Bulga Underground Operations Pty Ltd v Nash

THE COURT: This is an appeal from a decision of Curtis DCJ (the trial judge) convicting the appellant, Bulga Underground Operations Pty Ltd (the appellant), of a charge that it failed to ensure the health, safety and welfare at work of its employee, Mr Steven McNab, in contravention of s 8(1) of the Occupational Health and Safety Act 2000 (NSW) (the Act): Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186 (Trial Judgment). The trial judge imposed a penalty of $50,000 in respect of the offence.

The appellant has appealed against its conviction, whilst the Attorney General has appealed under s 5D of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against the sentence imposed by the trial judge. In addition, the Attorney General has appealed, and the prosecutor has sought leave to appeal, against the order for costs made by the trial judge.

The incident which gave rise to the charge in question occurred in the evening of 23 April 2010 at an underground longwall coal mine, the Beltana Mine, operated and controlled by the appellant (the mine), when an employee of the appellant, Mr Steven McNab, was crushed under the pontoon of a moving roof support.

In the Court below, the parties agreed on a statement of facts which described the mining operations and the circumstances in which the injury to Mr McNab appeared to have occurred. The summary below is based on the agreed statement of facts and findings made by the trial judge, which were not disputed on appeal.

Coal was mined at the mine by a method known as the “retreat longwall method of extraction” (longwall mining). Longwall mining is a form of underground mining where a block of coal is mined in shears. A longwall block (the coal that is being mined) is typically 3-4 kilometres long, 250-400 metres wide and 1.6-5 metres high.

The area of the block being mined is known as the longwall face. A typical longwall face at the mine was about 264 metres wide and between 2.8-3.2 metres high. The blocks are developed and mined sequentially. The production area of the block being mined is called a panel.

Longwall mining is designed to remove essentially all the coal from the block and allow the roof and overhanging rock to collapse into the void behind, whilst maintaining a safe working space along the face for the miners. The cavity behind the longwall is called the goaf.

The underground area of the mine comprises a roof and a floor whilst the sides or walls are called ribs. The block is formed by driving maingate roadways and tailgate roadways at each side and an install roadway and recovery roadway at each end, which connects the maingate and tailgate roadways.

The coal is cut from the coalface by a machine called a shearer, typically comprising the main body (housing the electrical functions), tractive motive units to move the shearer along the coalface and a pumping unit to power hydraulic functions.

At the mine, a ranging arm was fitted at each end of the shearer, on which there were mounted cutting drums fitted with cutting tools, which were used to cut the coal. The two cutting drums were known as the maingate drum and the tailgate drum. Depending on the way the shearer was moving across the coalface, the drums were referred to as the lead drum and the trailing drum. The lead drum cut the majority of the coal whilst the tracking drum cut the remainder and loaded coal from the floor onto an armoured face conveyer (AFC). The shearer moved over the AFC by the use of a chainless haulage system. A pan line, consisting of a continuous line of articulated metal box sections, supported both the track along which the shearer ran and the AFC, which carried the coal away. Each unit of the pan line was connected to the opposite roof support by a relay bar which passed between the two pontoons of the roof support.

The mine made use of a number of roof supports – steel canopies supported by large hydraulic jacks (chocks). The top of the roof support was called a canopy. Attached to the bottom of each leg of the roof support was a pontoon which sat on the floor of the longwall and performed the function of a base. A walkway approximately 280 millimetres above floor level was formed by the toes of the pontoon of the roof support.

For longwall mining to be undertaken, the roof between the goaf side of the support canopy and the vertical coalface needs to be supported for a period of time, whilst the area where the mining has taken place, the goaf, needs to collapse. A risk exists that unless the roof is supported, it will fall in. The roof supports provide the support by applying pressure to control the roof fall. As the roof supports advance towards the face, the roof behind them is intended to fall, forming the goaf. The support provided allows the shearer to move along the face of the AFC.

At the mine, the roof supports advanced in a motion called “Lower, Advance, Set” (LAS). The canopy would lower off the roof, the support being advanced by pulling itself along a relay bar which was attached to the AFC and then the canopy would rise, setting itself against the roof to take the weight off the roof. The movement of the relay bar was controlled by hydraulics.

The shearer could be operated manually or through automation. The automation could be overridden by the shearer operators so they could manually control the operation of the cutting arms and the shearer speed. Two miners operated the shearer at any one time, one operating the maingate drum and the other the tailgate drum.

As the shearer removed the coal, the roof supports moved into the newly created cavity and the AFC was pushed over towards the newly cut face. The relay bar moved the AFC forward, opening a gap between the lines of support and the spillplate – a set of panels connected to each other which acted as a fence between the shearer and the walkways where the operators were located.

Whilst operating the shearer, the operators walked along the walkway, comprising the pontoon of the roof support and also the ground between the toes of the pontoon and the AFC after it had been pushed forward, as described above, which effectively widened the walkway. The operators were separated from the shearer by the spillplate.

The advance of the roof support and the push of the AFC were automated. Generally, their movements were governed by the position of the shearer. If the shearer stopped, the roof supports would continue to advance in sequence until the last advanced support was at the beginning of a predefined number of supports from where the shearer had stopped. However, the roof supports could be stopped manually at any time by operation of the roof support controls or activation of an emergency switch.

As the shearer moved forward from the last advanced support, an electronic device signalled the next roof support to advance so as to maintain a constant headway. Before the signal to advance was sent, the shearer would send a preliminary signal to the roof support prior to its advance. That signal triggered a buzzer and a light on the roof support to warn workers of its impending advance. These warnings continued as the support advanced slowly, taking about 10 seconds to reach its allocated position.

On the night in question, Mr McNab and a Mr Anthony Chard were the two shearer operators. Mr McNab was operating the maingate cutting drum whilst Mr Chard was operating the tailgate drum. The maingate drum was the trailing drum on the longwall shearer whilst it was hauling towards the tailgate. Mr McNab operated the drum from a standing or walking position behind the maingate drum, in front of the last advanced support. As the trailing drum advanced towards the tailgate, Mr McNab followed. The area in which he was walking was described in the appellant’s safe work procedures as a safe standing zone, away from the cutting drum and flyrock. Flyrock, as its name implies, is rock flung over the side of the AFC onto the walkway. Large pieces, “surfboards”, would fall from the top of the AFC onto the walkway, whilst smaller pieces could travel greater distances.

The shearer was cutting from maingate to tailgate when Mr Chard noticed a broken shear pin. Mr McNab and Mr Chard stopped the shearer to replace the pin. This was done with the assistance of a Mr Alan Collins, the person controlling the roof supports.

After repairing the pin, Mr Chard, Mr McNab and Mr Collins returned to their respective tasks. Mr Chard started the shearer moving again. At one point Mr Collins turned around and noticed Mr McNab on the ground. He began to signal Mr Chard. Mr Chard continued to cut coal but on glancing over to look at Mr McNab he saw a lamp being waved to him and, realising something was wrong, turned off the shearer and ran towards Mr McNab.

Mr McNab was found with his upper body lying on the roof support up against the spillplate. There was a flat piece of stone lying across his upper legs and his lower legs were trapped under the tailgate pontoon of a roof support.

Mr McNab has been unable to describe how he came to be in that position.

As we indicated, the charge against the appellant was that, being an employer, it failed to ensure the health, safety and welfare at work of Mr McNab, its employee. The date of the offence was stated to be 23 April 2010.

The particulars of the charge were as follows:

There are a number of matters that must be noted about these particulars. First, unlike the alleged risks, the alleged failures were not pleaded as alternatives. Indeed, even assuming particulars (2), (3) and (4) could be classified as separate breaches of the duty imposed by s 8(1)(a), it is difficult to reach the same conclusion concerning subpars (a), (b) and (c) of par (3). On one reading, what was alleged was that the appellant failed to ensure the safety of its employees by not taking all the steps referred to in par 3(a), (b) and (c) of the particulars rather than any one of them. In that context, had the appellant been able to establish that one or either of the steps referred to in those subparagraphs were not practical by reason of s 28 of the Act (see below at [33]), that would have provided a defence to the charge so far as it relied on the failures particularised in par (3).

The trial judge found that a contravention of s 8(1) of the Act occurred through the appellant’s failure to implement the procedures set out in par 3(c) of the particulars. For the purpose of the appeal, the only relevant failures are those contained in that particular (the observer particular) and in the particular contained in par 3(a) (the tilt switch particular).

Having regard to what we have said in par [26], on one view of the matter, the approach of the trial judge was not available because of the manner in which the case was particularised. However, the parties were content to proceed both at trial and on appeal on the basis that each of the subparagraphs of par (3) constituted a separate act or omission which could constitute a breach when the other elements of the offence were established.

