Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 (11 March 2005)

Last Updated: 14 March 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31

FILE NUMBER(S): IRC 3198 - 3249

HEARING DATE(S): 15/11/2004, 16/11/2004, 17/11/2004, 18/11/2004, 19/11/2004

DECISION DATE: 11/03/2005

PARTIES:

PROSECUTOR:

Stephen Finlay McMartin

DEFENDANTS:

Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady.

JUDGMENT OF: Staunton J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr S Crawshaw SC

Mr B Docking of counsel

Mr A Slevin of counsel

SOLICITORS:

Mr M Carrick

Geoffrey Edwards & Co

DEFENDANTS:

Newcastle Wallsend Coal Company Pty Limited;

Oakbridge Pty Ltd;

Mr R Porteous & Mr J Romcke

Mr S Rothman SC

Mr G McGrath of counsel

SOLICITORS:

Ms F Inverarity

Price Waterhouse Coopers Legal

DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady

Mr B Hodgkinson SC

Ms W Thompson of counsel

SOLICITORS:

Mr J Rodney / Mr G Phillips

Carroll & O'Dea

CASES CITED: Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270

Adams v London Improved Motor Coach Builders [1921] 1 KB 495

Backhouse v Judd (1925) SASR 395

Boner v Anderson (No 2) (1993) 50 IR 470

Browne v Commissioner for Railways (1935) 36 SR(NSW) 21

Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610

Cilli v Abbott (1981) 53 FLR 108

Cobiac v Liddy (1969) 119 CLR 257

Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181

DPP v Esso Australia Pty Ltd [2001] VSC 263 (30 July 2001)

Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154

Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Limited [2003] NSWLEC 156

Environment Protection Authority v Shell Company of Australia [2001] NSWLEC 66

Ferguson v Nelmac Pty Limited (1999) 92 IR 188

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

GAS v R and SJK v R (2004) 206 ALR 116

Gundry v Sainsbury (1910) 1 KB 645

Harold v Smith (1860) 5 H&N 381

Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 455

Inspector Hannah v Wonar Pty Ltd (Unreported, Fisher CJ, CT90/1214, 30 June 1992

Inspector Jones v Supercut Concrete Service Pty Ltd [2004] NSWIRComm 83

Inspector Wilkie v Greater Lithgow Skills Training Incorporated [2004] NSWIRComm 166

Latoudis v Casey (1990) 170 CLR 534

Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464

Nesmat Pty Ltd v WorkCover Authority of NSW [1998] 87 IR 312

New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR (NSW) 50

Norton v Morphett (1995) 83 A Crim R 90

Oshlack v Richmond River Council (1998) 193 CLR 72

Pearce v The Queen (1998) 194 CLR 610

Postiglione v The Queen (1997) 189 CLR 295

R v Del Caro (1989) 41 A Crim R 33

R v Mears (1991) 53 A Crim R 141

R v Way [2004] NSWCCA 131

Rodney Dale Morrison v Powercoal Pty Ltd (2003) NSWIRComm 416

Siganto v The Queen (1998) 194 CLR 656

Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219

Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202

Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 292

Stephen McMartin v Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 214

Wilson v Richmond River Shire Council [2000] NSWSC 71

Wong v Melinda Group Pty Ltd (1998) 82 IR 118

WorkCover Authority of NSW v Australian Winch and Haulage Co Pty Limited (2000) 102 IR 40

WorkCover Authority of NSW v Crane Enfield Metals Pty Ltd: Matter No's IRC 6864/99, 6864/99 and 6866/99: 31 December 2003: Unreported

WorkCover Authority of NSW v Develco Projects Pty Ltd [2001] NSWIRComm 246

WorkCover Authority of NSW v McDonald's Australia Ltd and anor [1999] 95 IR 383

WorkCover Authority of NSW v Plastachem Pty Limited [2001] 110 IR 351

WorkCover Authority of NSW v Profab Industries Pty Limited (2000) 49 NSWLR 700

WorkCover Authority of NSW v Walco Hoist Rentals Pty Ltd and anor (No 2) [2000] 99 IR 163

WorkCover Authority of NSW v David Carl Schrader (2002) 112 IR 284

WorkCover Authority of NSW v Robert Josef (2004) NSWIRComm 323

LEGISLATION CITED: Clean Waters Act 1970

Coal Mines Regulation Act 1982

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Criminal Procedure Amendment (Justices and Local Courts) Act 2001

Environmental Offences and Penalties Act 1989

Fines Act 1996

Industrial Relations Act 1986

Justices Legislation Repeal and Amendment Act 2001

Land and Environment Court Act 1979

Legal Profession Act 1987 (NSW)

Occupational Health and Safety Act 1983

Occupational Health and Safety Act 1985 (Vic)

Supreme Court (Summary Jurisdiction) Act 1967

JUDGMENT:

INDEX

Penalty

Overview 2

General principles 10

Maximum penalty and the application of s 51A of the Act 13

General considerations 20

Objective seriousness of the offences 20

Foreseeability 20

Parity and totality 49

NWCC and OPL 57

General and Specific Deterrence 67

Additional Subjective Features 71

Penalty Determination 76

Mr Richard Porteous 81

Penalty Determination 102

Mr Jonathan Romcke 104

Penalty Determination 118

Mr Mark Robinson 120

Penalty Determination 138

Remaining Personal Defendants 139

Costs

Overview 140

Jurisdiction 148

Costs to be assessed failing agreement 154

Relevant general principles 158

Considerations as to costs 161

Orders 182

- 182 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J

DATE: 11/3/2005

Matter No's IRC 3198/00 - 3249/00

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

Prosecutions pursuant to s15(1), s16(1) and s50(1) of the Occupational Health and Safety Act 1983

Judgment

[2005] NSWIRComm 31

1 This judgment deals with penalty and costs arising from my earlier judgment in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2004] NSWIRComm 202 handed down on 9 August 2004. In that matter there were 52 charges laid by the prosecutor against two corporate defendants - the Newcastle Wallsend Coal Company (NWCC) and Oakbridge Pty Ltd (OPL) and eight personal defendants: Richard Myles Porteous, Phillip John Pritchard, Michael Francis Alston, Mark Robinson, Jonathon Erik Humphries Romcke, Michael John Coffey, Christopher Wayne Nicholls and Terence Shacklady. The charges alleged offences arising under ss15(1), 16(1) and 50(1) of the Occupational Health and Safety Act 1983 (the Act).

PART A: PENALTY

2 The 52 charges laid by the prosecutor alleged offences covering three identified time periods. They were characterised by the prosecutor as follows:

(i) Type I charges: night shift charges: for offences alleged to have occurred on 13 and 14 November 1996, specifically the night shift commencing at 11:30pm on 13 November 1996 and finishing at 7:30am on 14 November 1996.

(ii) Type 2 charges: system of work charges: for offences alleged to have occurred between about 16 September 1996 up to the commencement of the night shift at 11:30pm on 13 November 1996.

(iii) Type 3 charges: planning, research and assessment charges: for offences alleged to have occurred between about 22 March 1994 and the end of the night shift finishing at 7:30am on 14 November 1996.

Type 3: planning, research and assessment charges

3 The failures alleged by the prosecutor were that the defendants failed in any or all of the following aspects:

(a) failure to undertake planning by way of properly researching available sources and information on the location and the extent of the old coal mine workings namely 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) A 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.

4 In relation to the charges alleged with respect to the corporate defendants, I found as follows:

(i) IRC Matter No's 3200/00 and 3203/00 with respect to NWCC: offences charged pursuant to ss 15(1) and 16(1) of the Act.

I found the offences proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i) of the charges as pleaded.

(ii) IRC Matter No's 3206/00 and 3209/00 with respect to OPL: offences charged pursuant to ss 15(1) and 16(1) of the Act.

I found the offences proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i) of the charges as pleaded.

Type 2: system of work charges

5 The failures alleged by the prosecutor were that the defendants 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.

(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.

6 In relation to the charges alleged with respect to the corporate defendants, I found as follows:

(i) IRC Matter No's 3199/00 and 3202/00 with respect to NWCC: offences charged pursuant to ss 15(1) and 16(1) of the Act.

I found the offences proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k) of the charges as pleaded.

(ii) IRC Matter No's 3205/00 and 3208/00 with respect to OPL: offences charged pursuant to ss 15(1) and 16(1) of the Act.

I found the offences proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k) of the charges as pleaded.

Type 1: night shift charges

7 The failures alleged by the prosecutor were that the defendants 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 "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.

8 In relation to the charges alleged with respect to the corporate defendants, I found as follows:

(i) IRC Matter No's 3198/00 and 3201/00 with respect to NWCC: offences charged pursuant to ss 15(1) and 16(1) of the Act.

I found the offences proved with respect to failures (a), (b), (c), (d) and (e) of the charges as pleaded.

(ii) IRC Matter No's 3204/00 and 3207/00 with respect to OPL: offences charged pursuant to ss 15(1) and 16(1) of the Act.

I found the offences proved with respect to failures (a), (b), (c), (d) and (e) of the charges as pleaded.

9 In relation to the natural person defendants, covering all three charge periods, I found as follows:

(i) Richard Myles Porteous: Mr Porteous was charged with twelve offences. The offences were spread over the three identified charge periods and corresponded with the charges alleged against the two corporate defendants.

I determined that Mr Porteous, at the relevant time, was a person concerned in the management of both corporations pursuant to the deeming provisions of s 50 of the Act. Accordingly, with respect to the system of work and night shift charges in IRC Matter No's 3210/00, 3211/00, 3213/00, 3214/00, 3216/00, 3217/00, 3219/00 and 3220/00: I found the offences proved with respect to the further particulars and failures pleaded as determined in the corresponding corporate defendant charges arising under ss 15(1) and 16(1) of the Act.

With respect to the planning, research and assessment charges in IRC Matter No's 3212/00, 3215/00, 3218/00 and 3221/00: I found 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 found failures (a), (b), (e), (g), (h) and (i) established as against Mr Porteous. That finding accorded with Mr Porteous' period of employment as General and Statutory Mine Manager at Gretley.

(ii) Jonathan Erik Humphries Romcke: Mr Romcke was charged with four offences relevant to the planning, research and assessment charge period.

I determined that Mr Romcke, at the relevant time, was a person concerned in the management of both corporations pursuant to the deeming provisions of s 50 of the Act. Accordingly, with respect to IRC Matter No's 3234/00, 3235/00, 3236/00 and 3237/00 I found 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 found failures (a), (b), (c), (d), (g), (h) and (i) established as against Mr Romcke. That finding accorded with Mr Romcke's period of employment as General and Statutory Mine Manager at Gretley.

(iii) Mark Robinson: Mr Robinson was charged with four offences relating to the planning, research and assessment charge period.

I determined that Mr Robinson, at the relevant time, was a person concerned in the management of both corporations pursuant to the deeming provisions of s 50 of the Act. Accordingly, with respect to IRC Matter No's 3230/00, 3231/00, 3232/00 and 3233/00 I found 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 found failures (a), (b), (f), (g), (h) and (i) established as against Mr Robinson. That finding accorded with Mr Robinson's period of employment as Mine Surveyor at Gretley.

10 In relation to the remaining personal defendants I concluded, pursuant to s 50(1) of the Act, they were not persons concerned in the management of the respective corporations. Accordingly the offences charged were not established and I propose, as part of my orders in these proceedings, to formally dismiss the charges against those defendants. That issue has raised certain matters going to the question of costs in these proceedings. I will deal with that in due course at the conclusion of my considerations as to penalty.

11 Reference is made throughout this judgment to my substantive judgment on liability earlier referred to. For ease of reference the abbreviation SJ will be used when referring to that substantive judgment.

12 In dealing with the determination of penalty, I propose to follow the same approach as I did in SJ in relation to the substantive offences. That is, I propose to deal with those offences I have found established as follows:

(i) Type 3 offences: planning, research and assessment charges;

(ii) Type 2 offences: system of work charges;

(iii) Type 1 offences: night shift charges.

13 As I said in SJ [19]:

That approach, in my view, more properly follows the chronology of certain factual matters common to all of the alleged offences. As well, many of the alleged failures as particularised in the Type 2 and Type 1 charges arise derivatively from the Type 3 charges. I will expand on that issue in due course.

14 At this stage I propose to deal with the issues raised and considerations arising relevant to sentencing as being applicable to all the defendants, corporate and personal, unless otherwise indicated. In due course I will deal with each of the defendants, dealing with matters raised specific to them and relevant to my overall considerations.

15 The actual incident giving rise to the offences charged is described by me in SJ [1] to [4] as follows:

At about 5:30am on 14 November 1996, a crew of seven mine workers at the Gretley Colliery were working underground in developing a roadway known as C heading in an area of the mine identified as 50/51 panel.

Four of the men - Ted Batterham, John Hunter, Mark Kaiser and Damon Murray - were involved in the operation of a coal-cutting machine called a continuous miner. The other three members of the crew were in a crib room at that time which was approximately 169 metres away from the coal face of C heading. Another mine worker who was not on the crew but had been working in the area of 50/51 panel was also present in the crib room at that time.

Suddenly, with great force, water rushed into C heading through a hole in the coalface at the place where the continuous miner was cutting. The four men working at the face were engulfed, swept away and drowned. The four men in the crib room survived the inrush which was itself flooded.

The water came from the long abandoned old workings of the Young Wallsend Colliery. Those old workings were full of water. As well as the water, high levels of dangerous gases were also released into the area of 50/51 panel.

General principles

16 The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

17 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

18 The starting point for considerations as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 as follows:

... it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'...

19 The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646 as follows:

The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.

20 On the issue of foreseeability, the Full Bench in Capral also stated at 646:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

21 It is also necessary to consider the damage and injury suffered in the context of the evidence and 'in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence' (Capral at 650). On that point the Full Bench in Capral stated:

We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 408-409, Lawrenseon Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at 22).

22 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

23 In the context of the above well established sentencing principles it will also be necessary for me to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendants before me. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

24 In addition to the above general principles, the principles of totality and parity in the sentencing process are applicable to the offences before me. Those principles and their application will be considered by me later in this judgment.

Maximum penalty and the application of s 51A of the Act

25 There is no dispute between the parties, in relation to the offences involving the corporate defendants, the maximum penalty is $500,000 for a first offence and, for the natural person defendants it is $50,000. Section 21(3) of the CSPA provides the Court with a discretion to impose 'a fine of a lesser amount.'

26 Of the 52 charges laid, I concluded there were 32 I was satisfied had been established beyond reasonable doubt. Of those, six related to NWCC and six to OPL spread over the three distinct charge periods identified. The remaining 20 charges were distributed between three of the personal defendants. I will break down the distribution of those charges when I come to deal with penalty in relation to each of the three personal defendants.

27 At the outset of the sentencing proceedings, the prosecution submitted that the provisions of s 51A of the Act were applicable in relation to the proven offences before me in that there was more than one charge. As such, it was submitted, the 'second and subsequent' offence penalty provisions of s 51A should come into play. Section 51A of the Act provides:

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.

28 In relation to this point, the prosecution identified two single instance decisions of the Court where the specific application of the additional offence provisions of s 51A had been considered. Both were matters where a plea of guilty had been entered by the defendants to more than one offence. The first was the decision of Boland J in Inspector Jones v Supercut Concrete Service Pty Ltd [2004] NSWIRComm 83. In that matter the defendant pleaded guilty to two offences arising under s 15 and s 16 of the Act respectively. As the facts of that matter disclose, the prosecutions arose out of the same factual circumstances, the major distinction being that both employees and non-employees were put at risk. The prosecution contended that the provisions of s 51A were enlivened as there was a second conviction arising by dint of the two offences and whichever conviction was recorded first became the conviction relied upon to argue that the defendant had previously been convicted of an offence and therefore the second conviction arising from the offences charged together attracted the higher penalty provisions that s 51A provided for.

29 In rejecting that approach, rightly in my view, Boland J said at [31]:

... it hardly seems an appropriate and just outcome to impose a higher penalty in respect of an offence that could not reasonably be regarded as a repeat offence. The two offences that are the subject of these proceedings, whilst distinct, were committed simultaneously by dint of the fact that as it so happened both employees and non-employees were put at risk at the same time and in essentially the same circumstances. The underlying rationale for the additional penalty for subsequent offences, which appears to be one of extra deterrence against the prospect of a repeat offence, bears no relevance at all to a second offence committed simultaneously with the first.

30 The approach by Boland J to the circumstances of the matters before him, as exemplified by the above passage, was adopted and followed by Staff J in Inspector Wilkie v Greater Lithgow Skills Training Incorporated [2004] NSWIRComm 166.

31 Ultimately the prosecution submits, the question is whether, in convicting a defendant for multiple offences in the same judgment, the second and subsequent mentioned convictions are second and subsequent convictions for the purpose of s 51A. While it is possible to argue that the wording of s 51A leads to such a conclusion, it would be straining the sensible construction of the section to ultimately arrive at such as outcome. In the first instance, I can do no better than endorse the view expressed by Boland J in Supercut at [37] as follows:

Despite the difficulties associated with interpreting s 51A of the Act I do not consider it was the legislature's intention that where:

· a defendant committed simultaneous offences under s 15(1) and s 16(1) in circumstances where the defendant had no previous convictions;

· the offences arose out of the same factual matrix;

· there was a substantial overlap between the failures charged in the two offences;

· the two offences were effectively prosecuted as one;

that whichever of the two offences was first recorded as a conviction becomes a previous conviction for the purpose of s 51A.

32 In the matters before me, none of the defendants have prior convictions and I have yet to record any convictions. That will only be done when in making the orders that I do at the conclusion of these proceedings. The recording of those convictions will be done simultaneously within the context of my judgment and orders made. It seems to me somewhat artificial in the extreme to suggest that simply because one of those convictions is mentioned first in some sequential order that all the other convictions that follow as part of the totality of the matters dealt with becomes the trigger for the repeat offender provisions of s 51A. In my view, reference in s 51A to the requirement that the defendant 'has previously been convicted of an offence' is reference to prior convictions existing before the Court came to consider the current offences charged and ultimately convict the defendants for the offences then found proven.

33 If I am wrong as to that conclusion then I am of the view that the offences before me, in the way in which they have been pleaded and framed, were part of an ongoing factual matrix. That much was commented upon in SJ as follows:

[110] To understand the context of the defendant's submissions in this matter it is of assistance to understand the three time periods identified in the charges alleged by the prosecution by reference to the following diagram which graphically depicts the periods as follows:

[ IMAGE ]

[112] As can be observed by reference to the above diagram, the prosecution has overlapped the alleged offences. The risk to safety identified in relation to all offences under all three time periods is the same. That is, the risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend old workings. Within the specified time periods, the prosecutor has also duplicated a number of the contraventions alleged.

34 In addition to the above extract, I have also made reference in SJ [109] to [129] inclusive to those matters which, in my view, point to these offences being seen in the context of a continuum of events. As I said in SJ [119] in considering differences between the system of work charges and the night shift charges:

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.

35 My other reason for seeing these offences as part of a continuing factual matrix is the reference I make consistently throughout SJ to the derivative and duplicitous nature, as I have characterised them, of many of the particularised failures pleaded within the context of the overall offences. On that point, I refer to my comments in SJ when dealing with failures (b) to (e) of the planning research and assessment failures as follows:

[516] The above failures as pleaded will all be dealt with together because of the common factual element that underpins them. That is, the alleged failure by the defendant to accurately depict the location and extent of the Young Wallsend coal workings on any of those mine plans specifically identified.

[517] This multiplicity of pleading what is, on one view, simply a continuation of the primary failure already established, is indicative of what I have earlier referred to in relation to technically correct but unnecessary duplicity in pleading alleged failures. These four failures, when grouped together, are a good example of what I am referring to.

[518] It is apparent it seems to me, once 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. ...

36 In relation to the system of work charges and the particularised failures as pleaded, I said in SJ as follows:

[633] In the overall facts and circumstances surrounding the charge before me, the genesis of many of the defendant's alleged failures derives from what I characterise as its primary failure to properly research the location and extent of the Young Wallsend old workings. Fundamental to that primary failure was the defendant's reliance on RT 523 Sheets 2 and 3. It seems incontrovertible to me that once that failure is established, as it has been, then to a large extent, the other charges and the particularised failures therein within them arise derivatively from the primary failure. I have already stated as much in relation to a number of the particularised failures in the planning, research and assessment charges. In the current charge, that is also the case, I believe, in relation to failures (a), (b), (c), (d), (e), and (f). As to alleged failure (g), I will comment on that in due course.

37 In relation to the night shift charges and the particularised failures as pleaded I said in SJ as follows:

[754] I have already expressed the view that in relation to the system of work charges, the majority of the particularised failures alleged derived from the defendant's primary failure to properly research the location and extent of the Young Wallsend old workings. I refer in particular to my earlier comments in this judgment as to that issue.

[755] That they are derivative failures, as I characterise them, does not negate the fact that they are failures nonetheless. What it does do, however, is put those derivative failures into context for sentencing purposes.

.

[756] In the Type 1 (night shift) charges now being considered, further particulars aside for the moment, the alleged particularised failures (a) to (e) are in the exact same terms as the particularised failures (a) to (e) in the system of work charges. The only minor difference is in relation to particularised failure (d) where, in the night shift charge, the failure pleaded is a 'failure to ensure there was any or any adequate barrier...' whereas in the system of work charge that failure is pleaded simply as a 'failure to ensure there was any adequate barrier ...' The reason for the minor difference is obvious. At 5:30am on 14 November, when the inrush occurred, there was not any barrier between the employees who were working and the Young Wallsend old workings.

[757] What that minor difference does is simply highlight what I believe is symptomatic of the way in which the overall facts and circumstances of this matter have been pleaded in relation to the offences before me. By way of repetition, let it be stated again that the genesis of the corporate defendants failures, by and large, started with their reliance on RT 523 Sheets 2 and 3 because of their failure to properly research the location and extent of the Young Wallsend old workings.

[758] Once that failure arose, it set in train a series of failures of acts and omissions by the corporate defendants that only came to light when the tragedy of the inrush occurred. Along the way, the defendants did and failed to do things that, on the evidence before me, would not have occurred but for the defendant's primary failure to properly research the location and extent of the Young Wallsend old workings. This is particularly so in relation to the alleged particularised failures in the four offences arising against the corporate defendants in the night shift charges before me. ...

38 Having regard to all of the above, I am of the view that the correct approach in relation to the determination of penalty in these matters is to consider all of the offences before me in relation to all of the defendants as first offences. In doing so, I will consider the convictions formally entered by me at the conclusion of these proceedings as being recorded simultaneously.

General considerations

Objective seriousness of the offences

39 The starting point for consideration on this issue is the Full Bench decision in Lawrenson Diecasting earlier referred to.

.

40 The relevance of foreseeability in relation to considerations going to the objective seriousness of an offence was considered in Capral.

41 On behalf of the defendants generally, it was submitted there were two aspects to be considered in relation to foreseeability. To start with, it was conceded that the risk of inrush into old workings was a known and foreseeable risk. On that point, it has to be said, if that was a known and foreseeable risk, then what was also known was the gravity of the consequences of that risk if the location and extent of the former workings of the Young Wallsend Colliery (YWC) were not adequately researched and risk assessed as to location and extent. The defendants, both corporate and personal, identify facts and circumstances they point to as evidence they were aware of that risk and had taken steps to address it. I will deal with those matters in due course. Before I do that, it is necessary to consider the second aspect the defendants raise relevant to the issue of foreseeability.

42 On behalf of the defendants it was submitted what was not foreseen by the defendants was that Sheets 2 and 3 of RT 523 would be incorrect. Accepting that as a starting point, it was then submitted the foreseeability of that event was of a lesser foreseeability than the risk of inrush per se. On that basis, it was said, had the defendants been aware that Sheets 2 and 3 had the likelihood of being incorrect then research would have been undertaken. Overall, it was said, when determining the level of foreseeability and the consequences for the overall criminality of the offence, it is the foreseeability that Sheets 2 and 3 were incorrect, not the foreseeability of the risk of inrush that should be considered. I do not agree with that approach.

43 What was known by the defendants is that, in making the decision they did to undertake mining activities in 50/51 Panel, they knew from the outset that part of the former mine workings of YWC were present in the seam in which they wished to mine. They also knew, as they believed at the time, there were additional old workings of the YWC in the Borehole Seam, some eighteen metres below where they planned to mine. They also knew, taken together, the former workings of the YWC were full of water. True it is, relying on RT 523 Sheets 2 and 3 received from the Department of Mineral Resources (DMR) they believed they had safely accommodated the YWC old workings in making the decisions they did including the leaving of a barrier of coal in the Young Wallsend Seam in order to accommodate the old workings where they believed them to be.

44 The starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). The activity in which the defendants were engaged was underground mining. In planning that activity, specifically in relation to 50/51 Panel at the Gretley mine, the defendants knew the former old workings of the YWC had to be taken into account in planning mining activity safely. Paramount in those considerations was the obligation to ensure the location and extent of the YWC old workings were accurately identified as to location and extent. The risk to safety that arose if that task was not done or not done properly was clearly foreseeable particularly given it was known the old workings were full of water. That is, the risk of inrush. As well, in addition to the primary obligations arising under the Occupational Health and Safety Act to 'ensure the health, safety and welfare at work of all ... employees' (and non-employees as the case may be) there were specific statutory obligations arising under the Coal Mines Regulation Act 1982 and its accompanying Regulations. In relation to the risk of inrush, I refer specifically to the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984, Part 3 - Prevention of Inrushes.

45 The 'appropriate' measures not taken by the defendants, given the obvious and foreseeable risks to safety the YWC old workings represented, centred around steps taken or not taken in order to be satisfied, in accordance with the obligation imposed, as to the location and extent of those old workings.

46 That the defendants raise the incorrectness of Sheets 2 and 3 within the context of foreseeability of risk to safety in the way it was expressed is, I believe, misplaced. Having said that, I do accept the issue is a matter of significance to be taken into account in assessing the objective seriousness of the offences and the overall culpability of the defendants. This approach, in my view, is consistent with the approach adopted in earlier decisions of this Court, both at first instance and appellate level. I refer to WorkCover Authority of NSW v Walco Hoist Rentals Pty Ltd and anor (No 2) [2000] 99 IR 163; WorkCover Authority of NSW v McDonald's Australia Ltd and anor [1999] 95 IR 383 and Nesmat Pty Ltd v WorkCover Authority of NSW [1998] 87 IR 312.

47 In Nesmat, the Full Bench of the Court considered an appeal against the severity of the sentence imposed on the appellant at first instance. The relevant facts were that the appellant had been contracted by the Department of Public Works to carry out certain works. Those works involved employees of the defendant entering an unsecured State Rail Authority substation. Unbeknown to those employees, and contrary to expectations, the substation was still live. As a consequence, one of the appellant's employees was electrocuted when he touched one of the 'air brake' switches located on the wall of the substation.

48 At first instance the appellant entered a plea of guilty to the offence charged under s 15(1) of the Act and a penalty of $80,000 was imposed. One of the matters raised on appeal was that, at first instance, the judge had failed to take into account, in assessing the defendants culpability, the role of the Public Works Department in the circumstances leading to the offences charged and the ultimate death and injury that occurred to the defendant's employees. In upholding the appeal, the Full Bench noted in the first instance 'that there is a general principle that a plea of guilty, particularly at an early stage, will always result in a 'substantial reduction in the sentence imposed.' (at 322). As well, the Full Bench went on to say:

However, in our opinion, there are other very relevant factors which were not adverted to by his Honour when determining the penalty, or if adverted to, were rejected by him as not being relevant and/or mitigating ones. These include:

(1) The primary cause of the risk and the detriment to safety was that the substation was not de-energised by the appropriate authority/ies at the time it was decommissioned or, at any time, prior to the letting of the contract to the appellant. The risk and detriment to safety was compounded by the further failure of Public Works, which was advised as early as 12 November 1993 that the substation was live, to specify in the contract that the job included the removal of equipment in the live electrical substation.

On appeal, we were advised that the prosecution which had been commenced against a member of the staff of Public Works had been withdrawn, and that Public Works was never prosecuted in relation to the tragic accident despite what was, on the evidence, the instrumental part played by it. The absence of prosecution of other parties, on whom the appellant had reasonably relied, underlines the cogency of argument presented on appeal that the sentence gave rise to a justifiable sense of injustice. (emphasis added)

(2) The appellant and in particular Mr Farrugia were misled. They were induced to believe the substation was not live and were lulled into a false sense of security by the failure of Public Works to specify and warn, orally and/or in writing in the tender/contract documentation, that the substation was live. The foregoing failures were further compounded by Public Works then actually advising and authorising Mr Farrugia to break into the substation in order to gain access. That authorisation was given in a situation where Public Works as far as the appellant was advised had sole occupation and control of the site and well knew the sub-station was live.

(3) The evidence showed that the appellant through Mr Farrugia and other senior personnel was conscious of the need for, and had adopted generally, comprehensive practices and procedures designed to ensure safety in the workplace.

(4) The evidence further showed that the appellant's default did not arise out of a deficient system of work or utilisation of an unsafe piece of equipment over a period of time. The circumstances which gave rise to the offence were of a 'one-off' character and do not reflect any previous or ongoing approach to safety matters by the appellant.

