Particular 2(c)
69Particular 2(c) alleges that the defendant had no safe or no adequately safe system for circulating, either electronically, or by printed copy, certain specified documents, namely, MDGs, draft MDGs 35 and 35.1, AS 4024.1, and "safety information issued by (DII), or information about those documents" to its employees to alert them to measures necessary to adopt to ensure plant such as the Logic Control Blocks on ABM 25-35 was safe.
70In proving the Particular, the prosecution relied on the evidence of several witnesses called during the proceedings. The evidence of the witnesses is summarised below.
71At the time of the offence, Anthony Bendeich, was employed at the mine as a mechanical operations engineer. He explained that there were three distinct departments, or streams, operating at the mine at the time of the offence. The first of these was the mechanical stream in which he was directly involved, followed by the electrical stream, and the mining stream. The mining stream involved the actual mining operations of the type in which Mr McSporran was engaged at the time of the incident. In examination-in-chief, Mr Bendeich said he was familiar with certain sections of AS 4024.1. He was familiar with draft MDG 35 and MDG 35.1 at the time of the offence. He could not recall SA05-05 issued by the DII. He had seen and was aware of the general contents of the draft MDGs, although he did not have a thorough working knowledge of them. He knew, for example, that draft MDG 35 cross-referenced AS 4024.1. He said the Standard is a generally recognised document within the mining industry, as are the MDGs. He explained that draft MDG 35.1 recommended that drill rig controls had shapes or were required to have shapes or were recommended to have shaped handles that were specific to the functionality of the handles. In cross-examination, he said that he had seen Safety Alerts at the mine. He said they were generally posted on noticeboards around the mine on a frequent basis. He also said that any relevant information deemed necessary to be passed on to the mining crews was disseminated via the toolbox talk format, which was delivered to each crew at the start of a shift generally by the Undermanager. He said that he was often the author of those toolbox talks and that the subject matter of the talks involved safety issues which included safety topics contained in the various Safety Alerts. He also mentioned receiving safety information from Sandvik while he was working at the mine. He also said that reports produced by departmental inspectors who attended the mine from time to time were posted on noticeboards at the mine. He explained that the STORM meetings were avenues of communication for relevant safety information. He attended those meetings as often as he could. In re-examination he recalled the content of a Safety Alert which he said he had received from Sandvik, explaining that it was in relation to handles recommended by the draft MDGs, although he could not recall the medium through which that "safety alert" was communicated to him.
72The second witness, Anna Walsh, was a mining engineer employed at the mine at the time of the offence. She was not sure whether she received Australian Standards, but she knew of their existence. She recalled receiving Safety Alerts at the mine by email and she also saw Safety Alerts on the noticeboard at the mine. It was not part of her job description to notify any person at the mine of the contents of the Safety Alert she received. She could not specifically recall having received a copy of SA05-05. In cross-examination, she explained that she had seen MDGs and Australian Standards prior to working at the mine. She explained that her sphere of operations at the mine was in technical services which was different from the area of responsibility for the extraction of coal (the mining stream). She said she attended all safety meetings and also attended operations meetings which mining stream personnel also attended. She raised safety matters at those meetings. Her sources of information were Safety Alerts and mining incidents. She was aware of the draft MDGs. She attended toolbox talks where safety issues were discussed. Topics included the discussion of Safety Alerts. She said documentation recording the toolbox talks was published on the noticeboard and each record of a toolbox talk was read out at the start of each shift before being displayed on the noticeboards. She also saw reports produced by the departmental inspectors which were placed on the noticeboards.
73The next witness called by the prosecution was Anthony Joseph Linnane, employed by DII. Mr Linnane worked at the mine at the time of the offence as the Acting Manager of Information and Communication. He said that the DII prepared information in the form of MDGs, Safety Alerts, Safety Bulletins, Safety Newsletters, etc. He explained that the Safety Alerts were published on the Department's website and distributed electronically to members within the Department. The Safety Alerts were also produced in hardcopy and distributed to people in organisations in the mining industry.
74The next witness called by the prosecution was Stephen John Chandler, employed at the mine at the time of the offence as a production superintendent. He said he was not familiar with AS 4024.1, but was familiar with draft MDGs 35 and 35.1. He was also familiar with SA05-05. In his role as production superintendent at the mine, Mr Chandler explained that one of his functions was to ensure that the mine inspection system in place was complied with. Another function involved the organisation of communication paths and in that regard he set up the toolbox talk system in order to disseminate information at the start of every shift. He said that the toolbox talks dealt with safety issues. He said that Safety Alerts were received at the mine from the DII and that information in those Safety Alerts he deemed relevant would be read by him at the toolbox talks. They were also placed on noticeboards located outside the bathhouse and in the muster area. He also said the Undermanager would read out Safety Alerts to persons present at the toolbox talks. He also said that Safety Alerts were also presented in the OHS Committee meetings which he attended when the mine manager could not attend. In re-examination he said that all Safety Alerts deemed to be of relevance to his area of expertise were disseminated by him within the mine. He said he received all Safety Alerts sent to the mine. With regard to the draft MDGs he said that they were works in progress and he could not recall whether, at any of the meetings he attended, he had referred to the MDGs.