Before referring to the reasoning of the trial judge and the parties’ submissions, it is convenient to set out the relevant legislation. Subject to one matter, the legislation is as it existed at the time of the alleged offence.

Section 3 set out the objects of the Act:

Section 8 of the Act imposed the following duties on an employer:

Section 12 provided that a contravention was an offence and prescribed penalties:

Section 28 provided for a defence to a contravention. It was in the following terms:

Some reference was made to s 7A which was inserted into the Act by the Occupational Health and Safety Amendment Act 2011 (NSW) (the Amending Act). The Section was in the following terms:

The same legislation amended s 8 of the Act by providing that the obligation in question was to ensure the health, safety and welfare of employees so far as reasonably practicable. Section 28 of the Act was repealed. The effect of these amendments was to require the prosecution to establish beyond reasonable doubt that matters alleged to be necessary to ensure the health, safety and welfare of employees were reasonably practicable, as distinct from making that proviso a defence to be established by the defendant on the balance of probabilities.

Some reliance was placed on the Occupational Health and Safety Regulation 2001 (NSW) (the Regulation), which came into force on the date of assent to the Act.

The relevant clauses of the Regulation were cll 4, 5, 6 and 11. They were in the following terms:

The trial judge found that Mr McNab suffered severe injuries when, after falling to the ground, his body was crushed between the toe of an advancing roof support and the side of the AFC: Trial Judgment at [2]. That was not disputed. The trial judge also described the system of work which was adopted in a manner basically similar to the agreed statement of facts and in a way which was not criticised on the appeal: at [6]-[27].

The trial judge, for reasons unexplained in his judgment, set out the alleged failures of the appellant in somewhat different terms to the failures particularised in the charge: at [29]. However, nothing turns on this as he did deal with the two alleged failures the subject of the appeal, namely those in subpars 3(a) and 3(c) of the particulars. The other alleged failures considered by him were not found to amount to a contravention of s 8 of the Act. These findings were not contested on the appeal.

The trial judge noted the submission by senior counsel for the appellant that it was a necessary element of the prosecution case to prove beyond reasonable doubt that the preventative measures pleaded would have absolutely eliminated the risk and that it was not enough to show particular measures would have mitigated the risk of an injury occurring: at [32]-[38].

The trial judge accepted that each of the preventative measures with which he dealt would not have “eliminated the possibility of the risk pleaded in the summons coming home”: at [54]. In relation to the tilt switch particular he found that if such a switch was operative on the shearer operator’s control, the shearer would automatically stop if the operator fell to the ground: at [48]. However, he found the measure was incapable of eliminating all risk of being crushed by an advancing roof support because a roof support which is already primed by the signal from the shearer would continue to move even after the shearer was stopped. He concluded that if the operator fell in front of one of those supports, the tilt switch would not save him: at [49].

So far as the observer particular was concerned, the trial judge observed that subsequent to the accident, the appellant employed an additional crew member as a Support Advance Controller (SAC) whose sole function was to observe the drum controller and manually stop advancement of the roof supports if he saw there was a danger. The trial judge noted that every roof support control had a button that, if pressed by the SAC, would release hydraulic pressure in the system and instantaneously prevent the supports advancing: at [50].

Notwithstanding, the trial judge found that because such an SAC must be attentive, not only to the safety of the two drum operators, both of whom may not be concurrently in his sight, but also to his own safety, there remained a possibility that the drum operator could fall into the path of advancing roof supports without the SAC reacting in time to save him: at [51].

However, the trial judge seemed to reject the submission that s 8(1) was not contravened by the failure to adopt a measure that did not completely eliminate the risk but only mitigated it. He noted a concession by the appellant’s counsel that the argument that the duty was not breached in those circumstances was novel and stated without elaboration that it was inappropriate that an inferior court should adopt such a fundamental change to the interpretation of s 8(1): at [55].

The trial judge found that the circumstances in which Mr McNab came to be injured were foreseeable to a reasonable person standing in the place of the appellant: at [100]. His conclusion that the appellant was guilty of the offence charged was founded solely on the observer particular, which was expressed in the following terms:

The appellant relied on the following grounds of appeal:

By what was described as a notice of contention, the Attorney General and the prosecutor (described in the document as the first and second appellants), challenged the trial judge’s conclusion on the tilt switch particular. The notice of contention raised the following grounds:

The parties’ written submissions were lengthy and in the case of the appellant, with respect, prolix. Notwithstanding the appeal involved questions of law and there was virtually no dispute as to the primary facts, the appellant’s written submissions in chief occupied some 84 pages, whilst those in reply and in opposition to the notice of contention occupied a further 36 pages. To the extent to which we have not referred to any particular portion of these submissions, we have taken them into account in reaching the conclusions to which we have arrived.

The appellant submitted that the appeal brought pursuant to s 5AA of the Criminal Appeal Act was an appeal for error and as such, the appeal must be allowed if error is established and the respondent fails to satisfy the Court that no substantial miscarriage of justice has occurred.

The appellant referred to the decision of the Court of Appeal in Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 (Thiess) in which it was held that the word “risk” in s 8(2) of the Act referred to the possibility of danger, whilst the word “exposed” referred to a person who was sufficiently proximate to the risk at the relevant time. It submitted that the same approach should be adopted in respect to s 8(1), namely relevant detriment to health and safety occurred when an employee was exposed to the possibility of danger.

The appellant submitted the offence was one of absolute liability subject to the defence contained in s 28 of the Act.

The appellant emphasised that the words “to ensure” in s 8(1) of the Act have been held to mean to secure, guarantee, make certain and to obviate risk. It submitted that “more than one judge of the Industrial Court has specifically abjured the notion that the duty to ensure health and safety can be satisfied by minimising the risk to which employees are exposed”. It referred in that context to the decision of the Full Court of the Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 (Haynes) at 158-159 where it was stated that the general duties created by ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (the 1983 Act) were directed at obviating risk to safety at the workplace and to WorkCover Authority of New South Wales v The Crown in Right of the State of NSW (Police Service of NSW) No 2 (2001) 104 IR 268 (WorkCover v Police) at [20] where Hungerford J stated that the duty was absolute and that “ensure” was to be construed as meaning guarantee, secure and make certain. Sections 15 and 16 of the 1983 Act were in identical terms to ss 8 and 9 of the Act.

The appellant submitted that a similar approach had been taken by the Victorian Court of Appeal to equivalent legislation in Victoria: R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321 at [25]; ABC Development Learning Centres Pty Ltd v Wallace [2007] VSCA 138; 16 VR 409 at [15], [19].

The appellant also submitted this approach was consistent with the construction placed on ss 15 and 16 of the 1983 Act by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 (Kirk) at [11]-[12] and the Court of Appeal in The GEO Group Australian Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 150 (GEO Group) at [15], [19].

In relation to Ground 1 of the grounds of appeal, the appellant submitted the charges must identify the nature of the alleged offending, that being an essential factual ingredient of the offence. It submitted the duty imposed was a duty which required the employer to obviate risk not just reduce the gravity of the risk or reduce exposure to the risk. On the submission of the appellant, it followed that, because criminal liability cannot attach to an omission in the absence of a correlative duty, for an employer to contravene s 8(1) by omission, the employer must fail to ensure health and safety, not just manage risk or exposure to risk. It argued that cases in the Industrial Court which reached a contrary conclusion were incorrectly decided.

The appellant also submitted that the proposition for which it contended was not inconsistent with the objects of the legislation set out in s 3 of the Act. It submitted s 8 was designed to promote the objects in s 3(a), (b), (c) and part of (e) – that part concerned with the elimination of risk. The fact that s 3(e) stated that a further object was to ensure risks were controlled did not mean, according to the appellant, that the “clear language of s 8(1), requiring that employees’ health and safety be ensured, was to be tortured into a meaning which the words did not convey”. It claimed the statutory obligation of controlling risk was achieved through the Regulation, particularly in those clauses which we have set out above at [37].

The appellant also referred to the different penalties imposed for a breach of the Act and breaches of the Regulation. It submitted the lesser penalties for breach of the Regulation demonstrated that s 8(1) only criminalised the absence of measures which would ensure health and safety, whilst the Regulation penalised a failure to control or manage the risk. In that context, the appellant submitted that the Regulation could be used as an aid to the interpretation of the Act, submitting the Act and Regulation formed part of a single scheme: Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651 at [5]; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19].

The appellant placed reliance on the Amending Act pursuant to which s 7A was inserted. It submitted that having regard to the modification of the duties imposed by ss 8 and 9, the insertion of s 7A and the repeal of the “not reasonably practical” defence, a major purpose of the Amending Act was to dilute the content of ensuring against risk. It submitted that, approaching the use of the Amending Act in the construction of the Act as it previously existed with due caution, the amendment made it plain that the content of the duty before the amendment was to obviate risk in the workplace. In the circumstances, it submitted there was no duty imposed to minimise risk. Furthermore, it contended that the clear words of the section could not be read contrary to their plain meaning by the adoption of a purposive approach.