We are of the opinion that it is proper to take into account the aforesaid factors, which we consider as relevant and mitigating ones; they bear critically on the nature and quality of the offence and the degree of culpability of the appellant.

49 I will return to Nesmat in due course to the extent there are matters contained in the above extract relevant to my considerations herein. Before I do, I refer to the decision of Wright J, President in Walco Hoists. In that matter a plea of guilty was entered by Walco to offences arising under ss 15 and 16 of the Act. The relevant facts were that Walco was contracted by a company I will refer to as RGM to supply and undertake rigging works at a construction site. In the course of that work an employee of Walco suffered fatal injuries when a piece of steel tube he was using as a lever on a hoist struck him in the head causing him to fall two metres to the ground where he hit his head on the concrete floor of the worksite. On the day of the accident the employee of Walco who was fatally injured had driven to the construction site to deliver part of the hoist being hired by RGM. Components of the hoist were unloaded by a crane owned and operated by a company Abbatroy Pty Ltd. Initially prosecution proceedings were commenced against Abbatroy Pty Ltd (as well as Walco and others) but were subsequently withdrawn. In submissions on sentence, counsel for Walco pointed to that fact and submitted it was a matter to be taken into account in determining penalty relying on the judgment of the Full Bench in Nesmat.

50 In dealing with that submission, his Honour said (at [31]) that he did 'not consider that the fact that the prosecution did not proceed against Abbatroy Pty Ltd ... is of great relevance to these proceedings.' He went on to say:

In any event, as I understand the decision of the Full Bench in Nesmat Pty Limited it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant.

51 Further, his Honour summarised, correctly in my view, the situation as follows at [34]:

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.

52 The same issue was considered by Walton J, Vice-President in McDonalds. In that matter, his Honour was considering the extent to which the actions of other parties, involved in the factual matrix of the prosecution and not prosecuted, should be taken into account in the sentencing process. In the matters before him, that involved two companies identified as Lennard and Mercer, both of which had had contracts to provide certain services to the defendant relevant to the factual circumstances underpinning the offence. In adopting the approach that he stated was consistent with the approach in Nesmat and Wong v Melinda Group Pty Ltd (1998) 82 IR 118 his Honour said at 437:

The relationship between the defendants and Lennard, Mercer and the independent contractors is relevant to the extent that it casts light upon the level of culpability of the defendants themselves. The role performed by Lennard and Mercer in the McDonald's System in relation to the installation and maintenance of equipment, as well as the training of staff and the provision of advice, may clearly be pertinent to the reasonableness of the defendants' actions. The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's System. The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.

53 Having regard to the above authorities and the general principles of sentencing, it is appropriate in my view, as a factor in assessing the objective seriousness of the offence and the culpability of the defendants, that I take account of the role of the DMR in providing to the defendants RT 523 Sheets 2 and 3. As is well known those Sheets, depicting as they did the purported Top and Bottom Seam workings of the YWC, were wrong. There is also no dispute on the part of the defendants that they relied on those Sheets as accurately depicting the YWC old workings and planned and risk assessed their mining activities in 50/51 Panel accordingly. As well, the DMR, as an employer, had employees at the defendants workplace in 50/51 Panel during the period of the system of work charge framed and pleaded by the prosecution.

54 It is clear the role of the DMR in providing the incorrect Record Tracings to the defendants and that the DMR has not been prosecuted has caused the defendants' to feel 'a justifiable sense of injustice' as expressed in Nesmat. Those feelings are understandable. In saying that, it is necessary to consider the findings made by me concerning the offences.

55 As my findings in SJ make clear, I concluded that the primary failure of the defendants was their failure to properly research the location and extent of the YWC old workings. That was particularised failure (a) in the research, planning and assessment (Type 3) charge.

56 In planning their mining activity at Gretley and 50/51 panel in particular, the defendants relied on RT 523 Sheets 2 and 3. The source of those Sheets was the DMR. The history of how RT 523 Sheets 2 and 3 came into being within the DMR is detailed in SJ. It is well known to the parties. In issue was the defendants reliance on the accuracy of those Sheets as the basis for their planning of the mining activity undertaken at Gretley and 50/51 panel in particular. On that point, it is pertinent to note my comments and findings in SJ as follows:

[466] Accepting as I do, that no reference was made to Sheet 1 by the defendant, it is not sufficient, in my view, for the defendant, or the Mine Surveyor on its behalf, to accept the accuracy of Sheets 2 and 3 without question. Not only is that disregarding the absolute nature of the statutory obligation cast by both the CMRA and the OHSA, it is also failing to acknowledge the reason why there was the need to be certain as to the location and extent of the Young Wallsend old workings - lives were at stake and safety was paramount. It is simply neither desirable nor consistent with its statutory obligations under the OHSA for the defendant to rely without question on the copies of Sheets 2 and 3 supplied to them by the DMR. There is no doctrine of implied infallibility to be applied to the information, documentary or otherwise, given out by any government department. While it is reasonable to presume that such information 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.

... ...

[798] In the context of the overall proceedings before me, what was reasonably foreseeable and should have been considered by the defendants was the risk of inrush if the defendants did not research and accurately identify the location and extent of the Young Wallsend old workings. The risk of inrush from old workings, known to be full of water, was real. It was imperative that the defendants approach mining activity within the vicinity of known old workings with great care and caution and by adopting the principle well established in relation to the dangers and risks of inrush. ...

...

[804] It is abundantly clear in my view, that a failure to research the location and extent of the Young Wallsend old workings with the certainty, surety and caution that the defendants statutory obligation demanded, created a working environment encompassing those old workings that was fraught with risk to safety that was real and foreseeable.

[805] The defendants submit that the cause of the inrush was the incorrect depiction of the workings in the Young Wallsend Seam and the Borehole Seam as provided to them by the DMR in RT 523 Sheets 2 and 3. I fundamentally disagree. The cause of the inrush, in my view, was the failure by the defendants to properly research the location and extent of the Young Wallsend old workings. That failure resulted in the defendants reliance on the copies of the mine plans provided to them by the DMR, identified as RT 523 Sheets 2 and 3. Those Sheets wrongly depicted presumed old workings in the Young Wallsend and Borehole Seams, identified respectively as Top and Bottom Seam workings. Once the defendants placed reliance on those Sheets without more, they set in train the series of failures that were alleged and as I have identified, I am satisfied have been established.

[806] The defendants have consistently submitted that they were entitled to rely on the mine plans depicted in RT 523 Sheets 2 and 3 as being accurate with respect to the Young Wallsend old workings. To a point I would agree. But it does not excuse the defendants from their independent statutory obligation under the OHSA or the CMRA to ensure a safe system of work. Nor does it relieve the defendants of their obligation to satisfy themselves by way of their own research as to the accuracy of Sheets 2 and 3 given to them by the DMR. On any considered view, Sheets 2 and 3 were seriously deficient in purporting to depict old coal workings in a way that one could be confident of their accuracy. Securing that step was vital to the defendants ability to plan its mining activities at Gretley safely and without risk. The defendants did not take that step.

[807] The defendants submit that they entered the depiction of the Young Wallsend old workings into their computerised mapping programme and that the depiction corresponded with known surface features such as the ISG points, the lease boundaries and the surveyed location of the Young Wallsend Colliery shafts. That is correct. What they did not do, because it was not possible, let alone reasonably practicable, it was submitted, was to survey the flooded Young Wallsend Colliery old workings during the charge period. That is also correct. But that is not the point. The point is that the defendants had an obligation to ensure that their planned mining activities at Gretley were carried out safely and without risk. They knew the Young Wallsend old workings were present in the very vicinity in which they wished to mine, particularly 50/51 panel. They knew those old workings were full of water. They knew of the danger of inrush from water and/or dangerous gases and their statutory obligation to specifically prevent that situation occurring: Part 3 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 makes that clear.

[808] Accordingly, the defendants, in my view, knew or ought to have known how critically important it was to ensure that the mine plans they were relying on as depicting those old workings were accurate - not just as to ISG points, lease boundaries and surveyed air shafts, but also seam correlation. This was so, in my view, particularly where it was known at the very least that the Young Wallsend Colliery had undertaken work in two seams, that no Notice or Plan of Abandonment had ever been filed with the DMR, the depiction of the presumed old workings on RT 523 Sheets 2 and 3 were not certified as to accuracy and they depicted anomalies that, on the evidence, should have been questioned and independently researched by the defendants. The fact that it was not possible to survey or enter the flooded old workings cannot be excused on the basis of not being a reasonably practicable thing to do. What that factor should have done is cause the defendants to double their efforts to independently research the location and extent of the Young Wallsend old workings, question Sheets 2 and 3 until they were proved and plan their mining activities at Gretley with parameters that took into account the possibility that the depiction of the presumed old workings of the Young Wallsend Colliery may be inaccurate and mining activity should be planned on that basis.

...

[822] It is correct for the defendants to assert that the errors made by the DMR were not under the control of the defendants. But again, that misses the point. 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.

57 The DMR was and is, the licensing, regulatory and, in most cases, the prosecutorial authority for mining activities in New South Wales as well as the major repository of information about old mine workings. It is understandable therefore that the defendants took comfort from RT Sheets 2 and 3 provided to them from the DMR, with no rider as to inaccuracy, as being prima facie accurate. There were however, as SJ highlights, anomalies and irregularities on the face of the Sheets as well as no certification as to their accuracy that should have alerted the defendants to question them. As I said at SJ [806]:

On any considered view, Sheets 2 and 3 were seriously deficient in purporting to depict old coal workings in a way that one could be confident as to their accuracy. Securing that step was vital to the defendants ability to plan its mining activities at Gretley safely and without risk. The defendants did not take that step.

58 Certainly, as far as the DMR was concerned, any responsibility as far as risk assumed in relation to the mining activity to be undertaken by the defendants, together with the planning and research undertaken in relation to it, rested with the defendants. That much was confirmed by Mr McKensey in his evidence given in the sentencing proceedings. Mr McKensey was the Chief Inspector of Coal Mines with the DMR at the time NWCC submitted it's initial s 138(1) application to the DMR. Accompanying that application was a relevant mine plan incorporating the Top Seam of the YWC as depicted in RT 523 Sheet 3. That mine plan was certified as accurate by Mr Romcke, the then General Mine Manager at Gretley as well as Mr Murray, the then Mine Surveyor. As Mr McKensey stated in his affidavit filed for the sentencing proceedings:

[17] ... As set out in my earlier evidence in these proceedings I considered all the material supplied to me by District Inspector Flett, Dr Holla and Senior Inspector Anderson amongst others. The normal procedure was that any inspector or other expert would and did raise with me any safety or other issues they had with any application.

[18] In relation to the application I approved on 5 January 1995, I had specific regard to the location of the abandoned Young Wallsend Colliery Workings as I knew from my knowledge of previous applications concerning Gretley that they were getting close to those old workings.

[19] I measured on the approved plan and record tracing supplied by the company that there was a 50 metre barrier between the old and proposed workings. I had no reason at that time to believe the record tracing was inaccurate. Prior to the inrush I had never had any reason to look at Record Tracings held by the Department and I relied on those copies supplied by the relevant company making an application under s.138(1). Up until this accident I regarded Record Tracings supplied by the Department as accurate representations of old workings. I had never previously seen a Record Tracing that I knew to be inaccurate.

[20] One of the reasons I was concerned about the barrier was that I knew the old workings contained water, and if holed into, had the potential for a catastrophic incident. If I had any concerns about the adequacy of the barrier I would not have approved the application.

[21] Having satisfied myself that there was a 50 metre barrier and having regard to all the other information I received, I approved the application.

59 As well, at the time of submitting the initial and subsequent s138(1) applications during 1995 and 1996, the defendants were following the guidelines issued by the DMR in relation to the making of such applications. Those guidelines (exhibit P 121) state, inter alia:

It is the responsibility of the lease holder wishing to mine the resource to properly research, investigate and plan the mining operation.

60 The primary failure of the defendants being the failure to properly research the location and extent of the YWC was also, in my view, the primary cause of the risk and detriment to safety. The risk to safety if the YWC was not accurately depicted as to location and extent was, as was well known, the risk of inrush of water and/or dangerous gases. That is precisely what happened. The primary responsibility for that rested with the defendants. Nevertheless, I do accept that the actions of the DMR, in issuing Sheets 2 and 3 as they did, implicitly conveyed to the defendants they (that is, Sheets 2 and 3) were correct. In that sense the defendants were 'lulled into a false sense of security'. That, in my view, was further compounded by the DMR then approving the s138(1) application and subsequent variation accompanied as it was by the certified mine plan that depicted the Top Seam of the YWC in accordance with the Top Seam Sheet 3 issued by the DMR.

61 They are factors that, in accordance with the approach in Nesmat, are 'relevant and mitigating ones'. They bear critically on the nature and quality of the offence and the degree of culpability of the defendants.

62 In considering other factual circumstances in Nesmat as being 'relevant and mitigating' in determining the appellant's overall culpability, the Full Bench identified that 'the appellant ... had adopted generally, comprehensive practices and procedures designed to ensure safety in the workplace.' In the overall factual circumstances of the offences before me, similar circumstances apply.

63 There is evidence to which I have referred in SJ that the defendants, both corporate and personal, were generally both conscious of the need for, and had adopted significant practices and procedures designed to ensure safety in the workplace. Without detailing the extensive references to those matters in this judgment, I identify the following as indicative of the defendants activities in this area:

· Workplace safety practices and procedures were given considerable attention at General Mine Manager's meetings. For example, at the meeting of 26/27 July 1996, documentation going to safety issues was included.

· There was also a detailed safety presentation at the General mine Manager's Meeting on 25 October 1996 addressing, in part, a review of injury statistics for mines operated by the corporate defendants, including corporate safety activities.

· Reference to safety issues is to be consistently found throughout the documentation relating to the General Mine Manager's meetings, as produced to the Court, for those meetings conducted on 10/11 May 1996, 26/27 July 1996, 22/23 August 1996, 24/25 October 1996, 29 November 1996 and 19 December 1996.

· Corporate safety meetings were conducted, and were attended by Mine Managers and safety officers. The minutes of one such meeting on 2 November 1995 are before me as exhibit [P 48A] in the substantive proceedings. In part, they contain safety performance reports from Mine Managers as well as individual safety performance information for each mine. An Occupational Health and Safety Workshop is also discussed in this document, addressing an employee survey on safety and hazard identification/standards monitoring criteria.

· Oakbridge also developed and conducted an Occupational Health and Safety Audit as outlined in exhibit [P 22A] dated 12 October 1994. By reference to its Index, the audit addresses the following:

1. Policies - Rules - Procedures

2. Systems and Controls

3. Analysis and Assessments

4. Involvement and Training

5. Safety Reinforcement

· In conjunction with this Audit, Oakbridge prepared and distributed an Audit Questionnaire, exhibit [P 21A], divided into the same categories as above. Further, an Occupational Health and Safety Audit Workshop was facilitated addressing the practical application of the proposed safety audit, the outline of which is before me as exhibit [P 46].

· Various policies and procedures going to diverse occupational health and safety issues of the Gretley Colliery were before me in exhibit [P 66] encompassed within an Oakbridge-Greltey Colliery letterhead. This was a document that contained an extensive array of guidelines and procedures and was signed by the Managing Director of Oakbridge, Mr R Yeates, and Mr R Porteous as Gretley Mine Manager. Amongst other documents, that exhibit contained the following:

Health and Safety Policy;

Rehabilitation Policy;

Eye Protection Policy;

Noise Control and Hearing Protection;

OH&S Policy Directives;

Confined Spaces Audit; and,

Smoke Free Workplace Policy.

· There was also oral evidence received that indicated an active workplace safety culture amongst employees of the corporate defendants. I heard evidence that, at the commencement of their employment at Gretley, they engaged in a three-day safety induction. It was also their evidence that safety was consistently emphasised in the workplace. As well they confirmed that had they encountered a safety hazard whilst working they were encouraged to cease work and report to their respective Deputy, who would in turn either resolve the problem, or halt work in the area completely.

· Further, evidence was given that there was a Safety Committee active in the mine, and that union meetings facilitated by the corporate defendants almost always addressed issues relating to safety. There was also evidence given that at weekly planning meetings of mine management, safety issues for the mine always took priority.

64 The above factors, pointing to a commitment to proactively addressing safety in the workplace, is evidence the defendants were conscious of the need for, and had adopted generally, practices and procedures designed to ensure safety in the workplace. To put that finding into context, there is no evidence that suggests the defendants had overall demonstrably unsafe systems of work or were indifferent as to their workplace responsibilities in relation to safety. As I said at SJ [289]:

... Indeed, OPL was concerned to ensure that the strategic and policy directives that it put in place were transmitted into practical reality at the workplace and it achieved this by a high degree of direct control over significant issues, including safety. It was not just a matter of setting policy in relation to safety but of putting in place policy guidelines, overseeing that by undertaking audit compliance and insisting, properly so in my view, on report back as to the outcome of those activities. ...

65 As its primary submission, the prosecution have contended, in determining the objective seriousness of the offence, the offences before me fall within the worst type of case within the relevant sections of the Act. I do not agree. I do not agree primarily because of those matters I have already considered going as they do to the role of the DMR and the defendants approach to safety. They are matters that, as I have already stated, are 'relevant and mitigating ones; they bear critically on the nature and quality of the offence and the degree of culpability' of the defendants (Nesmat at 323).

66 The prosecution have also raised the period of time over which the offences were committed as being relevant to determining the extent and seriousness of the defendants' criminality, particularly pointing to the planning, research and assessment offences, spanning as they do the longest period of time and encompassing the system of work and night shift offences respectively.

67 The planning, research and assessment time period extends from 22 March 1994 until 7.30am on 14 November 1996, a period of some thirty two months. According to the written submission of counsel for the prosecutor I found the planning, research and assessment charges proven for the entire period. That is not correct in the way and the context in which this issue was expressed by me. On the issue as to the creation of the potential risk to safety I said, relevantly, in SJ:

[335] The date of 22 March 1994 identified as the commencement of the planning, research and assessment charges is the date on which NWCC signed Coal Lease 1343 with the DMR relevant to proposed mining activity at the Gretley Colliery. Clearly, at that time, the potential risk as pleaded did not exist. It is necessary to determine when it did.

...

[342] In my view, the potential risk of inrush arose once the defendants commenced their mining activities in 50/51 panel relying on RT 523 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.

[343] As was said in CI & D Manufacturing, ss15 and 16 of the Act comprehend the commission of an offence 'where the circumstances are such that an employers act or omission has created a situation of potential danger to the health and safety of persons at his workplace'. Once the defendant failed to properly research the location and extent of the Young Wallsend old workings and relied on Sheets 2 and 3 in planning and then undertaking its mining activity in 50/51 panel, the potential risk to the health and safety of persons required to work in 50/51 panel arose. That reliance on inaccurate mine plans meant that, from the very beginning, the mining activity in 50/51 panel, planned as it was and in the direction it was heading, always represented a potential risk of inrush of water and/or dangerous gases from the Young Wallsend old workings. True it is that, for example, in September 1996 the potential risk of inrush was latent in that it was not immediately likely to cause actual injury. Nevertheless, given the planned direction of the mining activity in 50/51 panel bearing directly and inexorably towards the Young Wallsend old workings in the Young Wallsend Seam, the potential risk of inrush was very much alive. As the mining activity continued in 50/51 panel, the potential risk of inrush was heightened as the work approached the Young Wallsend old workings. In other words, the potential risk became more and more proximate to the actual inrush that caused death and injury.

68 What those passages convey and were intended to convey is that, firstly, on 22 March 1994, the commencement of the research, planning and assessment charges, the potential risk to safety did not exist: SJ [335]. Secondly, the potential risk to safety arose 'once the defendants commenced their mining activities in 50/51 panel relying of RT 523 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 ... The actual development work in 50/51 panel ... was undertaken, as best as can be ascertained, in the period between August 1995 and 16 September 1996 ... on 16 September 1996 mining activity resumed in 50/51 panel at 4 cut-through: SJ [342]. Finally, I emphasised in SJ [343] that 'once the defendant failed to properly research the location and extent of the Young Wallsend old workings and relied on Sheets 2 and 3 in planning and then undertaking its mining activity in 50/51 panel, the potential risk to the health and safety of persons required to work in 50/51 panel arose'.

69 Reading those findings in their proper context it was my finding that the potential risk to safety arose once NWCC made its s138(1) application to the DMR in September 1994. That application encompassed planned mining activity in 50/51 panel relying on Sheets 2 and 3 (Sheet 3 in particular) to accurately depict the YWC old workings relative to that planned mining activity. Accordingly, putting the factual circumstances as I found them at the time, the potential risk to safety arose in or about September 1994 and not March 1994, as contended by the prosecution. In any event, to the extent the period of time over which offences are committed is a relevant factor in determining the degree of criminality of a defendant's actions, I am not wholly persuaded it is a significant factor in these proceedings.

70 In support of their 'period of time' factor as relevant to determining the extent and seriousness of the defendants' criminality, the prosecution relied predominantly on two authorities. They were R v Del Caro (1989) 41 A Crim R 33 and R v Mears (1991) 53 A Crim R 141. In Del Caro, Campbell J said on this issue (to which Gleeson CJ and Carruthers J agreed) as follows:

A course of criminal conduct going on for many years is an entirely different matter to a first offence, being one specific event or a number of specific events within a relatively short period of time.

71 In Mears the Court unanimously agreed that:

... the period of time over which offences are committed is also a relevant factor to determining the extent of criminality.

72 Both of the above-mentioned matters involved criminal offences that come within the general ambit of what is known as social security fraud. That is, they involved the defendants, over a period of some years, systematically and intentionally defrauding the Commonwealth in relation to diverse social security benefits. There is little doubt the systematic and intentional fraudulent behaviour of the respective defendants over a lengthy period of time was viewed by the Courts as a relevant factor in the sentencing process if largely to distinguish them from the often instinctual or opportunistic one-off criminal actions that are the hallmark of much criminal behaviour. Those are proper distinctions made in assessing criminality within the context of criminal intent. But I have difficulty in accommodating 'period of time' considerations into absolute offences relying predominantly on a continuum of workplace activity such as that undertaken in the offences before me to the level the prosecution contends for. Certainly the defendants could have, at any time after the mining activity was planned and commenced in 50/51 Panel, reassessed their reliance on RT Sheets 2 and 3. On the evidence received from the personal defendants in the sentencing proceedings, any assessment undertaken always commenced by reference to copies of Sheets 2 and 3 as the starting point. That fact is not, by itself, a reflection of the defendants continuing criminality per se. It is a reflection of the defendants primary failure to properly research the location and extent of the YWC and their continuing reliance on RT 523 Sheets 2 and 3 as prepared by the DMR. Certainly, Mr. Robinson's actions at the relevant time in perusing further copies of Sheets 2 and 3 obtained from the Mines Subsidence Board (MSB) in the way he did is relevant to considerations going to the criminality of Mr Robinson that will be dealt with in due course.

73 The Full Bench decision in Lawrenson Diecasting [at 476] affirmed the proposition enunciated in Inspector Hannah v Wonar Pty Ltd (Unreported, Fisher CJ, CT90/1214, 30 June 1992) in the following terms:

It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible.

74 As earlier expressed, if the defendants did not properly research the location and extent of the YWC, then the risk to safety represented by the risk of inrush was real and foreseeable. Accordingly it was imperative the defendants undertake all 'available and feasible' measures to ensure the accuracy of the location of the old workings. In SJ I found they did not do that consistent with their respective statutory obligations notwithstanding the role of the DMR in the issuing of RT 523 Sheets 2 and 3 and the defendants reliance on them. Those measures that were available to the defendants to do were relevantly identified by me in SJ. In essence the defendants failed to critically appraise the anomalies and irregularities that Sheets 2 and 3 represented in purporting to depict the Top and Bottom Seam workings of the YWC. As a consequence, nobody on behalf of the corporate defendants or any of the personal defendants questioned the accuracy of Sheets 2 and 3 with the DMR nor did they request from the DMR information relevant to Sheets 2 and 3 (particularly but not exclusively Sheet 1) that would have enabled them, I believe, to be very sceptical about relying on the accuracy of Sheets 2 and 3 without question. As well, apart from copies of prior geological and mine plans from other collieries, the defendants undertook no proper independent historical or other research to assist them in ensuring that Sheets 2 and 3 were accurate.

75 True it is, as was submitted on behalf of the defendants, other mining companies such as BHP had also been supplied with copies of Sheets 2 and 3 by the DMR and had also acted in reliance on them in the mine plans they prepared in relation to their particular mining activities. But that fact does not further assist the defendants beyond what I have already acknowledged. That is, that the role of the DMR in providing Sheets 2 and 3 in the way they did is a critical and mitigating factor to be taken into account in assessing the defendants' overall criminality within the context of the objective seriousness of the respective offences.

76 What is also not known to me as far as other mining companies being provided with copies of Sheets 2 and 3 by the DMR is the extent, if at all, they were relied upon by those mining companies in planning actual mining activity in the way that was undertaken by the defendants. That is, actually mining in the Young Wallsend or Boreheole Seams in a direction or location that placed them in direct confrontation with the YWC old workings. On the limited evidence that was before me, the inference is none of them. For example, in the Minute Paper dated 13 May 1980 (exhibit P157) signed by Mr T House, Mapping Section, Coal Development Branch, it states that BHP had requested 'copies of the plans of abandonment of the Young Wallsend Colliery.... for completion of their geological mapping as well as assisting in assessing coal reserves.'

77 As I found in SJ, if the defendants had undertaken their task of properly researching the location and extent of the YWC, real doubts would have emerged as to the accuracy of RT 523 Sheets 2 and 3. One of the ways of dispelling those doubts would have been by drilling ahead. On this point, as far as the defendants' generally were concerned, they had certainly done that on prior occasions in relation to known old workings. Further, the defendants intended to do so at an appropriate time in relation to the mining activity being undertaken in 50/51 panel.

78 I emphasised this point in SJ in relation to the system of work charges when dealing with the particularised failures as pleaded. It is relevant to my considerations here. I said as follows:

[633] In the overall facts and circumstances surrounding the charge before me, the genesis of many of the defendant's alleged failures derives from what I characterise as its primary failure to properly research the location and extent of the Young Wallsend old workings. Fundamental to that primary failure was the defendant's reliance on RT 523 Sheets 2 and 3. It seems incontrovertible to me that once that failure is established, as it has been, then to a large extent, the other charges and the particularised failures therein within them arise derivatively from the primary failure. I have already stated as much in relation to a number of the particularised failures in the planning, research and assessment charges. In the current charge, that is also the case, I believe, in relation to failures (a), (b), (c), (d), (e), and (f). As to alleged failure (g), I will comment on that in due course.

[634] 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.

79 The corporate defendants did ultimately undertake extensive drilling ahead procedures after the inrush between December 1996 and February 1997. As I said at SJ [511]:

... That drilling programme established that the purported Borehole Seam workings in the south-eastern direction, as depicted in Sheet 2, did not exist as had been depicted. The defendant, via OPL, certainly confirmed the uncertainty surrounding the extent of workings in the Borehole Seam in December 1997.

80 The prosecution points to the actual fatalities and injuries occasioned to the victims as an aggravating factor to be taken into account in determining the respective defendants criminality as part of the objective seriousness of the offences. The prosecution contended that the fatalities and other injuries occasioned by the inrush of water and gas into 50/51 panel point to the planning, research and assessment offences and the night offences falling within the worst type of offence category. I have already stated my conclusion on that point. The prosecution further contended that in applying the reasoning of the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef (2004) NSWIRComm 323 at 41 there was a greater degree of culpability for the night shift offences and the planning, research and assessment offences because of the greater immediacy and foreseeability of the risk to safety (that is, the risk of inrush) present on the night shift.

81 Section 21A(2) of the CSPA identifies those aggravating factors to be taken into account in determining an appropriate sentence for an offence include:

...

(g) The injury, emotional harm, loss or damage caused by the offence was substantial.

...

(m) The offence involved multiple victims or a series of criminal acts.

82 It has been well settled by appellate authority of this Court that the occurrence of death or serious injury is relevant to assessing the degree of seriousness of the risk to health and safety: See Rodney Dale Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32].

83 That approach, in large part, reflects the extent to which such a factor has been considered in criminal law generally. See Siganto v The Queen (1998) 194 CLR 656 at 666 where the High Court stated:

A sentencing judge is entitled to have regard to the harm done to the victim by the commission of the crime. That is the rule at common law...

84 The decision of the Full Bench in Rodney Morrison v Powercoal Pty Ltd is of assistance in identifying the correct approach on this issue as follows:

[31] The incident that led to the prosecution of the respondent involved the death of an employee and, it would appear from the evidence, a narrow escape from at least serious injury by another employee. Under s 15 of the Occupational Health and Safety Act, however, death or serious injury arising out of an industrial accident will not necessarily attract a higher penalty than if no death or serious injury occurred. As the Full Court of the Industrial Court of New South Wales observed in Haynes v C I & D Manufacturing Pty Limited (1995) 60 IR 149 at 158-159,

The general duties created by the OHS Act such as in ss 15 and 16 are clearly directed, we think, at obviating "risks" to safety in the workplace ...

[32] In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

[33] Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case.

