure on the part of any of the personnel or, indeed anyone else, to take any particular action with respect to the situation that had occurred. Nor was there any evidence that any particular action had been taken which was incorrect or inappropriate. 676 There was no evidence of which I am aware that would justify Staunton J in concluding that the failure of the defendant to undertake a risk assessment as alleged in particular (h) in fact impacted in any way upon any risk to the health or safety of the employees concerned at the time of the inrush. Certainly, there is no evidence that the lack of a risk assessment left the employees concerned "ill prepared as to what to do and uninformed as to the dangers they were confronting immediately following the inrush." Likewise, the fact that one employee, Mr McCallum, was dispatched into the mine to endeavour to locate the source of the problem has not been shown to breach any particular safety process associated with mining operations generally or, in particular, with respect to the particular situation. I conclude that there was insufficient evidence that "the emergency preparedness was inadequate and inadequately documented" in a way that created of itself any risk to the health or safety of the employees concerned. 677 Furthermore, it is axiomatic that any inferences which may be drawn or any findings which may be made that are adverse to a defendant in criminal proceedings dealing with matters integral to the prosecution case must be drawn or made on the basis of the criminal standard, namely beyond a reasonable doubt. This matter was referred to in the joint judgment of Gibbs CJ and Mason J (as his Honour then was) in the High Court of Australia in Chamberlain v The Queen (No. 2) (1983) 153 CLR 521. At pp 538-9, their Honours said: "As the Court in Reg. v. Van Beelen recognized (1973) 4 SASR, at p 379 there is little direct authority for the proposition that primary facts from which an inference of guilt is to be drawn must themselves be proved beyond reasonable doubt. In Moss v. Baines [1974] WAR 7, at p. 11 Burt J. accepted as correct the submission that 'every fact necessary to be proved to sustain proof beyond reasonable doubt of every element of the offence charged must itself be proved beyond reasonable doubt'. Perhaps some support for the same view is to be found in Reg. v. Stuckey (1959) 76 WN (NSW) 560. Irrespective of authority, for the reasons we have given, we consider that in principle that view is correct. If McEndoo v. The Queen (1980) 5 A Crim R 52 and Carn v. The Queen (1982) 5 A Crim R 466 decide the contrary we cannot accept them as correct. In the United States there is a conflict of authority on the question, and we do not share Wigmore's apparent preference for the view that it is only the whole issue (or the elements of the offence) that must be proved beyond reasonable doubt (Wigmore on Evidence, 3rd ed. (1940), vol. IX, at p. 324)." 678 This leads to a consideration of other matters considered by Staunton J in connection with this particular. Her Honour referred to the fact that a safety audit had been completed in October 1994 and said: "What was done by the defendant as a response to that audit is unclear, but again an inference can be drawn." Her Honour proceeded, in [565], to state: "First, there is no evidence to show that any steps were undertaken by the defendant subsequent to the safety audit and prior to the inrush to develop a plan and undertake any simulated emergency response in order to deal with a major incident such as an inrush (or explosion for that matter). There should have been, for two reasons. The first is that ongoing training of employees in simulated emergency response in the coal mining industry and the type of work undertaken would be essential. The defendant's own audit establishes that. Second, the presence of the Young Wallsend old workings in close proximity to planned mining activity in 50/51 panel should have heightened the awareness, in risk assessment terms, of the risk of inrush and the need to address that issue. One of the areas that would arise in considering that risk would quite properly be emergency preparedness." 679 Again, I refer to the requirement that such inferences must be established beyond reasonable doubt. There is no indication in her Honour's reasons for judgment that this has occurred. This is to be coupled with her Honour's reliance on the lack of evidence about what occurred. The fact that evidence about a particular matter has not been produced is not, of itself, evidence that will necessarily establish that particular matter as a fact. It is for the prosecution to adduce such evidence as is available and to establish that any inference that can be drawn has been established to the requisite standard. I disagree that particular (h) has been established to the requisite standard and that the requisite causal connection, as I have previously indicated, has been appropriately established. 680 I would dismiss so much of the charge as relies on particular (h). 681 This leaves for consideration particular (i). This refers to a failure to plan specifically by means of test drilling to establish the location and extent of the abandoned workings. It is described temporally by reference to the development of the 50/51 panel. It may be assumed that the development of the 50/51 panel had commenced before 29 October 1996. Accordingly, for reasons that I have previously advanced, this particular cannot succeed because it refers to a period prior to the time when the requisite risk commenced. This particular therefore must fail. System of work and night shift charges 682 I now turn to the two remaining charges, that is, the system of work charge and the night shift charge. Obviously the system of work charge needs to be circumscribed temporally so that it applies during the period 29 October 1996 to 13 November 1996 only. This is to be contrasted with the night shift charge, which applies over the period 13 November 1996 and 14 November 1996. Why the prosecutor chose to so divide the charges has not been explained. 683 It may be observed that apart from the time periods covered by each of the charges, there is a remarkable similarity. Indeed, much of the narrative is either in identical or similar terms. The system of work charge does not, however, plead the actual holing in. Whilst that is only specified in paragraph [10] of the night shift charge, it is obviously a factual matter that is at the heart of that charge. It is, indeed, the manifestation of the unsafe situation that prevailed as and from 29 October 1996 when the 50-metre barrier was breached. 684 Particulars (a) to (e) are common to both charges. Each of these particulars was found to be proven. 685 In considering these matters, it is necessary to have regard to a number of findings made by Staunton J that have not been challenged in any way. These include: (1) "There is little doubt in my view that any failure by the defendant in relation to the inadequacy of barriers in relation to mining activity in 50/51 panel arises directly…. from the incorrectness of the 'seam correlation' of the Young Wallsend old workings - and that in turn arises directly from the defendant's failure to properly research the location and extent of the Young Wallsend old workings." [642] (2) If the defendant had been aware of the precise location and extent of the abandoned workings…. "it would have allowed mining operations to proceed in 50/51 panel which, on all the evidence before me, would not have created the risk to safety as alleged….". This was because it always proposed a 50-metre barrier between its mining operations and the abandoned workings. (3) With respect to particulars (a) to (e)…."There is no evidence before me that would suggest that any of the above particularised failures would have arisen but for the defendants primary failure to properly research the location and extent of the Young Wallsend old workings. In other words, it is proper to infer, in my view, that assuming the defendants had properly researched the location and extent of the Young Wallsend old workings, they would have planned the mining activities in 50/51 panel to take account of them by taking the steps that the prosecution alleges they failed to do as part of this offence. That is, the defendant would have drilled ahead and left a barrier of at least 50 metres between its mining activity and the proven old workings. It would, if it considered it appropriate, have drained the old workings as it had done previously, except on this occasion it had considered and rejected the notion of draining the presumed old workings and determined to leave a barrier instead. As part of that activity, it would have planned its mining activity in 50/51 panel and the use of the continuous miner accordingly. These are all proper and, in my view, correct inferences that I am able to draw from the evidence before me both as to the defendants actions on prior occasions when approaching known old workings and its expressed intention in relation to the presumed old workings in the Young Wallsend and Borehole Seams as depicted in RT 523 