75The next witness called by the prosecution was Sharif Burra who was the Acting Mine Manager at the mine for a period of three months prior to the offence. Before his appointment as Acting Mine Manager he was employed in the technical services team at the mine. He explained that in that position he focussed on issues of ventilation, spontaneous combustion, strata control, scheduling and plant, etc. He confirmed that during the period up to 3 March 2008 he saw Safety Alerts which had been issued by the DII. He said that upon receipt at the mine, the Safety Alerts were mailed directly to himself as the manager of mining engineering and were put on the noticeboard as required for a period of 30 days. He explained that the noticeboard was locked so people were unable to remove documents placed there until 30 days had expired. In his capacity as Acting Mine Manager, he also said he attended many of the occupational health and safety committee meetings where he said Safety Alerts were tabled by members of the Safety Department. He said he also attended STORM meetings. He said the type of information presented at those meetings involved safety information which was passed on to people with regard to operations, or events that may have occurred. He said the findings or results of inspections by DII inspectors would often be tabled at those meetings. Mr Burra said that the STORM meetings were used to communicate a wide array of safety-related material and issues. They were used as a means of training in relation to likely conditions that might be encountered during underground mining operations. He said toolbox talk meetings typically took place on a shift-by-shift basis. He said he attended many toolbox talks and that one of the primary objectives of those talks was to convey information to the workforce at the start of each working shift.
76In support of its case, the prosecution also tendered a statement of Barry John McKay who was employed at the mine at the time of the offence as the manager for mechanical engineering. Mr McKay explained that his primary function in that role was to advise the Mine Manager on standards and systems of safety in his area of discipline. He said he alerted the Mine Manager to any major deviation to those standards, or procedures, or safety concerns. He said he received Safety Alerts issued by the DII. He recalled receiving SA05-05 dated 4 April 2005 at some stage before the incident of 3 March 2008. He also recalled draft MDG 35 and draft MDG 35.1. The latter document he said was first brought to his attention in August 2006 during a presentation at the mechanical engineering-in-charge meeting. He was shown a copy of draft MDG 35.1 dated August 2006 and confirmed that that was the document to which he had been referring. He also said he was aware of a review at the mine prior to the offence of the rig upgrade of the control unit by reference to draft MDG 35.1. Having been made aware of the document the mine, he said, wanted to improve the ergonomics and layout of the installed rigs.
77The prosecution also tendered a statement of Graham Morris who was employed as a shift Undermanager at the mine on 3 March 2008. He described his role as organising working shifts at the mine, allocating men, planning the work, attending to any safety issue that was raised or found, and all functions which involved organising operational issues. He was also aware of the Safety Alerts put out by the DII. He said they were emailed to them through the user process and were also on the noticeboard and were usually read out at the start of shift meetings. He also recalled seeing SA05-05 dated 1 April 2005. When asked if he had any recollection of any specific items in SA05-05 addressed at the mine he said:
Well all these points are relevant to bolting so and all of these things have happened so yeah it's just something that I understand and ... am mindful of ....
He did not have any knowledge of draft MDG 35, but he said the MDG would have been placed on the noticeboard. He did not recall seeing draft MDG 35.1.
78The prosecution also called Antony Smith, an Inspector employed by the DII. Inspector Smith explained that part of his duties involved an investigation into the circumstances of Mr McSporran's accident at the mine on 3 March 2008. He said that during the course of the investigation he caused to be sent a s 62 Notice to the defendant requesting a number of documents. He was asked in evidence to look at a s 62 Notice and he confirmed that it was a copy of the Notice he served on the defendant on 18 March 2008. He also identified certain documentation sent by the defendant in response to that Notice. It emerged in evidence that the documentation identified by the Inspector was in relation to only one category of seven categories of documents requested in the Notice, namely, documentation in response to Category 5 which requested training records relating to roof/rib bolting tasks for an unspecified period and in relation to all continuous miners in use at the mine. It also emerged in the evidence that he had caused to be served on the defendant two s 62 Notices, requesting documentation. He was unable to identify with any certainty other documentation sent by the defendant in response to either Notice.