85 In considering this point in relation to the offences before me, I start from the premise that, overall, the evidence demonstrates, on the part of all of the defendants, a genuine commitment to workplace safety. Notwithstanding that, the primary failure of the defendants in failing to properly research the location and extent of the YWC represented a most significant and serious lapse in an otherwise demonstrable commitment to providing a safe workplace. The resulting loss of life from the defendants primary breach, as I have characterised it, indicates that the nature of the potential risk to which the defendants' employees were exposed represented a most serious detriment to safety.

86 In my view, the planning, research and assessment offence represents the greatest culpability on the defendants' part. That is because, encapsulating as it does the primary failure to properly research the location and extent of the YWC, it was that failure that was the genesis of the deaths of the four miners and the other injuries that flowed to people such as Mr McCallum. That much is made clear in SJ in the sense that I distinguish between the primary failure as identified and what I characterise as derivative failures. Having said that, I also found there were some failures identified within the system of work offence that were capable of standing alone in the sense of representing a risk to safety. However, in relation to the night shift offences, it is important to note my findings in SJ as follows:

[754] I have already expressed the view that in relation to the system of work charges, the majority of the particularised failures alleged derived from the defendant's primary failure to properly research the location and extent of the Young Wallsend old workings. I refer in particular to my earlier comments in this judgment as to that issue.

[755] That they are derivative failures, as I characterise them, does not negate the fact that they are failures nonetheless. What it does do, however, is put those derivative failures into context for sentencing purposes.

.

[756] In the Type 1 (night shift) charges now being considered, further particulars aside for the moment, the alleged particularised failures (a) to (e) are in the exact same terms as the particularised failures (a) to (e) in the system of work charges. The only minor difference is in relation to particularised failure (d) where, in the night shift charge, the failure pleaded is a 'failure to ensure there was any or any adequate barrier...' whereas in the system of work charge that failure is pleaded simply as a 'failure to ensure there was any adequate barrier ...' The reason for the minor difference is obvious. At 5:30am on 14 November, when the inrush occurred, there was not any barrier between the employees who were working and the Young Wallsend old workings.

[757] What that minor difference does is simply highlight what I believe is symptomatic of the way in which the overall facts and circumstances of this matter have been pleaded in relation to the offences before me. By way of repetition, let it be stated again that the genesis of the corporate defendants failures, by and large, started with their reliance on RT 523 Sheets 2 and 3 because of their failure to properly research the location and extent of the Young Wallsend old workings.

[758] Once that failure arose, it set in train a series of failures of acts and omissions by the corporate defendants that only came to light when the tragedy of the inrush occurred. Along the way, the defendants did and failed to do things that, on the evidence before me, would not have occurred but for the defendant's primary failure to properly research the location and extent of the Young Wallsend old workings. ...

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.

88 In assessing the objective seriousness of the offences before me and having regard to all of the above matters to which I have referred, I assess the planning, research and assessment offence as being towards the high end of the range of penalty available to be imposed on the respective defendants. I also consider that the system of work and night shift offences rank objectively as less serious than the planning, research and assessment offence. I come to that view primarily because the planning, research and assessment offence embraces the time period of the system of work and night shift offences and the extent to which many of the failures identified within the night shift and system of work offences arise derivatively from the primary offence to the extent identified in my judgment or are duplicitous in themselves. In other words, concentrating as Powercoal says at [32]:

In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk.

The seriousness of the act or omission that gave rise to the risk (here the risk of inrush) was manifested in the defendants failure to properly research the location and extent of the YWC Colliery - the primary failure as I have characterised it.

89 In relation to the personal defendants in particular and the assessment of their respective culpability relative to that of the corporate defendants, it is relevant to note the statement of Wright J, President, in Walco Hoist. His Honour said at 29:

I consider that, notwithstanding the deeming nature of s 50(1) of the Act in relation to a person such as the second defendant, it does not follow from the fact that an individual is, in the circumstances such as those here present, deemed to be guilty of the offences resulting from the guilt of the corporate defendant, that his degree of culpability is to be assessed necessarily at the same level as the culpability of the corporation.

I will consider that factor when dealing with each of the personal defendants.

Parity and totality

90 Amongst other issues I must consider in determining penalty are the sentencing principles of totality and parity. It is appropriate to turn to those principles now.

91 In Postiglione v The Queen (1997) 189 CLR 295 the High Court considered the relationship between the principles of parity and totality. Essentially, parity is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. That principle becomes particularly relevant in assessing the respective culpability of the corporate defendants. It will be considered in more detail later in this judgment.

92 The proper approach to the principle of totality in the sentencing process was established in the judgment of the High Court in Pearce v The Queen (1998) 194 CLR 610. That approach as established has been followed and applied in decisions of this Court at appellate level and were expressed in some detail in the judgment of the Full Bench of the Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at 192-193. It is worthwhile to re-state those principles relevant and binding as they are to the matters before me:

[21] ... There was a well-established practice in New South Wales that when structuring sentences for multiple offences the trial judge could impose one sentence which represented the totality of the overall criminality involved in the offences. It was not considered necessary to consider each sentence separately to ensure that it appropriately represented the criminality involved in each particular offence.

[22] In Pearce v The Queen (1998) 194 CLR 610, however, the majority of the High Court rejected this approach. That case concerned an offender charged with two offences - the malicious infliction of grievous bodily harm and the infliction of grievous bodily harm during a break and enter - which both arose out of the same incident. The majority, McHugh, Hayne and Callinan JJ, stated:

[45] ... A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

[48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (references omitted)

[23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved.

The approach established in Keenan following the High Court decision in R v Pearce was more recently affirmed by the Full Bench of the Court in Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270.

93 Within the principle of totality there is a further issue to be considered. That is, where there are common elements between offences, the principle of double jeopardy is not infringed in the sentencing process. As was said by the Full Bench in Keenan after reviewing the relevant authorities in relation to totality:

[36] .... Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce and Mill.

[37] We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should 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.

[38] In accordance with Pearce, we must first consider the appropriate penalty for each offence, assessed separately.

94 The approach to determining common elements in multiple offences was expressed by the High Court in Pearce as follows:

[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

95 In relation to the offences before me, the prosecution properly concede there is established overlap between the failures identified in the system of work and night shift offences and that they plainly contain very substantial common elements.

96 It is also necessary for me to consider the issue of common elements as between the ss 15(1) and 16(1) offences over the same charge period where the failures are pleaded in identical terms. That is the case in all of the offences before me. In doing so, the distinction between ss 15(1) and 16(1) offences must be borne in mind.

97 For sentencing purposes, the distinction between ss 15 and 16 of the Act was affirmed by the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef (2004) NSWIRComm 323 in the following terms:

[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).

[24] The relationship between ss15 and 16 of the Act was considered by Wright J, President in WorkCover Authority of NSW v Concrete Constructions Group Ltd (1999) 98 IR 362. His Honour's considerations in that matter were referred to with approval by the Full Bench in Crown in Right of the State of NSW (Department of Education and Training) v Keenan (2001) 105 IR 181 at 198 particularly with reference to his Honour's observations in relation to Concrete Constructions where he stated:

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.

98 I had cause to consider distinctions between particulars and failures of the offences pleaded in SJ, relevant as they are to my considerations herein as follows:

[118] When one has regard to the further particulars of the respective charges (IRC Matter No.'s 3198/00 and 3199/00) the difference in the further particulars pleaded is the temporal component and the identity of the particular employees said to be at risk. As well, in IRC Matter No. 3198/00, the following further particulars are pleaded:

· On 14 November 1996, the continuous miner holed in to the Young Wallsend coal workings.

· The holing-in resulted in an inrush of water into C heading of 50/51 panel.

[119] 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.

[120] 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. ...

...

[128] Overall, applying the reasoning in the above authorities to the matter before me, it is clear that quite apart from temporal considerations, the system of work alleged contraventions (a), (b), (c), (e) and (l), while expressed in identical terms to alleged contraventions (a), (b), (c), (d) and (f) of the night shift charge rely on differing factual particulars or differing aspects of primary facts in order to establish the gist or gravamen of the alleged offences. Accordingly, in the particular matters before me, no issue of double jeopardy arises.

[129] Having come to that view, it would still be appropriate in my view, to take into account what I would characterise as duplication in relation to the alleged contraventions pleaded, particularly when taking into account the continuing nature of the workplace activity involved, in order to address any notion of double jeopardy punishment as contemplated in Pearce v The Queen (1998) 194 CLR 610.

99 There is a further important consideration within the totality principle relevant to my considerations. That is, the offences proved against the personal defendants arose pursuant to the respective provisions of ss 15(1) and 16(1) of the Act and the deeming provisions of s 50 of the Act with respect to both corporate defendants in the same charge period and in relation to precisely the same conduct, particulars and failures. The only difference are those specific failures as pleaded that could not be attributed to the particular personal defendant because of their employment period at Gretley.

100 For example in relation to Mr Romcke, he has been found to have committed two s 15(1) offences arising out of the planning, research and assessment charges, one relating to his role as a person concerned in the management of NWCC and one on a similar basis with respect to OPL. There are differences as to the particular employees said to be exposed to risks to safety but in every other respect there is no difference as to the specific failures pleaded and found established between the two corporate defendants under s 15(1) in that charge period. Likewise in relation to the s 16(1) offences found proved against him with respect to both corporate defendants over the same charge period.

101 It seems to me, in applying the totality principle in relation to the personal defendants, I must take that factor into account in order to guard against any additional double jeopardy in sentencing. That is particularly so, it seems to me, given the approach I have determined as between NWCC and OPL within each of the same charge periods.

102 Bearing in mind all that I have concluded to date, I turn now to consider the respective defendants.

NWCC and OPL

103 I propose to deal with the corporate defendants together given the findings I have made in SJ as to the relevant inter-relationship between the two corporations.

104 On that point and on the respective roles of NWCC and OPL in relation to Gretley, I refer in the first instance to my findings encapsulated in SJ [253] to [313] inclusive. I propose only at this point to highlight the following extracts:

[255] Both companies are incorporated in New South Wales. The Australian Securities and Investment Commission (ASIC) historical company extracts as at 15 May 2000 reveal a significant inter-relationship between the two companies. The ASIC extract of 15 May 2000 revealed the following in relation to OPL and NWCC:

(i) as at 24 July 1991, the current registered office of OPL and NWCC was the same.

(ii) the previous registered office of OPL and NWCC prior to 24 July 1991 was the same.

(iii) as at 29 January 1996, the current principal place of business for OPL and NWCC was the same.

(iv) the previous principal place of business for OPL and NWCC prior to 30 January 1996 was the same.

(v) as at 30 March 2000, of the five persons listed as then current directors of NWCC, four of them were, at the same time, current directors of OPL. Appointments to both Boards were effected on the same date, that is, 30 March 2000.

(vi) relevant to the period of the charges before me, in whole or in part, the following persons were both directors of OPL and NWCC: .... (Note: eight were identified)

[257] ...What is clear is that OPL, as a corporate entity, had a controlling, direct and hands on involvement in the activities of NWCC during the relevant period - and that controlling, direct and hands on involvement embraced the operation of the Gretley mine. In that sense, OPL was the owner of NWCC. I make that statement not simply on the basis of the information contained within the ASIC historical company extracts for both companies that I have detailed above.

....

[263] What was the nature of OPL as an undertaking? To start with, the best encapsulation is that found in a document titled Oakbridge Pty Limited - Proposal for Strategic Planning Assistance: May 1996. This 17 page document was part of the agenda for the General Mine Managers Meeting for the Oakbridge Group held on 10 and 11 May 1996. The introduction to that proposal states:

Oakbridge Pty Limited is an amalgam of predominantly thermal coal producers in NSW with an export oriented focus; and

Oakbridge Pty Limited is an Australian mining company with diverse offshore ownership operating six mines in the state of New South Wales. The 1996 Budget and Five Year Plan forecasts after tax earnings in 1996 to improve by $23.2 million from the 1995 profit of $20.7 million.

[264] It is not disputed that the mines that formed part of the Oakbridge group of mines in New South Wales at the relevant time were:

· Bulga Open Cut

· South Bulga

· Gretley

· Clarence

· Ellalong/Pelton

· Baal Bone

[265] The extent to which OPL involved itself in the running of mining activities at Gretley was considerable, on any view. ...

...

[271] Indeed, the overwhelming impression is that, as a corporate entity, NWCC had a clear but somewhat circumscribed role in the day to day running of the Gretley mine. I say that only to the extent that the role that it did have in relation to the day to day running of Gretley was very much in tandem with and under the overall control of OPL. NWCC was certainly the corporate vehicle whereby application was made to the DMR for the lease of the mine and was by definition the owner of the mine. It was also the corporate vehicle whereby application was made to the DMR pursuant to s138(1) of the CMRA in relation to proposed miniwall mining at the Gretley mine as well as the subsequent applications for variation. The latter application, for example, is on the letterhead of NWCC described as A Unit of Oakbridge Ltd: Incorporated in NSW: ACN 000 245 901. As well, NWCC was the corporate vehicle whereby the requisite Form of Appointment was made pursuant to the CMRA to appoint persons to carry out functions at the Gretley mine. ...

[272] Conversely, the application made pursuant to s138(2)(d) of the CMRA 1982 to widen the installation roadways in 50/51 panel was made on OPL/Gretley Colliery letterhead and signed by Mr Porteous as General Mine Manager (exhibit 15A).

....

[280] All of the above, when considered individually, would not be definitively conclusive on the role of NWCC vis-à-vis OPL. However, when taken together and objectively considered, there is an overwhelming inference that arises that NWCC as a corporate entity was a subsidiary company of OPL. It should also be said at this stage that, on the evidence before me, NWCC as a corporate entity embraced the Gretley, Ellalong and Pelton mines within the OPL Group. Having said that, I am satisfied that NWCC, while it operated and was, by definition, the owner of the Gretely mine, it did so very much in conjunction with and under the control and direction of its corporate parent, OPL. That control and direction was not just at Board level. It spanned matters that directly impacted on the day to day running of the Gretley mine and the mining activities undertaken therein. It certainly involved a critical role in occupational health and safety.

....

[289] The overwhelming conclusion that one comes to when reading all of the material included in the General Mine Manager's meeting documents, the minutes of the Board of Directors of OPL and the minutes of the Corporate Safety meetings under the Oakbridge corporate structure is that OPL was very much a hands on and dominant parent company in relation to the running of all of it's mines within the Group. In other words, it was more than a corporate entity whose role included the coordination of activities or general mining issues outside of the day to day operations of Gretley as was contended by counsel on behalf of OPL. Indeed, OPL was concerned to ensure that the strategic and policy directives that it put in place were transmitted into practical reality at the workplace and it achieved this by a high degree of direct control over significant issues, including safety. It was not just a matter of setting policy in relation to safety but of putting in place policy guidelines, overseeing that by undertaking audit compliance and insisting, properly so in my view, on report back as to the outcome of those activities. In relation to the General Mine Manager's meetings, it is also clear when one has regard to those persons present that the participants were there very much as part of the Cyprus/Oakbridge Group and to that extent, the corporate identities such as NWCC (as well as Coalex and Bulga) were simply subsumed into those discussions.

105 It is not sensibly possible in my view, having regard to my conclusions on this issue and on the evidence that was before me, to be able to distinguish the role of NWCC as distinct from OPL in the overall management and day-to-day running of the Gretley mine as far as identifying their respective culpability in relation to the offences before me. Both corporate entities had a role in directing the overall work undertaken at Gretley. Both had employees at the mine.

106 It is possible to assert, for example, that NWCC was the registered holder of the coal leases of the Gretley mine and therefore, in accordance with the CMRA, was the owner and operator of the Gretley mine. But to use that as the basis for determining that NWCC was therefore more culpable than OPL in relation to what happened at the Gretley mine and 50/51 panel in particular would be taking the relationship between NWCC and OPL out of context as far as culpability is concerned. If anything, as I found at SJ [257] in part:

...What is clear is that OPL, as a corporate entity, had a controlling, direct and hands on involvement in the activities of NWCC during the relevant period - and that controlling, direct and hands on involvement embraced the operation of the Gretley mine. In that sense, OPL was the owner of NWCC. I make that statement not simply on the basis of the information contained within the ASIC historical company extracts for both companies that I have detailed above.

and at SJ [271]

... the overwhelming impression is that, as a corporate entity, NWCC had a clear but somewhat circumscribed role in the day to day running of the Gretley mine. I say that only to the extent that the role that it did have in relation to the day to day running of Gretley was very much in tandem with and under the overall control of OPL.

107 The approach to be taken as between NWCC and OPL is analogous, in my view, to that taken by the Full Court of the Industrial Court of New South Wales in Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 455 at 458 as follows:

Should the prosecution of the closely related companies attract one penalty or two penalties assessed as against each company? The evidence available showed that Manufacturing at the time of the accident employed at the Somersby plant about nine workers and that for purposes related to company structure was a company wholly-owned by Industries. The personnel on whom the ultimate responsibility for ensuring the supervision of the employees rested at the time of the accident were the same.

We have come to the view on the evidence that the connection between the two companies was so intimate that it is permissible to view the offence in a global way.

......

In determining the way in which the totality of the fine should be apportioned, we have decided that Manufacturing and Industries are so clearly linked that each should bear the fine equally. ...

108 The approach adopted by the Full Court in CI&D was considered by Walton J Vice-President in WorkCover v McDonalds. In ultimately deciding against such an approach, his Honour did so because he said there were 'a number of significant differences in this case from CI&D' (at 460). As his Honour said:

Firstly, the premises in CI & D were owned by Industries and leased directly to the subsidiary company, Manufacturing. In this matter, whilst there is a franchise arrangement, the defendants exercise control in relation to a third party. The nature of that control differs depending upon the particular interest of the defendant as arising between the lease and the licence. It is true that there is a common purpose of control to give conformity to the McDonald's system but the result of these arrangements are that the control, for the purposes of safety of employees, is exercised differentially between the defendants. It is noted that even after the accident the contributions to the changes to the system of work and operations differed as between the defendants. The refit of premises was undertaken by both entities (suggesting a role in structure of the premises by the first defendant) but the contributions to the refit by the defendants were in differing amounts.

Furthermore, in CI & D both Manufacturing and Industries had direct responsibility for the employees. The Court found (at 182) that the defendants had failed to supervise the employees. In relation to defences raised under s53 of the Act, the court found that both Manufacturing and Industries exercised control over the employer and manager of the employees respectively. This would appear to have reflected the Court's finding as to the 'intimacy' of the relationship between Manufacturing and Industries.

Secondly, and consistent with the approach in McLaughlin v ICI Australia Operations Pty Limited, the gravamen of the offences in this matter are not the same as between the defendants. As previously mentioned, there are different summonses relating to different offences. The particularisation of the failures is different in each summons. Whilst charges were brought under differing sections of the Act in CI & D, the particularisation of the offence was closely related and to some extent interconnected, for example, in relation to the supervision of the employees.

Thirdly, the defendants faced the same maximum penalty in CI & D. Here, the first defendant has a prior conviction and, as I have earlier noted, thereby faces a higher maximum penalty than the second defendant. This raises practical difficulties for the approach contended for by the defendants.

109 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. As I said at SJ [888]:

In my earlier considerations in this judgment I came to the conclusion that the Gretley mine was an undertaking of NWCC and OPL. I also concluded that OPL was more than a labour hire company vis-à-vis NWCC and that the activities of OPL were significant and were inextricably integrated with those of the NWCC as far as mining operations at Gretley were concerned.

111 As far as NWCC and OPL are concerned, neither has any prior convictions. That factor in itself operates in favour of the corporate defendants. That factor also has to be considered against the background of their history in the mining industry.

112 I have little to work on as far as knowing exactly how long the two corporations have been actively engaged in the business of mining coal in New South Wales. As far as NWCC is concerned, as I understand the situation, it has been a corporate entity for some considerable period of time but with differing ownership from time to time during that period. It is significant, despite that differing ownership over its history, that NWCC has operated in an industry such as underground mining up to the time of these offences without any prior convictions in relation to safety at the workplace.

113 In relation to OPL, what is known by me about its history in relation to coal mining in New South Wales is also limited. To start with, the documentation in evidence tells me this much:

[263] ... Oakbridge Pty Limited is an amalgam of predominantly thermal coal producers in NSW with an export oriented focus; and

Oakbridge Pty Limited is an Australian mining company with diverse offshore ownership operating six mines in the state of New South Wales. The 1996 Budget and Five Year Plan forecasts after tax earnings in 1996 to improve by $23.2 million from the 1995 profit of $20.7 million.

[264] It is not disputed that the mines that formed part of the Oakbridge group of mines in New South Wales at the relevant time were:

· Bulga Open Cut

· South Bulga

· Gretley

· Clarence

· Ellalong/Pelton

· Baal Bone

114 It is not totally clear to me how long before the inrush in November 1996 that OPL had acquired NWCC and with it, the operation of Gretley, Ellalong and Pelton mines. Relying on the ASIC historical company records that were in evidence before me, they certainly disclose a significant inter-relationship between NWCC and OPL as at 1991 and continuing past the inrush date. The inference from those documents is that there was a relationship prior to 1991 but for what precise period is unclear. In any event, by the time NWCC signed Coal Lease 1343 with the DMR on 22 March 1994 relevant to its proposed mining activities at the Gretley Colliery, the corporate inter-relationship between NWCC and OPL I have already detailed was established.

115 Additional information relevant to NWCC and OPL was given as part of the sentencing proceedings by Mr David Mellows. Mr Mellows is Group Safety Manager, Xstrata Coal NSW Pty Limited. That latter corporate identity, he confirmed, is a subsidiary of Xstrata Coal Pty Limited formerly known as Glencore Coal. Mr Mellows has held his current position since March 2003.

116 In relation to NWCC, OPL and the Gretley Colliery in particular, Mr Mellows' affidavit evidence stated:

[6] ... In November 1996, Gretley mine was owned and operated by Newcastle Wallsend Coal Company Pty Ltd ('NWCC') and was an underground mine that had extracted coal since the late 1800's.

[7] Oakbridge Pty Limited ('Oakbridge'), was owned by a number of companies, the largest shareholder being Cyprus Australia Coal Company ('Cyprus'). By virtue of a management services agreement dated 3 April 1995 between Cyprus, Tomen Corporation, Nippon Oil (Australia) Pty Ltd and Oakbridge, Cyprus was appointed to manage Oakbridge and its subsidiaries. ...The document charged Cyprus with management services ordinarily required for the proper day to day management of Oakbridge. Cyprus had amongst other rights the ability to employ personnel, second personnel and engage contractors and third parties.

[8] In late 1998 Gretley Mine ceased production and was placed on care and maintenance. The mine would have employed a workforce of approximately 6 people while on care and maintenance.

[9] On 18 March 1999, NWCC disposed of its interest in Gretley Mine to New Wallsend Coal Company Pty Limited ('NW'). In approximately June 1999 NW re-commenced operations at the old Gretley pit, under the title New Wallsend No. 2 Mine. Thereafter neither Oakbridge nor Glencore (or Xstrata) had any interest in the Gretley mine. The Mine ceased production in December 2002 and was closed in February 2004.

[10] In early 2000 Phelps Dodge Corporation in the United States acquired Cyprus Amax in the United States and became the owner of Cyprus and therefore acquired Cyprus' 48% interest in Oakbridge.

[11] In March 2000, Phelps Dodge sold the shares of Cyprus to Glencore Coal Australia Pty Limited, now called Xstrata Coal Pty Limited ('Xstrata'). As a result of this transaction, Xstrata acquired the 48% shareholding of Phelps Dodge in Oakbridge. Xstrata has never had any day to day control over the operation of the Gretley Mine.

[12] Xstrata NSW operates 14 coal mines in the Hunter Valley and western coalfields of New South Wales. The mines that Xstrata acquired as part of the Oakbridge Group and still retains are:-

(a) Baal Bone

(b) Beltana

(c) Bulga Open Cut

(d) South Bulga Underground

[13] In 1996 at the time of the accident I am informed and verily believe that the Oakbridge Group consisted of a number of coalmines including those listed above (with the exception of Beltana which did not open until 2001) and a number of other collieries including Gretley.

117 In evidence given pursuant to his affidavit, Mr Mellows was unable to say what has happened to NWCC since it disposed of its interest in the Gretley mine in 2000. As Mr Mellows said:

I don't have any idea as to what's happened to the Newcastle Wallsend Coal Company. All I'm aware of is that Xstrata Coal owned the Oakbridge company who, through history, had ownership in that particular company.

118 As well, Mr Mellows confirmed OPL is currently owned and managed by Xstrata Coal.

119 I have already determined those matters relevant to the corporate defendants as far as the role of the DMR is concerned in assessing their culpability.

120 As I earlier confirmed in this judgment, there is evidence in SJ indicating the corporate defendants were generally conscious of the need for, and had adopted, overall practices and procedures designed to achieve safety in the workplace. I do not propose to repeat them at this point.

.

121 Within the ambit of the general principles of sentencing, general and specific deterrence are relevant considerations I should take into account relating to the corporate defendants. On their behalf it was submitted:

...The material before the Court makes it clear that all that would be achieved or would be achieved by factoring the general deterrence has already been achieved by the dramatic effects of the incident within the industry and society generally. These steps have included significant alterations to the statutory regime including the CMRA, the regulations thereto, the conduct of the DMR in its certification and promulgation of Record Tracings and the conduct of the coal mining industry in going behind Record Tracings and previous plans provided.

122 I accept, on any view, the inrush that occurred in 50/51 panel at the Gretley Colliery in November 1996 and all that followed has reverberated throughout the industry as well as the wider community. I have no doubt mining companies (as well as the DMR) now approach former mine plans relevant to proposed mining activity with the utmost caution as to verification of accuracy. That is as it should be and as it always should have been. Notwithstanding those considerations, I do not see I should totally disregard general deterrence as a factor in the sentencing process. In doing so, however, I do not ignore the considerations raised by counsel for the defendants and will weigh them against the primary role of general deterrence which, in my view, was expressed correctly by Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 where his Honour said:

'...the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.'

123 In relation to specific deterrence, I start by considering the view expressed by the Full Bench in Capral at 644-654 as follows:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (Court of Criminal Appeal, 19 December 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (Court of Criminal Appeal, 8 December 1995, unreported). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at [46].

124 Counsel for the corporate defendants submitted that 'no additional penalty ought to be given in relation to specific deterrence, or in the alternative it should be at a minimum'. The basis of that submission was identified as follows:

(i) the findings by me in SJ arose because of the defendant's primary failure to research the location and extent of the YWC;

(ii) that failure came about because of the defendant's reliance, without more, on RT 523 Sheets 2 and 3;

(iii) that failure, by itself, did not arise because of any ongoing disregard to safety or lack of commitment to safety in any other respect;

(iv) the likelihood of the defendants relying on a DMR issued Record Tracing again in the same manner is negligible;

(v) the Gretley mine is closed and no longer operates;

(vi) since the accident the defendants have added to their safety procedures in a most comprehensive manner. Reliance is placed on the affidavit evidence of Mr Mellows as to those matters identifying, as he does, steps taken in relation to:

· training of manager re inrush hazard

· new industry standards re inrush

· safety audits

· a new safety system and safety management system

125 In relation to matters identified under sub-para (vi) above, I accept the evidence of Mr Mellows as to the measures he has identified as having been taken by Xstrata since the accident. Those actions of Xstrata are relevant given its shareholding of the OPL Group.

126 I accept the general propositions identified in sub-paras (i), (ii) and (iii) above except where it is suggested that the failure of the defendants does not demonstrate a lack of disregard to safety 'in any other respect'. I would rather express my view in relation to the defendants attitude to safety in the workplace in the terms as expressed earlier in this judgment at [64]:

The above factors, pointing to a commitment to proactively addressing safety in the workplace, is evidence that the defendants were conscious of the need for, and had adopted generally, practices and procedures designed to ensure safety in the workplace. To put that finding into context, there is no evidence that suggests the defendants had overall demonstrably unsafe systems of work or were indifferent as to their workplace responsibilities in relation to safety.

127 As well, at [85]:

In considering this point in relation to the offences before me, I start from the premise that the evidence demonstrates overall, on the part of all of the defendants, a genuine commitment to workplace safety. Notwithstanding that, the primary failure of the corporate defendants in failing to properly research the location and extent of the YWC represented a most significant and serious lapse in an otherwise demonstrable commitment to providing a safe workplace. ...

128 I accept without question that any future reliance by the defendants on any Record Tracing issued by the DMR would, in the same circumstances as that which occurred at Gretley, be relatively non-existent. That proposition is addressed in part in that, post the inrush, the DMR have taken steps to ensure that Record Tracings issued are underscored by a process as to certification.

129 While the Gretley mine no longer operates, the defendants continue to operate via the corporate structure of Xstrata. In relation to NWCC as a corporate entity I say that advisedly. Nevertheless, as Mr Mellows confirmed in his evidence, Xstrata Coal owns OPL and, OPL 'through history' had ownership in NWCC. Given that background, for all practical purposes, the defendants, particularly OPL, continue to operate in the mining industry. Clearly Xstrata now has a dominant role to play in setting the policies, procedures and standards in relation to mines coming under its overall corporate control including a number previously operated by OPL. As Mr Mellows stated:

Since 2001 on my appointment we have been establishing a universal safety management framework and standards and systems to be put in place across all the mines. We introduced three monthly audits of all of the mining sites and a safety and system planning process for each mine site. Each mine's safety management system will be slightly different, some are open cut, some underground and some have special issues like particular geological faults. However we wanted to establish some uniformity and common standards, so audits could be conducted and we could learn and share from the various knowledge base at each mine.