Sheets 2 and 3. "For example, allowing the employees to work in the area of 50/51 panel and in particular C heading (alleged failure (a)) would not, of and by itself, constitute a failure on the part of the defendant when viewed against the risk identified. What gives that activity a particular dimension such that it constitutes a failure is that the defendant allowed employees to work in 50/51 panel against the backdrop of its reliance on Sheets 2 and 3, which were wrong." ([634,635]) (4) Particulars (a) to (f) inclusive are "derivative failures but failures nevertheless that arise from the defendant's primary failure to research the location and extent of the Young Wallsend old workings." [718] 686 In assessing the "criminality" of the conduct of NWCC in connection with particulars (a) to (f) of each of the system of work and night shift charges, it will be seen that Staunton J concluded that it was confined to, and resulted solely from, the failure of the defendant to identify and locate the abandoned workings. Accordingly, the allegations contained in these particulars should, in my opinion, be so confined. That is, while it may be concluded that the defendant was in breach of these particulars, as I believe it was, it will be necessary when considering the objective seriousness of the offence to take into account the findings of Staunton J about the factual matters that I have set out in [685] above. In summary form, her Honour concluded that if the defendant had been aware of the exact location of the abandoned workings, it would have been alive to the danger that working within a 50-metre barrier would have created and would, therefore, not have conducted itself in the manner alleged in these particulars. 687 The system of work charge contains additional particulars. Particular (f) alleges a failure to test drill or cause test drilling to be performed to locate the abandoned workings. 688 This particular was held by Staunton J to have been established as one that was "derivative" of the primary failure to identify and locate the abandoned workings. There is material in her Honour's judgment which is indicative of evidence before her Honour that the defendant in fact intended to drill ahead even within a few days of the incident of 14 November 1996, presuming that it had not occurred. In any event, even if the defendant had drilled ahead on the basis of expert evidence given by Professor Thomas: "there would have been no certainty, it seems to me, that it would have disclosed the absence of the presumed old workings. That is, if the defendants had maintained a minimum 10-metre bore hole in the direction of the presumed old workings at regular intervals along the floor of the work being undertaken in C heading (even allowing for the length of the drill) they would not necessarily have encountered a void sufficient to signify the old working unless they had drilled beyond the 18-metre interburden between the two seams." [656] Accordingly, the criminality associated with particular (f) is confined to and results solely from the failure to locate and identify the abandoned workings. 689 Particulars (g) and (h) were found by her Honour not to be proven. It is, therefore, necessary to consider the remaining particulars contained within the system of work charge. Her Honour dealt with the evidentiary material and her consideration of these particulars together. 690 There had been evidence of reports of water in the 50/51 panel area prior to the incident on 14 November 1996. Investigations undertaken by the defendant were carried out against the background of the presumed location of the abandoned workings. Her Honour noted that "There is no evidence before me to enable me to conclude with certainty that, apart from the Mine Managers and the Mine Surveyor, other mine officials including the Undermanagers and Deputies as well as the mine workers were ever informed about the presumed old workings in the Borehole Seam. If they had, whether it would have made a difference as to the way in which the reports of water were investigated in early November is not clear on the evidence." [690]. Her Honour noted that the amount of water and its presence was not considered "excessive or an immediate cause for undue alarm" having regard to the location of the abandoned workings. 691 In general terms, her Honour at [705] expressed a conclusion that in some way is at odds with the conclusion previously extracted about the knowledge of employees generally at the mine with respect to the existence of the abandoned workings. Her Honour said: "I am satisfied that the Deputies and the other mine workers (employees and non-employees) were informed and aware that the mining activity in 50/51 panel were heading towards the Young Wallsend old workings in the Young Wallsend Seam . In other words, they knew they were working towards those old workings where they presumed them to be. This information was contained in the mine and section plans concerning the Gretley mine and 50/51 panel in particular that were displayed in diverse locations around the mine where the miners would be able to read them as well as the section plans in the Deputy's pod within 50/51 panel that were available for the miners to read. As well, it is clear that the Check Inspector for the mine and the workplace delegates for the miners were advised by the Mine Manager of the presumed old workings in the Young Wallsend Seam." 692 As I understand her Honour's judgment, it was to the effect that there was general awareness on the part of the mine workers that the mining operation was headed in a general sense towards the abandoned workings, but not specific information concerning the precise and correct location of those workings. Again, this goes to the primary explanation for the breach, namely that of failing to locate and identify the abandoned workings. 693 Particular (k) refers to the failure to instruct mine workers to be vigilant in looking for signs of watermake whilst working in the area. 694 At [675] and following her Honour dealt in some detail with the evidence concerning the presence of water in the area from early November 1996. I have previously indicated that her Honour concluded that the amount of water was not considered excessive or ought not to have given rise to "immediate cause for undue alarm." Her Honour concluded that "the defendant did adequately investigate the reports of water in 50/51 panel as identified in the failure as particularised." The ultimate conclusion to which her Honour came, therefore, with respect to particular (k) is that the failure which her Honour found proven must be referrable to the presence of water on the assumption that the defendant knew of the exact location of the abandoned workings, which of course it did not. Again this particular as found proven by Staunton J is "derivative" of the failure to identify the location of the abandoned workings. 695 I would conclude, on the basis of the factual findings of Staunton J and the conclusions to which her Honour came, that the real and effective cause of the persons working in the mining operations being exposed to a risk to their health and safety, was the failure of the two corporate defendants to have identified the precise location of the abandoned workings. There is, in my opinion, no other conduct on the part of either corporate defendant which caused, contributed to or brought about the circumstances which gave rise to this tragic event. 696 Given the conclusion to which I have come that there was no particular conduct of any particular kind, nor any failure of any particular kind to do something on the part of either corporate defendant during the period 29 October 1996 to 14 November 1996, I am of the opinion that there is a duplication between all of the particulars (a) to (e) in both charges save that, for reasons that I do not comprehend, the system of work charge does not cover the period of 14 November 1996, the day of the incident. As nothing changed between 29 October 1996 and 14 November 1996, save for the holing in of the abandoned workings, there is no additional "criminality" for the period 29 October 1996 and 13 November 1996. That is, as at 29 October 1996 and up to and including 14 November 1996, the defendant continued with the mining operations as planned by it leading, inexorably, to the tragic event occurring on 14 November 1996. During this period, the defendant did not engage in any additional conduct or did not fail to do anything beyond and outside the course of conduct prevailing on 29 October 1996. There were no additional events nor was there anything specifically failed to be undertaken which was not referrable to the plan of action adopted based upon an erroneous understanding as to the location of the abandoned workings. The particulars (a) to (e) therefore cover and comprehend the one course of conduct. They were all included within each of these two charges. Throughout the course of the mining operations between 29 October 1996 and 14 November 1996, the corporate defendants were clearly in breach of the obligations imposed on them by ss 15 and 16 of the Act because during that period, there was a barrier between the area of the mining operation and the abandoned workings that was less than 50 metres. The same criminality applied throughout the whole of that period for the same reason. 