The appellant submitted that the finding of the trial judge was that the appointment of an SAC would not eliminate the risk to a person in the position of Mr McNab. It submitted that, at its highest, the finding was that the employment of an SAC was a reasonable response to the risk of being crushed by an advancing support and the appellant failed to mitigate the risk by appointing an observer. It submitted that the trial judge found that the risk would not be eliminated by the employment of an observer due to a number of factors, in particular, the possibility the observer may not react in time, may not be paying attention or may be careless. The appellant maintained that this conclusion was justified by the evidence, specifically, evidence demonstrating that miners walking along the longwall had to pay attention to their own safety.

The appellant contended that, as a matter of language, the duty did not extend to minimising and controlling risk as distinct from eliminating risk. It submitted minimising and controlling risk did not guarantee safety and that words such as minimising and controlling did not appear in s 8(1). The appellant argued the Second Reading Speech to the Act made it clear that the legislation replacing the 1983 Act adopted a risk management approach to workplace safety and that the directions to control risk were to be imposed by the Regulation rather than the Act.

At the hearing, senior counsel for the appellant placed particular emphasis on what he described as the hierarchy of controls in the Act and Regulation. He submitted the Regulation contained an obligation to manage risk to the lowest level reasonably practical.

The appellant summarised its submission on this ground as follows. First, the Industrial Court decisions holding that s 8(1) is contravened where a measure is not taken which would not have eliminated the risk but only controlled it, are plainly wrong. Second, the charge is not satisfied by proof of an omission to take a measure, which the prosecution has not proved would have ensured the employees’ health or safety. Third, the judge erred in finding the offence charged proved without the respondent proving that the omission contended for would have ensured Mr McNab’s safety and accordingly, that the omission breached the duty imposed.

The appellant also submitted the failures identified above constituted jurisdictional error.

So far as Ground 3 was concerned, the appellant submitted the facts showed that as soon as Mr McNab fell incapacitated in front of the advancing roof supports he was exposed to being crushed by the supports, immediately behind him as it advanced, closing the gap between them and the AFC.

The appellant submitted that at the trial, it had raised the point that on the application of the law as stated in Thiess, Mr McNab had been exposed to the risk before the SAC could do anything. It submitted the trial judge failed to deal with this submission and that this was an error of law.

The appellant characterised s 8(1) as a result offence, the conduct being the act or omissions and the result being the detriment to the employee’s safety. It submitted that Mr McNab had been exposed to the risk the minute he fell incapacitated in front of the roof supports, at which point the offence charged was complete. It pointed out the SAC could not do anything until he observed a person in the position of Mr McNab was in danger and thus could not have prevented him being put at risk. It followed that the failure to engage an SAC could not constitute a contravention of s 8(1) of the Act.

Senior counsel for the appellant also submitted that it was incorrect to construe the section as providing that a contravention only occurred if it could be established beyond reasonable doubt that, if an observer was present, the particular injury would have been avoided. He submitted, relying on Thiess, that what needed to be guaranteed against was the possibility of danger and where, as in the present case, as soon as the victim fell he was exposed to the risk of being crushed, there was nothing a monitor could do to avoid that risk, all he or she could do was manage the risk. Senior counsel for the appellant submitted that not only was the approach consistent with Thiess but also with a number of cases in the Industrial Court which have held that it is not the actual occurrence of injury that is required for an offence to be established, but rather an exposure to the risk. He referred in that context to Haynes at 157; WorkCover Authority v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [18]-[19] and WorkCover v Police at [20].

In relation to Ground 4, the appellant submitted the trial judge made no finding that the risk to Mr McNab was caused by the failure to appoint a SAC. It submitted that the failure of the trial judge to consider whether the omission to appoint a SAC caused Mr McNab to be at risk of being crushed when he fell in front of the roof support was a failure to consider whether an element of the offence had been proved. It submitted that this failure was a miscarriage of justice.

Senior counsel for the appellant submitted that the trial judge gave no consideration to the question of whether a substantial or significant cause of the risk was the failure by the appellant to perform a duty required by the Act.

The appellant submitted it was impossible that the failure to appoint a controller caused the risk as Mr McNab was exposed to the risk before anything could be done about it.

The respondent pointed out that the appellant at trial had admitted the risks particularised, including being crushed by a roof support as it advanced towards the coalface. She submitted her case was that, had the measures particularised been implemented at the time Mr McNab was working, on the date the subject of the charge, Mr McNab would not have been in danger. She submitted the observer particular and the tilt switch particular would have eliminated or controlled the risk.

The respondent submitted that the gravamen of the case was at all times directed towards the risk of being crushed by advancing roof supports.

She referred to the finding by the trial judge to the effect there was a possibility an operator might fall in the path of an advancing roof support without the SAC reacting in time to save him and that the SAC may from time to time be careless, inadvertent or inattentive. She submitted it was important to note that the finding was that, absent slow reaction, inadvertence or inattentiveness, the measure would have eliminated or controlled the risk.

The respondent accepted that the obligation or rule of conduct prescribed by s 8(1) of the Act was to guarantee or secure employees’ safety. However, she submitted there was no common sense reason why controlling or managing a particular danger in a particular way would not guarantee safety in given circumstances. She submitted that that would inevitably depend upon the risk the subject of the charge as well as the measures proposed to address it.

The respondent submitted the essence of the appellant’s argument was that because the measure of having an observer may have been ineffective if the observer failed to notice a shearer operator becoming incapacitated, the measure could not guarantee safety. She submitted that it is possible that almost any measure designed to ensure safety might be capable of being compromised. The focus, it was contended, should be on the likelihood that the measure, when properly engaged, would ensure health and safety.

The respondent referred to the statement by Spigelman CJ in Thiess that the relevant risk for the purpose of s 8(1) was the possibility of danger. She submitted elimination or control of some but not all danger necessarily means the danger is eliminated in those respects by which it has been eliminated or controlled. It does not mean, she submitted, that the same danger continues to exist, far less that the same possibility of danger continues to exist.

The respondent submitted that the distinction between guaranteeing or securing safety and controlling or managing it is without foundation. She submitted the inquiry always is: would the measure have secured safety if implemented in the manner contemplated?

The respondent sought to derive support for the construction of s 8(1) contended for from s 28 of the Act. She submitted its effect was only to excuse a failure to secure safety to the extent it was not reasonably practical to conform to that obligation. It was argued that the defence under the Act necessarily meant the obligation of an employer under s 8(1) was to remove all possibilities of danger from the workplace except those which were subject to the statutory defence under s 28. In those circumstances, she submitted the Act was concerned with risk minimisation.

The respondent contended that there were three answers to the appellant’s submission on Ground 1. First, she submitted it did not have common sense to commend it in the scheme of an Act concerned with workplace health and safety. Second, she submitted that it assumed the SAC would perform his or her task in a negligent or “half-baked” way.

The third answer given by the respondent related to the tilt switch particular. She submitted that it was acknowledged that activation of the tilt switch would have prevented any roof supports not already primed from advancing. She submitted that if there had been an SAC present, the risk of being crushed by a primed roof support would also have been averted.

The respondent submitted that par [104] of the reasons of the trial judge had to be put in context. She contended that “ensure” in s 8(1) did not mean absolutely ensure in the sense of completely eliminate. She referred in that context to s 8(1)(d) relating to the provision of instructions or training, stating in effect that instructions or training cannot ensure safety. It was submitted the provision should be read to ensure health and safety subject to what was reasonably practical.

The respondent submitted the construction for which she contended was consistent with the construction placed on the provision by the Industrial Court referring to O’Sullivan v The Crown in Right of the State of NSW Department of Education and Training [2003] NSWIRComm 74; 125 IR 361 (O’Sullivan) at [140]-[141] on appeal The Crown in Right of the State of NSW (Department of Education and Training) v O’Sullivan [2005] NSWIRComm 198; 143 IR 57 at [42]; NSW Department of Education and Training and Department of Juvenile Justice v Cahill No 2 [2011] NSWIRComm 33; 210 IR 112 at [136] (which held that the decision in O’Sullivan was not affected by Kirk); Inspector Batty v Intercoast Refrigerated Transport [2012] NSWIRComm 55 at [100]-[103].