130 Mr Mellows' affidavit and the relevant accompanying annexures detail the comprehensive system of policies, standards and compliance audits now in place in those mines under Xstrata's control. It is impressive and I accept Mr Mellows' evidence on those matters in a positive vein. It is to be hoped that the universal safety management framework put in place by Xstrata has the desired effect of ensuring and maintaining safe systems of work across all aspects of the corporation's mining activities.

131 The evidence of Mr Mellows as to Xstrata's comprehensive system of workplace safety standards, while commendable, highlights factors that, in my view, reinforce the need for specific deterrence to be taken into account in the current sentencing process. The defendants, via the corporate structure of Xstrata, continue to operate in an industry replete with risks to safety on an ongoing basis. The defendants are part of a large corporate enterprise that must maintain constant vigilance and take all practicable precautions to ensure safety in the workplace (Capral at 645). While steps taken by the defendants to date post the inrush are to be commended, the scope of the defendant's ongoing obligations requires the need to encourage a sufficient level of diligence by the defendants in the future.

.

132 I turn now to consider those additional subjective features I may properly take into account in relation to the corporate defendants.

133 Issue has been taken by the prosecution as to whether the corporate defendants can rely on remorse and contrition as mitigating factors in their sentence determination.

134 Counsel for the prosecution have submitted that there are matters which I should have regard to that militate against remorse or contrition. On that point it was said it was necessary to examine the litigious conduct of the defendants in the substantive proceedings, both as to their conduct and as an incident of sentencing. Reliance for that submission is to be found in DPP v Esso Australia Pty Ltd [2001] VSC 263 (30 July 2001) at [48] as follows:

Normally in sentencing, a failure to accept responsibility sounds in the matter of specific deterrence. This is not so here, because Esso has demonstrated by its subsequent operational reforms that it has acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency.

135 That finding of his Honour has to be viewed in the context in which he expressed it. His Honour was sentencing Esso following a jury trial in which Esso was convicted by the jury of eleven counts of breaches of ss 21 and 22 of the Occupational Health and Safety Act 1985 (Vic). Each of those convictions was an indictable offence.

136 In the course of his sentencing judgment, Cummins J said, inter alia,

[40] However, before imposing sentence on Esso it is unfortunately necessary to examine the litigious conduct of Esso in these proceedings. It is necessary both of itself and as an incident of sentencing - remorse and rehabilitation being relevant to that end.

... ...

[42] Esso and its senior officers have expressed remorse for the tragic loss of life and injury which occurred as a consequence of the rupture on 25 September 1998. I have no doubt that that personal remorse is genuine, from and including the Chairman and Managing Director, Mr R.C. Olsen, down. I acknowledge that genuine remorse.

[43] However, personal expressions of remorse need to be translated into reality. In the present case, they have not been. There are three matters which militate against corporate remorse.

137 The three matters identified by his Honour were:

(i) Esso's litigious treatment of its employees

(ii) The conduct, on Esso's instructions, of the defence in the trial. His Honour gave Esso credit for limiting the issues in the trial and making admissions but stated 'the defence advanced was one of obfuscation - designed not to clarify but to obscure. Esso sought to make it appear that the identification of hazard, risk and cause was impossibly difficult.'

(iii) The third matter was described by his Honour as 'the really significant one ... the lamentable failure of Esso to accept its responsibility for these tragic events'.

138 It is important to put his Honour's comment in (iii) above into context by reference to the relevant extracts from his sentencing judgment as follows:

[46] ...Early in the plea learned senior counsel for Esso said this (page 5925 line 27): "Whilst Esso does not accept the accuracy or correctness necessarily of each of the criticisms levelled by the Royal Commission, I will seek to demonstrate that it has taken very positive steps to address each and every one of those criticisms as if it were accepted, and has done so very thoroughly. I will take Your Honour to that detail, but first and most importantly, Your Honour, again, Esso does wish to once again repeat its most profound regret for the loss of life and injuries that were caused to its employees by the explosions of 25 September 1998. It might be said that that is trite." I asked, "Does Esso accept responsibility for the fatal and injurious events?" Senior counsel replied, "It accepts responsibility in the way that it has thus far." I said, "That simply means what you have just said. You heard what the jury has said and you heard what the Royal Commission said. I'm not talking about the level of hearing. I'm asking the direct question: does Esso accept responsibility for the fatal and injurious events?" Senior counsel replied, "I can't answer that question in any blanket fashion, Your Honour," to which I replied, "Very well."

[47] Then towards the end of plea, after senior counsel rightly had reviewed Esso's otherwise commendable safety record, I asked the following (page 5970, line 2): "I think that leads to this, Mr Titshall. I have no doubt that the many and commendable facts that you have put before me are accurate and true as to your client, but the corollary of what you put to me is this. In relation to the rupture on 25 September and its antecedents, there is a mountain of evidence; a most distinguished former High Court judge with his co-Commissioner made clear and unequivocal findings, as stated in the Royal Commission Report; and a jury of 12 unanimously found proof beyond reasonable doubt of every charge laid against Esso. If Esso is the good corporate citizen you have stated it to be, why does it not accept responsibility for the fatal and injurious events?" Senior counsel replied, "I can't answer that, Your Honour," and I replied, "Very well."

139 It is at that point that his Honour then goes on to express the view that he does in [48] of his sentencing judgment relied upon by the prosecution in the proceedings before me.

140 His Honour's comments in Esso have to be viewed, I believe, as peculiar and specific to that particular matter and to the actions of the corporate defendants as his Honour perceived them and for the reasons that he expressed. In the matter before me, on any comparative basis, I have not been confronted by litigious treatment of its former employees on the part of the corporate defendants which so upset his Honour in Esso. Further, while it is correct that the corporate defendants in particular have vigorously prosecuted their defence of this matter, I could not say that it has been advanced as one of obfuscation as expressed by his Honour in Esso. Finally, the matter that his Honour considered most significant, being the lamentable failure of Esso to accept responsibility, relying as he does on the background circumstances to arrive at that conclusion, is simply not available to me in this matter in such stark terms. In the first instance, the questions posed by his Honour to counsel for the defendant in Esso were never posed by me to counsel for the corporate defendants. Accordingly, the response from Esso's counsel that his Honour recounts in his sentencing judgment simply does not exist in the proceedings before me. Accordingly, I cannot come to the same unequivocal conclusion as his Honour, which is that the corporate defendants have lamentably failed to accept responsibility for the matters before me.

141 I agree with his Honour's view expressed in Esso that contrition and remorse are best evidenced by an acceptance of responsibility. The defendants before me have vigorously defended this matter at every turn. I believe it has been largely driven, as I have already found, by a real sense of injustice that they are the only persons charged in relation to this tragic accident. Clearly they take the view that the DMR should shoulder a large part of the responsibility for the tragedy that occurred. In that sense the defendants, both corporate and personal (with the exception of Mr Porteous), have demonstrated a reluctance to accept full and practical responsibility for the events leading to the inrush. That is not a reason for increasing the penalty I may impose but rather it is of minimal weight as a factor in mitigation.

142 With the exception of Mr Porteous, where contrition, remorse and regret are evidently profound, the other defendants have expressed immense regret for the circumstances surrounding the inrush. I do not doubt the sincerity of those expressions of regret.

143 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.

144 In determining the penalties with respect to the corporate defendants, I have already determined, for reasons given, that the culpability of OPL should be considered equal to that of NWCC. Accordingly, I have taken that into account within the context of the principle of totality.

145 Taking into account all of the principles, criteria and considerations referred to as well as those matters specific to the corporate defendants, I determine penalty in relation to them as follows:

.

1. Type 3: planning, research and assessment offences:

(i) IRC Matter No 3200/00: NWCC offence arising pursuant to s 15(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $300,000

(ii) IRC Matter No 3203/00: NWCC offence arising pursuant to s 16(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $300,000

(iii) IRC Matter No 3206/00: OPL offence arising pursuant to s15(1) of the Act.

The offence was found proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $300,000

(iv) IRC Matter No. 3209/00: OPL offence arising pursuant to s16(1) of the Act.

The offence was found proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $300,000

(v) In applying the principle of totality I determine a total penalty with respect to the four offences of $800,000. I apportion that penalty equally between them. Accordingly, the penalty with respect to the offences is:

· IRC Matter No 3200/00 re NWCC: $200,000

· IRC Matter No 3203/00 re NWCC: $200,000

· IRC Matter No 3206/00 re OPL: $200,000

· IRC Matter No 3209/00 re OPL: $200,000

2. Type 2: systems of work offences:

(i) IRC Matter No 3199/00: NWCC offence arising pursuant to s 15(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k). Accordingly:

· I find the defendant guilty

· I determine a penalty of $200,000

(ii) IRC Matter No 3202/00: NWCC offence charged pursuant to s 16(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k). Accordingly:

· I find the defendant guilty

· I determine a penalty of $200,000

(iii) IRC Matter No. 3205/00: OPL offence arising pursuant to s15(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k). Accordingly:

· I find the defendant guilty

· I determine a penalty of $200,000

(iv) IRC Matter No: 3208/00: OPL offence charged pursuant to s16(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k). Accordingly:

· I find the defendant guilty

· I determine a penalty of $200,000

(v) In applying the principle of totality I determine a total penalty with respect to the four offences of $500,000. I apportion that penalty equally between the offences. Accordingly the penalty with respect to the offences is:

· IRC Matter No 3199/00 re NWCC: $125,000

· IRC Matter No 3202/00 re NWCC: $125,000

· IRC Matter No 3205/00 re OPL: $125,000

· IRC Matter No 3208/00 re OPL: $125,000

3. Type 1: night shift offences:

(i) IRC Matter No 3198/00: NWCC offence charged pursuant to s 15(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d) and (e). Accordingly:

· I find the defendant guilty

· I determine a penalty of $75,000

(ii) IRC Matter No 3201/00: NWCC offence charged pursuant to s 16(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d) and (e). Accordingly:

· I find the defendant guilty

· I determine a penalty of $75,000

(iii) IRC Matter No: 3204/00: OPL offence charged pursuant to s15(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d) and (e). Accordingly:

· I find the defendant guilty

· I determine a penalty of $75,000

(iv) IRC Matter No: 3207/00: OPL offence charged pursuant to s16(1) of the Act.

I found the offence proved with respect to failures (a), (b), (c), (d) and (e). Accordingly:

· I find the defendant guilty

· I determine a penalty of $75,000

(v) In applying the principle of totality I determine a total penalty with respect to the four offences of $160,000. I apportion that penalty equally between the offences. Accordingly the penalty with respect to the offences is:

· IRC Matter No 3198/00 re NWCC: $40,000

· IRC Matter No 3201/00 re NWCC: $40,000

· IRC Matter No 3204/00 re OPL: $40,000

· IRC Matter No 3207/00 re OPL: $40,000

146 I now turn to the personal defendants. In doing so, I take into account all of the principles, criteria and considerations earlier detailed, both generally and, to the extent they are relevant to the personal defendants, the corporate defendants.

Mr Richard Porteous

147 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.

148 At all times relevant to the offences Mr Porteous was employed by OPL.

149 As a person concerned in the management of the corporate defendants, Mr Porteous was found to have committed twelve 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 cannot be held against Mr Porteous. As I said at SJ [909]:

In relation to Mr Porteous, as the prosecution have rightly conceded, he could not be said to have any practical connection or involvement in the corporation's contraventions as particularised in particulars (c) and (d) of the planning, research and assessment charges. Mr Porteous did not become Mine Manager at Gretley until 28 October 1994.

150 In the sentencing proceedings, Mr Porteous gave sworn evidence in support of an affidavit as well as a statement tendered on his behalf. That affidavit material disclosed that Mr Porteous is currently fifty one years of age. He has a B.Eng (Mining) from the University of New South Wales obtained in 1975 and a First Class Certificate of Competency in Mine Management obtained in 1981.

151 Mr Porteous has been involved in the coal mining industry for all of his adult working life. He commenced as an underground miner in 1970. Since 1992 Mr Porteous has been employed by OPL. During that time he has been in diverse mine management positions. He is presently the Mine Manager at Teralba Colliery, having held that position since 2003. In relation to that position Mr Porteous stated:

At Teralba Colliery I am manager of four capable individuals and occasionally a handful of contractors as the mine is on care and maintenance.

152 The starting point in assessing Mr Porteous' overall culpability must start by assessing the degree of culpability that can be attributed to him relevant to acts or omissions on his part and on the part of the corporations and the extent to which the corporation's acts or omissions can be properly attributed to him. (see Walco Hoist at 187)

153 Overall, I do not consider that Mr Porteous' culpability is as great as that of the corporate defendants. For a start, Mr Porteous was not Mine Manager when the corporate defendants first placed their reliance on RT 523 Sheets 2 and 3 in planning their mining activities at Gretley and 50/51 panel in particular. Mr Romcke was. When he arrived at Gretley, Mr Porteous undoubtedly placed reliance on what had gone before, particularly in relation to the work undertaken to research the location and extent of the YWC that had been signed off by Mr Murray and Mr Romcke when the initial s138(1) application had been lodged with the DMR in September 1994. That initial application, containing as it did copies of the Gretley mine plan incorporating the YWC, based on Sheets 2 and 3 as provided by the DMR, was approved by the DMR. Those steps taken before he arrived would have established the 'false sense of security' that I believe enveloped Mr Porteous. That background and the circumstances confronting Mr Porteous when he arrived at Gretley are mitigating factors in assessing his overall culpability. Notwithstanding the background, they have to be viewed in the context of his position as Mine Manager and his ultimate statutory responsibility for safety as well as his responsibility to facilitate a workplace free of risk to safety on behalf of the corporate defendants.

154 As Mine Manager at Gretley, Mr Porteous' signature appears on the Gretley mine plan, with that of Mr Murray's, in the s 138(1) variation application submitted to the DMR in August 1995. On that point and its relevance to an assessment as to Mr Porteous' overall culpability, I refer in the first instance to SJ [906] where I stated:

The role of Mr Romcke and Mr Porteous in appending their signatures, and thereby their authority, to those particular mine plans is significant. This is particularly so, in my view, because of what I have referred to as the primary failure that is the catalyst of the offences before me - the failure of the corporate defendants to properly research the location and extent of the Young Wallsend Colliery old workings. As well, specific reference to the responsibilities of the Mine Manager on behalf of the corporations under s37(2) of the CMRA and Part 3, Prevention of Inrushes of the Methods and Systems of Working Underground Mines Regulation 1984 reinforces the all encompassing obligations of the Mine Manager particularly in relation to safety matters.

155 Reference to Mr Romcke in that extract will be relevant to considerations as to his culpability in due course.

156 Further on the 'all encompassing' nature of a Mine Manager's responsibilities generally, I refer to the views expressed in SJ [893] and following:

[893] At the outset that I have no difficulty in coming to the conclusion that the Mine Managers at Gretley were concerned in the management of the corporations. There is, to start with, the statutory responsibilities cast upon a Mine Manager by the provisions of the CMRA and its accompanying Regulations: see, for example and in particular, s37(1) of the CMRA. That section encompasses, for the Mine Manager, the widest possible charge and control of the mine, all persons employed in it and all operations of the mine. The specific provisions of s37(2) do not limit the generality of the encompassing provisions of s37(1). There are other statutory provisions reinforcing the central role of the Mine Manager in relation to the overall responsibility of mining activities in a mine. Again, by way of example, clause 7 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 provides that the Mine Surveyor shall have control of the surveying and survey drafting staff for the mine subject to the instructions of the manager of the mine. See also, Part 2: Pillars and Roadways and Part 3, Prevention of Inrushes of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 which again details the responsibilities of the Mine Manager in relation to those matters.

[894] Part 3 Division 4 of the CMRA makes specific provision for the Mine Manager to delegate his powers and functions by a specific instrument of delegation. Once so delegated, s56(10) of the CMRA states:

(10) A function, the exercise of which has been delegated by the manager of a mine under this section, shall, while the delegation remains unrevoked:

(a) be deemed not to be the function of the manager, and

(b) be deemed to be the function of the delegate,

for the purposes of this Act.

[895] In my view, it is clear that the overall structure of the CMRA and its Regulations envisages a mine management structure that pivots around the Mine Manager. That pivotal role embraces overall responsibility for a wide range of functions, many of which go directly to the issue of safety. The power to delegate functions and with it responsibility cannot be done in any ad hoc manner. The CMRA provides for a formal procedure in order to ensure, it would seem to me, that the function so delegated is clearly delineated and the person to whom the function is delegated is aware and formally accepts the duty and responsibilities of the function so delegated. ...

[896] In the matters before me, there was no instrument of delegation executed by either Mr Romcke or Mr Porteous to any other mine official in relation to their duties and functions under the CMRA while they were statutory Mine Managers at Gretley.

157 That a Mine Manager does place reliance on other senior personnel within a mine's management structure was acknowledged by Mr Adam, an expert witness called by the prosecution in the substantive proceedings. On that point, Mr Adam stated at [177] of his expert witness statement:

The Mine Manager has the ultimate responsibility but would rely on the expertise of the other professionals available to him. He is in effect the captain of the team and he should not be expected to be a Surveyor, a Mechanical Engineer and an Electrical Engineer and so on.

158 That opinion becomes relevant in these proceedings in the sense that it reflects the position expressed by Mr Porteous in his affidavit evidence as far as his reliance on the Mine Surveyor in the preparation of mine plans for the Gretley Colliery and panel 50/51 in particular. The Mine Surveyor at Gretley when Mr Porteous was appointed was Mr Michael Murray. As I said at SJ [411]:

On the basis of his signature appearing on the mine plans accompanying the s138(1) application and the subsequent variation application, Mr Murray was the Mine Surveyor initially and primarily responsible for researching available sources and information as to the location and extent of the Young Wallsend old workings.

159 It should be noted at this point that Mr Murray died in October 1996. He became ill in 1995 and effectively ceased to be the Mine Surveyor at Gretley in or about September 1995. Mr Robinson succeeded him in that role.

160 It is unsurprising, as Mine Manager, that Mr Porteous would look to Mr Murray in the first instance for information and assurance as to steps taken to confirm the location and extent of the YWC. It is also unsurprising that the first port of call for such information would be the DMR. Again, it would appear Mr Porteous relied on Mr Murray to follow up on that. As he said in cross examination in the sentencing proceedings:

Q. You did not ascertain whether any surveyor had examined the old copy mine plan?

A. No.

Q. You didn't ascertain whether any surveyor had consulted the abandonment register - they are all about the Young Wallsend Colliery old workings?

A. No.

Q. You didn't ascertain the terms of the abandonment register?

A. What do you mean by that?

Q. What was actually said in the abandonment register?

A. No.

Q. You did not ascertain whether there was an abandonment plan?

A. No.

Q. You did not go to the State Archives?

A. No.

Q. You didn't ascertain whether any surveyor had been to the State Archives?

A. No.

161 As far as any historical research undertaken, Mr Porteous said that he had conversations with Mr Murray, amongst others, to the following effect:

A. We discussed the age of the colliery. We discussed the - it was in a context of the other mines that we had worked in the district, around Gretley, and so Young Wallsend Colliery was one of those. So the seams that they worked, the periods that they worked, and the - any surface features such as drips or shafts that may have gone into those workings.

Q. You are putting that forward as historical research, are you?

A. That was the examinations that I did.

Q. Are you putting that forward as historical research?

A. Yes.

162 I would have to say, as a general proposition, the nature of the conversations as recalled by Mr Porteous with Mr Murray would not amount to historical research as generally understood.

163 Mr Porteous stated he did have discussions with Mr Murray about the YWC old workings and the plans Mr Murray had obtained from the DMR and 'other pits'. In relation to Sheets 2 and 3, Mr Porteous said he did look at them and discussed them with Mr Murray. The tenor of that conversation, he said, was:

A. In the conversation, we discussed the shape of the workings, the width and the narrowness of some of the bords, the shafts, the parish boundaries, and the scale and possibly some evidence of geological faulting.

Q. So, on at least two occasions, you discussed the unusual shape of the workings?

A. Yes.

164 As well, according to Mr Porteous, the copies of RT 523 Sheets 2 and 3 he looked at had no reference to Sheet 1 at the foot of them. Further, he did not see any reference to Sheets 2 and 3 on Sheet 2 and, he said, he did not know there was a third sheet.

165 That may well be so but, as my findings in SJ made clear and as Mr Porteous acknowledged in his evidence, beyond accepting Sheets 2 and 3 from the DMR, as Mine Manager Mr Porteous did not request any additional information from the DMR in relation to the YWC. In May 1995, he said he had a conversation with Mr Murray in relation to the old workings as follows:

I said: I want to be sure I have got 50 metres, how confident are you of their plans?

He said: I am confident because I have got their record tracings and Gretley holed into Wallsend Borehole and there was only a slight discrepancy between the two sets of plans, about two metres. Taking into account how far their workings extended, it was in the bounds of good surveying practice.

166 When pressed, Mr Porteous also said that he believed Mr Murray had obtained all the information that was available from the DMR but he could not recall exactly what was said. When further pressed on this issue his evidence was:

Q. So you didn't check with either of them that they procured all information that was available from the DMR, did you?

A. I believe that they had all the information.

Q. That wasn't the question I asked you.

A. I'm sorry.

Q. You didn't check with them whether they had procured all information that was available from the DMR?

A. I guess in hindsight, no.

Q. Well, not only in hindsight, you didn't do it?

A. Well, they believed they had all the information.

167 It would seem that Mr Porteous relied on the assurances he received from Mr Murray as to the survey accuracy of RT 523 Sheets 2 and 3. He said that he had cause to peruse Sheets 2 and 3 and he noted the 'unusual shape' of the workings on Sheet 2. That Sheet purported to depict workings of the YWC in the Bottom Seam and was depicted in such a way that it was referred to as the 'arrowhead shaped' workings. Mr Porteous said he noted the unusual shape of those workings, he discussed them generally with Mr Murray but, beyond that, he did not pursue the issue in any way.

168 According to the evidence of Mr Porteous, his theoretical knowledge of mine surveying was limited to one subject as part of his mining engineering degree some years ago. Nevertheless, Mr Porteous acknowledged it was part of a mine manager's job to examine mine plans from 'time to time' and that he was familiar with the basic technique of mine surveying.

169 Mr Porteous also confirmed, in relation to safety issues, the Mine Surveyor at Gretley reported to him. That would be consistent with the provisions of the Coal Mines Regulation (Survey and Plan) Regulation 1984, clauses 7 and 8.

170 Mr Porteous was clearly 'lulled into a false sense of security' as far as the accuracy of Sheets 2 and 3 was concerned. For him that false sense of security is manifested twice. That is, he relied upon Mr Murray and later Mr Robinson for reassurance as to the accuracy of Sheets 2 and 3 in their depiction of the YWC old workings. In turn, Mr Murray and Mr Robinson relied on Sheets 2 and 3 as provided by the DMR as the starting point for their independent verification.

171 Mr Porteous also had cause to discuss the accuracy of the plans depicting the YWC old workings with Mr Robinson, the Mine Surveyor who succeeded Mr Murray. He explained the timing and nature of the conversation in cross examination as follows:

It was after Mr Robinson had obtained more information from the Mine Subsidence Board and put it into his computer, digitising it in, and report to me that he had done that, and from his calculations, it actually moved the old workings further away from us.

172 While it is understandable Mr Porteous may have turned in the first instance to Mr Murray or Mr Robinson for reassurance as to the accuracy of the YWC old workings, the ultimate responsibility and obligations remained with him as Mine Manager. Those obligations and responsibilities should have put in place a process to ensure steps were taken to formally request from the DMR all information it had relevant to the YWC old workings. Mr Porteous was under an obligation to ensure that was done. That obligation was fundamental. As I said at SJ [414] and following:

That it was essential to be confident as to the accuracy of Sheets 2 and 3 is abundantly self evident given the potential consequences if they were wrong. There was also the clear statutory obligation placed on mine managers to ensure such information is accurate as s37(2)(h) of the CMRA provides 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. (emphasis added)

[415] As well, as earlier referred to, the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 at subclauses 8(1) and (2) squarely addresses the Mine Manager's responsibilities in the prevention of inrush. In fulfilling what is, on any view, an absolute obligation, subclause (3) states:

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. (emphasis added)

173 Mr Porteous also detailed in his affidavit his visit with Mr Robinson in July 1996 to the neighbouring West Wallsend Colliery 'to discuss the possibility of Gretley working over their main headings in the area to the south of their long walls 1-10'. Mr Porteous stated:

We showed them Gretley's proposed working plans which involved working over those pillars. We were shown plans by them one of which showed the workings in the Young Wallsend Colliery. That plan was consistent with the depiction of those workings in the Gretley plan.

174 Again, in noting this evidence, I reaffirm what I said on this point in relation to the defendants generally. That is, the fact that other mining companies may also have relied on copies of Sheets 2 and 3 relevant to their particular mining activities does not overall add to the conclusion I have come to on this issue. That is, that the role of the DMR in providing Sheets 2 and 3 in the way it did is a critical and mitigating factor to take account of in assessing the overall criminality of the respective defendants in the context of the objective seriousness of the respective offences.

175 Mr Porteous also explained the view he came to as to the presence of water in 50/51 panel when he visited the worksite on 4 November 1996. He said:

By about mid October 1996 the development in Mini-Wall 50/51 was at around 6 cut through. At about this time Mr Les Yates the District Check Inspector visited he did not raise any water issues. I had discussions with Mr McLean and Mr Van Dijk about the water when Mr Van Dijk visited on the 4th November 1996. We were all of the opinion that it was nuisance water. On 4 November in the discussion with Mr McLean and Mr Van Dijk we discussed the fact that the old mine was about 200 metres away. We walked to the face near 6 cut through and at that time there was a small accumulation of water. Mr Van Dijk made no comment to me about the water nor did Mr McLean comment about the water, or it being anything other than nuisance water.

176 Mr Porteous elaborated on this in cross examination as follows:

Q. You had a conversation with Mr McLean on that occasion; is that right?

A. Yes.

Q. He told you that there was water gathered in 7 cut-through?

A. Yes.

Q. He said to you: 'We are not close to the old mine, are we?'

A. Or words to that effect.

Q. And you said: 'We are not close to the old mine.'

A. Yes.

Q. 'It's about 200 metres away?'

A. Yes.

Q. You were of the opinion that it was nuisance water that was being discussed?

A. Yes.

177 As best as I can surmise, Mr Porteous' view that the water in 7 cut through on 4 November 1996 was 'nuisance water' was bolstered by the belief he had at the time as to the location of the YWC, relying as he was on the discussion he had recently had with Mr Robinson.

178 Mr Porteous also confirmed in his statement what I have also established was the position. That is, that at all times, he intended to drill ahead and leave a barrier of fifty metres between the mining activity in 50/51 panel and the proven old workings: see SJ [634], [637], [639] and [640] in particular on this issue. Mr Porteous elaborated on this issue in his statement in the following terms:

It was always my intention to leave a 50 metre barrier between the old workings and the end of our workings. It was our intention to drill ahead from 100 metres in order to assess the vicinity of the old workings. As part of our weekly planning meetings we had documented our intention to drill ahead. I am told this is Exhibit P 8B page 223. I was being what I considered very cautious and drilling ahead that distance as I assumed that the old workings displayed in the mine plan could be inaccurate within at least a few metres given their age.

179 I accept that as a general proposition, Mr Porteous was a cautious man when it came to the decision he made to drill ahead 'from 100 metres in order to assess the vicinity of the old workings'.

180 Where Mr Porteous failed, in my view, is that in taking steps to satisfy himself as to the accuracy of Sheets 2 and 3 in properly identifying the location and extent of the YWC, he too easily accepted the assurances he was given by the respective Mine Surveyors. He took no independent steps beyond that assurance. It was, I believe, a one off but serious error of judgment. In that respect, he failed to take the essential and fundamental independent step required of him in accordance with the provisions of s 37(2)(h) of the CMRA that as Mine Manager he:

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.

181 That responsibility was his and his alone. At the very least he owed it to himself to direct his Mine Surveyors, and any other relevant staff, to proactively research every available source for all information regarding the YWC old workings. The implications if Sheets 2 and 3 were wrong demanded that. That is not something Mr Porteous could delegate. Nor is it something that required additional skills and knowledge as to a critical appraisal of mine survey plans.

182 That to me is the essence of Mr Porteous' culpability. It is against that finding together with the principles, considerations and criteria already noted that I approach the determination of penalty in relation to his offences.

183 Notwithstanding my conclusion as to his overall culpability, I accept that as Mine Manager at Gretley, Mr Porteous genuinely strived to maintain a commitment to a safe workplace with policies and practices designed to achieve a workplace free of risks to safety. In that respect, I include Mr Porteous in my general findings in relation to the defendants' overall commendable approach to workplace safety.

184 The element of general deterrence has some, albeit limited, application in relation to Mr Porteous when one has regard to the principle underpinning it earlier referred to. In relation to specific deterrence, I am not persuaded it is relevant in my considerations relating to Mr Porteous notwithstanding Mr Porteous currently is, and presumably will continue to work, in mine management positions. As was said by the Full Bench in Capral at [77]:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of reoffending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (Court of Criminal Appeal, 19 December 1997, unreported).