697 Each corporate defendant was charged with such criminality based on particulars that, to the extent thus far considered, were identical but referrable to different periods of time. There is no suggestion that the prosecution was looking to have each corporate defendant penalised for some discrete period during the totality of this period, whether it be weekly, daily, hourly or whatever. Accordingly, the same criminality having been charged in the same manner creates a duplicity that, on the basis of the authorities referred to in the majority judgment, is impermissible. The elements of the offences that are relevant are not only the legal elements but, as is pointed out in the majority judgment, also the essential factual ingredients. The analysis that I have undertaken of the particulars of each of the offences leads me to conclude that there is a duplication of the essential factual ingredients involved with respect to these particulars. On this basis, having regard to particulars (a) to (e), it would have been appropriate for her Honour to have required the prosecution to elect which of these two charges it wished to prefer against the corporate defendants. 698 This leaves, then, particulars (f) and (i) to (k) of the system of work charge. Each of those was found by Staunton J to be derivative of, or associated with and referrable to, the failure to locate and identify the precise area of the abandoned workings. They add nothing, therefore, in the context of the criminality of the corporate defendants. 699 Even though there was impermissible duplication of charges, it is still necessary to determine whether any of the charges against the corporate defendants as particularised were proven. There can be no doubt that on 14 November 1996, there was a risk to the health, safety and welfare at work of employees of each of the corporate defendants. In terms of the requirements of s 16 of the Act there can likewise be no doubt that on that date there was a risk to the health and safety of persons not in their employment. Those risks arose out of the conduct by them of the mining operations as found by Staunton J and about which no issue has been taken on appeal. I repeat for completeness that that risk existed throughout the period 29 October 1996 to 14 November 1996. In terms, however, of the duplicity that I have held exists, on appeal it would seem preferable to determine the matter by reference to what occurred on 14 November 1996. As at that date, there can be no doubt that Staunton J was entitled to find that the night shift charge had been established by reference to all of the particulars (a) to (e) inclusive. The explanation as to why the employees and other persons had been allowed to work in that area, and that the mining equipment was operating in that area, and that an inadequate barrier had been established in that area, and that there had been a failure to carry out test drilling, etc, was the fact that at all times since they had commenced mining operations in that area, the corporate defendants were under the mistaken impression that the abandoned workings were at least more than 50 metres away from the location of the mining operation at that point. 700 On this prima facie basis, it would then have been necessary for the corporate defendants to have established any defences available to them under s 53 of the Act. 701 I agree with the majority judgment that Staunton J was correct to have found that s 53 defences were not available to these discrete charges for the reasons contained within the majority judgment. That is, I agree that Staunton J was entitled to conclude that the reliance by the corporate defendants on the maps and other material produced to them by the Department of Mineral Resources did not permit them to establish defences under s 53 of the Act on the basis of the evidence given in the proceedings, including the expert evidence. Penalty 702 This leaves for consideration the question of penalty. For the reasons which I have given I would have found that each of the corporate defendants was guilty of one breach of ss 15 and 16 of the Act, but for the single cause that work was carried out unsafely by holing in to the abandoned workings. As I am in dissent as to the overall determination of the appeal proceedings, I shall state my reasoning with respect to the sentencing process briefly. I would have applied the principle of totality to each of the s 15 and s 16 offences with respect to each of the defendants. Furthermore, I observe that the respective operations of each of the corporate defendants were intertwined, given the fact that one is the subsidiary of the other. In large measure, each corporate defendant is guilty of a breach of s 16 of the Act because of the presence of employees of the other in the course of the mining operations. This observation, of course, must be qualified by the presence of employees of a labour hire company. In this latter regard, there was however, a commonality of identity of each of those employees. 703 The maximum fine applicable to each corporate defendant for both offences was said by Staunton J to be $1,000,000. The maximum individual fine was $500,000. Having regard to the subjective matters referred to in the penalty judgment of Staunton J, I would have fined each corporate defendant the sum of $200,000 for each offence but reduced that aggregate of the fines overall to $300,000 by reference to the principle of totality. This would have resulted in a penalty of $150,000 for each corporate defendant for each of the two offences. Personal defendants 704 In the proceedings before Staunton J, the prosecution had charged eight personal defendants. The charges against five of the personal defendants were dismissed. Those who had been found guilty by Staunton J appealed. They are Richard Myles Porteous, Mark Robinson and Jonathan Erik Humphries Romcke. The majority judgment has reached the conclusion that the charges against Mark Robinson should be dismissed. Accordingly, it is not necessary that I deal with this appellant. However, I am required to deal with the appeals instituted by Messrs Porteous and Romcke. 705 Each was charged pursuant to s 50 of the Act, the terms of which are set out in [636] above. In general terms, I agree with the analysis of the provisions of s 50 and, especially, the non-applicability of a s 53 defence to proceedings brought under s 50, which are contained in the majority judgment. 706 However, having differed as to the temporal period during which breaches under ss 15 and 16 may have occurred, it is necessary that I deal with each of the circumstances of each of these personal defendants consistently with this conclusion. Mr Porteous

[594]

707 Mr Porteous was prosecuted on twelve charges. Each of them related to offences both under ss 15 and 16 of the Act against each of the corporate defendants with respect to the three types of charges levelled against each of the corporate defendants. Mr Porteous was found guilty of each charge, but only referrable to those particulars established against each of the corporate defendants and in the case of four of the charges only with respect to particulars covering the period of Mr Porteous' employment as General and Statutory Mine Manager. Mr Porteous was the Statutory Mine Manager at Gretley on 14 November 1996 and had been appointed Mine Manager on 28 October 1994. 708 In general terms, I agree with the conclusions of the majority judgment with respect to the involvement of Mr Porteous as a person concerned in the management of each of the corporate defendants and with their Honours' determination of the appeals brought by Mr Porteous, save for one critical matter. That is, that Mr Porteous could only be found guilty with respect to the contravention, by each of the corporate defendants, of ss 15 and 16. The conclusion to which I have come would severely circumscribe the breaches of which Mr Porteous would thereby be guilty for the reasons that I have earlier set out. I would conclude, therefore, that it is only those breaches established against each of the corporate defendants that Mr Porteous is deemed to have contravened. 709 This would have a resultant impact on the imposition of any penalty. 710 I would adopt the same approach to penalty as that of Staunton J who applied the principle of the totality to the planning, research and assessment charges and dismissed the proceedings with respect to the remaining charges under s 10 of the Crimes (Sentencing Procedure) Act 1999. 