79The prosecution also called Greig Duncan, who was a senior site executive at the mine on 3 March 2008. Mr Duncan said he was not familiar with AS 4024.1, but he was familiar with draft MDG 35. He was not familiar with draft MDG 35.1. He explained that safety bulletins and Safety Alerts were sent directly to him at the mine and he distributed them around the site. He said he accessed the latest information that was available on the DII site and also attended seminars and read articles and other technical information. He explained that Safety Alerts that came from the DII which he received would automatically be entered by him on a circulation list and given to his personal assistant who then distributed that information around the site. He also said that anything that came across his desk pertaining to the operation of the mine that he believed was relevant would be copied by him to the departmental heads at the mine. With regard to the draft MDGs, he said he was familiar with them but not across all the detail and he did not disseminate the draft MDGs around the site. He said Safety Alerts were also put on the noticeboards. In cross-examination, he explained that his role at the site was making sure budgets were met in line with systems put in place for the extraction of the coal. He also explained that from time to time he stepped into the role of Acting Mine Manager and at those times he had a more detailed involvement in mining operations. He also said he attended a daily meeting where any safety issues that had arisen in the previous 24 hours were discussed. Following those meetings, generally a report would be furnished, an incident investigation would follow and it would be reviewed at another meeting. The daily meetings, he said, were attended by the Mine Manager, statutory engineers, representatives from technical services and from other operation groups, representatives from the coal preparation plan, and representatives from projects. He also attended monthly meetings during which those present reported to the Managing Director of the mine on its performance. He said the first item on the agenda at those meetings was safety performance.
80The next witness called by the prosecution was Phillip John Wolfenden, employed in the position of Engineering Manager at the mine at the time of the offence. He said he believed he had seen SA05-05. He was familiar with AS 4024.1, as well as draft MDGs 35 and 35.1. He explained that a system which existed at the mine was that Safety Alerts were posted on noticeboards and work orders raised. He said prior to the incident, Safety Alerts came via email and were also posted to the mine. If they were in his area of responsibility he would address them, but in his role as Engineering Manager he did not receive many. He also said that he did not bring to the attention of other engineering staff the provisions of draft MDG 35 or 35.1. That role was assigned to Barry McKay, the statutory engineer in charge. In cross-examination, he said he occasionally attended toolbox talks at the mine. He said in those toolbox talks safety information was discussed. He was shown SA05-05 and confirmed that he had seen the document prior to 3 March 2008, though he had not been to a toolbox talk where that document was specifically addressed. Other information received by him at the mine consisted of safety bulletins from manufacturers, including safety bulletins from Sandvik.
81The prosecution submitted that the method by which the documentation and the information nominated in Particular 2(c) was disseminated at the mine was not adequate. This was said to be because witnesses who were questioned about the documents were not aware of their contents and because the records of toolbox talks produced to Inspector Smith in response to the s 62 Notice did not refer to draft MDG 35 or 35.1 or AS 4024.1 or SA05-05 or other Safety Alerts dealing with drilling or bolting.
82It does not follow from any of these matters in my view that the documentation or the information contained in the documentation, the subject of Particular 2(c), was not circulated by various employees, either electronically or by printed copy. In fact, the evidence called by the prosecution suggests the contrary. In addition, Inspector Smith's evidence was, in some respects, problematic. The s 62 Notice, a copy of which Inspector Smith identified in evidence as being served on the defendant, contains seven categories of documents, but the Inspector was only able to identify one category, which was shown to him during his evidence, as having been received by him in response to the s 62 Notice. Inspector Smith said the documents which were received by him in response to the s 62 Notice were received either by email or by courier. In relation to the bundle of documents shown to him in his evidence, he said those documents were provided in response to Category 5. Category 5 in the Notice asked for, "Training records related to roof/rib bolting tasks on all miners". The bundle of documents on the other hand includes minutes of STORM meetings, toolbox talks and inspection reports which do not specifically address issues of training. Moreover, it has not been demonstrated in the evidence that the bundle of documents constitutes a complete set of records of toolbox talks and STORM meetings. Inspector Smith agreed under questioning that the documents corresponded to Question 5 as constituting training records relating to roof/bolting tasks on all continuous miners in use at the mine during an unspecified period. His attention was directed to a covering letter sent by the defendant which referred to two s 62 Notices and documents sent by both courier and also by email. When shown this letter, the Inspector said that it was his understanding that the documents he was being asked to identify in his evidence were the same as those supplied by the courier and that they matched the documents received by email. He then said that the bundle of documents was extracted by him from the prosecution brief of evidence, and not from the email attachment. He could not recall whether he had received other documents.