185 It is abundantly evident to me that any specific deterrent effect arising from the inrush of November 1996 as far as Mr Porteous is concerned has long ago had its impact on him in a most profound way. It is clear Mr Porteous will never forget what happened and no adjustment by me of any financial penalty designed to accommodate specific deterrence will ever act as powerfully as the deterrent effects that have already impacted on him as a result of the accident on 14 November 1996. As he said in a statement accompanying his affidavit:

[1] I have always felt the death of Damon Murray, Mark Kaiser, John Hunter and Ted Batterham very keenly and deeply. I know that this will be with me until I breathe my last.

[2] I was the mine manager at Gretley at the time of the accident and so do wear the ultimate responsibility of the death of these poor men. As mine manager I was responsible for the safety and well being of all persons at the site, so when a person was injured I saw this as personal failure. With the deaths of four good men this feeling is magnified to incalculable proportions which I have had great difficulty in dealing with. I may never fully deal with it. I know I will be remembered as the mine manager of Gretley regardless of whatever else I have done or will do. Everything else pales into insignificance.

186 These matters are of course properly relevant in considerations going to remorse and contrition but, in my view, they are also relevant in the context of specific deterrence.

187 As part of his ongoing efforts to maintain his commitment to workplace safety since the inrush, Mr Porteous has undertaken a Graduate Diploma in Occupational Health and Safety at the University of Newcastle which he completed in 2003. He has also completed a course on risk management through the University of Queensland. In short, Mr Porteous has taken positive and practical steps to rehabilitate himself in his career and he is entitled to favourable consideration on that issue.

188 Further evidence of Mr Porteous' positive rehabilitative steps is his participation as a finalist in the New South Wales Innovation Awards in the Mining Industry in 2004. That Award was conducted under the auspices of the Department of Primary Industries and Mineral Resources, specifically addressing mine safety issues. Mr Porteous' entry was directed to looking at safe systems of work dealing with:

Further control of the risk of explosion in a borehole into coal seem workings by use of an inertising gas

189 In any event, the tragedy at Gretley and its effects on Mr Porteous have certainly had a deterrent impact on his career. As he said:

[25] My career since has been far from stellar. At the outset let me say that I have always felt that the losses I have experienced are insignificant to the losses the families have had.

[26] Twelve hours before the accident I had been offered a corporate position with Cyprus, a position I was going to accept. Because of the accident I could not fulfil this position and it was sensibly and fairly withdrawn and filled by another person.

......

[28] I was moved to Baal Bone Colliery and found it difficult to perform a job one step lower than mine manager. I found my judgement on some matters varied, where I over reacted sometimes and under reacted at other times. I became the manager of the coal preparation plant and had considerable difficulty in convincing peers and superiors of my point of view. I now consider this was because I had lost my self confidence and this in turn was because I had lost my self esteem.

[29] I am still in the industry, but in a considerably different position of responsibility. At Baal Bone, as technical services manager I was in charge of four people, and later at the washery about 27. I was also manager of Baal Bone Open Cut which was then closed and employed no-one, and of Wallerawang Colliery which employed three to four people. At Teralba Colliery I am manager of four capable individuals and occasionally a handful of contractors as the mine is on care and maintenance.

190 In cross examination Mr Porteous responded as follows:

Q. Do you take responsibility also for the offences that her Honour has found have been committed?

A. Yes.

Q. By yourself?

A. Yes.

Q. Similarly, do you express contrition and remorse about those offences?

A. Yes.

191 In addition to what I believe is the fullest expression of remorse and contrition I have ever encountered in circumstances of a workplace accident, I note also that the events of 14 November 1996 have left an underlying and enduring sense of loss that Mr Porteous continues to experience. As he further stated:

[17] As mine manager I lost four of my men, workmates and friends. The bond that existed at Gretley transcended classifications.

[18] I particularly felt the loss at the first Christmas after the accident, and continue to feel it at anniversaries, though I do not pretend my sense of loss is as great as that of the families.

[19] The day after the accident Mark Hart and I both visited the relatives at their homes (after first asking permission to be there), in order to again express our condolences. We offered whatever help we could to ease their loss. I visited each of the families at least once more at their homes in following weeks. I will never forget the pain on their faces and yet the civility with which we were received.

......

[21] Ongoing from the accident, I think about it every day of my life. So deeply burned into me is it that it takes scarcely anything to rekindle some memory of it. I find reminders of it all the time. In spite of some positive memories, I find that I avoid speaking of anything about the mine to others, or at least avoid using its name.

192 Finally, in relation to Mr Porteous, over forty testimonials were placed before me attesting as to Mr Porteous' general good fame and character, going to matters such as his contrition, his general good character evidenced by his charitable work involvement, testimonials from the Department of Mineral Resources' employees and ex-employees, a mine safety and rescue specialist and mining peers.

193 I have no reason to doubt the overall nature of the testimonial material. That is, Mr Porteous is a thoroughly good, decent and committed man whose lifestyle, both at home and at work, evinces that and who has been profoundly affected by the events of 14 November 1996. That he has been found guilty of these offences should never be allowed to detract from those overall personal attributes as I have expressed them and which I am entitled to consider as positive attributes in my considerations.

194 In relation to his current financial circumstances, Mr Porteous stated:

My wife and I own our own house at the address set out above. I still support 3 children at school and university, my wife does not work and has been ill with chronic fatigue syndrome since 1992. My wife and I do not own any other property and we have a unit trust to the value of $200,000 which we plan to use for our children's education and our retirement. I earn approximately $160,000 pa and have no other source of income.

195 The above statement constitutes the only evidence before the Court in relation to the financial position of Mr Porteous. Nevertheless, it was not challenged in any way and, as it stands, it is information I am entitled to take into account relevant to the fixing of a penalty in relation to the offences before me and, as s 6 of the Fines Act 1996 requires me, in the exercise of my discretion, to consider.

196 Having regard to the above information, it is not my view that Mr Porteous is a person of such limited financial means and impecuniosity as contemplated by Walton J, Vice-President in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at [86]. Rather, I adopt as my approach to sentencing in the matters before me, the observation of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed:

... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence.

197 Although no submission was made to this effect, it seems to me, in relation to Mr Porteous, justice would be served by recording convictions and imposing penalty in relation to the planning, research and assessment offences that properly reflect Mr Porteous' overall culpability and then dealing with the system of work and night shift offences by applying the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999 (CSPA). In saying that I am well aware that there is clear and long standing authority that for offences arising under the Occupational Health and Safety Act the exercise of discretion under s10 should be available in only very limited circumstances: See WorkCover Authority of NSW v Profab Industries Pty Limited (2000) 49 NSWLR 700 at [19], [21] and [26]. However, I believe the circumstances here are somewhat unusual and warrant such an approach in relation to some of the offences relating to Mr Porteous.

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. As was said by Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 269 in considering the application of the then equivalent of s 10 in South Australia:

The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia’s sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

200 The approach I propose was adopted by Wright J, President in WorkCover Authority of NSW v Crane Enfield Metals Pty Ltd: Matter No's IRC 6864/99, 6864/99 and 6866/99: 31 December 2003: Unreported. In that matter the defendant entered a plea of guilty to three offences arising under s15(1) of the Act. The prosecutions all arose from the one incident and, as his Honour observed, the particulars of the three charges were substantially the same. The defendant had a number of prior convictions and his Honour noted the record of the defendant was 'not a good one...'.

201 In the sentencing proceedings, counsel for both parties submitted, in sentencing the defendant, the Court should have regard to the principle of totality and the importance of ensuring that inadvertent visiting of double jeopardy should not occur. Counsel for the defendant urged the Court to consider the offences as a single breach of the Act. Neither party made any submission contending for the application of s10 of the CSPA. Ultimately his Honour determined at [33] as follows:

I have decided to take a slightly different approach to the respective approaches contended for by each of the parties. I consider that, in the particular circumstances of this matter, it is open to the Court to conclude that the substantive or major offence is that in Matter No IRC 6865 of 1999 (the systems charge) and that the Court may proceed by treating the various particulars relevant under each charge within the rubric of that charge and fix a penalty accordingly. When that occurs, I consider it then becomes inappropriate to impose any fine in respect of the other two offences which may be dismissed under s10 of the Crimes (Sentencing Procedure) Act 1999 on the basis that, in terms of s10(3)(d) of that statute (which empowers the Court to dismiss a charge without proceeding to a conviction having regard to 'any other matter that the Court thinks [it] proper to consider'), an appropriate punishment of the defendant will occur in this matter if a single substantial fine is imposed in respect of the major or substantive offence charged. Also, the requirements of general deterrence will be best served if a single substantial fine is imposed rather than a series of smaller fines. (emphasis added)

202 In the matters before his Honour, as he stated at [35], 'leaving aside the different particulars, the failures alleged are essentially the same'. That is not strictly the case in relation to Mr Porteous' offences although, as I have already stated, his major or substantive offences (the planning, research and assessment offences) overlap the period of the system of work and night shift offences - both of which have derivative features arising from the major offence as well as common elements between them. Nevertheless, I believe those factors as well as the need to determine a penalty that reflects Mr Porteous' overall culpability can be accommodated within the planning, research and assessment offences. As his Honour said in Crane Enfield at [60], a view with which I concur:

Provided the overall criminality of the defendant is reflected in the fine imposed, which I consider it is, there is no proper basis for other fines to be imposed or convictions recorded. The approach also assists to ensure that there is no element, or little prospect, of double jeopardy in the fine imposed.

203 The maximum penalty for each offence is $50,000.

204 Taking into account the general matters I have already detailed as well as those matters specific to Mr Porteous, I impose sentence as follows:

.1. Type 3: planning, research and assessment offences

(i) IRC Matter No 3212/00: Offence arising pursuant to s 15(1) and s 50 of the Act with respect to NWCC.

The offence was proved with respect to failures (a), (b), (e), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $35,000

(ii) IRC Matter No 3215/00: Offence arising pursuant to s 16(1) and s 50 of the Act with respect to NWCC:

The offence was proved with respect to failures (a), (b), (e), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $35,000

(iii) IRC Matter No 3218/00: Offence arising pursuant to s 15(1) and s 50 of the Act with respect to OPL.

The offence was proved with respect to failures (a), (b), (e), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $35,000

(iv) IRC Matter No 3221/00: Offence arising pursuant to s 16(1) and s 50 of the Act with respect to OPL.

The offence was proved with respect to failures (a), (b), (e), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $35,000

205 I apply the principle of totality already discussed. As well, applying the decision I have come to as to parity between the culpability of the corporate defendants, I propose to apportion the overall penalty imposed equally between the four offences in the Type 3 category relating to Mr Porteous. I impose a total penalty of $42,000 with respect to the above offences. Accordingly the penalty with respect to each of those offences is as follows:

· IRC Matter No 3212/00: $10,500

· IRC Matter No 3215/00: $10,500

· IRC Matter No 3218/00: $10,500

· IRC Matter No 3221/00: $10,500

Type 2: system of work offences and Type 1: night shift offences

206 In relation to each of the following:

(i) IRC Matter No: 3210/00

(ii) IRC Matter No: 3211/00

(iii) IRC Matter No: 3213/00

(iv) IRC Matter No: 3214/00

(v) IRC Matter No: 3216/00

(vi) IRC Matter No: 3217/00

(vii) IRC Matter No: 3219/00

(vii) IRC Matter No: 3220/00

· With respect to each matter I find the offence proved.

· With respect to each matter I discharge the defendant without conviction and penalty in accordance with the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999.

Mr Jonathan Romcke

207 Mr Romcke was the General and Statutory Mine Manager at Gretley between June 1993 and 28 October 1994. He was Mr Porteous' immediate successor in that role.

208 Mr Romcke was employed at all times by OPL.

209 As a person concerned in the management of the corporate defendants at the relevant time, Mr Romcke was found to have committed four offences over the planning, research and assessment charge period pursuant to the provisions of ss 15(1) and 16(1) of the Act respectively together with the deeming provisions of s 50 of the Act. However, failure (e) of the offences cannot be held against Mr Romcke. As I said at SJ [908]:

In relation to Mr Romcke and my conclusion that his role in the contraventions is limited to the time in which he occupied the position of General Mine Manager and Statutory Mine Manager at Gretley. It could not be said that he had any practical connection or involvement in the corporations contravention as particularised in particular (e) of the planning, reasearch and assessment charges. Mr Romcke was not employed at Gretley in August 1995.

210 In the sentencing proceedings, Mr Romcke gave sworn evidence in support of an affidavit filed on his behalf. That affidavit disclosed that Mr Romcke has a Bachelor of Engineering (Mining) (Hons) from the University of Wollongong obtained in 1983. He has also completed the relevant Coal Mine Certificates of Competency for Deputy, Undermanager and Mine Manager in 1984, 1985 and 1986 respectively.

211 Mr Romcke's work experience in the underground mining industry commenced in 1979 when he was a mining engineering trainee during his university studies. Following graduation in 1983, he commenced full-time employment, initially at the Cordeaux Colliery. From that time on, throughout the 1980's, Mr Romcke worked in diverse positions for BHP, continuing to develop his skills and experience and continuing to be promoted in management positions throughout the BHP Collieries Division. In 1989, Mr Romcke took a position with Pacific Copper Pty Limited and in June 1992, he joined the Oakbridge Group at Newcastle Wallsend Coal Company as Deputy Manager at the Ellalong Colliery. At that time, Mr Porteous was the Mine Manager at the Ellalong Colliery. In June 1993, Mr Romcke was appointed the Mine Manager of the Gretley Colliery when Mr John Pala, the then Mine Manager, resigned.

212 Like Mr Porteous, the starting point in assessing Mr Romcke's overall culpability must start by assessing the degree of culpability that can be attributed to him relevant to acts or omissions on his part and on the part of the corporations and the extent to which the corporation's acts or omissions can be properly attributed to him. (see Walco Hoist at 187)

213 In assessing Mr Romcke's culpability, let it be said now that I do not consider his culpability is as great as that of the corporate defendants. For a start, Mr Romcke's culpability is confined to those failures in the planning, research and assessment charge relevant to his period of time as Mine Manager at Gretley, spanning as it does June 1993 to October 1994. The planning, research and assessment charge does not begin until 22 March 1994. Secondly, there are no offences in relation to Mr Romcke that cover the system of work and night shift charges as identified by the prosecution. Admittedly, the planning, research and assessment charge period encompasses the whole of the time period incorporating the system of work and night shift charges. Nevertheless, as I said at SJ [905]:

What I do know is that I do not rely on Mr Romcke's participation in the General Mine Manager's meetings after he left Gretley as evidence in support of him being a person concerned in the management of the corporations before me. To the extent that he was both General Mine Manager and Statutory Mine Manager at Gretley during a part of the charge period I do rely upon in coming to the view that I do, that at a relevant period in the development of the Gretley mine, Mr Romcke was involved in the management of the corporations NWCC and OPL. As well, it was his signature that accompanied the initial application, under s138 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, do not pose a 'danger to Gretley workings'. ...

214 My approach to the assessment of Mr Romcke's culpability is the same as the approach I have undertaken in relation to Mr Porteous except that there are differing factual circumstances relevant to Mr Romcke that need to be specifically considered. As I said in SJ at [906] and [908]:

The role of Mr Romcke and Mr Porteous in appending their signatures, and thereby their authority, to those particular mine plans is significant. This is particularly so, in my view, because of what I have referred to as the primary failure that is the catalyst of the offences before me - the failure of the corporate defendants to properly research the location and extent of the Young Wallsend Colliery old workings. As well, specific reference to the responsibilities of the Mine Manager on behalf of the corporations under s37(2) of the CMRA and Part 3, Prevention of Inrushes of the Methods and Systems of Working Underground Mines Regulation 1984 reinforces the all encompassing obligations of the Mine Manager particularly in relation to safety matters.

....

In relation to Mr Romcke and my conclusion that his role in the contraventions is limited to the time in which he occupied the position of General Mine Manager and Statutory Mine Manager at Gretley. It could not be said that he had any practical connection or involvement in the corporations contravention as particularised in particular (e) of the planning, reasearch and assessment charges. Mr Romcke was not employed at Gretley in August 1995.

215 In relation to Mr Romcke, I reaffirm the 'all encompassing' nature of a mine manager's responsibilities, relying as I do on the views expressed by me in SJ [893], [894], [895] and [896] earlier set out in relation to Mr Porteous.

216 Again, as well, I note my comments and views expressed in [157] and [158] of this judgment and say that they apply equally to Mr Romcke.

217 Like Mr Porteous who came after him, Mr Romcke also placed reliance on the expertise of the Mine Surveyor at the time, Mr Michael Murray, in relation to the preparation and accuracy of mine plans produced in relation to the Gretley Colliery. According to Mr Romcke, shortly after he commenced as Mine Manager at Gretley in mid-June 1993, he spoke with Mr Murray in the Survey Office at Gretley. On that issue Mr Romcke said:

I wanted to be brought up to date of the state of the survey records at Gretley Colliery and in particular the use of computers in the preparation of plans for the mine.

218 By all accounts and on the basis of the evidence that he now gives, Mr Romcke had every confidence in the expertise of Mr Murray. At that time, Mr Murray was the Project Surveyor at the Gretley Colliery. Mr Stewart Tilden was the Mine Surveyor. According to Mr Romcke, Mr Murray was responsible for project work and in particular the computerisation of survey plans and records. According to Mr Romcke, whenever he 'had occasion to question' Mr Murray about any matter, he always was more than satisfied with the answers and supporting information that Mr Murray provided.

219 Like Mr Porteous, Mr Romcke had undertaken mine surveying as one subject in his mining engineering degree. He acknowledged that he understood the basic techniques of mine surveying and that it was part of a mine manager's job to continually examine mine plans.

220 In his position as Mine Manager, Mr Romcke looked in the first instance to his Mine Surveyor for information and assurance as to steps taken to confirm the location and extent of the YWC and in relation to mine survey matters generally. According to Mr Romcke, he was aware that Mr Murray had obtained copies of Sheets 2 and 3 from the DMR, amongst other sources. Again, like Mr Porteous, Mr Romcke relied on Mr Murray to follow up with the DMR as far as any information that he might have been able to obtain from it. As he acknowledged in cross examination:

· He did not ask Mr Murray whether he had any other plans relevant to the s138(1) application Mr Murray prepared.

· He did not determine in that he did not ask Mr Murray whether he had obtained all the information that was available from the Department of Mineral Resources.

· He did not determine whether Mr Murray had examined the original of any plan held by the Department of Mineral Resources in relation to the YWC.

· He did not look at the plans that Mr Murray did show him to ascertain whether in his view they were reliable. In this respect he relied entirely on Mr Murray.

· He did not, during his period of time as Mine Manager at Gretley and in relation to any discussions he had with Mr Murray about the mine plans Mr Murray did produce, enquire as to whether RT 523 Sheet 1 was in existence. In that respect, he did not ascertain whether Mr Murray had examined Sheet 1.

· He did not ascertain whether Mr Murray had or had not consulted the Abandonment Register held by the Department of Mineral Resources in relation to the YWC. As an extension of that, he therefore did not ascertain whether there was any abandonment plan lodged in relation to YWC.

· He did not ascertain whether Mr Murray as Mine Surveyor had been to the State Archives about any records that may be held in relation to YWC and he did not carry out any historical research into YWC himself and he did not determine whether Mr Murray or anyone else at the Gretley mine had done so.

221 Mr Romcke did have conversations with Mr Murray about Gretley mine plans generally and the YWC old workings in particular. Apart from his general discussion with Mr Murray in June 1993 about the overall state of the survey records at Gretley Colliery, he stated that in about December 1993 he had cause to have a specific conversation with Mr Murray in relation to the s138(1) application that was being prepared for the DMR in relation to Miniwall 35-36. As he stated in his affidavit:

[60] In about December, 1993, when we were working on the application for Miniwall 35-36, I had a meeting with Michael Murray in the conference room at Gretley. We had all the plans required by the guidelines for the application on the table. We went through each plan, one by one, to check that it disclosed the information which was required by the guidelines. When reviewing 'Plan 4' required by the guidelines, I asked why the workings shown in the Borehole Seam had such an unusual shape. Michael went and got the old plans.

[61] He placed a roll of plans on the table in the conference room. He proceeded to open the roll out with his hands and I helped him hold them out. The top plan in the roll appeared to be the same as the depiction of the workings in the Young Wallsend Seam in the Young Wallsend Colliery as appeared on the mine working plan and other plans in use at that time at Gretley Colliery and displayed in various parts of the colliery. The plan was approximately two feet long and one and a half feet high. The plan had the words 'Young Wallsend' on it. I think it also had the words 'Top Seam' on it. The scale shown on the plan was an imperial scale - an old scale. It showed the location of two shafts. It appeared to be a copy of a plan. The copy plan was opaque. It was not a photocopy.

[62] The second plan from the roll which he showed me was on paper the same in size and appearance as the first plan. The words 'Young Wallsend' appeared on the plan and the words 'Bottom Seam'. I asked what Bottom seam meant and he told me that 'Bottom Seam' refers to the Borehole Seam and 'Top Seam' refers to the Young Wallsend Seam.

[63] I asked him how he knew that and he told me that RLs were shown on the plan in feet. We have correlated the surface expression of the shafts, shown on the plan. We have compared the RLs with our own data on the depths of the Young Wallsend Seam and the Borehole Seam. He told me that he had checked the surface location of the shafts was shown correctly in relation to our underground workings and he had been right through a detailed assessment of the ISG co-ordinates in relation to the survey of these shafts with current Department of Lands survey marks in the Edgeworth area.

[64] I was concerned that these were accurate and I asked him how he could be absolutely certain that they correlated with the survey data for Gretley. He told me he was absolutely positive that correlation is correct within the normal orders of accuracy of surveying and that he went through the process of double checking this information when he converted all our survey data to the ISG co-ordinates and then as part of the process of compiling our computer data base. I asked where the plans had come from and he said the Department.

222 In relation to the s138(1) application prepared and lodged in September 1994, Mr Romcke as General Mine Manager sought approval to use the mini wall mining methods for Panels Miniwall 39-45. Those then numbered miniwalls later became 50/51 Panel. Mr Romcke said:

[65] After Michael Murray had prepared all of the draft plans required for the Section 138(1) Application for Miniwalls 39/45, we reviewed each plan in detail.

[66] I believed that Michael Murray had relied, in preparing such draft plans, on the Coal and Allied record tracing from Wallsend Borehole Colliery and plans he obtained from the Department to assess the extent of the old workings in the Young Wallsend Seam in the Young Wallsend Colliery. To avoid those workings I planned to leave an unextracted block of coal, ie a barrier pillar.

223 In cross examination in relation to this aspect of his statement, Mr Romcke responded as follows:

Q. Do you remember in September 1994, a section 138(1) application being lodged, which sought approval to use miniwall mining methods for Panels Miniwall 39/45?

A. Yes.

Q. That was different to 35/36, was it?

A. Yes.

Q. Did you look at different plans on that occasion?

A. Yes.

Q. Do you remember what plans you looked at?

A. It would have been all the plans relating to that application.

Q. Do you remember doing that?

A. Yes.

Q. Do you?

A. Yes.

Q. You know that there's been identified in these proceedings, Top and Bottom Seam Sheets 2 and 3?

A. They were not one of the plans attached to the application.

Q. Did you look at them?

A. I think I refer to that.

Q. You may refer to it, but I'm asking: did you look at them, or do you remember?

A. I can't recall if I looked at them on that occasion.

Q. But you did look at them at some time, did you?

A. Yes.

Q. While you were the mine manager at Gretley?

A. Yes.

....

Q. You looked at all of those plans, including the Coal and Allied record tracing, had you?

A. I think the Coal and Allied record tracing was in that bundle of plans. I am not sure, I can't remember.

Q. What was the basis for you saying that you believed you'd relied on the Coal and Allied record tracing?

A. Because he'd told me so.

Q. But you can't remember whether you looked at that plan?

A. No, I can't recall that.

Q. Do you remember whether you asked to look at that plan?

A. I can't recall.

Q. The plans that you obtained from the Department, are they the plans I asked you about earlier - I withdraw that. What plans were they?

A. They were some of the plans that the - collieries old plans referred to in 61.

Q. Can you remember looking at them?

A. Yes.

Q. Can you identify which ones they are?

A. Yes:

The plan was approximately two feet long and one and a half feet high. The plan had the words 'Young Wallsend' on it. I think it also had the words 'Top Seam' on it.

And the scale was imperial scale, or old scale.

Q. Is that Sheet 2 or 3 that I asked you about earlier?

A. I can't recall whether it was 2 and 3. I looked at what I now know as Sheet 2 and 3.

224 Overall, as Mr Romcke stated, he did not pursue with Mr Murray or with anyone, any aspect going to any perceived unusual shape in the workings depicted particularly on RT 523 Sheet 2 and as he said: 'I relied on Mr Murray to undertake the research and to present the plans, the Gretley plans'.

225 Mr Romcke not only relied on Mr Murray as he said, he also clearly relied on the actions of the Department, both leading up to and as part of the s138(1) approval process. In other words, Mr Romcke clearly perceived that the role of the DMR in dealing with and subsequently approving the s138(1) application was a 'tick of approval' not just for the miniwall mining process itself but to the survey accuracy of the plans that accompanied that application. As he said in his statement:

[69] The Application 138(1) for Miniwalls 39-45 was made by me in reliance on the 1992 Guidelines.

[70] It was my understanding, both when I was preparing the application and when I lodged it, that having regard to the statements in the introduction to the 1992 Guidelines, if there were any questions, suggestions or comments, or any information relevant to the application, which the Department had in relation to any matter contained in the application, particularly any relating to the three criteria nominated in the introduction to the guidelines, that is

(a) The safety of persons working in the mines;

(b) The responsible exploitation of the State's coal resources; and

(c) The impact of mining operations on other land users and groups within society,

......

[75] To the best of my recollection all questions, suggestions or comments raised by any officer of the Department, including the matters covered by the letter of 20 October, 1994 from Mr Flett, as District Inspector, to myself, as Mine Manager Gretley, were taken into account by me either in the preparation of the formal Application or in the subsequent submission of amended Approved Plan and Supplementary Report. At no time did any officer of the Department disclose to me (or so far as I am aware to any other person in the Oakbridge group) that the Department had any information which was inconsistent with the information I had presented with the Application. At no time after the approval was granted did any officer of the Department disclose to me (or so far as I am aware to any other person in the Oakbridge group) that the Department had any other issues or concerns that had not been addressed to their satisfaction.

226 In relation to the above it is pertinent to note the provision in the DMR guidelines existing in 1994 relating to s 138(1) applications stated as follows (exhibit P121):

It is the responsibility of the lease holder wishing to mine the resource to properly research, investigate, and plan the mining operation.

227 In every relevant respect, Mr Romcke's position in relation to matters relative to his culpability parallels that of the corporate defendants and Mr Porteous. That is, his reliance in the first instance upon assurances and information received from the Mine Surveyor as to research undertaken and accuracy confirmed. Secondly, part of that process was reliance on Sheets 2 and 3 provided by the DMR purportedly depicting the location and extent of the YWC. Further, the process that Mr Romcke undertook in order to secure the Department's approval for the s138(1) application, relying again on the DMR's own Sheets 2 and 3 to depict the YWC, only further reinforced the assurance he had already received from Mr Murray.

228 As I have already stated, in many respects the reliance in the first instance on the Mine Surveyor is, on one view, understandable. However, as I said in relation to Mr Porteous, and it applies equally to Mr Romcke, that initial reassurance cannot and does not remove his ultimate responsibility and obligations that remain with him as Mine Manager. Mr Romcke signed the s138(1) application to the DMR in September 1994 where mention was made of the Borehole Seam workings being 'full of water' and it was asserted by him do not pose 'a danger to Gretley workings.' In order to make that assertion with such certainty, Mr Romcke in turn had to be certain that all steps that could have been taken were taken in order to ensure the accuracy as to the location and extent of the YWC old workings. That obligation was fundamental. That was the point I expressed explicitly in SJ [414] and [415] repeated earlier in this judgment in relation to Mr Porteous. It applies equally in relation to Mr Romcke.

229 I take the same approach to general and specific deterrence to Mr Romcke as I have adopted in relation to Mr Porteous. That is, I see a place for consideration as to general deterrence as a factor, not an overwhelming one, in my sentencing considerations. In relation to specific deterrence, I am not persuaded it is a factor that should be taken into account in those considerations. I say that because, like Mr Porteous, I believe that any deterrent effect specific to Mr Romcke in relation to the inrush that occurred on 14 November 1996 has long ago occurred in relation to Mr Romcke. In that sense, relying on Capral, I believe the risk of Mr Romcke re-offending in similar circumstances is non-existent.

230 It is hard to contemplate, indeed impossible would not be too high a word, to say that I could not envisage Mr Romcke (or Mr Porteous for that matter) not having taken from the experience of the inrush and their role and presence before this Court anything other than the most profound deterrent in relation to any future conduct on their part insofar as mine management activities are concerned. From a rehabilitative perspective since Gretley, Mr Romcke has been involved, as Mine Manager, in ongoing safety initiatives at the South Bulga Mine after he left Ellalong Colliery in 1997. In addition, in 2003 he undertook a week long residential course in Risk Management Systems at the University of Queensland. In July 2004 he participated in a programme 'Essential Safety - One day investigation and analysis'.