711 I would impose a penalty of $35,000 for each of the four offences found, that is one each under s 15 and s 16 with respect to both corporate defendants. However, I would reduce the totality of the penalties to $40,000 having regard to the principle of totality. Furthermore, I would discharge Mr Porteous without conviction and penalty with respect to four of those charges under s 10 of the Crimes (Sentencing Procedure) Act. This would leave a total penalty of $20,000. Mr Romcke 712 Mr Romcke was the General and Statutory Mine Manager at Gretley between June 1993 and October 1994. It appears that he had no further involvement in the management of the operation of the mine on behalf of either of the corporate defendants after that date. 713 Staunton J held that as Mr Romcke was employed in a period covering the planning, research and assessment charges, there was "a practical connection" between him and the "acts or omissions making up the offences involving the corporations."([907]). It was on this basis that Staunton J found that Mr Romcke was guilty of certain of the particularised breaches that occurred during that period. 714 For reasons that I have already given, I have concluded that no breach of ss 15 or 16 of the Act was committed by either corporate defendant until 29 October 1996. Accordingly, Mr Romcke was not in employment and, therefore, not concerned in the management of either corporation at the time that any offence under ss 15 or 16 was committed. 715 This raises the question whether s 50 can be construed so as to deem a contravention of a section of the Act if the personal defendant was concerned in the management of a corporation at a time that was prior to the contravention but participated in an activity or conduct that eventually led to the contravention. 716 The resolution of this question involves a matter of statutory construction. I do not apprehend that there is any decided case that has particularly determined this issue. 717 The relevant authorities with respect to s 50 are discussed comprehensively in the majority judgment and it is not necessary that I either refer to them in any detail or repeat what has been set out. I do wish, however, to refer to two judicial observations that, in my opinion, focus attention on the legislative purpose of s 50 and assist in determining the manner in which its provisions are to be construed. 718 In the judgment under appeal, Staunton J said: "The fundamental principle behind s50(1) it seems to me, is to impose a liability on those persons whose acts or omissions are related to the offence of the corporation. In other words, s50(1) does not deem a director or a manager to have committed an offence simply because the corporation committed it. Section 50(1) imposes a liability because the acts or omissions of the director or manager are complicit in the activities of the corporation that created the breach. That much is abundantly clear when one has regard to the defences available under s50(1)(a) and (b). Those defences go directly to the personal role, function or acts of or by a director or manager of the corporation that, when considered, would establish that he or she was not in a position to influence the conduct of the corporation in relation to the breach or, being in the position, he/she used all due diligence to prevent the breach. As was said by Fisher P in Inspector Cameron v Wanless: Fisher P: 8 October 1997: CT 1127/96 at p16: 'The act under s50 seeks to mark our and underline managements particular responsibility for safe working ...'"([829]) 719 In Powercoal Pty Ltd and Foster v Industrial Relations Commission of NSW and Morrison [2005] NSWCA 345, Spigelman CJ in the New South Wales Court of Appeal said of s 50, "The Court is concerned with a person who has a level of complicity in the commission of the offence by the corporation. Such complicity arises in a context where persons in a managerial role could have taken steps to ensure that the object of the Act are achieved." ([112]). 720 These two extracts highlight the opposing approaches to the construction of s 50 that might appropriately be taken. Staunton J has referred to the activities of the corporation that created the breach in terms of complicity, whereas Spigelman CJ has referred to complicity in the commission of the offence. For the purpose of the discussion, I note the finding of Staunton J that Mr Romcke had a significant involvement in the decision of the corporate defendants to rely upon the plans and other material produced by the Department of Mineral Resources, albeit that they contained grave errors. 721 In approaching the construction of s 50, I shall have regard to the beneficial nature of the Act in establishing a regime in New South Wales for the prevention of workplace injuries and for the enhancement of attention to occupational health and safety matters. On the other hand, it is necessary also to have regard to the fact that the Act predominantly creates a criminal regime, so that care needs to be taken so as not to unduly or inappropriately expand the criminality intended to have been created by the legislature. 722 These matters were referred to in the joint judgment of Gibbs CJ, Mason, Wilson and Dawson JJ in the High Court of Australia in Waugh v Kippen (1986) 160 CLR 156. At 164-5, the Honours said: "A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed 'so as to give the fullest relief which the fair meaning of its language will allow', to use the words of Isaacs J. in Bull v. Attorney-General for New South Wales (1913) 17 CLR 370, at p 384; cf. also Pearce, Statutory Interpretation in Australia , 2nd ed. (1981), pars. 187-191, pp. 137-141. On the other hand, there is the consideration, to which McPherson J. referred, that a breach of cl. 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows: 'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law , 7th ed. (1971), pp 529-534. The rule is perhaps one of last resort'. In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board [1951] AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per Denning L.J. at pp 1227-1228. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd . (1967) 116 CLR 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action." 723 The basic problem in construing s 50 in the context of Mr Romcke's circumstances relates to the temporal aspect in terms of whether or not it is necessary that the personal defendant be concerned in the management at the time of the actual contravention or was concerned in the management of the corporation at a time when there was conduct or a failure to act which brought about the contravention. In an abstract sense, either approach to construction may bring about circumstances that are manifestly unfair. A corporation might embark upon a course of action that would ultimately create a risk of injury constituting a breach of the Act, as was the case in these proceedings. A person who was appointed a director subsequent to the conduct which initiated the chain of events leading up to the breach and who was a director at the time that the breach occurred might have thereby inherited a potential liability under s 50. On the other hand, a person may have hypothetically flagrantly or deliberately brought about a situation leading inexorably at a later stage to circumstances creating a breach by a corporation of a provision of the Act who might otherwise escape prosecution because he or she had left the corporation prior to the actual breach occurring. On one view of it, the opening words of s 50 do not produce any answer. Likewise, the defences which are contained within s 50(1)(b) and (c) may not be indicative of any answer. In the case of Mr Romcke, an obvious defence would be that he was not in a position to influence the conduct of the corporation as at 29 October 1996 because he was no longer in employment or in any way associated with the management of either corporate defendant. The onus of so satisfying the Court would, of course, rest on the personal defendant, presumably to the civil standard. Whichever approach to construction is adopted will not resolve the problem for the newly arrived director or manager who may be placed in a position of potentially becoming a personal defendant under s 50 of the Act by reason of some conduct which may have occurred, as was the case here, many years before. 724 The provisions of s 50, on a prima facie basis, do not include any notion that the section ought only to be applied in circumstances where there is complicity either in conduct leading up to the breach or in the very breach itself. Without this gloss which may be gleaned from the judgments of the Chief Justice and Staunton J, to which I have referred, a very wide power indeed would be conferred on persons entitled to prosecute for breaches of the Act, and it would be left entirely to the good common sense of such persons as to what circumstances might expose an individual to prosecution. Because of concerns that I have about the "good common sense" of the prosecutor in these proceedings, it might be appropriate for the legislature to refine the provisions of s 50, or its equivalent in the current Act, so as to make its intention clear. Obviously, there are pragmatic and just considerations for approaching the circumstances in which guilt might arise by reference to the question of "complicity" as suggested by the Chief Justice and Staunton J, albeit that there may be some tension as to the precise complicity, in a temporal sense, which is necessary. 