As an alternative, the respondent submitted that as a matter of fact the appointment of an SAC would have obviated the risk. She submitted the observer would have watched the shearer operator most exposed to being struck by flyrock, that is, the operator operating the trailing drum. She pointed out that the appellant’s workplace practices provided that Mr McNab was required not to stand in the area immediately opposite the trailing drum or in front of the roof support that would next be primed. In these circumstances, it was submitted that if there was an observer whose job it was to watch Mr McNab, the risk would be eliminated because as soon as Mr McNab fell over the observer would be able to turn off the power to the roof supports and thereby stop them moving. She submitted the trial judge erred in failing to consider this argument.

In relation to Ground 3, the respondent submitted the appellant failed to deal with the finding that Mr McNab was always at risk because if he fell over or was incapacitated, he could be crushed by the advancing supports. She again submitted that the risk could have been completely removed if a SAC was present.

The respondent emphasised that the risk identified by the prosecution was a risk of being crushed by a roof support as it advanced towards the coalface.

So far as Ground 4 was concerned, the respondent submitted that a fair reading of the judgment of the trial judge led to the conclusion that he did consider there was a causal link between the omission and Mr McNab’s exposure to risk. She submitted the relevant question was whether the appointment of an SAC would have eliminated or minimised the risk.

The respondent submitted that every shearer operator who gave evidence supported the tilt switch particular as a measure to ensure health and safety.

The respondent submitted that the finding of the trial judge on the tilt switch particular, namely that if the operator fell in front of an already primed support, the tilt switch would not save him, ignored the fact that Mr McNab was not working in front of supports already primed. She submitted that if the tilt switch was activated when Mr McNab fell in front of supports not primed, the risk would have been eliminated.

The respondent submitted it was never her case that the tilt switch, once activated, would stop the already primed roof supports. She submitted her case was that had the tilt switch facility used by Mr McNab been active, his falling or becoming incapacitated would have engaged the tilt switch, stopping the shearer immediately, which would have alerted the other operator who could have stopped the primed roof supports by hitting the emergency button.

The respondent framed this argument by stating that the tilt switch particular involved a two stage measure. First, the activation of the switch would stop the shearer; second, the fellow shearer operator, being alerted to the danger, would stop the primed roof support from moving. She submitted the trial judge erred in misunderstanding how the case was particularised.

The appellant submitted that the respondent was seeking to have the Court overturn findings of fact made by the trial judge.

In that context, the appellant noted its appeal was brought pursuant to s 5AA of the Criminal Appeal Act. It submitted s 5AA(4) conferred on the Court a power to confirm the determination of the Court below or order it be vacated and in the latter event, to make any determination the Court below could have made on the evidence heard on the appeal. It submitted that the section did not extend to setting aside factual findings made by the trial judge other than where the determination of the Court below is vacated.

The appellant submitted that subsequent to its amendment in 2000, s 5AA has been construed as conferring a right of appeal in the strict sense, requiring the demonstration of error. It submitted there was no scope for the Court simply to make different findings of fact at the insistence of the respondent to the appeal. It pointed to the fact that the respondent did not contend that the finding made in relation to the tilt switch was not available on the evidence. Further, it submitted the Court was not authorised to hear a prosecution appeal pursuant to a notice of contention.

The appellant submitted that the finding by the trial judge in respect of the tilt switch was correct and stopping the shearer would not stop the primed roof supports from moving. Further, it submitted there was evidence the tilt switch would not necessarily operate if the remote control was dropped. It pointed to the fact that it was necessary for the control to tilt at an angle of 45 degrees for the switch to operate and that it could be dropped without tilting at that angle.

Section 5AA of the Criminal Appeal Act is in the following terms:

It is now well established that following the amendments made to the section consequent upon the decision of this Court in Hilstollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, an appeal under this section is an appeal in the strict sense and it is necessary to show error: Thorneloe v Phillip Filipowski [2001] NSWCCA 213; 52 NSWLR 60 at [3]; Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 (Gilmour) (in which it was stated at [19] that error must be demonstrated as a threshold point); Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280 at [3]-[5]; Walker Corporation Pty Ltd v Director General Department of Environment and Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12 at [43]; Rummery v Chief Executive Office of Environment and Heritage [2014] NSWCCA 106 at [5]. This principle was not disputed. It follows that an appeal can only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact finding exercise.

So much was accepted by the parties. However, the appeal gives rise to further questions. First, in the event the Court determined that the trial judge erred in finding the charge proved by reason of one particularised omission, can the Court consider whether the judge should have convicted the appellant on the basis that he erred in finding that another particularised omission did not constitute a breach? This was the matter substantially raised by the notice of contention.

The second question is whether the Court has power to order a retrial in the event it finds the trial judge erred in reaching his or her conclusions.

Because of the view we have formed on the disposal of the appeal, it is unnecessary to form a final view on either of these questions. However, it is appropriate to express a preliminary view.

So far as the first question is concerned, it does not seem to us that the fact the judge may have been in error in failing to find a charge proved on the basis of another particularised omission would of itself result in dismissal of the appeal. However, in Gilmour at [27], in dealing with the absence from s 5AA(4) of the proviso to s 6(1) of the Criminal Appeal Act, Santow JA, with whom Hidden and Adams JJ agreed, made the following remarks:

The reference to the judgment of Kirby J in that passage is a reference to his Honour’s judgment in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 (Conway) at [76]. As Santow JA also pointed out in Gilmour at [24], Kirby J also remarked in Conway that “any dismissal of the appeal in the face of a misdirection at trial is controlled by the general view that a court may dismiss an appeal if the error could not, on any reasonable hypothesis, have influenced the result”: at [80].

Whilst this approach may justify the dismissal of an appeal where the error in question could be seen to have no material effect on the ultimate conclusion of the trial judge and perhaps where a finding of guilt can be made on the basis of a matter which the trial judge did not find it necessary to consider, we doubt it could extend to dismissal on the ground that guilt was established in a manner expressly rejected by the trial judge, particularly if it involved making contrary findings of fact. It would be difficult to conclude that in those circumstances there was no substantial miscarriage of justice so as to justify dismissal of the appeal: Weiss v R [2005] HCA 81; 224 CLR 300; AK v State of Western Australia [2008] HCA 8; 232 CLR 438 at [58]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [27]-[29], [31].

The second question is also one of some difficulty. The power of the Court, if it finds error, is to make any order which (in this case) the District Court could have made on the evidence heard on appeal: s 5AA(4) Criminal Appeal Act. That provision in its terms does not permit the order of a new trial. In contrast, the power of the Court of Appeal under s 75A of the Supreme Court Act 1970 (NSW) includes a power to make any order which the nature of the case requires: s 75A(10).

We do not think it can be said that the Criminal Appeal Act empowers the Court to order a new trial as a matter of necessary implication. Section 8 of the Criminal Appeal Act empowers the Court to order a new trial in the case of a conviction upon indictment. Although the section was introduced into the Act prior to the 2000 amendments to s 5AA, the latter section previously having provided for a rehearing, we do not think that as a matter of implication the power in s 8 can extend to appeals brought under s 5AA: cf Gilmour at [27].

It may be that consideration should be given to amending the section to empower the Court to order a new trial in appropriate circumstances.

As is apparent, the appellant placed particular emphasis on the fact that the duty imposed by s 8 of the Act was to ensure the health, safety and welfare of employees and that the obligation could not be satisfied by managing or minimising the risk.

There is no doubt that this proposition is correct. It is consistent with what has been decided in cases in the Industrial Court, the Court of Appeal and the High Court which have considered the issue. (See the cases cited above at [52]-[54].)

However, it by no means follows that a failure to take steps which would lessen or minimise the risk, without entirely eliminating it, could not constitute a breach of that obligation. Such steps may be necessary but not sufficient to ensure safety or may at least tend to manage the risk. It is difficult to see why the failure to take such steps, albeit insufficient to ensure safety, could not constitute a breach of s 8(1) of the Act.

In our view, a failure to take steps which are necessary but insufficient to ensure safety, or which limit the risk to the employee without entirely eliminating it, can constitute a breach of s 8(1). Construction of the section, as with any statutory provision, must begin with a consideration of the text itself. However, the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision: Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47] and the cases there cited; see also Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[26].

In the present case, the legislation is silent as to what can constitute a breach of s 8(1). Having regard to the objects of the Act contained in s 3, it would be surprising if liability could be avoided by reason of the fact that it could only be established that a particular method would merely manage risk rather than eliminate it. In many cases, it will be difficult to conceive of measures which would have the effect of totally eliminating any risk to the health, safety and welfare of an employee. To construe the section to only impose liability for such a measure or measures in combination (if they existed), in our view, would render the section nugatory in many cases. It cannot be assumed this result was intended.

There is nothing in this approach which is inconsistent with what has been said in Kirk and the cases which have followed it. In Kirk, the plurality stated at [12] that the duty in ss 15 and 16 of the 1983 Act was contravened when a measure should have been taken by an employer to obviate an identified risk. The plurality subsequently stated at [14] that the duty has been contravened where there has been a failure to take a particular measure to prevent an identifiable risk eventuating. It was not suggested in these paragraphs that the only measure an employer was obliged to take was one which, as a matter of certainty, would eliminate the risk.