231 Mr Romcke has continued in mine management positions since leaving the Gretley Colliery. In 1996, Mr Romcke was appointed Mine Manager at the Ellalong Colliery and in late 1997 as General Mine Manager at the South Bulga Underground Mine. While at the South Bulga Underground Mine, Cyprus Amax divested its coal assets and its shareholding in OPL and NWCC and they were sold to Glencore's Australian coal mining division. As the evidence of Mr Mellows has confirmed, Glencore Coal Australia Pty Limited is now known as Xstrata Coal Pty Limited.

232 As a result of that acquisition, Mr Romcke was retained by Glencore and subsequently Xstrata to continue in his role at South Bulga as Operations Manager and Statutory Mine Manager. From December 2003 until November 2004 Mr Romcke was employed by Xstrata Coal Australia as Operations Manager at the NCA Project in Central Queensland. In that role he was appointed as Underground Mine Manager at the Newlands Northern Underground Mine. In November 2004 Mr Romcke became the Business Development Manager at the NCA Project in Central Queensland.

233 Like the other defendants, Mr Romcke has no prior convictions. Given his relatively long standing role in mine management positions, that fact stands in his favour. As well, there is no evidence to suggest that Mr Romcke, in his capacity as Mine Manager at Gretley and elsewhere, has been anything other than conscientious and committed to issues relating to workplace safety. They are matters that I am properly entitled to take account of in my considerations on penalty in relation to Mr Romcke.

234 The issue of contrition and remorse has been raised in relation to Mr Romcke as a factor going to mitigation. In the affidavit filed on his behalf, Mr Romcke makes no mention of any remorse or contrition pertinent to himself arising from the inrush that occurred on 14 November 1996. There is evidence that he does place before the Court that goes to the stressful circumstances that this tragedy has created for him, both personally and in his continuing work as a Mine Manager. I do not for a moment doubt the veracity of those statements but they are only of minimal if any weight in my considerations on sentence.

235 I do not find contained within Mr Romcke's statement or the evidence he gave anything that evidences any remorse and contrition for what has occurred in the sense of an acceptance of responsibility such as that expressed by Mr Porteous. To be fair to Mr Romcke he was not asked the questions posed to Mr Porteous on this issue so it is not possible to know. Mr Romcke may not feel quite as directly involved as Mr Porteous given that Mr Porteous was Mine Manager at the time of the inrush and Mr Romcke had moved on to another position.

236 If anything, Mr Romcke presented a position that places the responsibility for this terrible accident squarely with the Mine Surveyor and the DMR. In that respect I believe Mr Romcke accepts little if any responsibility for what has occurred. In coming to that view, I stress that it does not operate to increase any penalty I may impose. It is a factor that, if it was accepted, goes entirely to mitigation.

237 As he is quite properly entitled to do, Mr Romcke raises his financial circumstances in relation to the determination of penalty. In that regard, he stated as follows:

I support my wife and 4 children from 15 years of age to 3 years of age and earn approximately $180,000.00 per annum. My wife does not work. We have a property in Broke near Singleton which has a mortgage of approximately 65% of its value. I also have two other properties, one in Maitland with a mortgage of 60% of its value and one in Mackay with a mortgage of about 100% of its value. I do not have any other form of income.

238 Like Mr Porteous, the evidence given by Mr Romcke as to his current financial status was not challenged in any way. I accept it and will consider it consistent with the same approach as enunciated in relation to Mr Porteous earlier in this judgment.

239 I accept that Mr Romcke did all he could to assist the investigating authorities at the time of the inrush.

240 There is no issue as to Mr Romcke's general good character. In the testimonial material tendered, he presented as a person who, in his mine management positions was, and still is, always conscious of and committed to overall safe work practices. He is clearly highly thought of by his current employers for that commitment.

241 Taking into account all of the principles, considerations and criteria already detailed as well as those matters specific to Mr Romcke, I determine penalty in relation to his offences as follows:

.

(i) IRC Matter No 3234/00: Offence arising pursuant to s 15(1) and s 50(1) of the Act with respect to NWCC.

I found the offence proved with respect to failures (a), (b), (c), (d), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

(ii) IRC Matter No 3235/00: Offence arising pursuant to s16(1) and s 50(1) of the Act with respect to NWCC.

I found the offence proved with respect to failures (a), (b), (c), (d), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

(iii) IRC Matter No 3236/00: Offence arising pursuant to s 15(1) and s 50(1) of the Act with respect to OPL.

I found the offence proved with respect to failures (a), (b), (c), (d), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

(iv) IRC Matter No 3237/00: Offence arising pursuant to s16(1) and s 50(1) of the Act with respect to OPL.

I found the offence proved with respect to failures (a), (b), (c), (d), (g), (h) and (i). Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

242 I apply the principle of totality already discussed. As well, applying the decision I have come to as to parity between the culpability of the corporate defendants, I propose to apportion the overall penalty imposed equally between the four offences in the Type 3 category relating to Mr Romcke. I impose a total penalty of $30,000 with respect to the above offences. Accordingly the penalty with respect to each of those offences is as follows:

· IRC Matter No 3234/00: $7,500

· IRC Matter No 3235/00: $7,500

· IRC Matter No 3236/00: $7,500

· IRC Matter No 3237/00: $7,500

Mr Mark Robinson

243 Mr Robinson was the Statutory Mine Surveyor for Gretley 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 at Gretley was because of the absence through illness of Mr Michael Murray, his predecessor as Statutory Mine Surveyor. Mr Murray was 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 full-time basis. That process was undertaken in October 1996.

244 Mr Robinson was employed at all times by OPL.

245 As a person concerned in the management of the corporate defendants at the relevant time, Mr Robinson was found to have committed four offences over the planning, research and assessment charge period pursuant to the provisions of ss 51(1) and 16(1) of the Act respectively together with the deeming provisions of s 50 relevant to both corporations. However, in so finding, there are some particularised failures within those offences that have no application to Mr Robinson. As I said at SJ [951]:

Accordingly, I am satisfied that those offences alleged with respect to Mr Robinson have been established. In saying that, it is clear, as the prosecution has conceded, that Mr Robinson had no role to play in relation to particularised failures (c), (d) and (e). Therefore, in finding IRC Matter No's 3230/00; 3231/00; 3232/00 and 3233/00 established, I do so with respect to particularised failures (a), (b), (f), (g), (h) and (i) only.

246 In the sentencing proceedings, Mr Robinson gave sworn evidence in support of both an affidavit and a statement filed on his behalf. The affidavit material disclosed that, following completion of his secondary education in 1978, Mr Robinson undertook, on a part-time basis, the Mine Surveyor's Certificate Course at Belmont TAFE. During that time, he also worked four days a week as a trainee mine surveyor with BHP Collieries. At the conclusion of that period, he qualified for his Mine Surveyor's Certificate and in 1983 Mr Robinson qualified for his Mine Surveyor's Certificate of Competency issued under the CMRA.

247 Following the successful completion of his professional education, Mr Robinson was employed by BHP Collieries, initially as an assistant surveyor at the Lambton Colliery. He remained there until 1985. Between 1983 and 1985, he also completed the necessary examinations to qualify as a Mine Deputy. At about that time he worked underground as a miner at the Lambton Colliery for some twelve months. He subsequently worked at the Gunnedah Colliery before travelling in Australia and overseas. In the United Kingdom he worked for four years as a surveyor. Mr Robinson returned to Australia in or about 1995 and worked in diverse collieries. In September 1995 he was appointed as Mine Surveyor to Gretley when Mr Murray went on his first period of sick leave. As earlier indicated, Mr Robinson remained at the Gretley Colliery for intermittent periods until he was appointed to the permanent position of Mine Surveyor on 1 October 1996. He remained Mine Surveyor at Gretley on a full-time basis until the mine closed in 2003 and commenced work at the West Wallsend Colliery in September 2003 as the Subsidence Management Coordinator. In his affidavit Mr Robinson said he works at the West Wallsend Colliery on a casual basis and, depending on the workload, he works between twenty to sixty hours per week.

248 The starting point in assessing Mr Robinson's overall culpability must start by assessing the degree of culpability that can be attributed to him relevant to acts or omissions on his part and on the part of the corporations and the extent to which the corporation's acts or omissions can be properly attributed to him. (see Walco Hoist at 187)

249 On the question of culpability, I am satisfied that Mr Robinson's culpability is not as great as that of the corporate defendants. The reasons for that are essentially two-fold. First of all, Mr Robinson's offences are confined to the planning, research and assessment charge period. Within that charge period, Mr Robinson's offences are further confined to failures (a), (b), (f), (g) and (h) of those offences as pleaded. In other words, Mr Robinson cannot be held to account with respect to failures (c), (d) and (e) of those offences as they do not accord with his period of employment at the Gretley Colliery.

250 Mr Robinson was the Mine Surveyor at Gretley at the time of the inrush on 14 November 1996. During the period leading up to the inrush, from September 1995 onwards, Mr Robinson as the Mine Surveyor produced a number of mine and section plans all relevant to the Gretley Colliery and panel 50/51 in particular. In the production of a number of those mine plans, he certified them as to their accuracy. In doing so and to the extent necessary, he incorporated the YWC relying on the purported depiction of those workings as shown on RT 523 Sheets 2 and 3, provided initially by the DMR.

251 In his position as Mine Surveyor I am satisfied that in relation to matters of safety pertinent to his position as Mine Surveyor, Mr Robinson reported to the Mine Manager, Mr Porteous. This much was confirmed by Mr Porteous himself and I accept it would be correct. Mr Robinson, in his sworn evidence, believed he had an immediate line management responsibility to the Production Manager but did confirm, in relation to matters to do with safety and the production of mine plans, that he reported to Mr Porteous as the Mine Manager.

252 In relation to the period from September 1995 to October 1996, in his position as Mine Surveyor for intermittent periods, it is necessary to reaffirm what I said at SJ [945]:

There can be no suggestion, nor was there, that during his period as Mine Surveyor from September 1995 to October 1996, Mr Robinson's duties and responsibilities were circumscribed in any way by dint of the acting nature of his appointment. For all practical purposes, Mr Robinson was the Mine Surveyor at Gretley from September 1995 onwards. The Gretley mine was part of the corporate structure of NWCC which, as I have earlier stated, had a corporate role in relation to other mines in the OPL group, most notably Ellalong/Pelton. ...

253 In his position as Mine Surveyor at Gretley, Mr Robinson had clear statutory responsibilities. These were referred to and elaborated by me in SJ as follows:

[937] Clause 8 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 sets out the duties of a Mine Surveyor. They have been set out in full earlier in this judgment. For the sake of expediency, the following relevant subclauses are set out at this point. The Mine Surveyor shall:

(c) draw the attention of the employees at the mine or mining officials to any neglect or deviation from the centres, or marks, or instructions given, and shall report to the manager of the mine any deviation considered by the mine surveyor to be excessive or outside the deviation limits set out by the manager;

....

(f) prepare, or supervise the preparation of, all plans, drawings and sections required to be prepared or kept by this Regulation or the Surveying and Drafting Instructions and shall certify the accuracy of all such plans, drawings and sections in writing thereon;

(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;

[938] There is no doubt that during the period of his tenure as Mine Surveyor relevant to the charge period, Mr Robinson oversaw the staff in the survey office at Gretley. In doing so, he prepared a number of mine plans and section plans relevant to Gretley and 50/51 panel in particular. In particular, prior to the inrush and during the relevant period as Mine Surveyor, he certified as to the accuracy of mine plans produced in relation to the Gretley Colliery that included 50/51 panel and the presumed, but incorrect, depiction of the Young Wallsend Colliery old workings in the Young Wallsend Seam (see exhibits P113 and P115). In producing the mine plans that he did, it can safely be assumed, in my view, that he relied upon the ISG survey coordinates of the presumed old workings of the Young Wallsend Colliery that had been earlier entered into the computerised mapping programmes at Gretley by either Mr Tilden or Mr Murray, Mr Robinson's successors as Mine Surveyor. In so entering those coordinates, reliance was placed on the mine plans issued by the DMR, RT 523 Sheets 2 and 3. As is well established, those mine plans were wrong.

....

[940] The mine plans prepared by a Mine Surveyor are not mere drawings. They represent the end result of the drawing together of relevant scientific, technical and geological information that, taken together, are then added to by specific surveying skills and competencies in order to produce the finished mine plan. Those mine plans and reliance on their accuracy are utlilised in support of the decisions taken at the management level of the organisation to depict proposed future mining activity and to depict the extent of current workings and workings that have been abandoned. In relation to ensuring that mining activity in the vicinity of old workings was undertaken safely, the risk of inrush avoided and work proceeded in an environment that was safe and without risk, the survey accuracy of mine plans was absolutely critical in laying that foundation. On a mine section basis, mine plans are relied upon by mine Under Managers and Deputies to chart and guide them as to the proposed direction of mining activity and to the daily progress of production in order that mine management knows the actual metres of progress made in any planned mining activity.

[941] Mine survey plans would also be relied upon by a wide variety of persons and/or organisations external to mine management but who would require to be informed and/or advised about proposed underground mining activity. The net result of all of that, in my view, is that the mine plans produced by a Mine Surveyor are relied upon by the relevant corporate and mine management and held out as accurately representing the proposed and current mining activities at a particular mine. They become in effect 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. For example, if a Mine Surveyor was to advise the Mine Manager in the terms as provided in clause 8(g) of the Survey and Plan Regulations, I have no doubt that 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. Clause 8(g) provides:

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;

[942] On one view, that responsibility alone may, given the particular facts and circumstances, render the decisions that a Mine Surveyor makes in carrying out his statutory function, the advice he gives to the Mine Manager in relation to the preparation and certification as to the accuracy of mine plans relating to future mining activity, and any caveats he may place on those plans, critical in determining whether to proceed with planned mining activity in a particular location, in a particular direction and in a particular seam.

254 The essence of any assessment as to Mr Robinson's culpability must be directed to looking at those steps taken or not taken by him to verify the accuracy of RT 523 Sheets 2 and 3 relating to YWC. On that point, I refer to relevant passages in SJ as follows:

[947] Notwithstanding the way in which mine plans were generated within the survey office at Gretley, it is clear that, realistically, no plans would be generated unless the relevant survey coordinates were entered into the programme in the first instance. In relation to the Young Wallsend Colliery, that was done before Mr Robinson arrived. But that fact cannot excuse Mr Robinson from making his own independent verification as to the accuracy of the information relied upon to computer generate relevant mine plans. His responsibilities under the Survey and Plan Regulation would require that. That responsibility would extend to verifying the information that formed the basis of the ISG survey coordinates entered into the Mindraft computer programme in relation to the Young Wallsend old workings. The evidence would suggest that, until late October or early November 1996, Mr Robinson did not undertake any independent verification of those coordinates relevant to the Young Wallsend old workings. If he did, then he would have done so by reference to RT 523 Sheets 2 and 3 given my finding that, at the time of the inrush, nobody on behalf of the corporate defendants had perused or obtained a copy of RT 523 Sheet 1. Assuming that he did peruse Sheets 2 and 3 between September 1995 and his phone call to the Mine Subsidence Board in late October/early November 1996, he clearly failed to perceive any of the anomalies and inconsistencies in Sheets 2 and 3 that should have alerted him to revisit and question the accuracy of Sheets 2 and 3 and pursue further information. The evidence has already been recounted in this judgment as to Mr Robinson's querying in early November 1996 of the copy of RT 523 Sheet 3 and that he 'wasn't happy with what was on there' and the background to his making such a remark to Mr Foley and his subsequent phone call to Mr Hartley at the Mine Subsidence Board.

[948] Without revisiting that evidence in detail, it is apparent, in my view, that a concern as to RT 523 Sheet 3 relevant to reports of water in 50/51 panel at that time prompted Mr Robinson to ring the Mine Subsidence Board. Further copies of RT 523 Sheets 2 and 3 were sent. Any reliance on those without question would simply have reinforced his reliance on RT 523 Sheets 2 and 3 relevant to the location and extent of the Young Wallsend Colliery.

255 In his affidavit and supporting statement filed in the sentencing proceedings, Mr Robinson detailed those matters that he points to as to steps taken by him in relation to verifying Sheets 2 and 3 and his reliance on them. Those are all matters, it was submitted, relevant to the assessment of Mr Robinson's culpability in that they point to a 'sense of comfort' he was entitled to take as to the accuracy of Sheets 2 and 3 provided by the DMR. Those matters were identified as:

(i) The reliance by former mine surveyors at Gretley, Mr Tilden and, in particular, Mr Murray on RT 523 Sheets 2 and 3 as provided by the DMR.

On that issue in particular Mr Robinson pointed to his assessment of Mr Murray as a most capable mine surveyor and that Mr Murray had clearly done his own professional assessment of the copies of Sheets 2 and 3 that he had and was satisfied as to their accuracy. It was on the basis of his checking that Mr Murray entered the coordinates he did into the computerised mapping programme at Gretley and it was those that Mr Robinson saw as the starting point for him making any ongoing assessment as to accuracy.

(ii) Other mine plans prepared by other mine surveyors, to wit, Mr Robin Knight and Mr Walker. Mr Knight, as I understand it, was a surveyor for BHP and Mr Walker was a surveyor who Mr Robinson had known in that he had taught him during his surveyor's course at Belmont TAFE.

(iii) As Mr Robinson recalls, on those copies of Sheets 2 and 3 that he saw - known to him as the Top and Bottom Seams, there was no notation to that effect. As Mr Robinson stated:

'I saw plans which had been obtained from Robin Knight, Chief Surveyor at BHP. These plans were described as top and bottom seams. They were hand drawn plans and appear to me now to have been the original of sheets 2 and 3. It is my understanding that these plans were tendered at the Staunton Inquiry although I am informed they can no longer be found.'

(iv) Mr Robinson did his own checking against the computerised coordinates as existing on the Gretley Mine computer programme relevant to the YWC old workings. He spoke to the Mine Subsidence Board as to obtaining further copies of Sheets 2 and 3 and he got those copies of the 1:4000 series in A4 size which he used to check against the computer coordinates that he had.

256 Taking account of all of the above factors, Mr Robinson points to the fact that at no time had any doubt been expressed as to the accuracy of Sheets 2 and 3. That may well be so and I accept they are mitigating factors relevant to the assessment of Mr Robinson's culpability. But they do not excuse him from his fundamental obligation to take every possible step to research and obtain all information in order to be confident as to the location and extent of the YWC. More significantly, it was essential, in considering the accuracy as to the location and extent of the mine plans depicting the old workings, that a mine surveyor bring an independent, professional and critical appraisal to the process of checking and verification as to accuracy. On that point therefore, it is ultimately of no assistance for Mr Robinson to point to what others may or may not have relied upon in relation to Sheets 2 and 3. When he became Mine Surveyor at Gretley the responsibility became his. The prima facie comfort that he took from those matters he identifies does not remove the ultimate obligation placed upon him to objectively and independently research and assess the accuracy of Sheets 2 and 3 such as to be sure as to the location and extent of YWC. As I said at SJ [466]:

Accepting as I do, that no reference was made to Sheet 1 by the defendant, it is not sufficient, in my view, for the defendant, or the Mine Surveyor on its behalf, to accept the accuracy of Sheets 2 and 3 without question. Not only is that disregarding the absolute nature of the statutory obligation cast by both the CMRA and the OHSA, it is also failing to acknowledge the reason why there was the need to be certain as to the location and extent of the Young Wallsend old workings - lives were at stake and safety was paramount. It is simply neither desirable nor consistent with its statutory obligations under the OHSA for the defendant to rely without question on the copies of Sheets 2 and 3 supplied to them by the DMR. There is no doctrine of implied infallibility to be applied to the information, documentary or otherwise, given out by any government department. While it is reasonable to presume that such information 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.

257 As well, I note my observations and comments in SJ as follows:

[468] The need for a competent surveyor to go behind Sheets 2 and 3 in order to determine their accuracy was commented upon by Mr Adam. His evidence was:

...that a competent surveyor, examining RT 523 Sheet 2 and Sheet 3, (exhibit P80 and P81) would conclude that the depiction of the YWC workings on Sheets 2 and 3 could not be relied upon to accurately depict the location and extent of the YWC workings. ... ... that he would have grave doubts about the accuracy of the information contained on the two plans. The reasons for this opinion are outlined in paragraphs 82 to 85 of his statement. In summary:

(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 shows a number of lines across the workings the significance of which are not apparent.

(g) The similarity in the structure of the two working but the more detailed Bottom Seam plan and the variations in the directions of the main roadways.

(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 no indicated connection to the workings of a second seam.

[469] In expanding on his opinion, Mr Adam made reference to and marked exhibits P80 and P81 in order to illustrate the points made.

[470] Professor Thomas was also asked to express his opinion as to what problems, if any, existed with the use of Sheets 2 and 3 of RT 523. For the reasons I have already given, I am satisfied that Professor Thomas is able to express an expert opinion on that subject having regard to his specialised knowledge, expertise and extensive experience in the field of mining generally and the reading and interpretation of mine plans. While his opinion statement is extensive, I refer to the following paragraphs as indicative of the general tenor as to the views he expressed in relation to RT 523 Sheets 2 and 3:

When one looks at the apparent absence of roadways in the centre of Sheet 2, the immediate thought should be ‘how did they ventilate the mine'? The air shaft has only one connection, but the obvious ventilation for the south workings was down the haulage way at the entrance of the bords, back through the snickets, or cut-throughs, and the ends of the bords at the corner of the lease, and then into the heading that runs through the ‘e’ of “mines”. That heading should then turn north parallel to the intake airway and go back to the air shaft. The presence of entries off the main road heading north west implies that there were bords there that ran through. Shaft pillars were based on 11o angles about 1900 and any coal much outside of the pit bottom shunt would have been worked on the advance to earn income.

....

The north west single heading has no ventilation return, its openings are so irregular along the main road that they cannot be true even if the deputy set them out with his stick. In the centre of the oval shape there are several false strokes on the north side of the road and there are pillars opposite bords. Part of the plan top left is a shambles: the openings have been marked but someone has confused the edges of pillars with the edges of bords. Given the shape of the north-west workings, with no other plan, one would expect an airway back to the partially drawn north headings to connect back to the air shaft. There must be some roads, and possibly some workings, missing.

...

Looking at Sheet 3 of Record Tracing 523, the surface portion numbers (59, 60, 72, 70) are shown and the workings look as though they have been aligned to mine coal from portion 60, perhaps on the basis of purchasing the coal on a property-by-property basis as the mine progressed, perhaps with some future options arranged. The workings look too regular, both in contrast to sheet 2, and in contrast to what one would expect to see on a surveyed plan. There are again some false lines, but not as many. The peculiar pillar shapes to the south-west are a little worrying because they indicate a lack of surveying in contrast to sheet 2.

...

The absence of scale lines or of any information should have been a worrying point. Record tracings normally carry marginal notes with shaft coordinates, depths of shafts, strata logs, records of pillar extraction approvals, references to Departmental file numbers, and generally all the data one needs to verify the plan. Nothing has been copied, so the veracity of the plan cannot be checked. The plan can be ventilated so the main roads are probably all there, but the pattern of developing the main roads and then immediately opening out the next bord has not been continued at both ends, so it may not be accurate.

[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.

....

[473] They were not such inconsistencies that a competent surveyor should have failed to recognise them. The evidence of Mr Adam in particular is compelling as to the extent of the basic surveying principles ignored by those charged with the responsibility to check such matters and who seemingly embraced Sheets 2 and 3 without question.

258 As to Sheets 2 and 3 that he did look at, Mr Robinson, as I earlier indicated, looked at the plans that he said had been obtained from Mr Knight, the Chief Surveyor at BHP. In relation to those plans, he stated in his cross examination as follows:

Q. You didn't determine whether any historical research into the Young Wallsend Colliery old workings had been carried out by any other surveyor, other than yourself?

A. No.

Q. You are not aware of any efforts by Mr Murray, or any other surveyor, to verify the accuracy of the Young Wallsend old workings plans?

A. Yes.

Q. What are they?

A. I was told by Michael Foley that Michael Murray had obtained plans from Robin Knight, who was the chief surveyor of BHP Collieries. He told me where they were. I was aware that when Gretley Colliery took over the leaseholding of Wallsend Borehole Colliery, that those plans were obtained from their records, the mine plans for Wallsend Borehole Colliery, which included the depiction of Young Wallsend Colliery, and they were also certified plans by John Walker, who was the mine surveyor at Wallsend borehole. I understood that Michael Murray had obtained that information.

259 While I accept that the above, based on substantial hearsay information, is Mr Robinson's recollection, there are two matters of significance that bear on that. They are as follows:

(i) The evidence of Mr Price in the substantive hearing in relation to those plans that were in the Survey Office at Gretley at the time of the inrush. On that point, Mr Price was asked:

Q. Mr Price, some of the plans you located in the search had reference to the record tracing 523 and sheet number?

A. Yes.

Q. And some didn't?

A. Yes.

(ii) Exhibit P120B is notated RT 523 in three sheets: Sheet 3.

That exhibit was one of the mine plans sent to Mr Robinson in or about late October/early November 1996 when he was making enquiries of the Mine Subsidence Board for copies of the record tracings held by them in relation to YWC. This enquiry, as I have determined, arose because of reports of water in 50/51 panel at that time.

260 It is clear that Mr Robinson, if he did see the above reference on Sheet 3 of the copy sent to him by the Mine Subsidence Board, did not attach any significance to it. It certainly did not raise any questions in his mind along the lines that if this was Sheet 3, where was Sheet 2 and Sheet 1? I believe that he did not see it or, if he did, he attached no significance to it because I believe that what he was interested in doing in relation to the copies of Sheets 2 and 3 that he received from the Mine Subsidence Board was, as he said:

Q. When you looked at sheets 2 and 3, did you look at them with a view to determining whether they were reliable?

A. I looked at them with the view to confirming the position of those workings compared to the position of those workings held in the Gretley Colliery computer system.

261 In doing so, Mr Robinson agreed that he did not look at Sheets 2 and 3 with a view to determining their reliability generally.

262 What Mr Robinson did is what all the defendants, corporate and personal, did in relation to their ultimate reliance on RT 523 Sheets 2 and 3. That is, Mr Robinson took comfort from the mine plans of other surveyors of other companies depicting YWC in the same way as were depicted in relation to the Gretley Colliery. Ultimately, that sense of comfort displaced his own independent obligations as Mine Surveyor at Gretley. As well, he assessed copies of the mine plans he saw against the relevant coordinates entered into the computerised mapping programme held in the computer system at the Gretley Colliery. Those coordinates had been entered by Mr Murray and, as best as I can ascertain, Mr Murray had obtained the relevant information for that task from the copies of Sheets 2 and 3 prepared by the DMR. Ultimately, what Mr Robinson did was check later copies of Sheets 2 and 3 purportedly depicting the YWC against earlier copies of Sheets 2 and 3, all emanating from the same source, that is, the DMR.

263 At no time did Mr Robinson, as Mine Surveyor, undertake the necessary independent and critical appraisal of Sheets 2 and 3 or enquire of the DMR as to any additional information they may have had in relation to YWC old workings. The need for the Mine Surveyor to do that was essential because ultimately the Mine Manager would place great reliance on any assurances as to accuracy given to him by the Mine Surveyor. The skills and expertise that a Mine Surveyor brings to the task at hand is one that has a need for accuracy not only for purposes relevant to mining activity generally but critically, also as to safety. That much is clear from the relevant provisions of the Coal Mines Planning and Survey Regulations to which I have earlier referred. His failure to take those steps is the essence of Mr Robinson's culpability.

264 I take the same approach to general and specific deterrence as factors in the sentencing process relating to Mr Robinson as I have done so in relation to the other personal defendants. That is, I believe that general deterrence should be incorporated albeit minimally in any assessment that I come to. There is no doubt that the inrush at Gretley of 14 November 1996 has had wide-ranging ramifications for mine surveyors in the underground mining industry in New South Wales let alone for Mr Robinson personally. In relation to the mining industry generally I refer particularly to Mr Price's affidavit filed in the sentencing proceedings as follows:

[32] There were a number of recommendations concerning surveying as a result of the Gretley Court of Coal Mine Regulation Inquiry. Those recommendations addressed matters concerning plans open to doubt, this was addressed as part of the review of the Survey and Drafting Instructions. Historical research, was addressed as part of the Gretley retraining seminar for the coal mining industry, recommendation for archiving material has commenced although I am unaware of the current status of that program in the Department, and workings in a number of seams was addressed as part of the review of the Survey and Drafting Instructions.

[33] In about November 1998 there were industry wide retraining seminars held by the Department which included the distribution of booklets containing all papers presented at the seminars. Seminar subjects included a guide for searching coal mine records in the Department, certification, endorsement of plans, the historical background of mine surveying, historical search and methodology and criteria for determining the accuracy of old plans. A true copy of the booklet is attached and marked 'B'.