725 For my part, I am content to apply the qualification of "complicity" as being an appropriate qualification in assessing guilt under s 50, although I concede that no such words are to be gleaned from the provisions of s 50. 726 This leaves, for consideration, whether this purposive approach to construction should be further refined by confining the complicity in the breach temporally to the time when or during which the breach was committed or whether complicity in activities of the corporation as referred to by Staunton J whenever they occurred and which may have occurred prior to the actual breach is permissible. 727 Having regard to the beneficial nature of the legislation overall, the objects of the Act and what I perceive might have been the intention of the legislature, I would adopt a construction which would not limit the application of s 50 to complicity in activities of the corporation which activities necessarily occurred at the time of or during any period that constituted a breach. 728 Accordingly, as it has been clear on the evidence in the proceedings as found by Staunton J that Mr Romcke was concerned in the management of the corporation at a time when the corporation's conduct created circumstances that would assuredly lead at some stage in the future to a breach and Mr Romcke was complicit in that conduct, the provisions of s 50 would prima facie apply to him. 729 This then leaves for consideration whether or not either of the defences referred to in (b) and (c) of s 50(1) may be applied. 730 Obviously, the relevant defence for Mr Romcke is that contained within (b). The words used here are more suggestive of a lack of temporal connection with the time at which or the time during which a breach actually occurred. The defence refers to the conduct of the corporation "in relation to" its contravention. It is not necessary for me to go to authority which points to the wide meaning of the words "in relation to". I would read these provisions as referring to the conduct of the corporation by reference to the contravention of a provision of the Act in a causal sense but not in a temporal sense. That is, it would be necessary for Mr Romcke to satisfy the Court that he was not in a position to influence the conduct of either corporate defendant in relation to the relevant breaches at any time that the conduct occurred, even though that conduct may have preceded the time at which or the period during which the breach occurred. Perhaps, this conclusion follows logically from the in principle approach to construction that I have adopted. 731 On this basis, it would be necessary for Mr Romcke to satisfy the Court that he was not in a position to influence the conduct of the corporation which gave rise ultimately to the breach ("in relation to its contravention of the provision"), assuming that he was complicit in that conduct. 732 I agree with the conclusions in the majority judgment that Mr Romcke was a person concerned in the management of NWCC and not of OPL, for the reasons given. I also agree with their Honours' reasons that Mr Romcke has not proven, having called no evidence, that he was not in a position to influence that part of the conduct of NWCC constituted by the reliance upon the faulty maps and documents provided by the Department of Mineral Resources and a failure to make proper and adequate enquiries concerning the accuracy of that material. Accordingly, I would deem Mr Romcke, by reasons of the provisions of s 50, to have contravened ss 15 and 16 of the Act in the manner in which I have concluded. Those provisions have been breached by NWCC. 733 I would agree with the approach to sentencing adopted in the majority judgment and that the charges against Mr Romcke be dismissed for the reasons therein given. Conduct of the prosecutions 734 It is then necessary to deal with the question of costs. Before doing so, however, I wish to make some observations about the manner in which the proceedings were constituted and the manner in which they were conducted by the prosecutor. I should state at the outset that I raise these matters for two reasons. Firstly, in my opinion, they are relevant to the question of costs. Secondly, for reasons that I shall shortly state, I have grave concerns about the manner in which the prosecutor has formulated the charges and has conducted himself in and about the prosecution of the proceedings. In my opinion the proceedings constitute an undue waste of the resources of this Court, an undue impost on the finances of the State of New South Wales, an undue expense burden on all of the defendants and, arguably, reflect adversely on the administration of significant beneficial legislation. 735 In essence, the factual background to these proceedings is that when preparing for mining operations and before commencing those operations, the corporate defendants relied upon maps and other documentation produced by the Department of Mineral Resources to identify the location of abandoned workings that adjoined the relevant mining lease. At all times, the corporate defendants were aware of the existence of the abandoned workings, their general proximity, that they were full of water and that if breached would have compromised the safety of persons working in the mining operations. As it transpired, those maps were wrong. 736 Mistakenly relying on the accuracy of those maps and documents, the corporate defendants proceeded inexorably on a path that led, some two years later, to the abandoned workings being breached with tragic results. 737 The failure to ensure the health and safety of persons working in the mining operations occurred at a time when the risk of injury was transformed from one which was merely potential to one which had a greater actuality. As has been held by all judges on appeal, this happened on 29 October 1996. The holing in occurred on 14 November 1996. The proceedings were commenced against a background where there had already been an enquiry conducted by an experienced retired judicial officer and a coronial enquiry. The prosecutor, therefore, had a great deal of information available to him and to those who were advising him about the circumstances surrounding the incident. On one view of it, the "criminality" of both corporate defendants may be characterised by reference to the holing in of the adjoining abandoned workings. It was this event, with tragic consequences, which was the manifestation of the risk created by the mining operations, particularly after the 50-metre barrier had been breached on 29 October 1996. The Act creates what has been described as absolute offences. That is, once the employer or other person has brought about a situation where the health and safety of persons working in the operation are at risk in a relevant sense, there will be a breach, subject, of course, to the defences available under s 53. If proceedings had been instituted which were designed to encapsulate the "criminality" as I have described it, it would only have been necessary for each of the corporate defendants to have been charged under ss 15 and 16 of the Act with breaches constituting the holing in of the adjoining abandoned workings. As the holing in was caused by the mining operations, there could be no doubt that the corporate defendants had, in a causal sense, brought about each breach. Accordingly, the only matters for consideration would have been those raised by s 53. The onus of satisfying the Court about the matters covered by s 53 would rest with the defendants. All that would have been necessary for the prosecution to establish was that mining operations were being conducted by both corporate defendants, that the holing in occurred and that some persons were killed and others injured. It is a prosecution case that should have taken no more than a few court hearing days to establish. 738 Instead, for reasons that have not been explained, the prosecutor issued 12 charges against the corporate defendants, the details of which I have set out and referred to in some detail earlier in these reasons for judgment. There must have been some reason why the prosecutor decided to break up the three charges in the manner in which he did, although this reason has not been shared with the Court. There cannot be any good reason why different employees are mentioned in each type of charge. Surely, the persons affected when the inrush occurred were a finite group. Perhaps, if the totality of the criminality needed to be displayed, all of the persons who worked during the mining operations could have been selected by name. I would have thought, that once a significant number of persons were at risk, this would be sufficient to allow a court to assess the objective seriousness of the offence. 739 The period selected for the planning, research and assessment charge covers the totality of the period commencing with the erroneous depiction of the location of the abandoned workings and ending with the holing in. However, that charge is confined to the planning, research and assessment part of the defendants' activities. The remaining charges cover much narrower periods. I am at a loss to understand why the system of work charge could not have extended to 14 November and why the period 13 - 14 November was reserved for the night shift charge only. That is, the system of work charge could just as conveniently have covered the following day, namely 14 November 1996, and could just as easily have alleged the actual holing in, this being the only significant point of difference in the factual recitals. There is, of course, a great deal of commonality in terms of the particulars of each breach as set out in each charge. 740 In the absence of any explanation as to why the prosecutor has sought fit to present the multiplicity of charges in this manner, it is only appropriate to comment on the consequences. One of the consequences, obviously, is that the proceedings were rendered much more complex and the task of the trial judge much more difficult. Those difficulties obviously had to be met by the legal representatives, who at least, presumably, were being paid for their efforts. It follows that another consequence was greatly expanded legal fees expended by all parties, including the team of lawyers representing the prosecutor. In this latter regard, I note that the prosecutor is an inspector with the WorkCover Authority of New South Wales. It may be assumed that the prosecution was brought in some way by Government or some instrumentality of Government. Indeed, the Act requires prosecutions be brought by a limited number of people. There is no suggestion that these were proceedings brought on behalf of a trade union. Accordingly, the Government purse must, in some manner, have suffered as a result of the proliferation of the proceedings and the vast expenditure of legal costs. 741 Indeed, there were 70 hearing days involved in the substantive proceedings and 5 days involved in the sentencing and costs proceedings. As I understand it, this is in addition to the hearing days involved in the various interlocutory applications brought before Staunton J and before Wright J, President. When one takes into account all of the legal costs associated with the preparation of the proceedings, the total costs to all parties will well exceed one million dollars. 742 Staunton J was concerned with the manner in which the charges had been formulated and the multiplicity of charges. 743 In the substantive judgment, Staunton J, when discussing in particular the night shift and system of work charges said: "Those differences are what I would describe as relatively minor differences in the proof of facts required as between the two offences identified. But it has to be said those differences are more reflective of the continuing nature of the offences alleged in the first instance rather than them being substantively different offences. In other words, relying on the prosecutor's contentions, allowing employees to work in 50/51 panel in IRC Matter No. 3198/00 was, all other things being equal, if established in IRC Matter No. 3199/00, always going to be a continuing offence regardless of whether the holing-in had occurred or not. It was, on any view, part of the overall system of work. The fact that the prosecutor pleads it again, and this time denotes it as a 'night shift' charge does not, it seems to me, add one iota to the defendants' ultimate liability as far as the substance and objective seriousness of the defendants conduct. [119] "While the prosecution may say that such an approach is permissible within the widest construction of s49A of the OHSA 1983 , it is an approach that should be discouraged. It carries with it the danger of offending against the rule of double jeopardy. As well, it seems to me that it serves no useful purpose within the context of the Act or s49A in particular to break up the alleged contraventions of the defendants, relying predominantly on a temporal component with duplication of alleged contraventions simply to add to or create additional offences. This is particularly so where the prosecution is faced with a factual situation of continuing workplace activity encompassing those alleged contraventions. Further, it has to be asked whether such a pleading device materially adds to the substance and objective seriousness of the offences charged. And it is no satisfactory answer, it seems to me, for the prosecution to argue that any duplicity that arises can simply be addressed in the sentencing process. In this respect, I can only endorse the sentiments expressed by Haylen J in Robert Darcy Coombs v Patrick Stevedores Holdings Pty Limited [2004] NSWIRComm 77, particularly at paras [5] and [6] as follows: 'I have recently observed that this part of the Court's jurisdiction is something of a hybrid utilising aspects of pleading in cases of common law negligence within a criminal jurisdiction and involving potentially very high penalties (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452; 12 December 2003). This unusual aspect of the jurisdiction, however, provides no warrant to avoid simple and precise pleading and provides no authority for lengthy and multiplicitous particularisation. Over particularisation of a prosecution case inevitably leads to an ill defined defence case where wide ranging matters are raised in cross-examination or in evidence generally only to be discarded by the end of the case.' ... ... In making these comments, I acknowledge the often difficult task which faces a prosecutor, especially in circumstances where a workplace accident highlights a variety of risks to employees which are available to be pleaded under the provisions of the Act. Nevertheless, there is a public interest in the prosecutor focusing attention on the most serious aspects of those risks when commencing proceedings in the Commission in Court Session. It is not infrequent that the Court is involved, even where there is a plea of guilty to a limited number of particulars, in an extensive hearing and significant time taken in deliberation where the additional particulars or a number of them do not add materially to the substance and objective seriousness of the offence. When that occurs, justice is not served: the resources of the parties are increasingly devoted to minutiae and ultimately the Court is required to consider a case which may not have required such extensive attention.' [120] "The problems posed for the Court by the form of the pleadings was also recently touched upon by Peterson J in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 at paras [3] and [4] and Kavanagh J in WorkCover Authority of NSW (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamante [2003] NSWIRComm 35 at para [12]. [121] "To all of the above comments, I would also add the important consideration of public interest. There is the need, in my view, for a prosecutor to weigh the additional time and cost that such overlapping and repetitive pleading creates against the need to charge a person with an offence that balances time and cost considerations against the genuine public interest in pursuing charges that properly reflect the overall criminality of the defendants' conduct. Duplicating contraventions over differing time periods in the context of continuing offences as part of a system of work is not, it seems to me, evidence of such an approach." [122] 744 Furthermore, in her separate judgment ([2005] NSWIRComm 31) dealing with sentencing and costs, Staunton J dealt with an application by those personal defendants (called DG2) for the payment of indemnity costs. Her Honour said: "In support of indemnity costs, counsel for the DG2 defendants also raised the manner in which the charges were framed. That is, there was considerable overlapping of the offences that unnecessarily prolonged the hearing and the costs borne by the defendants. In support of that submission reference was made to my comments in SJ [112], [119] and [120]. I have earlier referred to those passages in this judgment in relation to my penalty considerations. In my view that is the context in which those comments rightfully belong. While such an approach to framing charges is to be actively discouraged in future prosecutions, the problems it gives rise to go more to assessing a defendant's overall criminality within the context of a continuing system of work as well as issues going to duplicity and double jeopardy. In saying that, I acknowledge it is conceivable that there may be circumstances where the framing of charges may be grounded in vexatious or irrational conduct on the part of the prosecutor warranting indemnity costs to a successful defendant. Such is not the case in the circumstances before me. [365] "Any costs order to be made will be on a party/party basis. [366] "Both groups of defendants submit that any order for costs in favour of the prosecutor should be discounted for a number of reasons. The first is the multiplicity of pleadings issue raised on the same bases as the DG2 defendants. For the same reasons I reject that contention. [367] "Second, counsel for the corporate defendants as well as Mr Porteous and Mr Romcke pointed to two letters sent to the solicitors for the prosecutor on 1 August and 7 August 2003 respectively. I do not propose to set out the letters in full. In essence the letters, on a without prejudice basis, and on terms, stated a willingness on the part of the corporate defendants to enter a plea of guilty to 'all six charges against each company'. The main condition for such an offer was that the prosecutor dismiss all charges against the personal defendants. [368] "The relevant passage from the correspondence of 1 August 2003 identifies the basis for the offer made: 'We have conferred with the solicitors for the other defendants, and they are aware of this letter. As you are aware the defendant companies are most concerned about the effect on the health and welfare of the individual defendants. These are tragic matters about which, regardless of criminal liability or lack of it, everyone feels extremely deeply. It is the defendants' desire neither to exacerbate the tragic loss that the families of the victims are undergoing, nor to hinder any capacity for closure, at least in part, of these issues. It is, as you are more than aware, important, also, to seek to avoid these families having to re-live these dreadful events any more than is necessary.' [369] "Neither the prosecutor or his instructing solicitors replied to that correspondence. [370] "The DG1 defendants placed this material before the Court in their submissions on costs and in the context of my comments on the record in the substantive proceedings on 16 September 2003 where I stated: Now, I wish to put onto the record that I asked to see Mr Crawshaw and Mr Rothman and Mr Hodgkinson in chambers. The purpose of that was to simply express my concern about the length of time these proceedings are taking, the fact that there are a considerable number of charges, some 52 which the prosecution has sought to lay in respect of both the corporate defendants and the natural person defendants before me, and that those charges are, as it were, allocated across various periods of time as denoted in the charges. The evidentiary burden in respect of all of those matters, both for the prosecution to discharge and for the defendants to meet, is considerable on any view. It places a great burden on all concerned to both sensibly and from evidentiary considerations grapple with all of those matters. There are also what I consider to be important public interest considerations that must be considered in proceeding in respect of 52 charges in relation to the defendants before me, having regard to significant public interest issues of both cost and time. They are matters which I should add are considerations which the DPP is required to consider, if one goes and consults the DPP's practice direction guidelines in the criminal practice procedure manual of this State. I think if anybody wishes me to dig it out, I will be happy to do so. Accordingly, all I can do is simply express my view that the parties should give some consideration to the matters that I have just raised on the basis of some rationalisation of some of the matters before me. That is a matter that I think should be sensibly considered by all the parties before me. It's a matter for the parties as to whether they do. I'm not in any way directing that to occur. I'm simply making that comment. It's a matter for the parties as to whether they wish to take note of my comments and act upon them. All I can do is wait to be advised if any decisions are taken in relation to any comments I've made. [371] "As is evident, no steps were taken that could be said to have acted upon the comment I made at the time. All charges proceeded, were vigorously prosecuted, and likewise defended. [372] "A prosecutor's discretion is wide but not totally unfettered as to those matters that should be taken into account in the ultimate decision to prosecute. As is reaffirmed in the Prosecution Guidelines of the Office of the DPP (NSW): Guideline 4, which relevantly says: 'It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute "wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest". That is still the dominant consideration. (per Sir Hartley Shawcross QC, UK Attorney General and former Nuremberg trial prosecutor, speaking in the House of Commons on 29 January 1951.) That statement applies equally to the position in New South Wales. The general public interest is the paramount concern. The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (a) whether or not the admissible evidence available is capable of establishing each element of the offence; (b) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not (c) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. The first matter requires no elaboration: it is the prima facie case test. The second matter requires an exercise of judgment which will depend in part upon an evaluation of the weight of the available evidence and the persuasive strength of the prosecution case in light of the anticipated course of proceedings, including the circumstances in which they will take place. It is a test appropriate for both indictable and summary charges. (emphasis added) The third matter requires consideration of many factors which may include the following: ...... (k) the likely length and expense of a trial; ...... The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case.' [373] "As well, Guideline 7 re discontinuing prosecutions provides, inter alia: 'Accused persons or their representatives ... may make application that a charge or charges be discontinued ... Such applications are to be dealt with expeditiously. In considering and preparing such applications, regard is to be had principally to the three tests set out in Guideline 4 bearing in mind any additional considerations of fact or argument put forward by the defence.' [374] "I accept that the DPP prosecution guidelines are not directly applicable to the offences I had before me. But it is self evident, in my view, that as prosecuting guidelines they provide an acknowledged approach to criminal prosecutions in this State, be it for indictable or summary offences. It was those guidelines to which I was referring in my comments on 16 September 2003. In any event, the prosecutor, in my view, was required to consider the offer made by the corporate defendants in August 2003. As I was advised, neither the prosecutor or his instructing solicitor responded to that correspondence received from the corporate defendants' solicitors. Accordingly, given that all prosecutions continued, it can safely be assumed it was rejected. [375] "The issue now is whether or not the costs order sought by the prosecutor should be discounted because of its failure to act on the offer made by the corporate defendants in August 2003. I think not. The decision ultimately was the prosecutors to make. Somewhat on that point and in support of the view I have expressed as to the role of the prosecutor I refer to the decision of the High Court in GAS v R and SJK v R (2004) 206 ALR 116 ( Gleeson CJ, Gummow , Kirby , Hayne , Heydon JJ). In that matter the Court was considering an appeal from the Court of Appeal of Victoria which had allowed prosecution appeals against a sentence imposed at first instance. The ground of appeal to the High Court was that the Court of Appeal erred in allowing the DPP to appeal in a manner said to be contrary to a plea agreement at first instance. In setting out the relevant principles affecting plea agreements the Court said, inter alia, at 125: 'First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person. The judge has no role to play in that decision. ...... Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely... Once again, the judge is not... involved in the decision.' [376] "It is also relevant on the point to note that the offer made by the corporate defendants was conditional on charges against all of the personal defendants being discontinued. At the conclusion of the proceedings I found offences proved against three of the eight personal defendants." [377] 745 It is obvious from the extracts that I have set out above that Staunton J was concerned about the manner in which the charges had been drafted, about the multiplicity of the charges and the complexity that they created. I have already alluded to some of the consequences. Of course, another consequence is the multiplicity of penalties that might be levied against all of the defendants by reason of the multiplicity of charges. 746 The material that I have extracted also highlights the fact that the corporate defendants agreed to plead guilty to all charges if the prosecution dropped the proceedings against the personal defendants. That offer was made in August 2003. That is, it was made 2 days after the substantive hearing, which ultimately lasted 70 days, had commenced. It is conceivable that had the prosecutor accepted that position there would have been a saving of at least one million dollars in legal costs suffered by all of the parties. The decision to reject that offer must only have rationally been made on the basis that the prosecutor wished to secure convictions against the personal defendants, and for no other reason. Irrationally, of course, there are other reasons associated with costs earned by legal practitioners. I do not suggest, for one moment, that this is the situation, because I simply do not know. It could not have been revenue based because the legal costs incurred in pursuing the proceedings solely for the purpose of securing convictions against personal defendants would far have outweighed any penalties in the aggregate which could reasonably foreseeably have been imposed on those personal defendants. 747 The position is exacerbated by the gross discourtesy shown by the prosecutor and by the prosecutor's solicitor, Mr M Carrick of the law firm Geoffrey Edwards & Co, in not replying to that letter. Whatever may be the position concerning prosecutors in legal proceedings, certainly legal practitioners are bound by the standards of professional conduct to respond to correspondence from other legal practitioners with respect to a matter, even if only to indicate that there would be no response to the offer. 748 Finally, the extract which I have set out above demonstrates that Staunton J in the public interest endeavoured to have the legal representatives of the parties approach the conduct of the proceedings with a modicum of common sense, especially in terms of the manner in which the charges had been formulated by the prosecutor. Obviously, her Honour's attempt fell on deaf ears. 749 There are two further matters to which I wish to draw attention in this context. The first relates to the approach of the prosecutor to the fixation of penalty. Staunton J had found that the corporate defendants, and therefore some of the personal defendants, were guilty of a breach of a number of the charges. Accordingly, it was necessary for her Honour to consider the imposition of an appropriate penalty with respect to each of the charges. 750 The prosecutor sought to rely on s 51A of the Act which is in the following terms: 51A Additional penalty for further offence against the Act (1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act - 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act - 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section. 751 Relevantly for the purpose of those proceedings, the maximum penalty for a breach of the Act for a first offence by the corporate defendants was $500,000 and by a natural person was $50,000. Not content with exposing each of the defendants to a multiplicity of penalties with respect to a multiplicity of charges levied out of the one course of criminal conduct, the prosecutor sought to have an initial penalty with respect to each of the defendants set by reference to the maximum amount to which I have referred and proceeded to argue that all subsequent penalties imposed on each defendant should be fixed by reference to s 51A. That is, there had been a multiplicity of offences, the first would be dealt with at the appropriate maximum then prevailing, but all subsequent and later penalties would have a maximum limit fixed at a further 50%. This approach to the fixation of penalties for more than one offence arising out the same course of conduct had been rejected by Boland J and Staff J in this Court in previous proceedings, as noted by Staunton J in her judgment. Nevertheless, the prosecutor was motivated to strive for a greater level of penalties by reference to the provisions of s 51A. 752 The final matter to which I need to refer is the attitude of the prosecutor during the course of the sentencing process. My reading of the judgments of Staunton J and of the transcript of the proceedings before her Honour is that counsel for the prosecutor, and to be assumed on instructions, took every point and proceeded with every argument that was possibly thought available. An example is provided in the course of her Honour's sentencing judgment. The example is adequately set out in [143] of that judgment which is in the following terms: "On behalf of the corporate defendants, it was submitted they had cooperated with the relevant investigative authorities and this cooperation was a mitigating factor consistent with the provisions of s 21A(3)(m) of the CSPA. The prosecution demurred somewhat on that contention, suggesting that any cooperation by the corporate defendants was more because the offences arose from a serious mining accident and they were legislatively required to cooperate rather than a spontaneous willingness on their part to do so. I have to say I think that assessment, in all the circumstances, is too harsh. There was no evidence I am aware of in the substantive proceedings that evidenced anything other than one of cooperation with the relevant investigating authorities after the inrush. On that basis, I consider the defendants' cooperation is a matter entitled to positive consideration in the sentencing process." [143] 753 The extracts from the judgment of Staunton J, which I have previously set out, include references to guidelines established by the DPP. Those guidelines deal also with the role and duties of the prosecutor. One would hope that those guidelines would have been applied to prosecutions instituted by an inspector with the WorkCover Authority of New South Wales. In dealing with the discretion involved in a decision to prosecute, the guidelines require the prosecutor to take into account a number of matters including: "The likely length and expense of a trial", "whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive" and "the degree of culpability of the alleged offender in connection with the offence". 754 In this connection, the guidelines conclude with this admonition: "It is recognised that the resources available for prosecuting are finite and should not be extended pursuing inappropriate cases…" 755 If one takes into account the unnecessarily complex, extensive and repetitive nature of the charges and the manner in which they were framed, together with the refusal to allow the corporate defendants to plead guilty upon discontinuance against the individual defendants, the attempt to pursue higher penalties under s 51A and the denial of mitigating factors in favour of the defendants during the sentencing process, one must query the bona fides of the prosecutor in terms of these proceedings. Public monies have, in my opinion, been unduly wasted, the defendants have been put to incredible cost which, ultimately, impacts on the economy of the State, the resources of this State and the resources of this Court have been wasted. In addition, it is fundamental that the criminal law must be administered in an appropriate fashion. The legislature has chosen to emphasise the importance of occupational health and safety matters by creating absolute offences. If the prosecution of offences is undertaken in an arbitrary, capricious and irresponsible fashion, the laws themselves are brought into disrepute for reasons that are obvious. This is especially so in the area of occupational health and safety prosecutions where it is the custom of the prosecutor to seek a moiety of the penalty, that is payment of one half of any amount imposed by way of penalty. Presumably, the prosecutor has not sought to do so in these proceedings because it is abundantly clear that not only did the Department of Mineral Resources prepare the initial erroneous documents but its own personnel including its Chief Inspector could detect nothing wrong with those documents, as referred to in the judgments of Staunton J. 756 I would, advisedly, characterise what has happened in these proceedings as constituting more than prosecution, and amounting to persecution of the defendants. 757 Judicial officers and the legislature both have a role to play in the administration of justice. I take the view that it is appropriate for a judicial officer to make comment about the prosecution and management of proceedings, especially criminal proceedings, where it is thought that the conduct of a prosecutor was inappropriate. For the reasons which I have set out above, I think that the prosecutor, Stephen Finlay McMartin whom I understand to be an inspector with the WorkCover Authority of New South Wales, has acted inappropriately in and about the manner in which he formulated the charges against the defendants and in and about the manner in which the prosecutions were conducted. Perhaps, as is the case with much of the work undertaken by police investigators and investigators with the arms of government, that the prosecution of offences under the Act be undertaken by an independent, objective body with undoubted expertise such as the DPP. Costs 758 I now come to the question of costs. Because I am in dissent I shall state my position briefly. I would not have awarded the prosecutor any costs beyond 7 August 2004, the date the corporate defendants agreed to plead guilty on a conditional basis. I would have awarded the defendants their costs on and after that date because, for reasons that I have now stated on a number of occasions, I regard the conduct of the prosecutor as being, in all the circumstances, unacceptable and as having compromised the processes of this Court.

Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin

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Judgment (596 paragraphs)

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Cases Cited (127)

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