Further, as Spigelman CJ pointed out in Thiess at [31], the joint judgment in Kirk identified that the scope of the employer’s obligation as to what was necessary to be done in connection with the health, safety and welfare of employees depended upon the presence of identifiable risks and measures which could be taken to address them: Kirk at [19]. There is no reason to conclude that this would not extend to measures which could mitigate or minimise the risk, even though the risk would not be entirely eliminated.

In GEO Group, Meagher JA pointed out at [20] that measures may be identified in the charge which may have guaranteed against the risk eventuating, but which may not be reasonably practical. He noted that all that was required was that the act or omission be identified so that the availability of the defence may be evaluated by reference to the alleged acts and omissions. His Honour did not state that the only measures which could be identified in the charge were those which could guarantee safety as distinct from contributing to it by mitigating risk.

Further, as we indicated above, the approach we regard as correct was adopted by the Industrial Court both in relation to the 1983 Act and the Act itself.

As we indicated, the appellant submitted that the Act and Regulation could be construed as part of a single scheme. The difficulty with that submission is that s 8 is in identical terms to ss 15 and 16 of the 1983 Act in respect of which there were no corresponding regulations. The appellant accepted that the 2000 Act made no substantive amendments to the equivalent earlier legislation. It is difficult to see how in those circumstances the Regulation can be of any assistance on the question of construction.

Nor do we think that statements in both the 1983 and 2000 Second Reading Speeches, to the effect the duty was absolute, are of any assistance. The relevant question is not the scope of the duty but what can constitute a breach.

Further we do not think that s 7A assists the appellant. As we pointed out above at [35], the effect of s 7A was to place the onus on the prosecutor to prove that a measure was reasonably practicable as distinct from making this factor a defence. This does not seem to us to be of assistance in determining whether a contravention occurred.

For these reasons, we are of the view that a failure to take a measure which would have managed or mitigated a risk to the health, safety and welfare of an employee will breach s 8(1) of the Act, even if the measure does not entirely eliminate risk.

Although perhaps not entirely clear, this seems to have been the effect of the decision of the trial judge. Whilst his Honour found the appointment of an SAC would not eliminate the risk, he said it would mitigate it. In making this finding, the trial judge recognised the possibility that either a shearer operator might fall into the path of a moving roof support without the observer reacting in time to save him or that the observer might be careless, inadvertent or inattentive to the shearer operator’s safety (Trial Judgment at [51]-[52]). His remarks at [104] of his judgment must be read in that context. The fact that he found the measure would not eliminate the risk does not mean his conclusion was incorrect.

It follows that Grounds 1 and 2 of the grounds of appeal have not been made out.

This ground can be dealt with shortly.

The particulars of the charge identified a number of discrete risks to which the employee was exposed. They included, separately, being crushed by the roof supports as they automatically advanced towards the coalface and slipping or falling behind the shearer when the roof supports were advancing towards the coalface. Each of the risks was admitted at the trial.

As we indicated above at [111], it was stated in Kirk at [14] that ss 15 and 16 of the 1983 Act were contravened where there had been a failure on the part of the employer to take a particular measure to prevent an identifiable risk eventuating. Such a risk will exist where there is a possibility of danger. The person exposed to the risk is one who is sufficiently proximate to the source of the risk at the relevant time for the risk to possibly impinge on his or her health and safety: Thiess at [67].

The appellant contended that the requirement was to avoid exposure to risk, rather than to prevent an actual occurrence. This may be accepted, however, it does not mean that the section cannot be breached by the failure to take action to prevent a risk, to which an employee was exposed, from crystallising. To reach a contrary conclusion would be to ignore the self-evident fact that the duty will arise in circumstances where there is an exposure to a risk in respect of which preventative measures can be taken.

What we have said is consistent with the judgment in Kirk. As was stated in the joint judgment in that case, the identification of the measures which should have been taken generally will itself identify the risk: at [14]. The risk in the present case was that identified by par 1(a) of the particulars, namely a risk that an employee would be crushed by the roof supports. This risk would emerge when an employee by reason of incapacitation or some other reason, fell in front of advancing roof supports. The appointment of an observer would have mitigated or minimised that risk.

In these circumstances Ground 3 has not been established.

For the purpose of s 8 of the Act, the relevant question on causation is whether the act or omission of the employer was a significant or substantial cause of the employee being exposed to the risk of injury.

Thus, in the present case, it was necessary to establish whether the failure to appoint an SAC was causally related to the risk of the employee’s safety which occurred on the evening in question. That question is to be determined by the application of common sense to the facts in question, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; 172 CLR 378 at [17] (Mason CJ), [19] (Deane and Dawson JJ), [15], [21] (Toohey and Gaudron JJ).

Further, in considering the issue, regard must be had to the purpose to which the question is directed, which involves considering it in light of the scope and objects of the Act: Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 at [41]-[42], [95]-[101]; see also Simpson Design and Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 (Simpson Design) at [79]-[102] and the cases there cited.

In the present case, the relevant question is whether the failure to employ an SAC was a substantial and significant cause of the risk of an employee being crushed by a roof support after falling whilst incapacitated. That must be considered in light of the object of the provision in question, namely to ensure the health, safety and welfare of the employee. The relevant question is not whether the omission was the cause of the injury to Mr McNab but rather whether there was a causal relationship between the act or omission and the risk to which he was exposed: Simpson Design at [3]-[4].

In our opinion, the requisite causal relationship has been made out. The failure to appoint an SAC increased the risk that a person who fell in the face of an advancing roof support would be crushed before his incapacity was observed. The omission to employ an observer was a significant cause of the risk to which the employee in that position was exposed.

In these circumstances the necessary causal link has been established.

The trial judge did not deal discretely with the issue, rather he focussed on the foreseeability of the risk. However, it is implicit in his conclusion that the employment of an observer would have mitigated the risk, such that the failure to do so was a significant cause of an employee’s exposure to it. In these circumstances, we do not think that his failure to directly deal with the issue constituted an error.

It follows from the conclusion which we have reached that it is not necessary to deal with the notice of contention. We have indicated the difficulty involved in the procedure sought to be adopted, having regard to the provisions of s 5AA of the Criminal Appeal Act. Further, the error which it is suggested the trial judge made, at least on one view, is an error of fact from which no appeal would lie. However, it is unnecessary to express a final conclusion on this issue.

In the result, the appeal against conviction should be dismissed.

Although this part of the judgment concerns the appeals by the Attorney General and the prosecutor in relation to the penalty and costs, it is convenient to continue to refer to Bulga Underground Operations Pty Ltd as the appellant for consistency.

On 5 February 2015, the trial judge imposed a fine of $50,000 on the appellant. On the same day and in a separate judgment his Honour held that the appellant should not pay the costs of the prosecutor in preparing her case in respect of particulars which did not go to trial after amendment of the summons and that the appellant should pay 20% of the prosecutor’s other costs as agreed or assessed. The Attorney General has sought leave to appeal against the penalty imposed. The Attorney General has appealed, and the respondent seeks leave to appeal, against the costs orders, raising identical grounds of appeal.

The grounds of appeal in the notice of appeal are these:

At the outset of the hearing of the appeal, the Attorney sought leave to add a further ground of appeal relating to the manifest inadequacy of the penalty imposed. The proposed ground included as the basis for the manifest inadequacy matters which, the appellant submitted, had not been the subject of findings by the trial judge partly, at least, because of the way the proceedings had been conducted. The Court, therefore, gave leave to the Attorney to raise the ground of manifest inadequacy confined to matters already identified in the sentence appeal. The new ground was as follows:

His Honour’s Remarks on Sentence (ROS) were relatively brief. In relation to the objective seriousness of the offence his Honour said that the offence was neither deliberate nor reckless. Prior to the offence, the appellant was acutely aware of and concerned with the safety of its operations. It had established and maintained a well-developed and robust health and safety management system. Its record was unblemished. The offence resulted not from a lack of willingness or application to matters of safety but from a lack of imagination.

The risk was unforeseen by responsible persons in the industry generally. It resulted from an extremely improbable sequence of events. His Honour referred to an expert mine electrical engineer employed by the appellant who calculated that no such event had occurred in some 131 million roof support movements in the industry up to April 2010. His Honour determined that the appellant’s failure to foresee the event was of the lowest degree consistent with guilt. His Honour said that, although the appellant’s good character and the extenuating circumstances in which the offence was committed might otherwise entitle the appellant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes (Sentencing Procedure) Act), the penalty had to reflect the grave consequences inflicted upon Mr McNab.