[34] Additionally an extensive review was conducted by the Department in conjunction with Mine Surveyors within the coal mining industry of the Surveying and Drafting Instructions, 1984. I was part of the committee which undertook this review and prepared the new Survey and Drafting Directions for Mine Surveyors 2000. The Survey and Drafting Directions for Mine Surveyors was gazetted on 24 March 2000 and commenced on 31 March 2000.

[35] Under the Surveying Act 2002 Mine Surveyors must now be registered and are required to undertake compulsory continuing professional development.

[36] I am informed that the Qualification Board Examination Papers for surveyors since the accident at Gretley now include at least one question relating to the recommendations of the Court of Coal Mine Regulation Inq uiry.

[37] The Coal Mine Regulation 1999 New South Wales, introduced a requirement for an Inrush Management Plan not previously required by coal mining legislation.

265 In relation to specific deterrence, I am not persuaded that it is an element that I need to consider in relation to Mr Robinson. On that point, I reaffirm what I have already had to say about specific deterrence in relation to Mr Porteous and Mr Romcke. As to rehabilitative measures, Mr Robinson refers to the matters that Mr Price detailed as far as he himself is concerned. He stated in his affidavit:

After the inquiry particularly the Department of Mineral Resources held Gretley retraining seminars for all the mines surveyors in various areas of New South Wales and I attended one of those lectures. I have also had to come to terms with all the new legislation as have the rest of the industry which effectively arose out of the Gretley inrush.

266 Mr Robinson is not working as a mine surveyor at the moment. As earlier indicated, he is currently employed as the Subsidence Management Coordinator at West Wallsend Colliery. While it is possible for him to be re-employed as a mine surveyor at some time in the future, I believe the matters to which I have already referred in relation to the personal defendants are such that one could be confident that Mr Robinson, as a future mine surveyor, would be unlikely to re-offend in the same circumstances that occurred in relation to Gretley in 1996.

267 In relation to relevant subjective features concerning Mr Robinson, he is clearly entitled to point to the absence of any prior convictions as a factor operating in his favour. Further, I accept, to the extent possible, he has demonstrated relative cooperation with the investigating authorities.

268 The issue of contrition and remorse has been raised on his behalf as a factor that should operate in mitigation. I have to say it is difficult to detect an unequivocal expression of contrition and remorse on the part of Mr Robinson. I come to that view on the basis that I interpret contrition and remorse as embodying an acknowledgement of personal responsibility for the offence accompanied by a deep and painful regret for that wrongdoing. Accepting that interpretation, I do not perceive such a response from Mr Robinson. Mr Robinson is at pains to emphasise that he placed great reliance on all those who had gone before him, including the DMR, in relation to being satisfied as to the location and extent of the YWC old workings. In that sense I perceive Mr Robinson looks to them not only for comfort but for allocation of responsibility. Having said that, what I do perceive is a sense of genuine regret at the loss of lives arising from the inrush. I do not doubt for one moment that the personal defendants, including Mr Robinson, have endured a most difficult time in both their personal and professional lives since the accident and all that has followed.

269 The testimonial material tendered on behalf of Mr Robinson confirms his overall good character. I do not doubt it and it has never been in issue. I accept as a general proposition that Mr Robinson has always endeavoured to discharge his obligations as a mine surveyor in a conscientious manner and generally conscious of the importance of safety in discharging those responsibilities.

270 The only evidence I have about Mr Robinson's financial circumstances is that his current average weekly take home is 'about $1,200 net'. I know he is a family man with a wife and three children. In determining penalty I will approach it in the manner consistent with the approach enunciated in relation to Mr Porteous and Mr Romcke.

271 Having regard to my overall considerations earlier detailed as well as those matters specific to Mr Robinson, I determine penalty in relation to his offences as follows:

.

(i) IRC Matter No 3230/00: Offence arising pursuant to s 15(1) and s 50 of the Act with respect to NWCC.

The offence was proved with respect to failures (a), (b), (f), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

(ii) IRC Matter No 3231/00: Offence arising pursuant to s 16(1) and s 50 of the Act with respect to NWCC.

The offence was proved with respect to failures (a), (b), (f), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

(iii) IRC Matter No 3232/00: Offence arising pursuant to s 15(1) and s 50 of the Act with respect to OPL.

The offence was proved with respect to failures (a), (b), (f), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

(iv) IRC Matter No 3233/00: Offence arising pursuant to s 16(1) and s 50 of the Act with respect to OPL.

The offence was proved with respect to failures (a), (b), (f), (g), (h) and (i) as pleaded. Accordingly:

· I find the defendant guilty

· I determine a penalty of $25,000

272 I apply the principle of totality already discussed. As well, applying the decision I have come to as to parity between the culpability of the corporate defendants, I propose to apportion the overall penalty imposed equally between the four offences in the Type 3 category relating to Mr Robinson. I impose a total penalty of $30,000 with respect to the above offences. Accordingly the penalty with respect to each of those offences is as follows:

· IRC Matter No 3230/00: $7,500

· IRC Matter No 3231/00: $7,500

· IRC Matter No 3232/00: $7,500

· IRC Matter No 3233/00: $7,500

Remaining Personal Defendants

273 It is my intention consistent with my findings in SJ to make orders dismissing those charges relevant to the following personal defendants:

(i) Mr Michael Coffey

(ii) Mr Phillip Pritchard

(iii) Mr Michael Alston

(iv) Mr Christopher Nicholls

(v) Mr Terence Shacklady

274 Those orders can be made concurrent with the orders I propose to make in relation to the other defendants when convictions and specific costs orders are made. My orders in relation to costs as part of this judgment relate to this issue and should be referred to.

PART B: COSTS

.

275 In short form, the competing submissions of the parties on the question of costs were as follows:

(1) As to the specific interlocutory applications made prior to the commencement of the summary trial:

The prosecutor sought costs in a specified amount jointly and severally against the two corporate defendants and all natural person defendants or alternatively such orders should be jointly and severally against the two corporate defendants. The specific amount sought by the prosecutor was $145,863.48 and such costs to be paid within 28 days of judgment.

(2) As to the summary trial proceedings:

The prosecutor sought costs in a specified amount in and by the convictions or orders, the costs to be ordered jointly and severally against the two corporate defendants and the three guilty natural person defendants, Messrs Romcke, Porteous and Robinson. Alternatively, such costs should be ordered jointly and severally against the two corporate defendants. The specific sum sought at that time was $1,800,949.75. In identifying that sum, counsel for the prosecutor stated that amount was only up to the time of making submissions before me.

Reference to the summary trial is to the hearing determining the substance of the prosecution.

(3) The position contended for by the defendants has to be considered by reference to two groups:

(i) the corporate defendants, the three personal defendants found guilty and the five personal defendants found not guilty of the charges. I shall refer to them as Defendants Group 1 [DG1].

DG1 opposed the orders in the terms sought by the prosecutor as to both the interlocutory and summary trial proceedings. As well, the defendants opposed the making of orders for the specified sums as sought by the prosecutor.

In detailing their reasons, DG1 sought the following orders:

(a) that any costs order made in favour of the prosecution be reduced by an amount which properly reflects the costs incurred as a consequence of the multiplicity of the charges and the conduct by the prosecutor of the trial;

(b) the prosecutor prepare and serve a bill of costs which is sufficiently detailed to allow the parties to attempt to reach agreement in respect of costs;

(c) failing agreement the prosecutor prepare and serve a bill of costs which shall be forwarded to the Registrar of the Court for assessment;

(d) that the costs as assessed by the Registrar be referred back to the Court to be dealt with under s253(1) of the CP Act.

(ii) the personal defendants found not guilty of the charges laid. I shall refer to them as Defendants Group 2 [DG2]. Specifically, they are Messrs Alston, Pritchard, Nicholls, Shacklady and Coffey.

DG2 opposed the making of any order for costs against them in relation to the interlocutory proceedings identified by the prosecutor. In the alternative:

(ii) the prosecutor prepare and serve a bill of costs which is sufficiently detailed to allow the parties to attempt to reach agreement in respect of costs;

(iii) failing agreement the prosecutor prepare and serve a bill of costs which shall be forwarded to the Registrar of the Court for assessment;

(iv) that the costs as assessed by the Registrar be referred back to the Court to be dealt with under s253(1) of the CP Act.

(4) On behalf of DG2 costs orders were sought as follows:

(i) The prosecutor pay the costs of DG2 on a party/party basis for all work done prior to 24 June 2003 and thereafter the prosecutor pay the costs of DG2 on an indemnity basis.

(ii) In the alternative the prosecutor pay the costs of the defendants on a party/party basis.

(5) In reply to the costs sought by DG2 on an indemnity or party/party basis, the prosecutor contended:

(a) The primary submission was that the statutory costs discretion should be exercised against any costs order being made in favour of the under-managers.

(b) In the alternative, in the exercise of the statutory costs discretion only a small proportion of these defendants' costs should be ordered.

(c) In any event, in view of the fact that the under-managers were represented jointly by legal practitioners also appearing for Mr Robinson, in the exercise of the statutory costs discretion, only a fraction of their legal practitioners' costs should be ordered.

276 In dealing with the divergent submissions as to the orders sought, it is necessary at the outset to determine the basis of my jurisdiction to award costs in these proceedings.

277 There was no suggestion from any of the parties that jurisdiction did not exist nor that the general discretionary principle in costs orders should not apply. Where there was disagreement was the source of my jurisdiction. That issue requires consideration of the Supreme Court (Summary Jurisdiction) Act 1967 (SCSJA) (now repealed), the Criminal Procedure Act 1986 (CPA), the Legal Profession Act 1987 (NSW) (LPA) as well as the Industrial Relations Act 1986 (IRA) and its accompanying Rules.

278 Before I turn to the issue of jurisdiction there are two matters required to be raised at this juncture. The first is the course I propose to adopt in this judgment in relation to the extent of any orders that I may make pertinent to costs.

279 Because that issue is related to considerations going to jurisdiction, I will deal with it at that point.

280 The second matter is whether I should consider the issue of costs in two discrete parts, that is, interlocutory costs and summary trial costs. The prosecutor advocated such an approach whereas the defendants submitted that I deal with the interlocutory and trial matters as one, considering the interlocutory proceedings as steps along the way. Such an approach it was submitted was not only permissible but would overcome some of the 'legislative machinations' arising in relation to jurisdiction.

281 The interlocutory matters identified by the prosecutor were:

(i) The defendants' application to delay the commencement of the summary trial heard and determined on 6 December 2002.

(ii) The defendants' application to strike out the charges pursuant to the time limit provisions of s 49(4) OHSA 1983. Judgment given on 10 July 2003: Stephen McMartin v Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 214

(iii) the defendants' application to disallow variations to the summonses. Judgment given on 21 July 2003: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219.

282 In relation to each of those matters, affecting some or all of the defendants, the defendants were wholly unsuccessful.

283 The reason the prosecutor seeks to distinguish between interlocutory and summary trial costs is essentially, I believe, because the unsuccessful interlocutory matters raised by the defendants involved all of the defendants whereas in the summary trial five of the personal defendants successfully defended the charges against them. It is the five successful defendants in the summary trial [DG2] that is the distinguishing feature in the prosecutor's application for costs as identified.

284 Notwithstanding that fact, I am inclined to the view that the most appropriate course to adopt is to consider the prosecutor's application for costs as encompassing both interlocutory and summary trial costs. That approach was adopted by Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Limited [2003] NSWLEC 156. In those proceedings, the defendant successfully defended a charge that it had polluted water contrary to s 16(1) of the Clean Waters Act 1970. As the successful party in the proceedings, the defendant sought an order for costs. The prosecutor opposed that, submitting that the defendant had unreasonably prolonged the proceedings by notices of motion seeking, inter alia, a striking out of the summons. There were also other interlocutory matters raised by the defendant. In all of those matters the defendant failed. In rejecting the prosecutor's submission to have the defendant's costs order reduced because of those issues but, at the same time, considering interlocutory and trial costs in totality as part of one substantive proceeding, Pearlman J said at [13]:

The prosecutor’s case has, in my opinion, descended to an impermissible level of detail in dissecting the conduct of the defendant’s defence. There were really only two issues in the whole of these proceedings, and it cannot be said that the defendant raised a multiplicity of issues or that there were a number of significant but discrete issues. The first issue in the proceedings was an interlocutory one - should the summons be struck out as an abuse of process? The second issue, raised of course at the trial, was the issue of proof of the defendant’s guilt beyond reasonable doubt. All of the matters alleged by the prosecutor to demonstrate disentitling conduct on the part of the defendant fall within the ambit of both these issues. The question of whether the defendant is entitled to the whole or only part of its costs should not descend to a question of the success or failure of various assertions made by the defendant in endeavouring to establish its case in relation to each of these issues.

285 The issue in that matter was whether or not the defendant should suffer some reduction in the costs order it sought for what the prosecutor contended was 'disentitling conduct'. That conduct included the matters raised by the defendant at both the interlocutory and trial stage. In making the decision she did, Pearlman J considered all of those proceedings as one, going as they did to the validity of the summons and proof of the defendant's guilt. I see merit in such an approach.

286 The same approach, although with a different outcome, was adopted by Bignold J in Environment Protection Authority v Shell Company of Australia [2001] NSWLEC 66. In that matter the defendant successfully defended a charge against it under s 6(1) of the Environmental Offences and Penalties Act 1989. The defendant sought an order for costs which was resisted by the prosecutor on the basis that it would not be fair and reasonable for the defendant to receive its costs in respect of:

(i) a number of interlocutory issues determined during the course of the proceedings upon which the defendant wholly failed, and

(ii) a few discrete issues raised by the defendant at the trial upon which issues the defendant failed.

287 In those proceedings, his Honour had been required to deliver separate reserved judgments in relation to the interlocutory matters raised. In making the orders that he did, his Honour provided for a discount in the costs order to be made in favour of the defendant, taking into account both interlocutory and trial proceedings. Such an approach would, his Honour stated:

...yield a fair and reasonable costs result in the proceedings, having regard to its course and to its outcome - both ultimate insofar as the Defendant is to be acquitted of the charge, and intermediate and discrete insofar as the Defendant, though reasonably raising such issues, wholly failed in respect of them.

288 In coming to that view, his Honour accepted the prosecution submission to the following effect:

...'Reasonableness' is a relevant criterion to govern the outcome of the costs order. It is not reasonable that the Defendant should be compensated for discrete issues - interlocutory and final - it unsuccessfully raised in the proceedings in circumstances where such issues occupied a significant portion of the overall hearing time in the proceedings and were unrelated to the Defendant’s ultimately successful defence of the prosecution.

289 Fundamental to the ultimate decision made by his Honour was that there was no attempt to separate out the interlocutory costs in which the defendant wholly failed from the trial costs. They were, correctly in my view, dealt with in totality.

290 The approach I propose would also appear to be in step with the provisions of Rule 211 of the Industrial Relations Commission Rules (IR Rules) that provides:

Subject to this Part, the costs of any application or other step in any proceedings shall, unless the Commission otherwise orders, be deemed to be part of the costs of the cause of the party in whose favour the application or other step is determined and shall be paid and otherwise dealt with in accordance with the provisions of this Part.

291 It must be said that the approaches taken by Pearlman J and Bignold J in McConnell Dowell and Shell respectively were not affected by the issue I have before me where the group of defendants at the interlocutory stage are not the same as the group of defendants at the conclusion of the trial because of the conclusions I came to with respect to five of the personal defendants. Notwithstanding that, I see no reason to separate the interlocutory and trial costs orders in the way the prosecutor seeks. The issue of costs in relation to the DG2 defendants relative to the interlocutory proceedings where they wholly failed can, in my view, be properly considered within the context of their application for costs as well as the overall approach I adopt within the ambit of my discretion in relation to costs generally.

.

292 Before addressing those issues, the issue of jurisdiction to award costs requires to be clarified.

293 In my view, my power to award costs arises pursuant to the provisions of s 253 the Criminal Procedure Act 1986. That conclusion requires elucidation.

294 The prosecutor acknowledged there was jurisdiction to award costs but that 'it was not entirely clear, because of the legislative changes as to which Act applies'. There was also the question as to how interlocutory costs interfaced with the legislative changes required to be considered.

295 For reasons already given, I have determined that the interlocutory and trial costs should be considered as costs incurred in totality as part of one substantive proceeding and will be determined on that basis. That approach also clarifies the legislative basis as to the costs power.

296 The procedure to be adopted in relation to criminal proceedings of the Court is relevantly provided in s 168 of the Industrial Relations Act (the IR Act) as follows:

(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.

(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.

(3) Nothing in subsection (2) affects the operation of section 170.

(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.

297 Section 168 was amended consequent upon the repeal of the Supreme Court (Summary Jurisdiction) Act 1967 (SCSJA) and the amendment of the Criminal Procedure Act 1986 (CPA). The repeal of the SCSJA and the consequent amendment to s 168 of the IR Act was effected by the Justices Legislation Repeal and Amendment Act 2001 which commenced on 7 July 2003. At the same time, the Criminal Procedure Act was relevantly amended by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 which also commenced on 7 July 2003.

298 Prior to the above-mentioned legislative changes, costs in summary proceedings before the Commission in Court Session were determined pursuant to the provisions of s 14 of the SCSJA which provided:

(1) Where a Judge -

(a) convicts any person of an offence punishable in the summary jurisdiction of the Court;

(b) makes an order dismissing the charge for any such offence; or

(c) makes an order under subsection 1 of section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c) of this subsection, to pay to the prosecutor, or, in the case of an order referred to in paragraph (b) of this subsection, order the prosecutor to pay to the defendant, such costs as to the Judge seem just and reasonable.

(2) The amount so ordered to be paid for costs shall in all cases be specified in the conviction or order.

(3) Subsection (1) does not empower the Judge to order costs to be paid in proceedings for an offence referred to section 475A(1) of the Crimes Act, 1900.

299 While not in the exact same terms, the provisions of s 14 were provided for in the amendments made to the CPA. Those amendments included s 253 which provides:

(1) A court may, in and by a conviction or order, order an accused person to pay to the prosecutor such costs as the court specifies or, if the conviction or order directs, as may be determined under subsection (2), if:

(a) the court convicts the accused person of an offence, or

(b) (Repealed)

(c) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

(1A) A court may, if the court makes an order dismissing the charge for an offence, in and by that order, order the prosecutor to pay to the accused person such costs as the court specifies or, if the order directs, as may be determined under subsection (2).

(2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined:

(a) by agreement between the prosecutor and accused person, and

(b) if no such agreement can be reached, in accordance with the rules.

(3) Rules made for the purposes of this section may, without limitation, adopt all or any specified provisions of Division 6 of Part 11 of the Legal Profession Act 1987, with or without specified modifications.

(4) Any such rule may:

(a) confer or impose, or have the effect of conferring or imposing, jurisdiction or functions on any court or judicial officer, or

(b) confer or impose, or have the effect of conferring or imposing, functions on any officer or costs assessor.

300 As a first glance consideration will reveal, there are similarities of approach between the two legislative provisions. Significantly, they both require the costs order to be made 'in and by the (or a) conviction or order' and that costs awarded shall be specified. Section 253 (1) does provide an alternative which is 'or ... as may be determined under sub-section 2'.

301 As earlier indicated, the date on which the SCSJA was repealed and s 253 (amongst others) of the CPA commenced was 7 July 2003. By that time I had determined the first of the three interlocutory matters identified, that is, the notice of motion seeking the vacation of the hearing date. On 7 July 2003 I had heard but not formally delivered judgment in the next notice of motion from the defendants seeking the dismissal of thirteen of the summonses. I delivered judgment in that matter on 10 July 2003. The third notice of motion from the defendants contended that the variation to 33 of the summonses made by the prosecution created fresh charges and were statute barred. That notice of motion was heard on 9 July 2003 and judgment given on 21 July 2003. In the meantime, the trial proceedings commenced on 14 July 2003.

302 Given the above chronology, the provisions of Schedule 2 clause 28 of the transitional provisions of the CPA apply. Those provisions state:

1) If any proceedings commenced, or any other thing commenced or done, under a repealed provision still having effect or not completed immediately before the repeal could have been done or commenced under the corresponding provision of the amended Criminal Procedure Act or the amended Local Courts Act:

(a) the thing done continues to have effect, or

(b) the proceedings or other thing commenced may be completed.

(2) A decision, order or a sentence made by a Local Court, or any other person or body, that is completed under subclause (1) may be enforced as if the provisions of the old Act and the Justices Act 1902 and any repealed instruments under those Acts were still in force.

(3) Any act, matter or thing done or omitted to be done under a repealed provision or renumbered provision, and having force immediately before the commencement of a provision of an Act that replaces the repealed provision or renumbers the provision, is on that commencement taken to be done under the corresponding provision of the amended Criminal Procedure Act or Local Courts Act (as the case requires).

303 In my view, sub-clause (1) is the relevant provision for the matters before me. Proceedings had commenced and were not completed immediately before the repeal. The repeal in this case is the SCSJA. The proceedings are able to be done or could have commenced under the corresponding provision of the amended Criminal Procedure Act. Accordingly, as I comprehend the provision, (not without some difficulty I confess), the proceedings commenced may be completed under the corresponding provision of the amended Criminal Procedure Act.

304 In determining s 253 of the CPA as the relevant legislative basis for the making of a costs order in these proceedings, I note the provisions of s 168 (4) of the IR Act as follows:

The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.

305 Section 168 belongs to Chapter 4, Part 5 of the IR Act. Part 5, to which s 168(4) refers embraces ss 162 - 184 inclusive. The relevance of that is that it embraces s181 of the IR Act dealing with the general costs powers of the Commission in Court Session and otherwise. Given the provisions of s168(4) of the IR Act, s181 has no application to 'proceedings for an offence' because such proceedings, as s168(2) of the IR Act makes clear, are dealt with in accordance with Part 5 of Chapter 4 of the CPA embracing as it does s 253 of that Act. See WorkCover Authority of NSW v Plastachem Pty Limited [2001] 110 IR 351 at [33].

306 In considering the provisions of s 253, it is clear the discretionary power to award costs allows a court to order an accused person to pay the prosecutor's costs (s 253 (1)) or to order the prosecutor to pay the accused person's costs (s 253 (1A)). In each case, the amount of costs must be specified and must be made concurrent with the requisite conviction or orders as the respective sub-sections provide.

307 In making provision for costs as the Court specifies, s 253(2) provides a mechanism by which costs are to be determined - by agreement and in the absence of agreement, in accordance with the rules.

308 I emphasise it is not my intention in this judgment to make orders for the payment of costs in any specified amount. Before any sum can be specified, it must either be agreed between the prosecutor and the defendants or assessed and quantified.

309 In the first instance, it is abundantly evident, before I proceed down the path to determine the procedure to be followed as to the assessment and quantification of costs, the parties in this matter must use their best endeavours to reach agreement within the framework of the orders I propose to make at this stage. Section 253(2)(a) of the CPA provides the impetus for that process.

310 The prosecution submit that agreement is unlikely and that it will then fall to me to undertake the task of formally assessing costs. To start with, I believe the prosecution are being unduly pessimistic as to the prospect of agreement being reached. Both parties have an obligation to try very hard to do so.

.

311 Presuming a failure to agree, it seems to me an inordinate and inappropriate use of Court time to have a judicial officer tied up in the task of formally assessing costs. These proceedings have been lengthy and complex. The task of assessment would be protracted. That is where rules of the Court are designed to assist. As was said by Pearlman J in McConnell Dowell at [7] when dealing with costs and the then provisions of s 52 of the Land and Environment Court Act 1979 (LEC Act):

S52 was amended by the Courts Legislation Amendment Act 1997. The amendment deleted from s52(1) the words '... such costs as to the judge seem just and reasonable ...' and inserted instead the words '... costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subs(2)'. The purpose of the amendment was to permit costs to be determined by costs assessors under the Legal Profession Act 1987 instead of requiring the judge, and only the judge, to make a quantified costs order under s52 (see Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552).

312 In Caltex Refining, the Court confirmed at 563-564 that s 52 of the LEC Act then provided:

1. A judge of the Land and Environment Court who is asked to make an order for costs pursuant to s 52 of the Act, must himself exercise that power and make the actual order.

...

4. The judge, in order to reach a just and reasonable end result, is entitled to any other assistance lawfully available to him in that regard. The assistance of the registrar of the court is so available; and the judge, if he thinks fit to do so, is entitled to direct the taxation of a bill of costs by the registrar, not as a prelude to the making of a costs order by the registrar, but as the prelude to the exercise by the judge himself of the power to make a final costs order, assisted by the result of the taxation and by such submissions as the parties might wish to make thereupon.

5. The judge, and only the judge, may make a final costs order pursuant to s 52 of the Act. It is not permissible for the judge to make an unquantified order for costs, leaving it to some other or others, whether the parties by agreement or the registrar on taxation, to fix the quantum of the order.

6. The judge must specify the quantum of the costs order in the conviction or order referred to in pars (a), (b) and (c) of s 52(1). Any such "conviction or order" is the final adjudication of the particular proceedings. ...

313 Since the above propositions were enunciated, the SCSJA has been repealed. As part of that package of legislative changes, s 52 of the LEC Act has also been repealed and replaced by s 253 of the CPA insofar as the matter of costs relating to criminal proceedings are concerned in that jurisdiction. Nevertheless, the provisions of s 253 make it clear that, by and large, the propositions enunciated in Caltex Refining remain. That is, in relation to summary criminal proceedings, only a judge of the Commission may make a final costs order pursuant to s 253(1) and s 253(1A) of the CPA. Further, it is not permissible for the judge to make an unquantified order as to costs. The judge must specify the quantum of the costs in the conviction or order disposing of the proceedings.

314 Section 253(3) of the CPA makes provision for rules of a court to adopt, without limitation, all or any of the provisions of Division 6, Part 11 of the Legal Profession Act 1987 (LPA) in order to confer or impose jurisdiction or functions on any court or judicial officer or functions on any officer or costs assessor (s 253(4)). The provisions of s 202 of the LPA provides:

(1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.

(2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division.

(3) An application or direction under this section may not be made in relation to costs arising out of criminal proceedings in a court.

(4) Subsection (3) does not affect regulations made for the purposes of section 52 of the Land and Environment Court Act 1979 in connection with criminal proceedings in the Land and Environment Court.

315 As is evident, two problems emerge. The first is s 202(1) which deals with an order 'for the payment of an unspecified amount of costs' whereas I am required to make a specific quantum costs order. Also, s 202(3) precludes any application under s 202 'arising out of criminal proceedings in a court'.

316 The Industrial Relations Act Rules (IR Rules) are limited in that they do not deal specifically with matters germane to who is required or may undertake the assessment and quantification of costs for the purposes of making a specific order in and by a conviction or order. I refer in this instance to IR Rules 204 and 205 respectively that provide as follows:

204 Assessed costs

Where by or under these Rules or by any order of the Commission under section 181 (1) (d) costs are to be assessed, the costs are to dealt with in accordance with the Regulations and the Rules made in respect of the Legal Profession Act 1987.

205 Assessed costs and other provisions

Subject to this Part, where by or under these Rules or any order of the Commission costs are to be paid to any person, that person shall be entitled to assessed costs.

317 The prosecutor contends that, barring any agreement between the parties, assessment of costs for the purposes of making a specific order ought to be undertaken by me. For reasons of expediency and efficient use of judicial time, I do not see that as a desirable outcome.

318 However, there are provisions within the IR Rules which permit me to remit a matter relating to costs to the Registrar of the Court. Rule 240 provides:

The Registrar may exercise the powers of a tribunal:

(a) in respect of the matters mentioned in Schedule 3; and

(b) in respect of any matter arising under the Rules; and

(c) in respect of any matter remitted to the Registrar by the tribunal.

319 Schedule 3 of the IR Rules provides for Additional powers of the Registrar. They include:

The hearing of any matter remitted by the Commission, where the only matter in question is the matter of costs.

320 Accordingly, it would be my intention if agreement is not reached as to the quantum of costs pursuant to any order that I make, to remit the matter to the Registrar in the first instance for assessment as to costs. Following that assessment he is to return the matter to me and I will then formally make the order as to conviction and specific costs that s 253 of the CPA requires.

321 If I am wrong as to my reliance on Schedule 3 of the IR Rules, I believe it is appropriate for me, should agreement not be reached as to costs, to adopt the procedure that reflects the proposition enunciated in Caltex Refining at 564 and as followed by Kavanagh J in WorkCover Authority of NSW v Develco Projects Pty Ltd [2001] NSWIRComm 246. That is, 'the judge, in order to reach a just and reasonable end result, is entitled to any other assistance available to him in that regard. The assistance of the registrar of the court is so available ... not as a prelude to the making of a costs order by the registrar, but as the prelude to the exercise by the judge himself of the power to make a final costs order ...'

322 In that respect my conclusion is strengthened by the decision of Jordan CJ in Browne v Commissioner for Railways (1935) 36 SR(NSW) 21 at 28-29 where his Honour stated:

So far as Courts are concerned, it has been held that if jurisdiction is conferred upon a Court, it may and should exercise that jurisdiction; and if no procedural machinery has been provided, it is for the Court to provide such machinery as best it can: Regina v Justices of the Central Bailiwick, Ex McEvoy (7 V.L.R. Law 90 at pp 93-94)...

......

In such a case, there is a power in the Court to prescribe conditions by rules, but until it does so, the Court must deal with applications as justice and common sense demand: Inland Revenue Commissioners v Joicey ([1913] 1 K.B. 445 at 451, 454-456)...