83The effect of this evidence is that the Court has before it only one category of documents which does not purport to be a complete record of documents obtained by the prosecution. Moreover, the documents were received in response to a category which was expressed in broad terms, including all continuous miners in use at the mine for an unspecified period. It does not follow from this evidence that because the records tendered into evidence, said to be obtained in response to the s 62 Notice, did not refer to draft MDG 35, 35.1, AS 4024.1, or SA05-05, or other Safety Alerts, that those documents (that is, the draft MDGs, AS 4024.1, and the Safety Alerts) or the information contained in those documents were not circulated or disseminated at the mine, either through toolbox talks or some other medium of communication. The Court notes in any event that none of the categories specified in the s 62 Notice referred specifically to any draft MDGs, or Australian Standards, or SA05-05, or Safety Alerts in general.
84The prosecution also sort to rely on evidence from some of the witnesses, which it was said tended to confuse technical bulletins from the manufacturers with Safety Alerts from the DII. What the witnesses were really talking about, according to the prosecution, were technical bulletins, not Safety Alerts.
85In re-examination, Mr Bendeich recalled a Safety Alert he said he had received from Sandvik. It is not entirely clear from this evidence whether Mr Bendeich was referring to a technical bulletin or a Safety Alert issued by the DII. According to the evidence of Mr Linnane, the DII distributed "safety bullentins", as well as Safety Alerts. In any event, Particular 2(c) is expressed generally. It does not refer at all to Safety Alerts, but to "safety information" issued by the DII. There is no specific reference, for example, to SA05-05 in the Particular. The evidence of the witnesses was clearly to the effect that they recalled receiving Safety Alerts. Many of them specifically recalled SA05-05 and some of them recalled, generally, its contents. The Particular alleges a failure to have in place a system or an adequate system of circulation of documents or the information contained in those documents at the mine. The evidence which I have attempted to summarise earlier indicates in my view that there was a system of circulation of the documents and the information contained in those documents in existence at the mine at the time of the offence. That system involved safety information being disseminated through the medium of toolbox talks, STORM meetings (which may or may not have been the same as toolbox talks), as well as daily, weekly, and monthly meetings held at the mine. It also included circulation by email of documents such as Safety Alerts to various personnel within the mine. Safety Alerts were also circulated by way of the toolbox talks and written records were made of those talks which were then posted on various noticeboards at the mine. Most of the witnesses called by the prosecution had seen or were familiar with the Australian Standard and draft MDG 35 and draft MDG 35.1. Mr McKay, for example, said that he received Safety Alerts issued by the DII. He specifically recalled receiving SA05-05 before the incident of 3 March 2008. He also recalled draft MDG 35 and draft MDG 35.1. The latter document was brought to his attention during a presentation at the mechanical engineer-in-charge meeting in August 2006. According to the witnesses, Safety Alerts were also tabled at the monthly occupational health and safety committee meetings. According to Mr Duncan, Safety Alerts from the DII received by him were entered on a circulation list and distributed around the site. They were also put on noticeboards. According to the evidence of Mr Fulham, toolbox talks were a medium of communication for such matters as relevant safety documentation, relevant MDGs and draft MDGs, and relevant Australian Standards, (although in cross-examination Mr Fulham could not point to any toolbox talk record which had expressly referred to draft MDGs).
86The prosecution also sort to rely upon what was said to be conflicting evidence about noticeboards in relation to their number and location at the mine. I do not see that this feature of the evidence progresses the prosecution case. No submission has been made attacking the credibility of any of the witnesses. There is nothing in the evidence to support a finding that their evidence should not be believed or was otherwise unreliable. What the evidence demonstrated conclusively was that there was in place at the mine at the time of the offence a system of circulation of the documentation and information outlined in Particular 2(c), which included placing the documentation on a noticeboard, or noticeboards.
87Proof that there was no, or no adequate, system of circulation of documents is not facilitated by evidence of witnesses called by the prosecution that they were aware of the documents and aware, generally, of the information contained in those documents. Nor is it facilitated by evidence that the documents, in particular SA05-05, other Safety Alerts, and safety information, were disseminated or circulated at the mine through various mediums of communication, including noticeboards, toolbox talks, STORM meetings and other meetings held daily, weekly and monthly. The evidence, as a whole, is not sufficient to enable the Court to conclude, beyond reasonable doubt, that the prosecution has made out its case with regard to Particular 2(c).
88In IRC 119 of 2010, the Court makes the following orders:
(1) The defendant is convicted of the offence in the Amended Application for Order in relation to Particulars 1(a), (b) and (c) and Particulars 2(a), (b) and (d).
(2) The defendant is fined $105,000 with a moiety to the prosecutor.
(3) Costs are reserved.
(4) The matter is set down for a directions hearing in relation to the outstanding issue of costs at 9.30am on 1 September 2011.