As to general deterrence, his Honour said that he regarded the fact of the conviction rather than the amount of any penalty as a sufficient exhortation to the mining industry to conceive of and guard against remote dangers. As to specific deterrence, his Honour said that the appellant’s good character, unblemished record and appropriate response to the injuries suffered by Mr McNab led him to the belief that the penalty need not reflect any need for specific deterrence.

As far as remorse was concerned his Honour noted that the appellant had gone to considerable lengths to provide Mr McNab with extensive retraining and support with opportunity for career advancement within the company. His Honour accepted those measures as conduct consistent with the appellant’s acceptance of responsibilities for his injuries.

The Attorney dealt with these grounds together and we have adopted that approach. They all concern the assessment of objective seriousness.

The Attorney submitted that the reference by the trial judge to AS.NZS4240:1:2009 (the Standard) should have been a sufficient answer to any issue concerning a lack of imagination because the risk was expressly identified in that Standard. The Attorney submitted that his Honour appeared to focus on the incident or accident. By doing so he had fallen into error because the focus should have been upon the risk and not upon the particular circumstances of the accident.

The Attorney submitted that his Honour appeared not to have taken into account the fact that the risk as particularised had been known and identified before the incident. The matter had been dealt with in the Trial Judgment at [95]-[96] where he referred to the incident some five weeks earlier when an operator was struck on the head and shoulder by a large piece of coal that was thrown towards him after falling on the trailing drum. His Honour had referred to that incident as placing the appellant on notice that “a miner might be dropped by a large piece of flyrock”. Both the Standard and that incident meant that the appellant’s conduct in committing the offence was in the face of a known and identified risk about which it did nothing.

The Attorney submitted that the trial judge, in identifying only one basis for foreseeability in his ROS, had apparently overlooked that, in the Trial Judgment, his Honour had identified four findings of foreseeability.

The Attorney submitted that there was no evidence to suggest that the cost of the measure implemented immediately after the accident of employing an observer was prohibitive or that there was some other reason that made it difficult. His Honour should have taken into account the simplicity of the measure which pointed to the objective seriousness of the offence.

Finally, the Attorney submitted that the trial judge should have had regard to the fact that the risk brought about by the offence included the risk of the possibility of death. In that regard, although Mr McNab’s injuries were less serious, the extent of those injuries was relevant but not a determinative factor in assessing objective seriousness.

The appellant submitted that none of the matters identified by the Attorney were errors of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 and such an error would need to be shown. The appellant submitted that assessing objective seriousness was quintessentially a matter for the trial judge, relying on authorities such as R v KB; R v JL; R v RJB [2011] NSWCCA 190 (KB, JL and RJB) at [51]-[53].

The appellant submitted that the findings of fact made by the trial judge that the risk was unforeseen by responsible persons in the industry generally and that the accident resulted from an extremely improbable sequence of events are not shown to be infected with error, nor was the trial judge’s acceptance of the evidence from the appellant’s electrical engineer that no such accident had occurred in some 131 million roof support movements in the industry up to April 2010.

The appellant submitted that the trial judge regarded the Standard as significant but that, as the trial judge had found in the Trial Judgment, it was a Standard written for designers of mining equipment and not operators, and that a reasonable mining company would ordinarily only consult the Standard when purchasing or commissioning new equipment. In that way it was wrong to suggest that by reason of the Standard the risk was well known and identified.

The appellant submitted that the prior incident involved a shearer operator who had been struck by a large piece of coal but had not been disabled. In that way the first appeal ground misstated the description of that incident.

The appellant submitted that the Attorney’s submission that the trial judge appeared not to have taken account of the fact that the risk as particularised in the charge had been known and identified before the incident was itself an error because the risk as found was not the risk as particularised. The risk as particularised was the risk simply of being crushed by advancing roof supports whereas the risk found by the trial judge was the risk of being crushed by advancing roof supports after falling in front of them incapacitated.

The appellant submitted that it was in the highest degree unlikely that the trial judge had overlooked or had forgotten the findings he made on guilt.

In answer particularly to Ground 2 the appellant submitted that reliance on the alleged availability and alleged simplicity of having an extra observer ignored the unchallenged evidence that the measure of having an extra observer did not exist in any mine before the incident.

In relation to Ground 3, the appellant submitted that it would have been wrong, contrary to the Attorney’s submission, for the trial judge to have taken into account the potential serious consequences for people other than Mr McNab by reason of the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383.

In KB, JL and RJB, Bathurst CJ (with whom Buddin and Harrison JJ agreed) said:

The Attorney’s submissions attempted to meet those principles by identifying specific errors of a House v The King type. The errors identified are said to involve the failure of the trial judge to have concluded that the risk was known both by reason of the existence of the Standard and by the appellant’s experience of previous cases of employees being struck by rock and being disabled, by the failure of the trial judge to have had regard to the simple measure of having an observer put in place and by failing to have regard to the potential serious consequences for its employees in not guarding against the risk.

An examination of the trial judge’s ROS shows that he had regard to, and considered the significance of, the Standard. His conclusion immediately after considering the Standard, that the culpability of the appellant in failing to foresee the event was at the lowest degree consistent with guilt, must be seen also in the light of the Trial Judgment where his Honour had held that the Standard was directed to designers of mining equipment and not operators, and that not only was the appellant’s attention not drawn to the relevant provisions by the manufacturer of the equipment but that a reasonable mining company would ordinarily only consult the Standard when purchasing or commissioning new equipment. The Attorney fails to show that the trial judge did not consider a relevant matter, being the existence of the Standard.

In relation to the other two identified errors, it was the failure of the appellant to have an observer in place that resulted in its conviction for the offence. It was because of the potential serious consequences for the appellant’s employees, notwithstanding the considerable unlikelihood of the risk eventuating, that nevertheless resulted in the appellant’s conviction. The trial judge, therefore, did not fail to have regard to the availability of having an observer present and did not fail to take account of the potential consequences of the risk.

Although the trial judge’s findings in relation to the Standard, if viewed alone, may have led him to the conclusion that the failure to foresee the risk was at a very low level, his Honour appears not to have had regard to the other findings in the Trial Judgment concerning foreseeability. His Honour there said:

Having then concluded as a result of those matters that the risk resulting in Mr McNab’s injuries was reasonably foreseeable, his Honour went on to find:

Those findings, when read together with the matters touching forseeability, do not sit easily with his Honour’s statement in his ROS:

Further, there was no mention in the ROS of the matters referred to in the Trial Judgment at [103] and [104]. Even allowing for the other matters considered by the trial judge in relation to the objective seriousness of the offending, the failure by his Honour to consider in his ROS the findings identified above show that his Honour failed to have regard to relevant considerations, and that error is demonstrated in his assessment of objective seriousness.

The correct assessment of objective seriousness in the present case must be seen from the perspective that only one of the particulars of negligence was found to be established, from the finding that the risk resulted, as the trial judge said, from an extremely improbable sequence of events and the evidence accepted by the trial judge was that no such event had occurred in some 131 million roof support movements in the industry up to April 2010.

We also accept the trial judge’s finding that the appellant was acutely aware of and concerned with the safety of its operations, that it had established and maintained a well-developed and robust health and safety management system and that its record to that point was unblemished. Nevertheless, the findings made by the trial judge in his liability judgment, when considered with the mitigating matters referred to, mean that the objective seriousness, whilst below the mid-range of offending, cannot be regarded at the lowest degree consistent with guilt.

We would uphold these grounds.

The Attorney submitted that the statement that the penalty needed to reflect fairly the extent of Mr McNab’s suffering showed a misunderstanding of the principles of sentencing. The purpose of considering the consequences to Mr McNab was to assess the objective seriousness of the offence. The Attorney submitted that the penalty was not designed just to reflect the degree of Mr McNab’s suffering.

The appellant submitted that there was no basis found in the trial judge’s ROS to assert, as Ground 4 alleges, that his Honour measured the quantum of the fine against the degree of the injured employee’s suffering.

In our opinion, the Attorney’s submissions misstate what appears in the trial judge’s ROS. The trial judge did not say that the penalty was designed “just to reflect” the degree of Mr McNab’s suffering, nor did the trial judge indicate that it was the only criterion for the amount of the penalty. The trial judge made the observation that the penalty had to reflect the grave consequences visited upon Mr McNab in the context of dealing with the submission that an appropriate sentence would be a discharge under s 10 of the Crimes (Sentencing Procedure) Act.

The extent of the harm that befell Mr McNab was a relevant matter for the assessment of objective seriousness of the offending. It was properly referred to when the trial judge was considering whether a s 10 discharge was appropriate. No error is demonstrated in relation to this ground.