323 I now turn to consider the costs matter proper, taking into account the competing submissions of the parties.

Relevant general principles

324 Any consideration as to costs in criminal proceedings must start by reference to Latoudis v Casey (1990) 170 CLR 534. In that decision the High Court affirmed a defendant's right to seek costs in criminal proceedings. As Mason CJ said at 542:

In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs.

325 That general proposition is underpinned by the following principles found in Latoudis:

(i) the discretion is broad and unconfined.

(ii) the purpose of costs is not to punish the unsuccessful party but to compensate the successful party: see also on this point Cilli v Abbott (1981) 53 FLR 108 at 111.

(iii) the discretion must be exercised for reasons directly connected with the charge or the conduct of the proceedings.

326 Notwithstanding the general proposition and accompanying principles, Latoudis is also authority for the proposition that costs orders in favour of a successful defendant in criminal proceedings are not automatic. As Mason CJ said at 544:

However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant’s costs.

327 Both Mason CJ (at 544) and Toohey J (at 565) point to examples of what may amount to conduct disentitling a successful defendant to costs, but emphasise that, ultimately, 'a refusal of costs to a successful defendant will ordinarily be based upon the conduct of the defendant in relation to the proceedings brought against them'.

328 The quantification of costs on an indemnity basis in criminal proceedings is not an approach, as best as I can determine, that has met with support in the courts.

329 In Law of Costs by Dal Pont, Butterworths (2003) at 833, when discussing costs in criminal cases, the author states at [24:53]:

References in the cases to costs being an indemnity to the 'successful' party in this context should not be read as judicial acceptance of a complete costs indemnity. It is within the discretion of the court to award an amount limited to what are regarded as 'party and party' costs rather than the full amount of costs and disbursements the solicitor charged (or was entitled to charge) to the client. The courts have, to this end, met with a frosty reception submissions that costs in criminal matters may be quantified on an indemnity basis. (emphasis added)

330 The 'frosty reception' referred to in the above extract is best exemplified by the decision of the Victorian Court of Appeal (Ormiston, Phillips, Hayne JJA) in Norton v Morphett (1995) 83 A Crim R 90. In those proceedings the Court was considering an appeal from a magistrate's decision to award the successful defendant party/party costs. The core point on appeal, relying on Latoudis, was where an order for costs was made in a criminal case in favour of the successful defendant after summary prosecution, costs should be awarded on an indemnity basis.

331 The Court of Appeal rejected that such a general proposition arose from the decision in Latoudis. In doing so, Phillips JA said:

There is no doubt but that the concept of awarding costs on an 'indemnity basis' was developed as a tool in civil

proceedings and so the appellant’s submission for its adoption in this case sits ill with his submission that considerations germane to civil proceedings are irrelevant to criminal proceedings; but the two submissions may be treated as advanced in the alternative. In respect of his having costs on an indemnity basis, the appellant’s primary submission was, of course, that that result was dictated by the judgments in Latoudis, and I have rejected that. But it remains to consider if the result is none the less the appropriate one in the exercise of discretion, where the costs are sought by a successful defendant after summary prosecution.

Once again it cannot be said that it must, or even should, be so as a general proposition; for to accept such a result as always appropriate would plainly be inconsistent with the major premise, which is that the discretion is broad and unfettered and is to be exercised as the magistrate sees fit in all the circumstances of the particular case.

332 In agreeing with the reasoning of Phillips JA, Ormiston JA stated:

Appeals of this kind are properly to be discouraged and the Court may in future make orders for the costs of such appeals which will reflect its disapproval of them.

Considerations as to costs

333 I have considered all of the submissions received. Having regard to them and the general principles applying, the prosecutor is clearly entitled to assert his claim for costs as against the corporate defendants and those personal defendants found to have committed the offences charged. The question is whether and to what extent that claim for costs should be reduced to take account of those matters identified by the DG1 defendants. I will return to those matters in due course.

334 The DG2 defendants have made an application for costs against the prosecutor separate and distinct from any reduction I may determine relevant to the DG1 defendants submissions. The DG2 defendants seek party/party costs for work done prior to 24 June 2003 and, as successful defendants, seek indemnity costs thereafter from the prosecutor. In opposing such an order the prosecutor does so and raises squarely the indemnity agreements as to costs standing behind each of the DG2 defendants which he says precludes any recovery of costs by them.

335 The indemnity principle in relation to costs is well settled. It is not discretionary. As was said by Mason P in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154:

[4] The indemnity principle is well-established. In Cachia v Hanes (1994) 179 CLR 403, Mason CJ, Brennan J, Deane J, Dawson J, and McHugh J said (at 410) that:

It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation.

[5] As Bramwell B put it in Harold v Smith (1860) 5 H&N 381 at 385, 157 ER 1229 at 1231, "... find out the damnification, and then you find out the costs which should be allowed" .

......

[7] Another corollary is invoked by the respondent in the present case. If a party to an action has agreed with the solicitor that the party does not have to pay any costs, then costs cannot be recovered against the adversary under a party and party order (Gundry v Sainsbury [1910] 1 KB 645, McCullum v Ifield [1969] 2 NSWR 329 at 330). Alternatively, if the solicitor-client agreement caps the amount of costs recoverable, this enures to the benefit of the client’s adversary ( Tarry v Pryce (No 2) (1987) 88 FLR 270).

[8] The situation is different if the client has the benefit of an indemnity from a third party, so long as the client remains under a legal liability to the solicitor (Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495, Backhouse v Judd [1925] SASR 395, Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65, Wilson v Richmond River Shire Council [2000] NSWSC 71).

[9] The distinction is neatly stated by Bankes LJ in Adams, in a passage explaining why a plaintiff, who was a member of a trade union that instructed a solicitor on his behalf in a successful action, could recover the solicitor's costs. His Lordship said (at 501):

When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to the solicitors for costs, and that liability would not be excluded merely because the Union also undertook to pay the costs. It is necessary to go a step further and prove that there was a bargain, either between the Union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs.

336 As the facts in Dyktynski disclose, there had been earlier proceedings in the Compensation Court of NSW where an award was made in the appellant's favour and an order made in his favour for costs to be paid. The costs were agreed between the parties and paid 11 months after the costs order was made. The appellants solicitors sought interest which was refused by the Compensation Court. The appellant then appealed to the Court of Appeal for the first time. As was explained by McColl JA at [39] in the later Court of Appeal proceedings:

...Prior to pursuing the appeal...the appellant’s solicitors wrote to him on 10 June 1999, asking him to sign a costs agreement “as a formality under the Legal Profession Act”. ... It is sufficient to note for present purposes that the solicitors explained to the appellant that the appeal had been “brought in his name as required under the relevant legislation and Rules of Court,” that he would “not be required to pay any of our legal costs no matter what the outcome of this appeal” and that this was because “these appeal proceedings do not stand to benefit you in any way if successful, and are brought purely to have the Court of Appeal determine an important legal principle for the assistance of this firm and other legal practitioners.”

337 In those proceedings the Court of Appeal ordered the respondent to pay interest on the costs calculated as well as, inter alia, the appellants appeal costs (Dyktynski v BHP Titanium Minerals Pty Ltd (2001) 50 NSWLR 710). When costs were being assessed pursuant to s 202 of the Legal Profession Act 1987 the respondent objected to the payment of the Court of Appeal costs submitting that the indemnity principle, evidenced by the letter from the appellant's solicitors, precluded their recovery.

338 In the subsequent and most recent decision of the Court of Appeal between the parties, the Court reaffirmed the nominal plaintiff exception to the indemnity principle. That exception was identified in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR (NSW) 50. As Mason P stated in Dyktynski (NSWCA 154) at [22] and [23]:

[22] Pinnacle Co invoked the indemnity principle as stated in Harold v Smith. The Court held that this was an exceptional case not caught by the indemnity principle. Luhrig Co was described by Cohen J ( at 54) as a nominal plaintiff, similar to the assignor of a chose in action who permitted the assignee to sue in the assignor’s name or a beneficiary suing in the name of his trustee subject to an indemnity as to costs.

[23] These situations, including the circumstances of New Pinnacle itself, all involve a pre-existing representative relationship between the nominal plaintiff who sues and the principal/ assignee/beneficiary on whose behalf the right asserted in the proceedings is litigated. But, as McColl JA demonstrates, the applicable principles require a substantive as distinct from a formal approach in identifying the real party to proceedings. If that party incurs the legal expenses of proceedings brought on his or her behalf by the 'nominal' plaintiff, then recovery of costs awarded to the nominal plaintiff is not defeated by the indemnity principle.

339 In the proceedings before me there are two indemnity agreements. The first is that between the prosecutor and the WorkCover Authority of NSW. That Deed of Indemnity relevantly states:

2. WorkCover will indemnify Inspector McMartin (within the limits mentioned in this guarantee) against all liabilities, claims, actions, suits, proceedings, demands, losses, charges, damages, costs, fees and expenses however incurred or arising directly or indirectly out of or in connection with or in consequence of the prosecutions including, without limitation:

(a) by reason of the Gretley disaster;

(b) by reason of any judicial inquiry held into the circumstances surrounding the Gretley disaster and any of its findings, recommendations and reports, including but not limited to the Gretley Inquiry Report;

but not including such liabilities, claims, actions, suits, proceedings, demands, losses, charges, damages, costs, fees and expenses which Inspector McMartin may sustain and incur by reason of any misconduct (criminal or otherwise) on his part while employed by WorkCover as an Inspector.

340 Given the nature of that indemnity agreement I am satisfied it is one that entitles the prosecutor to a costs order from the Court. It is an agreement between the prosecutor and a third party, in this case WorkCover. That indemnity agreement provides that WorkCover will indemnify Mr McMartin against any costs, fees and expenses incurred in relation to his role as prosecutor in these proceedings. But there is no agreement between Mr McMartin and the solicitors acting on his behalf that under no circumstances would Mr McMartin be liable to them for costs incurred. That situation is analogous to the circumstances established in Adams v London Improved Motor Coach Builders [1921] 1 KB 495, Backhouse v Judd (1925) SASR 395 and Wilson v Richmond River Shire Council [2000] NSWSC 71 referred to by Mason P in Dyktynski. In those circumstances Mr McMartin remains under a legal liability to his solicitors and is entitled to recover costs.

341 In relation to the DG2 defendants the prosecutor contends that their indemnity agreement is one that precludes them from a costs recovery order. The basis for that contention is to be found in a 'costs arrangement' letter sent to each of the DG2 defendants in February 2003. That letter from their solicitors stated, inter alia, in relation to costs:

We will submit one (1) memorandum of costs and disbursements addressed to all six (6) of you each month. That is you will not receive an individual bill in relation to work conducted on your case as in our view, all of the work conducted will be of benefit in respect of each prosecution against each defendant.

As you are aware, the mining company Defendants have agreed to fund the provisions of your legal costs in the defence of these matters but there is no promise from the companies to indemnify you in relation to any fine or to any costs order which is made against you.

It will be a condition of this assistance that to the extent that you obtain dismissals of any proceedings or costs orders against the Prosecutor in any proceeding, that you diligently pursue the costs of those proceedings and that the proportion of the costs which need to be refunded to the Company from any such costs order in your favour be repaid. You should also bear in mind that in relation to costs up to the 12 December 2002, to the extent that you are successful in recovering costs in relation to the period prior to that date then those costs will need to be refunded to APESMA.

342 Each of the DG2 defendants (as well as Mr Robinson) signed the costs arrangement agreement including the above conditions on 6 February 2003. There is also documentary evidence establishing that the solicitors for the corporate defendants paid ongoing legal disbursements and costs of the DG2 defendants after that date. The prosecution point to the above conditions as evidence that the DG2 defendants had an agreement with their solicitors that they did not have to pay any costs and accordingly costs could not be recovered.

343 I have some difficulty with that submission. To start with the DG2 defendants do not have any agreement with their solicitor that under no circumstances would they be liable to their solicitor for costs (see Adams at 501). They have an agreement akin to Mr Adams in Adams and Mr Wilson (in Wilson v Richmond River Shire Council) that a third party would pay their legal costs. In this case the third party was initially APESMA and, from 7 February 2003, the corporate defendants.

344 As well, the costs arrangement conditions agreed to by the DG2 defendants provided they had to repay both APESMA and the corporate defendants from 'any costs order' made proportionally in their favour. That is quite a different proposition from the situation in Gundry v Sainsbury (1910) 1 KB 645 where Cozens-Hardy MR said (at 649) that if the plaintiff had obtained a costs order, he would have received a 'bonus' which he said 'is contrary to justice and to common sense and also to the law as laid down in Harold v Smith'.

345 Not only did the DG2 defendants not have the 'under no circumstances' assurance from their solicitors that the authorities emphasise, they were also on notice they would be personally liable for any costs order made against them in favour of the prosecutor. In that sense they did not have the unequivocal assurance from their solicitors as was given to Mr Dyktynski by his solicitors to the effect that 'if the appeal is unsuccessful and there is an order from the Court requiring you to pay any of the other side’s legal costs we will attend to payment of those costs on your behalf so that you are not required to pay any amount.'

346 In Gundry v Sainsbury the Court of Appeal in England considered an appeal against a refusal of the Judge at first instance to award costs to the successful plaintiff. The reason for the Judge's refusal to award costs was because in cross-examination he stated in answer to a question by the defendant's counsel that he could not pay costs and that he had arranged with his solicitor not to pay the costs of the action. In discussing the plaintiff's appeal against that order, Cozens-Hardy MR stated:

I think it is impossible for us to interfere with that exercise of his discretion, and I have not the smallest doubt that upon the evidence before him he was amply justified in arriving at the conclusion he did, that there was an agreement between the client and the solicitor that nothing should be paid to the solicitor for costs.

347 I have to say the factual circumstances in Gundry v Sainsbury are clearly distinguishable from the factual circumstances concerning the DG2 defendants. They do not have an agreement with their solicitor that they will not be required to pay their costs. They each have a letter from their solicitor setting out details of a costs arrangement that states 'the mining company defendants have agreed to fund the provision of your legal costs in the defence of these matters'. While it may be arguable that such a statement amounts to an agreement with their solicitor that they (the DG2 defendants) will not be liable to their solicitor for costs, I do not read that statement with as much certainty to the effect the prosecution contends. To adopt the phrase of Banks LJ in Adams at 501:

It is necessary to go a step further and prove there was a bargain...that under no circumstances was the plaintiff liable for costs. In my opinion the evidence falls short of establishing that necessary fact.

348 I am not persuaded that the costs arrangement letter signed by each of the DG2 defendants in February 2003 is one that invokes the indemnity principle such as to preclude those defendants from a cost recovery order.

349 In coming to the conclusion I do, it does not automatically follow that the DG2 defendants are entitled to a stand alone costs order against the prosecutor. As Latoudis makes clear, a successful defendant in summary proceedings has no right to an order for costs, but arguably only a 'reasonable expectation' of it: (See Latoudis at 568-9 per McHugh J).

350 It is my intention that the DG2 defendants be compensated within the boundaries of the costs order I propose to make. For reasons I will develop I believe the most appropriate and fair way to deal with any entitlement the DG2 defendants may have to costs would be to discount the costs order I make in favour of the prosecutor.

351 In the first instance the DG2 defendants sought indemnity costs against the prosecutor. As earlier indicated courts have generally met applications for indemnity costs in criminal proceedings with a 'frosty reception'. Nevertheless, pursuant to the broad discretion inherent in the making of a costs order, the power is there. It is clear that the discretion conferred by s253 of the CPA may, in an appropriate case, encompass an order for indemnity costs in criminal proceedings.

352 Costs orders are not made to punish an unsuccessful party. There are however circumstances where the court will recognise some 'relevant delinquency' on the part of the unsuccessful party and order costs on an indemnity basis: See Oshlack v Richmond River Council (1998) 193 CLR 72 at 89 per Gaudron and Gummow JJ.

353 Closer to home the Full Bench of the Commission reviewed the approach to indemnity costs in WorkCover Authority of NSW v Plastachem (2001) 110 IR 351 at 366-368. In doing so the Full Bench endorsed the approach of Hill J in Boner v Anderson (No 2) (1993) 50 IR 470 at 475 where his Honour said:

It is fair to say that generally speaking an order for costs on an indemnity basis is justified in a case in which there are special or unusual features of an unmeritorious or improper nature surrounding the case of one party (usually the loser) which make it unreasonable and unfair that the successful party should be out of pocket as a result of the proceedings.

It is unnecessary to traverse the cases in any detail; they demonstrate in one form or another special or unusual circumstances which manifest themselves in improper or unmeritorious conduct by the unsuccessful party as, for example, in cases involving the maintenance of a vexatious claim or defence, the institution and/or maintenance of an action or defence which, while not vexatious or involving an ulterior or collateral purpose, may, on a rational basis, be described as untenable or doomed to failure and cases where a party has conducted its case in wilful disregard of known facts or clearly established law.

354 I am not persuaded the grounds relied upon by the DG2 defendants amount to circumstances warranting indemnity costs.

355 On behalf of the DG2 defendants the main contention in support of indemnity costs was centred on correspondence sent to the prosecutor's instructing solicitors in June 2003. In that correspondence the solicitors acting for six of the personal defendants (the DG2 defendants and Mr Robinson) requested the prosecutor to discontinue proceedings against all of them. The basis for that request was set out as follows:

...We note that in relation to four (4) of the six (6) persons that we represent, the Prosecutor is relying upon the statutory appointments of our clients as constituting the element of the offence that they are a 'person concerned with the management of the corporation'.

We note that none of the particulars relate to the Defendants, Terry Shacklady or Christopher Nicholls.

If this is the evidence that the Prosecutor is relying upon in order to make out that element of the offence, we would invite the Prosecutor to discontinue the proceedings against all of our clients now. In our view, the mere fact that our clients may have held, for example, an appointment as an Under-Manager, which essentially meant that they managed miners during a particular shift, this in no way could be said to constitute 'being concerned in the management of the Corporation'. In our respectful submission, the structure of the Occupational Health and Safety Act 1983 is such that offences under Section 50 are designed to apply to Directors or other very senior members of management which have responsibility for the management of the corporation, as distinct from, for example, discrete activities which are carried on as a part of that corporation's activities. It certainly does not apply to middle management, let alone a surveyor who has no management functions and whose functions are discharged during the course of a shift. Indeed the fact of the statutory appointment means that the holder of the appointment only has those powers, powers which do not relate to the management of the Corporation.

Kindly note that in the event that the Prosecutor does not discontinue the proceedings against our clients, we shall rely upon this correspondence in terms of:

1. An application for indemnity costs against the Prosecutor in relation to the proceedings before the Industrial Relations Commission; and

2. The mere fact that someone holds a title as a 'manager' does not mean that that person is therefore, by definition, involved in the management of the Corporation. That, of course, is a question of fact and on the basis of the material thus far served in the Brief and as is contained in your correspondence of 18 June 2003, the evidence simply does not satisfy the test for the establishment of that element. A fortiori this is particularly so in the case of Mr Robinson whose position was that of a surveyor and simply providing advice.

356 No reply was received from the prosecutor to that correspondence and no prosecutions were discontinued.

357 As the substantive hearings have established, the offences charged against five of those six personal defendants were found by me not to be established on the ground I was not satisfied beyond reasonable doubt the named defendants were 'persons concerned in the management of the corporation' as provided in s50(1) of the Act. The offences against one of those six defendants, the Mine Surveyor Mr Robinson, were found to be established having satisfied myself he was, at the relevant time, 'a person concerned in the management of the corporations'.

358 The successful DG2 defendants now point to that sequence of events as 'improper on unmeritorious conduct' by the prosecutor justifying indemnity costs. I do not agree.

359 My decision in relation to the five successful defendants (DG2 group) was not as clear cut as their solicitor's letter of June 2003 would suggest. To arrive at the decision I did required an exhaustive analysis of the relevant authorities in order to properly construe the phrase in the context of the relevant legislative provisions of the Act. Having done that, it was necessary to consider the evidence relating to the respective corporations vis-a-vis each of the personal defendants. In relation to the DG2 defendants, after undertaking that exercise I concluded at SJ [934]:

In all the circumstances, I cannot be satisfied beyond reasonable doubt that those personal defendants employed as Under Managers and Under Managers in charge at Gretley were persons concerned in the management of the corporations NWCC and OPL such that they had a decision making role in the act or omission constituting the corporations contraventions particularly the primary failure of the corporations, that being the failure of the corporate defendants to properly research the location and extent of the Young Wallsend Colliery old workings. As well, there is no evidence that would satisfy me that the Under Managers were aware of the presumed old workings of the Young Wallsend Colliery in the Borehole Seam as depicted in RT 523 Sheet 2. Further, I cannot be satisfied on the evidence, what specific individual decision making role each of the personal defendant Under Managers had relevant to the management of the respective corporations such that I could be satisfied beyond reasonable doubt that, each of them, as Under Managers in charge or otherwise had a decision making role that went beyond their statutory responsibilities under the CMRA with respect to the Gretley mine and extended to being concerned in the management of NWCC and OPL relevant to the overall contraventions of the corporations.

360 While it was always open to the prosecutor to discontinue the proceedings against the six defendants, that he did not do so is not such 'unmeritorious or improper conduct' warranting indemnity costs.

361 While on this point, a matter raised by the prosecutor requires comment.

362 The prosecutor submitted the 'concerned in management' issue was a point always available to be raised by the defendants at an interlocutory stage. I do not agree with that proposition.

363 It is well established that a pre-requisite to a conviction under s50 of the Act is a finding that the corporation was guilty of a contravention of the Act. The prosecutor must establish the original offence by the corporation before liability can attach to a director or 'person concerned' under s50: See WorkCover Authority of NSW v Australian Winch and Haulage Co Pty Limited (2000) 102 IR 40 at [59].

364 It is difficult, if not impossible, for me to conceive how the defendants could sensibly have raised the 'concerned in management' point prior to, and independent of, the evidence going to the liability of the corporate defendants. On any view, if they had, I have no doubt the outcome would have been that there were significant factual matters going to the role and structure of the respective corporations, as well as arguments going to statutory construction that could only be considered once all of the evidence was before the court in the substantive proceedings. I can conceive of no other outcome to such an approach.

365 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.

366 Any costs order to be made will be on a party/party basis.

367 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.

368 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.

369 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.

370 Neither the prosecutor or his instructing solicitors replied to that correspondence.

371 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.

372 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.

373 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.

374 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.

375 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.

376 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.

377 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.

378 My decision to discount the prosecutor's costs to take account of the successful DG2 defendants raises the submissions that have been made as to whether I can approach any costs order I make by taking into account relevant issues in the proceedings as going against the prosecutor securing all his costs on a party/party basis. The prosecutor contends I can. Counsel for the unsuccessful defendants has acknowledged such an approach is appropriate as part of the costs process generally. Counsel for the DG2 defendants, as I understand it, submits differently in relation to the claim for a costs order in favour of the DG2 defendants. In relation to that application the DG2 defendants submit an issues based approach is not appropriate. As successful defendants they submit they are entitled, in a discrete sense, to all of their costs on a party/party proportional basis. I do not agree that such an approach is appropriate in the circumstances of these proceedings.

379 In Latoudis, Mason CJ at 544 stated that:

...there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecution or to order payment of all the defendants costs.

380 Notwithstanding that the DG2 defendants were successful, it is not reasonable, in my view, to separate out matters going to their specific defence as in some way being directly attributable to them and readily identifiable as such in an evidentiary sense. The liability of the personal defendants rested, in the first instance, on establishing the liability of the corporate defendants. That issue occupied by far the greatest proportion of the trial proceedings. Next, in order to render the personal defendants liable, I had, as a threshold point, to be satisfied beyond reasonable doubt they were 'persons concerned in the management of the corporation(s)'. In analysing the statutory construction of that phrase and then assessing it against the factual evidence I had, I could not be satisfied to the requisite standard in relation to the DG2 defendants. In undertaking the assessment of the factual evidence in relation to the DG2 defendants I did so as an identifiable group, the Under Managers. It was on that basis I came to the conclusion I did.

381 Against that background I perceive no basis for an independent costs order in favour of the DG2 defendants. The other reason against such an approach is the extent to which there was evidence presented that went directly and/or individually to the DG2 defendants. It would not be overstating the situation to assess that aspect of the evidence as relatively minimal. That would help explain in part why I could not be satisfied beyond reasonable doubt as to their role as 'persons concerned in management'. Certainly there was more direct evidence presented in relation to Mr Robinson, Mr Porteous and Mr Romcke (part of the unsuccessful defendants).

382 In all the circumstances I believe the just and fair approach is to discount the costs order I make in favour of the prosecutor to take account of the DG2 defendants in relation to the outcome of the trial proceedings.

383 The defendants generally have also raised the time spent by the prosecutor in the voir dire and arguing the admissibility of the expert witness statement of Mr Ian Anderson. That statement was ultimately ruled inadmissible in an interlocutory judgment given by me on 10 September 2003: Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 292.

384 The proceedings involving Mr Anderson as an expert witness involved approximately four days of court time. That time has to be weighed against the seventy days in total of the trial proceedings as well as a further five taken up with the earlier interlocutory matters identified. In my view, as a basis for discounting the prosecutors costs order, its impact would be minimal.

385 Having regard to the findings I have made, and approaching the proceedings (interlocutory and trial) in a global way, I determine that the appropriate order would be that the prosecutor should have 90 per cent of his costs on a party/party basis.

386 I believe the just and fair approach to the making of any costs order in these proceedings is to make such an order jointly and severally against the corporate defendants. I come to that view predominantly because the charges against all of the personal defendants arose out of their employment with one or other of the corporate defendants and it is the corporate defendants' liability that grounds the liability of the personal defendants. As well, I am mindful that the financial imposition of a costs order against the personal defendants would be significant. The costs arrangement relevant to the DG2 defendants and Mr Robinson states that the 'mining company defendants...have not promised...they will pay...the legal costs of the prosecution that you are ordered by the Court in that situation to pay'. I do not know what the situation is in relation to Mr Porteous and Mr Romcke but I know enough to know their individual financial circumstances are such that a costs order in a matter of this magnitude on top of the penalties I have already imposed would be unacceptably punitive.

387 I have already concluded that in making an order for costs, I must do so in accordance with the provisions of s253 of the CPA. The costs to be paid must be such costs as the Court specifies and the costs specified must be made 'in and by a conviction or order'. In order to effect that provision it is necessary for the prosecutor's costs to be assessed. Having determined the basis of my costs order, I would direct the parties to confer with a view to reaching agreement pursuant to the provisions of s253(2)(a) of the CPA.

388 If agreement is unable to be reached within six weeks the matter will be referred to the Registrar of the Court for assessment. In doing so, he will be requested to return the matter to me once assessment is concluded to enable me to make the formal orders as to conviction and specific costs.

389 If agreement is reached, the parties are to prepare draft orders to reflect the decisions I have made in order to record convictions and specific costs and to formally dismiss proceedings against the successful defendants. The parties have liberty to re-list the proceedings at short notice for that purpose in order to finally dispose of the proceedings.

390 No application has been made by the prosecutor for the allocation of a moiety consequent upon the penalties I have imposed. I would request the parties, but the prosecutor in particular, to make whatever written submissions they may wish to make as to what, if any, orders I should make in relation to that matter concurrent with my ultimate orders as to conviction, penalty and costs. Those submissions should be filed within four weeks from the date of this judgment.

391 There is one further matter on the question of costs. On 25 August 2004 Wright J, President made 'rulings and orders' in relation to the costs of earlier interlocutory proceedings that he dealt with in 2001 concerning these prosecutions. In his decision of August 2004 as to costs in those proceedings his Honour said:

1. The Court makes the following rulings as to the costs of the interlocutory proceedings:

(a) The corporate defendants, Newcastle Wallsend Coal Company Pty Ltd 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 orders 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.

392 Having regard to my decision in relation to the costs of the proceedings before me, the parties are to also draft orders consistent with his Honour's rulings in relation to those particular interlocutory proceedings. They are to be filed concurrently with the draft orders already requested.

.

393 In summary, on the issue of costs I order as follows:

(i) The corporate defendants, NWCC and OPL, shall jointly and severally pay ninety per cent of the prosecutor's costs of these proceedings. Reference to 'these proceedings' includes those interlocutory matters identified in this judgment as to costs.

(ii) The parties are to confer with a view to reaching agreement on the quantum of costs to reflect the order I have made. Failing agreement within six weeks the matter will be referred to the Registrar of the Court for assessment as to costs.

(iii) If agreement is reached, the parties are to prepare draft orders to reflect the decisions I have made in order to record convictions and specific costs with respect to the unsuccessful defendants and to formally dismiss proceedings against the successful defendants.

(iv) The parties have liberty to re-list the proceedings at short notice for that purpose in order to finally dispose of the proceedings.

(v) The parties are to file written submissions within four weeks from the date of this judgment as to what, if any, orders I should make in relation to the allocation of a moiety concurrent with my ultimate orders as to conviction, penalty and costs.

(vi) The parties are to draft orders consistent with his Honour Wright J, President's rulings in relation to the costs of earlier interlocutory proceedings dealt with in 2001 concerning these prosecutions. They are to be filed concurrently with the draft orders already proposed.

LAST UPDATED: 11/03/2005