The Attorney submitted that the penalty erroneously failed to include any component for specific or general deterrence. The Attorney submitted that this was contrary to what had been said by the Full Bench of the Industrial Relations Commission in Court Session in Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; 49 NSWLR 610 (Capral Aluminium) at [74], that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. The Attorney submitted that this judgment had been cited to the trial judge.

The Attorney submitted further that other authorities make clear that both general and specific deterrence are significant considerations when dealing with matters of workplace or public health and safety. The Attorney submitted that the trial judge provided no reasons for his conclusion that the fact of the recording of a conviction alone would be a sufficient marker of general deterrence.

The appellant submitted in relation to general deterrence that the case was not a suitable vehicle for deterring others. This was because: the appellant had a well-developed and robust health and safety management system; before this incident no other mine had employed a person to perform the duties of an SAC; although there was publicity given to this matter the Department of Trade and Industry did not recommend that having an SAC be adopted by other mines and it was only done in one other mine in fact. All of this showed, the appellant submitted, that the circumstances of the offence were unique. The role of general deterrence was reduced when the risk not addressed by an offender was remote.

In relation to specific deterrence the appellant drew attention to the findings by the trial judge that the offence was neither deliberate nor reckless, that it arose from a lack of imagination and that the appellant had an unblemished record and made an appropriate response to the injuries suffered by Mr McNab. The conclusion that the appellant was unlikely to reoffend was a factor which mitigated penalty. The appellant submitted that the appellant’s health and safety management system and its approach to risk reduction disposed of the need for specific deterrence.

In his ROS the trial judge said this under the heading of “General Deterrence”:

In Capral Aluminium, the Full Bench of the Industrial Relations Commission in Court Session said in respect of an offence under s 15(1) of the 1983 Act:

The trial judge provided no reasons for his conclusion that the fact of the conviction of the appellant rather than the amount of any penalty was a sufficient warning to the mining industry to conceive of and guard against remote dangers. His Honour did not appear to be dismissing the need for general deterrence on the basis that the dangers were remote because the appellant had been convicted notwithstanding the risk was improbable, and his Honour was clearly of the view that the mining industry needed to take account of remote dangers.

The prosecutor had drawn his Honour’s specific attention to what was said in Capral Aluminium. The prosecutor also drew attention to what was said in the Victorian Court of Appeal by Nettle JA (Neave JA and Lasry AJA agreeing) in R v Irvine; R v Dynamic Industries Pty Ltd; and R v Cini [2009] VSCA 239; 25 VR 75 (R v Irvine) at [52] as follows:

His Honour ought to have considered that he was bound to apply the principles discussed in Capral Aluminium, particularly as the views that judgment expressed were well supported in R v Irvine concerning general deterrence. His Honour gave no reason for taking a different view. Nor did his Honour provide as a reason for his approach that the case was an exceptional one. We see no reason to qualify the principles discussed in Capral Aluminium.

The appellant relied on the fact that the circumstances of the offence were unique and submitted that the role of general deterrence was reduced when the risk was remote. However, that does not appear to be the approach that the trial judge took. His Honour saw it as necessary that the mining industry should guard against remote dangers. It might be said of any offending that the conviction of the offender should be a sufficient warning to others who might offend. The proper application of that principle is by a sentencing judge giving due emphasis to the question of general deterrence and the penalty which is set. The trial judge failed to do that in the present case.

As far as specific deterrence is concerned, the Industrial Commission in Capral Aluminium had allowed that a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent: at [77]. Although his Honour’s reasons in relation to specific deterrence were inadequate, it seems clear from the way his Honour described the accident both in the Trial Judgment and in his ROS when taken together with his reference to the appellant’s good character, unblemished record, and appropriate response to the injuries, that his Honour did not err when considering the issue of specific deterrence.

Nevertheless, we would uphold this ground as far as his Honour dealt with general deterrence.

The Attorney submitted that it was significant that the appellant had never expressed remorse for the offence and there was no evidence of it. The Attorney submitted that the trial judge appeared to have confused remorse for the consequences suffered by Mr McNab with remorse for the offence as referred to in s 21A of the Crimes (Sentencing Procedure) Act.

The appellant submitted that ameliorative conduct towards the victim of a violent attack or mitigating harm to the environment when it has been unlawfully polluted by a defendant are relevant considerations in mitigation of penalty. The appellant submitted that, similarly, so are the taking of special measures to ensure the victim is not held back by his injuries and providing him with special consideration to ensure his injuries do not prevent him from obtaining advancement.

In the ROS under the heading “Remorse” the trial judge said this:

Section 21A(3) of the Crimes (Sentencing Procedure) Act lists as a mitigating factor:

In his affidavit at the sentencing proceedings Mark Munro, the Operations Manager for Bulga Underground Operations said under the heading “Contrition”:

However, Mr Munro’s cross-examination clarified that he was not speaking on behalf of the company and did not have the authority of the company to do so. The following evidence was given:

The evidence disclosed, therefore, that the appellant had not in any way accepted responsibility for its actions. It had acknowledged the injury to Mr McNab and had made reparation for those injuries to the extent that it could. To the extent that Mr Munro was giving evidence on behalf of Bulga it must be concluded that no remorse was shown, and his final answer in cross-examination tended to show that the trial judge’s verdict was not accepted.

What the appellant has done for Mr McNab is commendable but it cannot be said, overall, that the appellant has shown remorse by accepting responsibility for its failure.

We would uphold this ground of appeal.

The Attorney submitted that whilst it was not possible to draw direct comparisons with cases in the field of occupational health and safety, the manifest inadequacy of the fine imposed upon the appellant is demonstrated when regard is had to the cases that were put forward where a defendant pleaded guilty to occupational health and safety offences.

In relation to the residual discretion the Attorney pointed to the size of the appellant and to the fact that the penalty was a monetary one. The Attorney submitted that the errors in the sentencing process were significant and the trial judge was not led into error by the prosecution. For those reasons the Court should not exercise its residual discretion not to interfere.

The appellant submitted that it has not been shown that the trial judge’s sentence was unreasonable or plainly unjust.

In relation to the residual discretion the appellant drew attention to the burden on the Crown to negate any reason why the residual discretion should be exercised: see MB v Attorney General for NSW [2015] HCA 9 (MB) at [56]-[57]. The appellant also drew attention to the authorities that discuss the limited role for Crown appeals against sentence in such cases as Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 and R v DH & AH [2014] NSWCCA 326 at [17]-[18]. The appellant submitted that even if error was established a Crown appeal is not an appropriate vehicle for general correction of error. It was submitted that there is no matter of principle that needs to be established in this case.

One of the issues for consideration in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 was the operation of s 6(3) of the Criminal Appeal Act. There is no such equivalent in relation to s 5D. However, similar issues arise because of the discretion given to the court in s 5D(1) to vary the sentence and impose such sentence as to the court may seem proper. The High Court approved the analysis by Spigelman CJ in Baxter v R [2007] NSWCCA 237; 172 A Crim R 284 at [19] but went on to say that not all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion: at [42]. The Court went on to say:

In the same way, if the court on a Crown appeal considers that an error has been shown that vitiates the exercise of the sentencer’s discretion, the court may vary the sentence. Of course, other factors operate before that course is followed on a Crown appeal because of the purpose of such an appeal and the residual discretion. In KB, JL and RJB, Bathurst CJ at [82] said that although there was prima facie error in sentencing the court retained a discretion under s 5D(1) with respect to varying the sentence.

The first question for determination now that error has been shown is whether the errors identified in relation to the assessment of objective seriousness, general deterrence and remorse are such as to vitiate the sentencer’s discretion. In our opinion, the first two are significant matters and must be considered to have impacted upon the penalty imposed.

On the matter of the residual discretion, the appellant correctly points out that the onus is on the Crown to negate any reason why the residual discretion not to interfere should be exercised: MB at [56]-[57].

One matter put forward by the Attorney leads to the conclusion that the residual discretion should not be exercised, namely, that this is amongst the first of appeals to this Court from the exercise of the jurisdiction under the Act by the District Court. One of the errors identified by the Attorney was the failure of the trial judge to deal properly with the matter of general deterrence notwithstanding strong authority against his Honour’s approach from the Full Bench of the Industrial Commission. In those circumstances it is important that this Court express its approval of those decisions of the Industrial Commission to make the point that in matters of this nature general deterrence (and specific deterrence for that matter) will be significant considerations for a court in all but the most exceptional cases. That is so, notwithstanding that the legislation has changed since the time of the offending. The changes are not relevant to the issue of general deterrence and its importance when sentencing for these types of offences.

Those circumstances mean that the present case is not simply one of correction of a trial judge’s error. In our opinion, the discretion in s 5D(1) should be exercised by this Court to re-sentence the appellant.

The appellant submitted that if the Court came to re-sentence, the Court should have regard to the evidence of Mr Harvey who had been the mine’s Safety Systems Coordinator/Safety Systems Manager and Mr Munro to whom reference has already been made. Moreover the appellant pointed to the unchallenged findings by the trial judge in relation to its safety record. In addition, the trial judge found that the offence was neither deliberate nor reckless.

A reading of Mr Harvey’s and Mr Munro’s affidavits amply justifies the conclusion of the trial judge that prior to the offence the appellant was acutely aware of and concerned with the safety of its operations. It had established and maintained a well-developed and robust health and safety management system and its record was unblemished. Nevertheless, the duties imposed on the employer under s 8 of the Act are onerous. The employer is to ensure the health, safety and welfare at work of all employees. The legislature regards breaches as serious as is shown by the maximum penalties provided in s 12 of the Act.

Whilst the objective seriousness of the offence was below the mid-range it was not at the bottom of the range. Whilst the appellant’s systems, approach to safety and its record meant that the case was an exceptional one as far as specific deterrence was concerned, general deterrence was a matter of considerable significance. Further, the appellant’s lack of remorse for the incident which seemed to derive from a belief that it had done everything it reasonably should have, is a matter that must be reflected in the penalty.

In our opinion and having in mind that the appellant is being resentenced after a successful Crown appeal the appropriate penalty is a fine of $100,000.

In the costs judgment of 5 February 2015 the trial judge made the following findings (Costs Judgment):

The trial judge found that the respondent failed to establish the first four of the measures in (b) above.

The grounds of appeal relied upon by both the respondent and the Attorney were as follows:

It should first be noted that a substantial portion of the submissions from both parties on costs at the hearing of the appeal concerned the notice of contention where the respondent sought to have the trial judge’s findings concerning the tilt switch reversed. In the light of our conclusion at [134] we have not further considered those submissions.

The respondent submitted that his Honour must have awarded only 20% of costs to be paid to the respondent because only one of five particulars had been found proved. The respondent submitted that the trial judge fell into error in assessing the time spent on the various aspects of the prosecution case during the trial. In fact very little time was spent at the trial on particulars 2, 3(b) and 4: see above at [25]. The respondent submitted that the costs order failed to reflect that the prosecution ought to have received the whole of its costs in respect of the sentence proceedings in which the appellant pressed for and was unsuccessful in achieving the non-recording of a conviction.

The respondent submitted that the trial judge paid little regard to the public duty that a prosecutor has to put all material issues before the Court. Reliance was placed on what Biscoe J said in Morrison v Defence Maritime Services Ltd [2007] NSWLEC 552; 156 LGERA 365 (Morrison).

The respondent submitted that in any event the trial judge made no reference to the costs of the sentence hearing and that it should be inferred that the trial judge overlooked the costs of those sentence proceedings. The appellant was unsuccessful at those proceedings in persuading the trial judge not to record a conviction.

The appellant submitted that an appeal by a prosecutor against a costs order may only be made with the leave of this Court (s 5AA(1A) of the Criminal Appeal Act) and leave should not be granted. The appellant submitted that a decision as to costs is a discretionary decision. A requirement for leave means that an applicant must show that there is a question involved either of injustice which is reasonably clear, in the sense of going beyond what is merely arguable, or that there is an issue of principle or a question of general importance. The respondent’s grounds of appeal on costs advance no issue of principle, no question of general importance or no injustice which is reasonably clear.

The appellant conceded, correctly in our view, that s 5DB(1) of the Criminal Appeal Act confers jurisdiction on this Court to hear the Attorney’s appeal against the costs order. No leave is required under that section because of the definition of “sentence” in s 2(1) of the Criminal Appeal Act. That definition includes under paragraph (h) any order for the payment of costs made by the court of trial. The result of that removes any force in the appellant’s submissions at [214] above that require something more than error to be shown before leave will be given to the respondent.

The appellant submitted that the 20% apportionment was not reached by way of a simplistic division of acts and omissions by five. This was because the judge abjured mathematical precision, he took into account all four particulars as to risk and all five particulars as to acts and omissions, he considered the particulars which did not go to trial after amendment to the summons, and the particular of the risk of being crushed was not found in those terms.

The appellant took issue with the grounds of appeal that concerned the time spent on particular issues. However, the appellant accepted that time at the hearing was occupied by the appellant’s case that the risk found proven was not foreseeable.

Costs are discretionary. To succeed in overturning a costs order an appellant needs to show an error of the House v The King type: see also Maiden v Maiden [1909] HCA 16; 7 CLR 727 at 742. The trial judge is ordinarily in the best position to make an assessment of the time and importance of different issues where a party has succeeded on some and failed on others and where costs are apportioned by the judge. It will be difficult for an appellate court to decide on matters of apportionment simply by examining a transcript or by having regard to written submissions in the court below.

The principles relating to apportionment of costs in civil cases are conveniently summarised in James v Surf Rd Nominees Pty Ltd (No 2) [2005] NSWCA 296 as follows:

These principles are also applicable to criminal proceedings with the qualifications discussed in Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 544, 565, 568-569: see also Morrison at [18]. A particular consideration in a criminal matter is that emphasised by Biscoe J in Morrison at [20]:

The Costs Judgment in the present case provides only minimal reasons for the order ultimately made. The following findings may be discerned:

The matter referred to in (e) is that the original summons filed by the prosecutor on 20 April 2012 pleaded different failures on the appellant’s part from those contained in the amended summons filed 12 October 2012 which was the case ultimately pursued by the prosecutor. The trial did not commence until 26 May 2014. It seems somewhat unlikely that costs referable to the original form of the summons were significant.

A few other matters should be noted from the Costs Judgment. First, there is no reference to the sentence proceedings at all. Whilst some of the appellant’s submissions made at that hearing were accepted by the trial judge (on deterrence and remorse) the appellant was ultimately unsuccessful in obtaining a s 10 order. That was significant. The failure of the trial judge to mention the sentence proceedings is a failure to take account of a relevant consideration. Error is demonstrated.

Secondly, as far as can be ascertained from the trial judge’s reasons, the awarding of only 20% of the respondent’s costs appears to be related to the failure of the respondent to succeed on all but one of the suggested methods to avoid the risk that was established. Other factors may have influenced the assessment (although not the issue of the particulars which did not go to trial from the original summons) but the trial judge did not say what they were.

Thirdly, what the trial judge did note of significance was that the key issue in the defence was foreseeability, proof of which would inevitably result in proof of the offence. In that regard it should be remembered that a successful party should not be deprived of costs unless there is material to justify a contrary order being made: Milne v Attorney-General for the State of Tasmania [1956] HCA 48; 95 CLR 460 at 477. The only matter identified by the trial judge appears to be what appears at [221] (b) above.

Fourthly, the trial judge said (Costs Judgment at [9]):

The respondent submitted that his Honour was wrong so to conclude.

What the trial judge said in that regard does not appear to be borne out by the appellant’s written submissions at trial paras [400]-[410] with this conclusion at [410]:

The appellant submitted that the trial judge’s statement is correct if the words “reasonably practicable” are omitted. That, however, tends to provide support for the respondent’s submission. The appellant accepted that the “reasonably practicable” aspect of the matter was related to foreseeability, and that was (as the trial judge said: Costs Judgment at [10]) “the substance of the defence”. As noted earlier, the appellant accepted that time was taken at the hearing on the issue of foreseeability. The respondent’s submission should be accepted.

Whilst it may be accepted that, when apportioning costs, mathematical precision is not possible (as the trial judge observed: Costs Judgment at [18]) it is incumbent on the decision maker to identify the considerations which led him or her to apportion in a particular manner. The failure to give reasons in that regard will amount to error. The appellant’s submissions suggesting reasons why the proof of one out of five particulars was not the basis for the 20% should be rejected. The statement concerning mathematical precision is merely a well iterated statement from a number of authorities, the particulars that did not go to trial were the subject of a separate costs order unrelated to the 20% apportionment, and the finding of the risk in the terms identified explains nothing about the 20% apportionment.

In the present case, the only possible conclusions are that the 20% was reached by reference to the five methods advanced by the respondent, or that it was reached by reference to matters not identified by the trial judge. In either case, error is established.

It is necessary, therefore, for this Court to re-exercise the discretion. In exercising that discretion, some weight must be given to the evaluation made by the trial judge of the time particular issues took in terms of evidence and submission. We note, in that regard, that in the Costs Judgment, the trial judge said:

We note further that the trial judge said:

Other matters for consideration are these:

Taking into account the matters in [230] and [231] above and having regard to the principles earlier discussed, we consider that the proper order is that the appellant should pay 50% of the respondent’s costs. There is no reason that the appellant should not pay the respondent’s costs of appeal.

In the result, we would make the following orders: