Industrial Relations Commission of New South Wales in Court Session CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202 PROSECUTOR: Stephen Finlay McMartin PARTIES : DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady. FILE NUMBER: 3198 - 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - mining fatalities and injuries caused by inrush - corporate defendants charged with breaches of ss15 and 16 of the Occupational Health and Safety Act 1983 - associated personal defendants charged pursuant to deeming provisions of s50(1) of the Occupational Health and Safety Act 1983 - pleas of not guilty - three specified charge periods identified - night shift charges - system of work charges - planning research and assessment charges - issues going to multiplicity of charges and overlapping of alleged offences - duplicity in a number of particularised failures - concern as to double jeopardy - issue as to whether mining activity being undertaken at the time of inrush was an act permitted to be done such as to attract the protection of s33(2) of the Occupational Health and Safety Act 1983 - application of s32(2) of Occupational Health and Safety Act 1983 as a defence to the offences charged - relationship between the Coal Mines Regulation Act 1982 and the Occupational Health and Safety Act 1983 and the respective regulatory frameworks - onus of proof arising under s33(2) of Occupational Health and Safety Act 1983 - expert witnesses evidence and reliance on opinions expressed - admissibility of disputed evidence - whether evidence admissible against a particular individual defendant is admissible against the corporate defendants and all other individual defendants - s87(1)(b) and (c) of Evidence Act considered - clause 9 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 as a threshold defence to all charges - consideration of the Gretley mine as an undertaking of OPL - elements of offences under ss15 and 16 of Occupational Health and Safety Act 1983 - relevant principles - causal connection between the alleged conduct of the defendant and the alleged risk - issue as to when potential risk to safety arose - defences under s53(a) and (b) of the Occupational Health and Safety Act 1983 considered - corporate defendants failed to ensure the health, safety and welfare of their employees (or non-employees as the case may be) contrary to ss15(1) and 16(1) of the Occupational Health and Safety Act 1983 with respect to specific particularised failures - offences arising with respect to natural person defendants pursuant to deeming provisions of s50(1) of the Occupational Health and Safety Act 1983 - issue as to whether those natural person defendants are persons concerned in the management of the corporation - need to consider that provision with regard to both corporations - considerations as to proper approach to and construction of that phrase - onus on prosecution to establish - issue as to whether reverse onus arising for prosecution to discharge under s53 of the Occupational Health and Safety Act 1983 is a condition precedent to considering deeming provisions of s50(1) - defences available under s50(1) (a) and (b) - clause 9 of the Survey and Plan Regulation not available as a defence for Mine Surveyor in light of specific facts and circumstances - specific offences found proved with respect to corporate defendants and three natural person defendants - summonses with respect to five natural person defendants dismissed as being persons not concerned in the management of the corporations - penalty and costs to be determined. Occupational Health and Safety Act 1983 Coal Mines Regulation Act 1982 Coal Mines Regulation Act 1896 Coal Mines Regulation Act 1902 Coal Mines Regulation Act 1912 Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 Coal Mines Regulation (Survey and Plan) Regulation 1984 Coal Mines Regulation (Amendment) Act 1931 Coal Mines Regulation (Transport - Underground Mines) 1984 Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 Coal Mines Act 1911 (UK) Mines Inspection Act 1901 LEGISLATION CITED : Evidence Act 1995 Occupational Health and Safety Act 2000 Health and Safety at Work etc Act 1974 (UK) Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth) Companies (NSW) Code Companies (Victoria) Code Companies (Queensland) Code Corporations Law (SA) Victorian Health and Safety Act 1985 Re-establishment and Employment Act 1945 (Cth) Crimes Act 1914-1941 (Cth) Proceeds of Crime Act 1987 (Cth) Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd [2004] NSWIRComm 77 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 WorkCover Authority of NSW (Inspector Maltby) and Anor v Abigroup Contractors Pty Ltd and Luis Bustamante [2003] NSWIRComm 35 Connelly v DPP [1964] AC 1254 Davern v Messel (1984) 155 CLR 21 Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 Pearce v The Queen (1998) 194 CLR 610 Wemyss v Hopkins (1875) LR10QB 378 Blockburger v United States (1932) 284 US 299 Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 Rodney Dale Morrison v Coal Operations Australia Limited [2003] NSWIRComm 249 Rodney Morrison v Tahmoor Coal Pty Limited (2002) 120 IR 153 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2003] NSWIRComm 392 McAuliffe v The Queen (1995) 183 CLR 108 Tripodi v The Queen (1961) 104 CLR 1 Ahern v The Queen (1988) 165 CLR 87 WorkCover Authority of NSW (Inspector Reid) v CSR Limited t/a CSR Wood Panels (1995) 109 IR 275 WorkCover Authority v Boral - Montaro Pty Limited: Peterson J: 19 December 1997: No. CT 1218/96, unreported WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 James Manassa v WorkCover Authority [2003] NSWIRComm 348 Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) 90 IR 432 Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 R v Board of Trustees of the Science Museum [1993] 3 All ER 853, [1993] 1 WLR 1171 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 CASES CITED : Weissensteiner v R (1993) 178 CLR 217 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 470 McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241 Cullen v State Rail Authority of NSW (1989) 31 IR 207 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 Edwards v National Coal Board [1949] 1 KB 704 Slivak v Lurgi (Australia) Pty Ltd (2001) 75 ALJR 481 WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No. 1) (1999) 101 IR 239 Inspector Cameron v Wanless: Fisher P: 8 October 1997: CT 1127/96, unreported Hookham v The Queen (1994) 181 CLR 450 Inspector Ian John Batty for the WorkCover Authority of New South Wales v C I & D Industries Pty Limited (ACN 001 119 026), C I & D Manufacturing Pty Limited (ACN 001 002 446) and Kyle Leslie Grigor (Matter No's CT 1192, 1193, 1194 and 1195 of 1994): Fisher CJ: 14 December 1995, unreported WorkCover Authority of NSW v John Anthony Brown (Matter No's CT 1024, 1025, 1026, 1027 and 1028 of 1996): Maidment J: 29 July 1997, unreported Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Limited and Anor (2001) 105 IR 348 Tesco Supermarkets Ltd v Nattross [1972] 2 All ER 127 Commissioner for Corporate Affairs v Bracht [1989] VR 821 Griggs v Australian Securities Commission (1999) 75 SASR 307 R v Campbell (1984) 78 Cr App Rep 95 Cullen v Corporate Affairs Commission (NSW) (1989) 7 ACLC 121 Holpitt Pty Ltd v Swaab and ors (1992) 105 ALR 421 Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 5 ACLC 1027 Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 Standard Chartered Bank of Australia v Antico (No's 1 and 2) (1995) 38 NSWLR 290 Omnicon Video Pty Ltd v Kookaburra Productions Pty Ltd (Receiver and Manager Appointed) and ors: No. 1024 of 1991: Bryson J: 13 November 1995 (Unreported) R v Pasta Master Pty Ltd and Conway: Holt J: Victorian County Court, 16 August 2000: Interlocutory ruling R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Henry Bailey: Stott J: Victorian County Court, 31 October 1991: Interlocutory ruling Cain v Doyle (1946) 72 CLR 409 R v Brian John Buckett (1995) 79 A Crim R 302 Morris v Wellington City and anor (1969) NZLR 1038 HEARING DATES: 07/14/2003; 07/15/2003; 08/11/2003; 08/12/2003; 08/13/2003; 08/14/2003; 08/18/2003; 08/19/2003; 08/25/2003; 08/26/2003; 08/27/2003; 08/28/2003; 09/01/2003; 09/02/2003; 09/03/2003; 09/04/2003; 09/08/2003; 09/09/2003; 09/10/2003; 09/11/2003; 09/15/2003; 09/16/2003; 09/17/2003; 09/22/2003; 09/23/2003; 09/24/2003; 09/25/2003; 09/29/2003; 09/30/2003; 10/02/2003; 10/07/2003; 10/08/2003; 10/13/2003; 10/14/2003; 10/15/2003; 10/16/2003; 10/27/2003; 10/29/2003; 10/30/2003; 11/03/2003; 11/04/2003; 11/05/2003; 11/06/2003; 11/11/2003; 11/13/2003; 11/17/2003; 11/18/2003; 12/01/2003; 12/02/2003; 12/03/2003; 12/04/2003; 12/08/2003; 12/09/2003; 12/11/2003; 12/16/2003; 02/09/2004; 02/10/2004; 02/11/2004; 02/12/2004; 02/16/2004; 02/23/2004; 02/24/2004; 03/10/2004; 03/16/2004; 03/29/2004; 03/30/2004; 03/31/2004; 04/05/2004; 04/06/2004; 04/20/2004 DATE OF JUDGMENT: 08/09/2004 PROSECUTOR: Mr S Crawshaw SC Mr B Docking of counsel Mr A Slevin of counsel SOLICITORS: Mr M Carrick Geoffrey Edwards & Co DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke LEGAL REPRESENTATIVES: Mr S Rothman SC Mr G McGrath of counsel SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady Mr B Hodgkinson SC Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea JUDGMENT: To view ANNEXURES A to G, please see attached file at end of judgment INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 9/8/2004 Matter No's IRC 3198/00 - 3249/00 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others Prosecutions pursuant to s15(1), s16(1) and s50(1) of the Occupational Health and Safety Act 1983 Judgment NSWIRComm 202 Introduction 1 At about 5:30am on 14 November 1996, a crew of seven mine workers at the Gretley Colliery were working underground in developing a roadway known as C heading in an area of the mine identified as 50/51 panel. 2 Four of the men - Ted Batterham, John Hunter, Mark Kaiser and Damon Murray - were involved in the operation of a coal-cutting machine called a continuous miner. The other three members of the crew were in a crib room at that time which was approximately 169 metres away from the coal face of C heading. Another mine worker who was not on the crew but had been working in the area of 50/51 panel was also present in the crib room at that time. 3 Suddenly, with great force, water rushed into C heading through a hole in the coalface at the place where the continuous miner was cutting. The four men working at the face were engulfed, swept away and drowned. The four men in the crib room survived the inrush which was itself flooded. 4 The water came from the long abandoned old workings of the Young Wallsend Colliery. Those old workings were full of water. As well as the water, high levels of dangerous gases were also released into the area of 50/51 panel. 5 Following the accident, a judicial inquiry was held before the Court of Coal Mines Regulation. A Coroner's inquest was also held. Both of the proceedings were presided over by Mr J H Staunton AO CBE QC (formerly the Honourable Justice Staunton, Chief Judge of the District Court of New South Wales). 6 The Coroner's Report recommended that an assessment with a view to prosecutions be considered and recommended specifically as follows: In respect of the Newcastle Wallsend Coal Company Pty Ltd that the papers be referred to the Crown Solicitor with a view to his determining whether offences have been committed under sections 15 and 16 of the Occupational Health and Safety Act 1983 . 7 As a consequence, I have before me 52 charges laid by the prosecutor against two corporate defendants - the Newcastle Wallsend Coal Company Pty Ltd (NWCC) and Oakbridge Pty Ltd (OPL) and eight personal defendants: Richard Myles Porteous, Phillip John Pritchard, Michael Francis Alston, Mark Robinson, Jonathan Erik Humphries Romcke, Michael John Coffey, Christopher Wayne Nicholls and Terence Shacklady. The summons allege offences arising under ss15(1), 16(1) and 50(1) of the Occupational Health and Safety Act 1983 (the Act). 8 The 52 charges allege offences covering three distinct time periods. They are characterised by the prosecutor as follows: (i) Type I charges: night shift charges: for offences alleged to have occurred on 13 and 14 November 1996, specifically the night shift commencing at 11:30pm on 13 November 1996 and finishing at 7:30am on 14 November 1996. (ii) Type 2 charges: system of work charges: for offences alleged to have occurred between about 16 September 1996 up to the commencement of the night shift at 11:30pm on 13 November 1996. ( iii) Type 3 charges: planning, research and assessment charges: for offences alleged to have occurred between about 22 March 1994 and the end of the night shift finishing at 7:30am on 14 November 1996. 9 The two corporate defendants are each charged with a breach of ss15 and 16 of the Act in relation to each of the three charge periods identified. That is, each corporate defendant is charged with three alleged breaches of s15 and three alleged breaches of s16 of the Act. 10 In relation to the s15 offences the allegation is that, during each of the time periods specified, the defendants employees were exposed to a risk to their health and safety - that being that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend old workings. 11 In relation to the s16 offences the allegations are in similar terms, noting only at this point that the risk to safety as alleged was in relation to persons not in the defendant's employment. 12 The associated s50(1) charges involving the personal defendants are likewise identified relevant to one or all of the three specified time periods. The correlation between them and the ss15(1) and 16(1) charges involving the corporate defendants is that with each of the ss15(1) or 16(1) charges, there is a corresponding s50(1) charge alleged with respect to one or more of the personal defendants identifying similar particularised persons and failures. The s50 charges allege the necessary additional element for an offence under s50(1), that is, that the named defendant, being a person concerned in the management of the relevant corporation, is deemed to have contravened the same section of the Act. 13 The eight personal defendants were, at relevant times, occupying statutory positions at the Gretley Colliery arising under the Coal Mines Regulation Act 1982 (CMRA 1982). They were as follows: (i) Mr Richard Porteous was the Statutory Mine Manager at Gretley at the time of the inrush on 14 November 1996. He was appointed Mine Manager at Gretley on 28 October 1994. Mr Porteous is charged with 12 offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act over the three identified charge periods. (ii) Mr Jonathan Romcke was the Statutory Mine Manager at Gretley between June 1993 and 28 October 1994. After he left Gretley, Mr Romcke was appointed Statutory Mine Manager at another colliery within the Oakbridge group. Mr Romcke is charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act covering the type 3 charge period between about 22 March 1994 and the end of the night shift on 14 November 1996. (iii) Mr Phillip Pritchard, Mr Michael Alston, Mr Michael Coffey, Mr Christopher Nicholls and Mr Terence Shacklady were all appointed statutory Under Managers at Gretley. As well, Mr Alston was statutory Under Manager in charge at Gretley and Mr Pritchard occupied that position from 10 November 1996 for a period of some weeks while Mr Alston was on leave. Each of them have been charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act, covering the type 2 charge period between about 16 September 1996 up to the commencement of the night shift at 11:30pm on 13 November 1996. (iv) Mr Mark Robinson was the statutory Mine Surveyor for a number of relevant periods: 25 September 1995 - 6 October 1995; 18 December 1995 - 21 January 1996; 30 January 1996 - 4 March 1996; 1 April 1996 - 30 June 1996 and 1 July 1996 - 31 December 1996. The initial intermittent nature of Mr Robinson's appointment as statutory Mine Surveyor was because of the absence through illness of Mr Michael Murray, his predecessor as statutory Mine Surveyor. Mr Murray was, by all accounts, on extended sick leave from September 1995 onwards. He died in October 1996. Following Mr Murray's death, steps were taken to formally appoint Mr Robinson as statutory Mine Surveyor on a fulltime basis. That process was undertaken in October 1996. Mr Robinson is charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act covering the type 3 charge period between about 22 March 1994 and the end of the night shift finishing at 7:30am on 14 November 1996. 14 In relation to the charges laid and the specific failures pleaded concerning Mr Robinson, counsel for the prosecution stated in submissions: In relation to at least failures (a), (b) and (f) to (i), inclusive, in the planning, assessment and research charges, it is submitted that Mr Robinson had something to do with the acts or omissions of the corporations; there was a practical connection between him and the acts or omissions making up the corporations' offences; he was involved in the acts or omissions in the corporations' offences; or was in a position to influence the conduct of the corporations. In other words, the prosecution does not assert that he was concerned, at the time, in the management of the corporations' acts or omissions in (c), (d) and (e), which are the s 138 plans completed by Mr Murray. The prosecution's approach is consistent with Mr Robinson being appointed as the statutory surveyor at Gretley, after the completion of these s 138 plans, in the following periods: 25/9/95 – 6/10/95, 18/12/95 – 21/1/96, 30/1/96 to 4/3/96, 1/4/96 – 30/6/96 and 1/7/96 – 31/12/96. Of course, this does not extinguish the requirement of the corporations, including through Mr Robinson as the statutory surveyor during the above periods, to properly research the location and extent of the YWC old workings in an ongoing and proactive manner. 15 The alleged offences arising under s50(1) of the Act in relation to each of the named personal defendants centres squarely on the premise that each of them, at the relevant time, was concerned in the management of the respective corporations. That was a premise to which significant issue was taken on behalf of the personal defendants and is dealt with later in this judgment. 16 The correlation between the ss15(1) and 16(1) charges involving the corporate defendants and the corresponding s50(1) charges is set out in Annexure A to this judgment. 17 Annexure B to this judgment also sets out in full the details of each of the offences alleged including the specific particulars and failures. That process has been undertaken following the approach taken in Annexure A. That is, a correlation between the corporate defendant and the associated natural person defendant. 18 The approach I intend to take in this judgment in dealing with the matters before me is as follows: (i) Type 3 alleged offences: planning, research and assessment charges; (ii) Type 2 alleged offences: system of work charges; (iii) Type 1 alleged offences: night shift charges. 19 That approach, in my view, more properly follows the chronology of certain factual matters common to all of the alleged offences. As well, many of the alleged failures as particularised in the Type 2 and Type 1 charges arise derivatively from the Type 3 charges. I will expand on that issue in due course. 20 Further, within the above approach, I propose to deal with the charges in this judgment as follows: Type 3 alleged offences: · Section 15(1) charge relating to NWCC: IRC Matter No. 3200/00. · Section 15(1) charge relating to OPL: IRC Matter No. 3206/00. · Section 16(1) charge relating to NWCC: IRC Matter No. 3203/00. · Section 16(1) charge relating to OPL: IRC Matter No. 3209/00. Type 2 alleged offences: · Section 15(1) charge relating to NWCC: IRC Matter No. 3199/00. · Section 15(1) charge relating to OPL: IRC Matter No. 3205/00. · Section 16(1) charge relating to NWCC: IRC Matter No. 3202/00. · Section 16(1) charge relating to OPL: IRC Matter No. 3208/00. Type 1 alleged offences: · Section 15(1) charge relating to NWCC: IRC Matter No. 3198/00. · Section 15(1) charge relating to OPL: IRC Matter No. 3204/00. · Section 16(1) charge relating to NWCC: IRC Matter No. 3201/00. · Section 16(1) charge relating to OPL: IRC Matter No. 3207/00. 21 The offences alleged concerning the named personal defendants will then be dealt with in the same order after determination of the threshold arguments raised on their behalf, particularly those going to 'concerned in the management of the corporation' as provided in s50(1) of the Act. 22 A list of those witnesses called by the prosecution and their relevant employment positions are set out in Annexure C to this judgment. 23 No witnesses were called on behalf of the defendants. Nine documentary exhibits were tendered. 24 Annexure D to this judgment is a glossary of coal mining terms used in this judgment. The explanatory notes for the terms listed have been drawn from a booklet provided to the Court by the prosecution at the commencement of the proceedings before me. The preface to the booklet states: The information in this booklet was largely drawn from NSW Coal Association Training and Safety Committee's publication 'Glossary of Coal Mining Terms' (2nd edition) 1985. 25 A copy of the glossary was provided to all parties for their information prior to its inclusion in this judgment. It is included in this judgment primarily as an aide memoire in relation to the use of coal mining terminology used in the evidence received. Relevant background facts and considerations covering the time period of all three charge periods 26 On 22 March 1994, the NWCC signed Coal Lease No. 1343 with the New South Wales Department of Mineral Resources (the DMR). That lease was one of a number of coal leases held by the NWCC in relation to the Gretley Colliery in the Hunter Valley. 27 As defined in the Coal Mines Regulation Act 1982 (the CMRA 1982) the NWCC was the owner of the Gretley Colliery. At all relevant times it operated the Gretley Colliery. 28 It is not disputed that as part of its mining operations at Gretley, the NWCC subsequently sought approval, as required, in accordance with s138(1) of the CMRA 1982 to utilise the miniwall mining method in order to mine a number of coal panels at the Gretley Colliery. Section 138(1) of that Act provides: Bord and pillar system to be used in underground mines No method of mining other than the bord and pillar system shall be used in an underground mine except with the approval of the Minister given on the recommendation of the Chief Inspector and subject to such conditions as the Minister may impose. 29 In September 1994 the NWCC lodged the s138(1) application with the DMR being an application for approval to use the miniwall mining methods for panels MW 39/45. That development included the panel that became the site of the inrush in November 1996. Those particular panels were originally numbered as MW 44/45 but were later renumbered and titled MW 50/51 panels. That renumbering occurred at a time prior to the inrush in November 1996. There is no significance to be attached to that change. 30 Following the initial application in September 1994 there was a subsequent application made by the NWCC to the DMR in August 1995 to vary its initial s138(1) application in relation to miniwall extraction. That later application also included reference to the panels that ultimately became known as MW50/51. 31 The above applications to the DMR contained detailed information as to the nature and location of the intended mining operations generally and the proposed miniwall operations in particular. For example, in his covering letter to the DMR dated 6 September 1994, Mr J Romcke, the then Mine Manager stated, inter alia: This application has been prepared in accordance with the requirements of the Coal Mining Inspectorate and Engineering Branch, namely: (a) Guideline Notes for the preparation of Applications to the Minister to extract coal pursuant to the provisions of s138 of the CMRA 1982 dated November 1992; and (b) Draft Guidelines for Mining under Flood Prone Land dated February 1994. 32 Included in the s138(1) application of September 1994 was information that went to matters of mine safety including, for example, ventilation and prior old mine workings. 33 The initial s138(1) application of September 1994 and the subsequent variation application in August 1995 were ultimately approved by the then Chief Inspector of Coal Mines, Mr Bruce McKensey on 5 January 1995. There were a number of conditions attached that went primarily to the issue of subsidence and notice to be given to various parties when miniwall mining was to commence. 34 Before the process of miniwall mining extraction could begin it was necessary for preparatory development work to be done. That development work involved the creation of roadways and cut-throughs within the designated coal panels. It was that development work that was being undertaken in 50/51 panel when the inrush occurred. 35 It would be correct to say that, generally, miniwall mining extraction would follow fairly soon after the preparatory development work was completed, although that was not always the case. 36 Having said that, there was an issue of significance between the parties about that matter that is central to one of the defendant's threshold arguments in relation to all of the charges before me. In short, counsel for the defendants submitted that the mining development work being undertaken in 50/51 panel at the time of the inrush was part of the work contemplated and approved by the DMR as part of the application made by NWCC under s138(1) of the CMRA 1982 in September 1994. As provided in s39 of the OHSA, the CMRA 1982 is associated health and safety legislation. As such, it was submitted, it was work 'expressly permitted to be done' as provided in s33(2) of the OHSA and accordingly, it could not form the basis for any offence under that Act. That is a matter that is dealt with in more detail later in this judgment. 37 The lease held by the NWCC in relation to the Gretley Colliery involved areas that had been previously mined. One of those areas was known as the Young Wallsend Colliery old workings. 38 The Young Wallsend Coalmining Company Ltd operated the Young Wallsend Colliery near Wallsend in or about 1890. The mine ceased operations in 1892 and was closed down. 39 In 1907, the mine was dewatered and coal mining resumed until 1912 or thereabouts when it closed again. Contrary to legislative provision, then and now, no formal Notice or Plan of Abandonment was registered with the DMR or its statutory predecessor or officers in relation to the Young Wallsend Colliery: See CMRA 1896 s30; CMRA 1902 s30; CMRA 1912 s37 and, for present purposes, CMRA 1982 s134. In 1928, the Young Wallsend Colliery was formally declared abandoned by the New South Wales Department of Mines. 40 As the evidence has established, the Young Wallsend Colliery consisted of mining activity in two seams of coal - the Young Wallsend Seam and the Borehole Seam. The extent of the mining activity in the Borehole Seam may well have been limited but there is no dispute that reference to the Young Wallsend Colliery referred to workings in the two seams. The Young Wallsend Seam was about 450 to 460 feet below the surface. The Borehole Seam was about 520 to 530 feet below the surface. There was a distance or interburden between the Young Wallsend Seam and the Borehole Seam of approximately 18 metres. 41 Mining activities at the Gretley Colliery at the time of the inrush, particularly in 50/51 panel, were in the Young Wallsend Seam. 42 When a corporation or person is planning to undertake underground mining activities in a particular area, whether it be in New South Wales or elsewhere, it is obvious that one of the most important matters to determine is whether the area intended to be mined has been previously mined. In other words, are there any old mine workings to take account of in addition to any geological or other like considerations? 43 At this point in the judgment it is sufficient to state that in taking steps to ascertain the presence or otherwise of the old workings relevant to their planned mining activities, mine management at Gretley obtained from the DMR copies of the mine plans relevant to the old workings of the Young Wallsend Colliery. 44 The copies of those mine plans obtained from the DMR were incorporated into and known as Record Tracing 523 (RT 523). The copies of the mine plans purportedly depicting the Young Wallsend old workings in the Young Wallsend and Borehole Seams were identified as RT 523 Sheet 3 and Sheet 2 respectively or the Top and Bottom Seam respectively of the Young Wallsend old workings. 45 As the numbering would suggest, there was also Sheet 1 to RT 523. That consisted of the old workings of the Young Wallsend Colliery depicted on the one Sheet superimposed on each other. The import of RT 523 Sheet 1 to the proceedings before me is considered in more detail further in this judgment. 46 As has now been established, the depiction of the purported Top and Bottom Seam workings in RT 523 Sheets 3 and 2, obtained from the DMR, were wrong. Evidence called by the prosecution would strongly point to the conclusion that, predominantly, the red and black workings depicted in RT 523 Sheet 1 were in one seam, the Young Wallsend Seam. Further, evidence given about a drilling survey from 50/51 panel after the inrush would suggest that very limited workings existed in the Borehole Seam. That is another issue I will return to in more detail in due course. 47 The workings depicted in RT 523 Sheets 2 and 3 as workings of the Young Wallsend Colliery in a Top and Bottom Seam were not only wrong but proved to have disastrous consequences. As was established after the inrush, the south eastern boundary of the old workings of the Young Wallsend Colliery in the Young Wallsend Seam were always 100 metres or more closer to the proposed mining activity boundaries for 50/51 panel than the official mine plans for Gretley Colliery were depicting at all relevant times. 48 Unaware of the true position of the Young Wallsend Colliery old workings, mining activity in 50/51 panel resumed on or about 16 September 1996. There had been work undertaken in 50/51 panel some time earlier but that had ceased while work was undertaken elsewhere in the Colliery. When work resumed in September 1996, it was at or about 4 cut-through. 49 The development work being undertaken in 50/51 panel involved driving three roadways running parallel with each other, known as A, B and C heading respectively. Of the three roadways, B heading was the travelling road and C heading was the return road for ventilation purposes. In 50/51 panel at the time of the inrush the conveyor belt was also in C heading. At relatively regular intervals, cut-throughs were created at right angles between the three roadways to join the roadways to each other. As each cut-through was created it was sequentially numbered - the numbering of the cut-throughs going inbye along the length of the development. For diagrammatic purposes only and in order to understand the relationship between the three main roadways or headings and the cut-throughs in 50/51 panel, reference should be made to Annexure E. That is a copy of exhibit P14A reduced to A4 size. 50 At the point of the inrush at the face of C heading on 14 November 1996, the development of C heading had progressed 69 metres beyond 7 cut-through. That distance is calculated by reference to exhibit P1A and the measurements calculated and entered on that scale by Mr Mark Foley, then a survey assistant at Gretley. No issue was taken as to the accuracy of the measurements entered by Mr Foley and I accept them as being correct. 51 Exhibit P1A also demonstrates that the distance between each of the cut-throughs from 4 to 7 was 100 metres, whereas the distance between 3 and 4 cut-through was 23 metres and that between 2 and 3 cut-through was 18.5 metres. There is no specific relevance to those distances for my purposes except that they are of assistance in putting some of the factual matters surrounding the inrush into context. For example, when the inrush occurred, a number of the miners were in the crib room having their meal break. That crib room was located in 6 cut-through. By reference to exhibit P1A it is possible to calculate that they were some 169 metres away from the point of inrush at the face of C heading when the water rushed in and flooded the crib room at about 5:30am on 14 November 1996. 52 From 16 September 1996 to late October/early November 1996, by all accounts, mining activity in 50/51 panel continued relatively uneventfully. In the two week or so period before the inrush on 14 November 1996, there were some reports of water in 50/51 panel by two mine Deputies. The facts and circumstances of those reports and their relevance to the matters before me will be dealt with at the appropriate point further in this judgment. 53 The night shift (or dog watch) in 50/51 panel on 13/14 November 1996 commenced at 11:30pm on 13 November and finished at 7:30am on 14 November. Evidence about the events of that shift was given by the members of the crew who survived the inrush of water and gas. Their evidence is essentially undisputed. 54 The most detailed evidence as to the events of that shift was given by Mr Jay Franklin. 55 Mr Franklin is a miner by occupation and was so employed on the date of the inrush on 14 November 1996. He had been employed at Gretley Colliery since 1995. He left in 1998 and returned in 1999 and left later that year. When he commenced with the Gretley Colliery in March 1995, he was employed by United Mining Support Services (UMSS) and was then hired fulltime by the Newcastle Wallsend Coal Company. His employer at the time of the inrush was the Newcastle Wallsend Coal Company. 56 During his years of experience in the mining industry Mr Franklin worked mostly as an electrician except at the Gretley Colliery where he was employed as a miner. 57 On 14 November 1996 he was employed at Gretley and worked on the night shift. Mr Franklin had been on night shifts at the Gretley Colliery since March 1995. He worked in 50/51 panel and had been working there for some months prior to the inrush. 58 On 14 November 1996 Mr Franklin joined a team of fellow employees to travel to the face of C heading in 50/51 panel. In addition to himself, there was Ted Batterham (Deputy), Mark Hunter, Damian Murray, Mark Kaiser (Fitter), Wayne Nicholls and John McCallum. All of the above regularly worked the night shift at 50/51 panel except for Mr Hunter and Mr Murray who worked there from time to time. 59 On Mr Franklin's evidence - generally not disputed by others - it took some 35-40 minutes from the time of commencement of the shift to get to their place of work at 50/51 panel. With the exception of the Deputy, Mr Batterham, the other miners went to the crib room for some 10-15 minutes while Mr Batterham undertook inspections of the face to ensure that certain safety matters were in order. 60 The crew were operating a continuous miner. A continuous miner was described by Mr Franklin as follows: A. Yes. A continuous miner is a machine that actually cuts the coal. It cuts the coal and with the aid of a steel conveyor belt up the centre, delivers that coal up via a flexible conveyor or an articulated conveyor on the back into the shuttle cars. Q. I see. What is the mechanism by which it actually cuts the coal? A. Well, the heads. A solid head, which is approximately 3m wide by about 1m in diameter, and that particular head has tungsten tip picks in the head and the head rotates and cuts the coal. The coal falls down onto what we call the shovel. There's a shovel underneath the front with two arms that go like that (demonstrates). They gather the coal and feed it onto the conveyor. Q. The transcript has to get what 'like that' means. A. Sorry. Q. Could you try to articulate that? A. Okay, so we've got two arms that rotate, one in a counter-clockwise and one in a clockwise motion to actually push the coal onto the conveyor. Q. All right. A. Is that pretty right or ... Q. Yes, that seems to be getting some universal approval. 61 The continuous miner being operated at the time of the inrush was a Joy 12 CM Continuous Miner. As advised by the Joy Mining Machinery Company, such a machine weighed in the vicinity of 45 tonnes as built 'but if the colliery has added drill rigs the weight would obviously be more.' 62 Mr Franklin said that on that shift a decision was made as between himself and Mark Hunter to take turns to drive the continuous miner. 63 The arrangement was that Mr Franklin would drive the continuous miner for the first half of the shift and Mr Hunter would take over for the second part of the shift. 64 Mr Franklin worked on the continuous miner for an hour to an hour and a half when the cable broke. The cable carried the power supply to the continuous miner. That problem with the cable necessitated a delay in work of some one and a half to two hours while an electrician was called for. Mr Franklin and Mr McCallum then left in a mpv (motor powered vehicle) to get a new cable. They returned with that, the new cable was installed and steps were taken to recommence work. By this time it was approximately 4:00am or shortly after. Mr Franklin went to the crib room with Mr McCallum while the remaining members of the team set about the task of recommencing the operation of the continuous miner together with the shuttle cars. 65 When Mr Franklin left the work site at or near the face of C heading shortly after 4:00am on 14 November, those remaining behind were Mr Batterham, Mr Kaiser, Mr Nicholls, Mr Hunter and Mr Murray. When Mr Franklin and Mr McCallum went to the crib room located at 6 cut-through between B and C heading, Mr Steve Brown was in the crib room. Mr Brown had gone there after dropping off supplies to the section. Towards the end of the crib break Mr Nicholls joined them in the crib room. As Mr Franklin and Mr McCallum were preparing to return to the face of C heading, the door of the crib room burst open and water poured in. As Mr Franklin described, the water was 'swirling and pushing everything' and was about a metre deep. According to Mr Steve Brown, when the door burst open and the water rushed in, the volume of water was such that the height of the water was 'the full height of the door.' His initial response was to get up onto the crib room table in order to 'get out of the road of the water.' As soon as possible he got into his mpv and made his way out of the mine. 66 At about the same time Mr Franklin and Mr Nicholls got into an mpv and went outbye to see where the water was coming from. It was Mr Franklin's initial belief that the water was coming from the other direction to the face of C heading. Earlier in the shift he had noticed water seeping under the door of a stopping in the area he described as 52/53. Believing that may be where all the water was coming from, he and Mr Nicholls drove in that direction away from the face of C heading. When he and Mr Nicholls were proceeding outbye they ran into Mr Bernard, the outbye Deputy, who was coming towards them. Mr Bernard enquired as to where all the water was coming from. There was still a belief that it may be coming from another section of the mine. Mr Franklin, Mr Nicholls and Mr Bernard went to that area to see if there was any build up of water in the returns or near the dams. When it was determined that there was no excess water in the returns or the dams Mr Franklin said Mr Bernard commented 'There's no excess water in the return. They must have holed into the old workings.' 67 Mr Franklin, Mr Nicholls and Mr Bernard went to the crib room of C heading at 6 cut-through in 50/51 panel. Mr Franklin was directed to try and make phone contact with 52/53 panel to tell them of the problem. Mr Bernard and Mr Nicholls went towards the face of C heading along the travelling road of B heading. Mr Franklin was unable to make phone contact because of problems with the phone. Shortly thereafter Mr Bernard returned and according to Mr Franklin said words to the effect that 'My methanometer is off the scale here and the place is virtually full of gas and if we don't get out of here, we're goners.' 68 According to Mr Franklin, Mr McCallum, who had gone towards the face of C heading when he (Mr Franklin) and Mr Nicholls had departed outbye in the mpv, was seen staggering outbye along B heading in obvious distress. They waited for him to stagger further towards them. According to Mr Franklin, Mr McCallum was having a fair bit of trouble breathing. Mr Franklin, Mr Bernard, Mr Nicholls and Mr McCallum all got into the mpv and drove out to the main travelling road. Mr Bernard was dropped off at a point near 52/53 panel. Mr Franklin, Mr Nicholls and Mr McCallum made their way out of the pit. On the way they encountered Mr Phillip Pritchard, the Under Manager of the mine for the night shift. 69 Mr Franklin saw no evidence of unusual water in 50/51 panel before the inrush either before the day of the inrush or at or about the time of the inrush. 70 Mr Wayne Nicholls gave evidence that he was also employed on the night duty shift on 13/14 November 1996. He had been at Gretley Colliery some three years prior to November 1996 and ceased employment at Gretley in 1998. His employer at the time that he worked at Gretley was Newcastle Wallsend Coal Company. 71 Mr Nicholls confirmed that on the 13/14 November 1996 night shift, in addition to himself, Mr Pritchard was the Under Manager, Mr Batterham was the Deputy and, on the team that went to the face of C heading in 50/51 panel, there was himself, Mr Franklin, Mr Kaiser, Mr Hunter, Mr Murray, Mr McCallum and Mr Batterham. 72 Mr Nicholls corroborated Mr Franklin's evidence in relation to the way in which work proceeded, the break down in relation to the cable, the need for a new cable to be installed and that production started again some time after 4:00am that morning. Mr Nicholls gave evidence that he drove a shuttle car until approximately 5:20am when he went to the crib room. 73 When Mr Nicholls had left the face of C heading, Mr Hunter was on the continuous miner, Mr Murray was working the cable, Mr Kaiser was in one of the shuttle cars and Mr Batterham as Deputy was at the face. 74 Mr Nicholls stated that shortly after he arrived at the crib room water burst into the room under considerable force. Like Mr Franklin, he thought the water was coming from outbye. Earlier in the shift he had seen water coming through a trap door near a stopping in the Cocked Hat Creek area. 75 Mr Nicholls confirmed that he went with Mr Franklin in the mpv in the general direction of outbye to check on the source of the water. While doing that, they ran into Mr Bernard and the issue of the water possibly coming from one of the dams or the returns was raised and they checked them and found them to be okay. 76 Mr Nicholls gave evidence that he and Mr Franklin and Mr Bernard returned inbye towards the face of C heading. At or about 6 cut-through and coming from the direction of 7 cut-through down the B heading or travelling road, Mr McCallum was seen staggering. Mr Nicholls corroborated the evidence of Mr Franklin in relation to Mr McCallum and how he, Mr McCallum and Mr Franklin got out of the pit. 77 In cross examination Mr Nicholls agreed that water is a common feature in most mines in the Newcastle area and that the continuous miner sprayed water at all times in its operation to dampen coal dust. Additionally, Mr Nicholls confirmed, as well as being used in the use of the continuous miner, water is also used in the bolting procedure as part of the use of the continuous miner. 78 On the night of the inrush and before it happened, Mr Nicholls was some four metres from the face of C heading. He said the visibility near the face was good. There were some four lights on the continuous miner plus the cap lamp for each miner. He agreed that the face of C heading in 50/51 panel went uphill 'inbye' and that the condition of the face at C heading in 50/51 panel was 'good' - better than many he had seen. 79 The third surviving member of the crew on that night shift was Mr John McCallum. 80 Mr McCallum is currently employed as a security officer but in 1996 he was employed at the Gretley Colliery. His employer was UMSS. Before working at the Gretley Colliery, Mr McCallum had had some ten years experience in the mining industry. Prior to the inrush he worked in 50/51 panel for a couple of months, always on the night shift and mainly drove the shuttle cars. Mr McCallum remained at Gretley for some 12 months after the inrush. 81 Mr McCallum gave evidence as to the routine followed by the members of the night shift crew from the time they left the top of the pit and arrived at the unit some 35 minutes later. In that respect he corroborated the evidence of Mr Franklin and Mr Nicholls. 82 On that night, Mr McCallum was working on one of the shuttle cars, looking outbye. Mr Nicholls was driving the other shuttle car. Mr McCallum confirmed the procedures observed when the cable broke down, of having to secure a new cable and that it took until approximately 4:10am for that procedure to be completed when he went to the crib room with Mr Franklin. When he left the face, Mr McCallum confirmed that Mr Hunter, Mr Batterham, Mr Murray, Mr Kaiser and Mr Nicholls remained. Mr McCallum went to the crib room with Mr Franklin and was there from approximately 4:15am until just before 5:30am when they were joined by Mr Nicholls. As he and Mr Franklin were getting ready to leave, the door burst open and a 'river of water' came through into the crib room. 83 When Mr Franklin and Mr Nicholls went in the mpv in the general direction of outbye to try and locate the source of the water, Mr McCallum went to the face of C heading via the travelling road in B heading. Mr McCallum gave evidence that when he got to 7 cut-through where the shuttle car was, he looked towards C heading and saw a river of water. 84 Mr McCallum said that there was approximately half a metre of water in 7 cut-through flowing in the general direction towards A heading. No water was diverging down B heading because a shuttle car and loose coal had piled up in 7 cut-through, preventing a great flow of water down B heading. From 7 cut-through, Mr McCallum could see the water flowing down C heading running along the rib up to a height of about 5 feet. 85 Mr McCallum stayed at 7 cut-through for some one to two minutes. He said it was a spur of the moment decision to go there to see if his work colleagues were okay. He returned to the crib room and when he did, the phone in the crib room rang. It was Mr Phillip Pritchard. Mr Pritchard was ringing to speak to Mr Batterham to get the report from him and Mr McCallum said in evidence: I told him that Ted and the other boys were still up the face, that there was some water coming in and it had come through with some force through the door in the stopping in the crib room. And he told me to go back up the face, or up to where I was standing, have a quick look and then get out of there. 86 Mr McCallum went back up B heading to 7 cut-through but was overcome by methane or other gases. He fell to his knees and crawled back towards the crib room. As he described: I went back up to where I was standing, but this time I thought I'd try and go a little bit further to get a better vantage point. I thought I'd jump up into the throat of the shuttle car that was in the shunt. But I didn't make it that far. The next thing I remember after that was I was on my hands and knees facing back outbye in the water hyperventilating. I couldn't breathe properly. And I just sort of crawled back to the corner and then I could see the lights outbye of the transport and I sort of pulled myself back up onto the rib, staggered back along the rib until I could get a decent footing and then made my way back to the crib room. 87 The others (Mr Franklin, Mr Nicholls and Mr Bernard) were there and he was taken out via an mpv. 88 Mr McCallum said that when he first saw the water in the crib room he was not sure where it was coming from but that he had seen water earlier at the stopping near 2 cut-through. 89 Approximately one week after the inrush Mr McCallum returned to the face of C heading and he saw the hole of the inrush which was approximately some one metre square. He noted that the tide mark on the ribs of the heading were some five and a half to six feet. When pressed, he explained the tide mark as the absence of the stone dust that was on the ribs. As he explained: Well stone dust is around the ribs. You spray it around the ribs, in the roof and everything in case there is an explosion. The stone dust stops - aids in the prevention of a fire. 90 Mr McCallum stated that the absence of stone dust on the ribs was evidence of how high the water had gone on the night of the inrush. He agreed that 50/51 panel was a relatively dry one compared to others because of the downward incline of C and B headings towards outbye. 91 On the night shift of 13 and 14 November 1996, the shift of the inrush, Mr Bernard was the outbye Deputy and Mr Pritchard was the Undermanager. Mr Pritchard was running late for the commencement of the shift and Mr Shacklady filled in for a period. 92 In his capacity as outbye Deputy, Mr Bernard had no cause to go to 50/51 panel that night. 93 Mr Bernard had his crib break at approximately 5:00am in the Cocked Hat Creek crib room. As he said: I went to crib and I had the crib break. I started to write a few - do some of my reports. And at 5:30, approximately 5:30, I stood up ready to go and get into the transport and go to the surface and at that stage an inrush of water came through the cut-through. It was the full width of the board and approximately half a metre deep. 94 Mr Bernard says that at that point: I went into the transport that I had with me and proceeded to drive up to where the dam area was. On the way up there I decided not to go to the dam area. I turned into the turn area of the access road to 50/51 to see whether there was actually water flowing through that area of the mine from the dams. At that stage I met transport - an mpv vehicle coming out with two men in it, Mr Franklin and Mr Nicholls, and they told me that they had seen water coming out of a certain cut-through, I can't remember the numbers of it at this time, and which, to me made me think again that the dams had actually let go. I then took the transport up to the dam area and went to a telephone there and rang Mr Pritchard at the surface and told him we had a major water problem and I was going to inspect the dams. 95 After he inspected the dams, Mr Bernard ascertained that while there was an amount of water flowing over the top of the dam, there was not enough to cause the amount of water he had seen. He then came back out and spoke again to Mr Nicholls and Mr Franklin and they informed him of the amount of water that had come into the crib room of 50/51. From that he says: I straight away assumed that they had holed the old workings. I then rang the surface and notified, I think I spoke to Mike Coffey on the surface at that stage. 96 Mr Bernard then went in his transport to 50/51 panel with Mr Franklin and Mr Nicholls. He saw Mr McCallum staggering along the B heading between 7 and 6 cut-through. His (Mr Bernard's) lamp light went out which he said indicated to him that the methane levels were very high and therefore they were not able to go further to assist Mr McCallum. Efforts were made to try to ring to the surface but the phone was not working. Eventually Mr McCallum was able to get himself back to the crib room at 6 cut-through and Mr Franklin, Mr Nicholls and Mr McCallum were directed out of the pit. Mr Bernard remained and waited at the phone near the dam area for Mr Pritchard to arrive. 97 When Mr Pritchard arrived, he and Mr Bernard opened up the air regulator to assist ventilation in the return area for 50/51 panel and monitored the gas levels. 98 Mr Pritchard recalls methane readings of about 1% that indicated to him that 'we had gas in the general returns atmosphere of the mine.' That reading was taken in what was identified as the Cocked Hat Creek area of the mine. Mr Bernard remained at the phone area until after the mines rescue team arrived. He later accompanied one of the rescue team to the surface and left the pit. 99 It is not in dispute that there was an inrush and that that inrush occurred when the continuous miner holed into old workings. Those old workings were clearly full of water. That the water flowed with considerable force is evident by the fact that, after the inrush, the Joy Continuous Miner, weighing some 45 tonnes, was located about 20 metres inbye the shuttle and positioned diagonally across C heading. The switches on the control panel of the miner indicated that the machine was probably being operated when the power went off. 100 I am also satisfied that concurrent with the inrush of water from the old workings, there was an increase in toxic gases into 50/51 panel. On the evidence of Mr McCallum as to the direct effect of those gases upon him as well as Mr Franklin's unchallenged evidence of Mr Bernard's assessment of the methane levels in 50/51 panel immediately after the inrush, I am satisfied that immediately after the inrush and as a consequence of it, there was an increase in methane levels and/or the presence of black damp such as to constitute dangerous gases. 101 As well, on the day of the inrush, at about 2:30pm, an underground inspection of 50/51 panel was conducted by a party including DMR and corporate officials. The inspection party was only able to approach within a certain distance of the face of C heading. Mr Van Dijk, the then District Inspector for the DMR, was part of that inspection party. As he observed and reported: (i) From the right hand side of the miner he was able to see the face and a hole was evident near the floor of the face, while water was gushing from this hole. (ii) High gas (including 7% methane layer) and water levels and lack of oxygen prohibited progress beyond the continuous miner. 102 Photographs taken on 14 November as well as subsequent inspections as the water subsided and conditions improved demonstrated evidence of the hole that had breached the old workings. As well, the water mark left by the inrush, as measured and plotted on exhibit P1A, indicates that the flow of water in C heading was at the level of the roof for 49 metres from the face. The watermark then subsided and was still about half the height of the heading at cut-through 6, which is 169 metres from the face. 103 That it was the workings that had been holed into was evidenced by Mr William Cowan, a District Inspector with the DMR, who attended the Gretley Colliery on the day of the inrush to assist with the initial emergency and investigations. As he stated in evidence: Q. If I could go to the day of the inrush. Did you make any investigation of where the holing-in occurred? A. What I did around about half past 11, when Bill Flett arrived at the mine, we went into the surveyor's office and I asked the surveyor if he could plot on what we thought was the Borehole Seam workings where the current Young Wallsend Seam workings were. And he plotted that for us and the plot indicated that the current Young Wallsend Seam workings were precisely at the lowest point on the Borehole Seam workings. Q. Now, when you say the surveyor, who are you talking about? A. Mark Robinson. Q. When you are talking about the Borehole Seam workings that you looked at, did you look at a plan? A. They had a plan there which had the Borehole Seam workings on them. They - I asked them did they, and they brought out a plan in which the Borehole Seams (sic) were on. It might have been an overlay, but I asked them to do it. It might have been an overlay. They used an overlay with the Borehole Seam which they overlaid over the Young Wallsend Seam. 104 On 21 November 1996, one week after the inrush, Mr Van Dijk conducted an examination of 50/51 panel including an examination of the old workings from the holing point, through which the inrush occurred. It revealed, amongst other observations, props of the old workings and, within 400mm of the old Young Wallsend Colliery, the pick marks from the continuous miner cutter drum or cutting head were evident at the coal face. 105 According to Mr Van Dijk, the latter observation meant the continuous miner had been operating up to that face and that, other than for the last 400mm or thereabouts of the inrush hole, the face had not been pushed out by the inrush. 106 On 25 November 1996, Mr Van Dijk took an A3 size copy of the Record Tracing 523 Sheet 2, namely the Bottom Seam Sheet depicting the Young Wallsend old workings with him on an inspection of 50/51 panel. He was able to identify features of the old workings and compare them to the plan. In Court, he marked a copy of this plan with colour highlighters to match its features with his observations set out in his statement. Also in Court, Mr Van Dijk was able to match what is depicted in the photographs taken in parts of 50/51 panel with features of the south east arrowhead in the (so-called) Bottom Seam workings. After objections, photograph 31(f) in exhibit P97 (to which there was no objection to the captions on each photograph) was marked to show features such as the inrush point, the cut-through off to the right, the beginning of the welsh bord off to the left and the intersection at 90 degrees approximately to the heading. 107 The Coroner's medical reports record that the cause of death of each of the deceased was drowning. Threshold issues for determination 108 In the course of the hearing before me or as part of final submissions, counsel for the defendants have raised a number of issues that require to be addressed before the substantive offences can be dealt with. (i) Multiplicity of charges 109 On behalf of the defendants it was submitted that the way in which the prosecution had chosen to divide the alleged offences into the three identifiable time periods created circumstances of oppression and unfairness. 110 To understand the context of the defendant's submissions in this matter it is of assistance to understand the three time periods identified in the charges alleged by the prosecution by reference to the following diagram which graphically depicts the periods as follows: 111 Reference to L, M and S refer to the defendant's method of identifying the three charge periods as Long (L), Medium (M) and Short (S). The correlation between that and the prosecution's chosen method of identifying the charge periods is as follows: (i) Long (L) period = Type 3: planning, research and assessment charges; (ii) Medium (M) period = Type 2: system of work charges; (iii) Short (S) period = Type 1: night shift charges. 112 As can be observed by reference to the above diagram, the prosecution has overlapped the alleged offences. The risk to safety identified in relation to all offences under all three time periods is the same. That is, the risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend old workings. Within the specified time periods, the prosecutor has also duplicated a number of the contraventions alleged. 113 For example, IRC Matter No. 3198/00 is an offence alleged under s15(1) of the Act against NWCC in the Type 1: night shift (or short) period. That offence is said to have commenced at 11:30pm on 13 November 1996. IRC Matter No. 3199/00 is a further alleged offence arising under s15(1) of the Act against NWCC in the Type 2: system of work period. That offence is said to have ended at 11:30pm on 13 November 1996. Between those alleged offences, the following common contraventions are pleaded: (a) Allowing the employees to work in the area of 50/51 panel and in particular in 'C' heading. (b) Allowing the operation and use of the continuous miner at the face of 'C' heading. (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. (d) A failure to ensure that there was any, or any adequate, barrier between where the employees were working and the Young Wallsend coal workings. (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. (f) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees. 114 The only difference between the above failures pleaded is that in relation to IRC Matter No. 3198/00, the addition of the words 'or any' in failure (d) appear. 115 Apart from that minor addition, there are some factual particulars that are different (such as specific employees alleged to be at risk) as well as the temporal component. But the failures as pleaded, going as it were to the core of the alleged offences, remains the same. 116 On that point and referring to the overlap as between the system of work and night shift charges, counsel for the prosecution submitted the period of the acts or omissions of these two types of charges are different temporally and that it is of no consequence that some of their respective failures or omissions overlap as they deal with different time periods. Further, it was said, the simple reality is there are differences in the proof of facts required for different time periods in these two types of charges. 117 It is difficult to conceive what the prosecution relies upon by reference to 'differences in the proof of facts required for different time periods.' For example, the proof of facts required to establish the defendants' alleged failure to allow mining activities in C heading in 50/51 panel up to the commencement of the night shift at 11:30pm on 13 November as part of the system of work offence and the same failure commencing at the same time as part of the night shift charge does have every appearance of relying substantially on the same proof of facts. 118 When one has regard to the further particulars of the respective charges (IRC Matter No.'s 3198/00 and 3199/00) the difference in the further particulars pleaded is the temporal component and the identity of the particular employees said to be at risk. As well, in IRC Matter No. 3198/00, the following further particulars are pleaded: · On 14 November 1996, the continuous miner holed in to the Young Wallsend coal workings. · The holing-in resulted in an inrush of water into C heading of 50/51 panel. 119 Those differences are what I would describe as relatively minor differences in the proof of facts required as between the two offences identified. But it has to be said those differences are more reflective of the continuing nature of the offences alleged in the first instance rather than them being substantively different offences. In other words, relying on the prosecutor's contentions, allowing employees to work in 50/51 panel in IRC Matter No. 3198/00 was, all other things being equal, if established in IRC Matter No. 3199/00, always going to be a continuing offence regardless of whether the holing-in had occurred or not. It was, on any view, part of the overall system of work. The fact that the prosecutor pleads it again, and this time denotes it as a 'night shift' charge does not, it seems to me, add one iota to the defendants' ultimate liability as far as the substance and objective seriousness of the defendants conduct. 120 While the prosecution may say that such an approach is permissible within the widest construction of s49A of the OHSA 1983, it is an approach that should be discouraged. It carries with it the danger of offending against the rule of double jeopardy. As well, it seems to me that it serves no useful purpose within the context of the Act or s49A in particular to break up the alleged contraventions of the defendants, relying predominantly on a temporal component with duplication of alleged contraventions simply to add to or create additional offences. This is particularly so where the prosecution is faced with a factual situation of continuing workplace activity encompassing those alleged contraventions. Further, it has to be asked whether such a pleading device materially adds to the substance and objective seriousness of the offences charged. And it is no satisfactory answer, it seems to me, for the prosecution to argue that any duplicity that arises can simply be addressed in the sentencing process. In this respect, I can only endorse the sentiments expressed by Haylen J in Robert Darcy Coombs v Patrick Stevedores Holdings Pty Limited [2004] NSWIRComm 77, particularly at paras [5] and [6] as follows: I have recently observed that this part of the Court's jurisdiction is something of a hybrid utilising aspects of pleading in cases of common law negligence within a criminal jurisdiction and involving potentially very high penalties (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452; 12 December 2003). This unusual aspect of the jurisdiction, however, provides no warrant to avoid simple and precise pleading and provides no authority for lengthy and multiplicitous particularisation. Over particularisation of a prosecution case inevitably leads to an ill defined defence case where wide ranging matters are raised in cross-examination or in evidence generally only to be discarded by the end of the case. ... ... In making these comments, I acknowledge the often difficult task which faces a prosecutor, especially in circumstances where a workplace accident highlights a variety of risks to employees which are available to be pleaded under the provisions of the Act. Nevertheless, there is a public interest in the prosecutor focusing attention on the most serious aspects of those risks when commencing proceedings in the Commission in Court Session. It is not infrequent that the Court is involved, even where there is a plea of guilty to a limited number of particulars, in an extensive hearing and significant time taken in deliberation where the additional particulars or a number of them do not add materially to the substance and objective seriousness of the offence. When that occurs, justice is not served: the resources of the parties are increasingly devoted to minutiae and ultimately the Court is required to consider a case which may not have required such extensive attention. 121 The problems posed for the Court by the form of the pleadings was also recently touched upon by Peterson J in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 at paras [3] and [4] and Kavanagh J in WorkCover Authority of NSW (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamante [2003] NSWIRComm 35 at para [12]. 122 To all of the above comments, I would also add the important consideration of public interest. There is the need, in my view, for a prosecutor to weigh the additional time and cost that such overlapping and repetitive pleading creates against the need to charge a person with an offence that balances time and cost considerations against the genuine public interest in pursuing charges that properly reflect the overall criminality of the defendants' conduct. Duplicating contraventions over differing time periods in the context of continuing offences as part of a system of work is not, it seems to me, evidence of such an approach. 123 I have commented earlier of my concerns in relation to double jeopardy in the approach taken to pleading alleged contraventions based on a continuing course of workplace activity underpinned essentially by the same proof of facts and distinguished only, as are some the matters before me, by the temporal component determined by the prosecution. The common law rule against double jeopardy is that an accused person should not be placed in peril of being convicted of the same crime in respect of the same conduct on more than one occasion: see Connelly v DPP [1964] AC 1254 and Davern v Messel (1984) 155 CLR 21. 124 In Sentencing Manual: Law Principles and Practice in NSW: Judicial Commission of NSW at p223, the following useful commentary as to the expression appears as follows: The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be punished again for the same matter. Further, double jeopardy is an expression that is employed in relation to several different stages of the criminal justice process - prosecution, conviction and punishment: Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 at [9]. 125 It should also be acknowledged that, at common law, a person may be convicted of two offences in respect of the same conduct. That principle was reaffirmed and the application of the test of double jeopardy was considered in Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502. In that matter Gleeson CJ said at 507-508: Both the proposition that a person cannot be punished twice for the same offence, and the related proposition that where one offence is an element of a more serious offence (or, to put it another way, where the second offence charged is merely an aggravated form of the first offence) a person cannot be convicted of both, are well-established. R v Dodd (1991) 56 A Crim R 451 provides a recent example, in this jurisdiction, of the latter. As was pointed out in that case however (at 457), it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last-mentioned proposition itself requires elucidation. Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts. In Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 510, Hope J said: '…There is no reason why an act may not be prohibited by two separate statutes and …involve an offence under each statute.' That statement, as part of his Honour's reasoning in the case, was approved by the Court of Appeal in that case ([1973] 1 NSWLR 229) and also in Sydney City Council v Paul Dainty Corporation Pty Ltd [1984] 3 NSWLR 104 at 107: see also Australian Oil Refining Pty Ltd v Cooper (1989) 11 NSWLR 277. The Supreme Court of South Australia has, on a number of occasions, most notably in R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219, taken what some would regard as an expansive view of the rule against double jeopardy, and indicated a willingness to apply it in a case where a second charge relates to the same set of facts as those in respect of which there has been an earlier conviction. However, the problem of defining the relevant set of facts was clearly acknowledged. Bray CJ said (at 225-226): The view I take then is that a man should not be convicted again in respect of any act or omission for which he has previously been punished but it is necessary to define with some care the precise act or omission for which he was previously punished in order to see whether it is the same act or omission which is in question in the second prosecution. Wells J (at 258) said the rule was wide enough to cover cases where: '…the facts and circumstances that constitute the gist or gravamen of the later charge are in terms, or in effect, the same as those constituting the gist or gravamen of the former.' (See also Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205.) Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another. It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provision or administrative action, there are some kinds of conduct which almost inevitably involve participants in multiple breaches of the law. For example, the scheme of the customs legislation and regulations is such that a transaction or dealing designed to evade customs duty is highly likely to expose the offender to multiple penalties: cf Scott v Geoghegan and Sons Pty Ltd (1969) 43 ALJR 243. This will be because various steps in the transaction are likely to contravene various prohibitions. That is not ordinarily regarded as involving double jeopardy in the technical sense. 126 The necessity to consider the rule against double jeopardy was also the subject of judicial review in Pearce v The Queen (1998) 194 CLR 610. In the majority decision, McHugh, Hayne and Callinan JJ, their Honours analysed those cases that were said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts with particular reference to Wemyss v Hopkins (1875) LR10QB 378. In their Honour's opinion (at 618) reliance on Wemyss and other cases in support of that proposition may not be necessarily available. As their Honours said at 618: Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor? Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a plea. In any event, such a test would, as we have said, shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence. It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused. 127 In considering this issue, their Honours referred with approval to the decision of the Supreme Court of the United States in Blockburger v United States (1932) 284 US 299 at 304 as follows: …where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of a fact which the other does not . (emphasis added) 128 Overall, applying the reasoning in the above authorities to the matter before me, it is clear that quite apart from temporal considerations, the system of work alleged contraventions (a), (b), (c), (e) and (l), while expressed in identical terms to alleged contraventions (a), (b), (c), (d) and (f) of the night shift charge rely on differing factual particulars or differing aspects of primary facts in order to establish the gist or gravamen of the alleged offences. Accordingly, in the particular matters before me, no issue of double jeopardy arises. 129 Having come to that view, it would still be appropriate in my view, to take into account what I would characterise as duplication in relation to the alleged contraventions pleaded, particularly when taking into account the continuing nature of the workplace activity involved, in order to address any notion of double jeopardy punishment as contemplated in Pearce v The Queen (1998) 194 CLR 610. 130 I should also add that, to the extent that it was canvassed by the defendants, I see no basis for a stay of any of the proceedings before me: see Pearce v The Queen at 620-621. (ii) Application of section 33(2) of the Occupational Health and Safety Act 1983 as a defence to the offences charged 131 One of the central planks of the defendant's submissions went to the relationship between the CMRA 1982 and the OHSA 1983 and the respective regulatory frameworks. The specific legislative provisions relied upon are ss33 and 39 of the OHSA 1983 and s138 of CMRA 1982. 132 At this point, the defendant's contentions can be shortly described as follows. Section 39 of the OHSA provides that the CMRA and the regulations and rules made under that Act are to be regarded as associated occupational health and safety legislation. There is no issue as to that provision. Section 33 of the OHSA 1983 provides: (1) Except as provided by subsection (2), where any provision of the associated occupational health and safety legislation is inconsistent with a provision of this Act or the regulations, the provision of this Act or the regulations shall prevail. (2) A person is not guilty of an offence under Part 3 in respect of any act or omission which is expressly required or permitted to be done or omitted by or under the associated occupational health and safety legislation. 133 The provisions of s33(2) are relevant to the defendant's submissions on this issue. To start with, it was intended at all times by the defendants to mine the 50/51 panel utilising the miniwall mining system. That mining method, unlike the bord and pillar system, required approval from the DMR pursuant to the provisions of s138(1) of the CMRA. Section 138 provides: (1) No method of mining other than the bord and pillar system shall be used in an underground mine except with the approval of the Minister given on the recommendation of the Chief Inspector and subject to such conditions as the Minister may impose. (2) Where the bord and pillar system of mining is used: (a) the pillars shall be of such dimensions as may be prescribed, (b) the width of the roadways, bords, cut-throughs, headings and pillar splits shall not exceed the prescribed width, (c) the Chief Inspector may approve or direct a variation in the dimensions of pillars, (d) the Chief Inspector may approve or direct a variation in the width of the roadways, bords, cut-throughs, headings or pillar splits, and (e) pillars shall not be removed except with the approval in writing of the Minister and subject to such conditions as the Minister may impose. (3) For the purposes of this section, a pillar shall be deemed to have been removed if its dimensions are reduced to less than: (a) the prescribed dimensions, or (b) such other dimensions as the Chief Inspector has approved or directed pursuant to subsection (2) (c). 134 Accepting that approval was given to undertake the miniwall mining method in 50/51 panel, as it was, the defendants contend that the work that was being undertaken in 50/51 panel leading up to the inrush was part of that approval. As such, it was said, it was work expressly permitted to be done as provided in s33(2) of the OHSA. Accordingly, it was submitted, all of the defendants are not guilty of any offence under Part 3 of the OHSA 1983. 135 Before dealing with the substance of that contention, it is necessary to state that there was not agreement between the parties that the work being undertaken in 50/51 panel in the months leading up to and including the inrush was included within the approval given by the DMR pursuant to s138(1) of the CMRA 1982. On behalf of the prosecutor, the work that was being done at the time of the inrush was initially described as development work preparatory to undertaking the miniwall mining method. In subsequent submissions before me, and by way of clarification, counsel for the prosecutor submitted that the work being undertaken in 50/51 panel at the time of the inrush were first workings being carried out by the bord and pillar method. Some explanation is required at this point. 136 As I have understood the evidence given before me, when underground mining activity is undertaken, it is generally undertaken at least in two stages. In other words, whatever the mining method intended to be undertaken, there is the need to undertake preparatory development work leading to the ultimate extraction of the optimum amount of coal. For example, in relation to the proposed miniwall mining method, it was necessary for mine management, in the first instance, to drive a series of roadways known as headings and to intersect those roadways or headings with cut-throughs. The length of the roadways driven were dependant on a number of factors such as lease boundaries, geological considerations and in the case of 50/51 panel, former old workings. In any event, the driving of requisite roadways and cut-throughs as planned was referred to as first workings. Obviously, coal was extracted in that process as it was necessary to do so in order to drive the roadways and complete the cut-throughs. Once the roadways and cut-throughs were completed, the next step or the second workings were then undertaken. That involved, as I understand it, the process of removing the large pillars of coal that were left standing as between the roadways and cut-throughs. That was done utilising appropriate heavy duty machinery known as a miniwall and mechanically cutting through the coal pillars. That process of extracting the maximum coal allowable, taking account of matters such as potential subsidence was known as second workings. What was left when second workings were completed was known as goaf. 137 On behalf of the prosecution it was contended that the work being undertaken in the months up to and at the time of the inrush in 50/51 panel was development work or first workings. Further, it was stated, it was workings being undertaken by the bord and pillar method. No approval is required from the DMR to undertake mining work by that method. Accordingly, the mining activity being undertaken in 50/51 panel at the time of the inrush was not work 'expressly permitted to be undertaken' such as to attract the protection from prosecution contended by the defendants relying on s33(2) of the OHSA. In other words, the prosecution saw a distinction between the work that was being done at the time of the inrush and the miniwall mining activity for which approval was given by the DMR pursuant to s138(1) of the CMRA 1982. 138 The defendants contend that for the prosecution to make such a distinction is not only wrong but contrary to any sensible approach to what was being undertaken within the Gretley mine and 50/51 panel in particular. In other words, it was said, notwithstanding that the work being undertaken in 50/51 panel might well be preparatory development work prior to miniwall mining being undertaken, the creation of the headings and cut-throughs was an essential prerequisite to undertaking that later work. Further, it would make no practical or financial sense for a mining company to undertake such expensive and extensive work of driving headings and cut-throughs in a coal seam if, at the end of the day, there was no intention to ultimately extract the coal utilising, on this occasion, the miniwall mining system. In other words, the defendants contend, the creation of the headings and cut-throughs that were being undertaken at the time of the inrush was a necessary and understood prerequisite encompassed within the application made by them to the DMR for approval under s138(1) of the CMRA 1982. For the prosecution to suggest otherwise was a nonsense. 139 To start with, there seems little doubt that what was being undertaken in 50/51 panel at all relevant times was what was referred to before me as 'development work' and only somewhat belatedly towards the close of proceedings, as 'first workings.' I do not think that distinction is of any moment at this point because I understand 'development work' and 'first workings' to be used synonymously within the industry. The process of development work leading to the miniwall mining method was explained, albeit somewhat briefly, by Mr Franklin, one of the miners on the nightshift on the night of the inrush, as follows: Q. Perhaps before I go on, this work that you were doing in this panel was development work, was it? A. That's right, yeah. Q. Can you tell us what development work is? A. Well, we were developing that section for the miniwall. Q. Right. A. Basically we were developing - well, we were driving that heading in order to eventually put the miniwall in there. Q. What's the miniwall? A. Well, the miniwall is a machine that continually cuts coal from left to right, backwards and forward - left to right and forward. Q. And that occurs after the development. A. Yeah, after you develop the unit into blocks of coal. You've got to develop the main blocks of coal first before you can cut it with the miniwall. 140 That approval under s138(1) of the CMRA 1982 was not required for development work or first workings was established in the evidence of Mr Flett, a District Inspector with the DMR. That evidence was elicited in cross examination as follows: Q. And that plan, [P_018A], was approved under section 138, is that right? A. Section 138, yes. Q. And that allowed Gretley to extract coal in the areas approved; is that right? A. To extract the areas shown as miniwall, that doesn't - the first working's not part of the 138, it is only the extraction part of coal apart from first workings, that's the part that is approved under 138. Q. And the 138 approves the extraction of coal for the area approved; is that right? A. Yes. Where it's shown on the plan it says 'MW44,' 'MW33,' et cetera, is what has been approved, not the first workings. Q. Yes. In order to get to those approvals, one has to build roadways and that is where the pillars and the like come in? A. They are first workings not part of the 138 approval. 141 That there is a two-step process as between the development or first workings and the ultimate miniwall mining system is also referred to in the budget presentation documentation prepared by OPL in relation to Gretley Colliery in September 1996. In that document (exhibit 57) under the heading 'Narrative,' the following extract appears: Two short blocks, originally named MW50 and MW51, will not be worked this year, although they will be developed. The reason for this is that as miniwalling beyond the split zone is no longer planned for 1998, the two blocks which were to be left for access to these reserves (MW46 and MW48) will be taken. The development pressures are lessened by this decision and one less miniwall move is required in 97. These two short blocks will be established so they can be taken at short notice at any time in the future. 142 What that extract establishes together with the other evidence to which I have referred is the two stage process involved in the miniwall mining process. That is, the development work followed by the miniwall process - the clear inference being that once the development work is done, the miniwall extraction process can be undertaken 'at any time in the future'. 143 In undertaking development work utilising the bord and pillar system, the bords are the system of roadways and cut-throughs that are created and the pillars are the stands of unmined coal encompassed within the roadways and cut-throughs. Once that work is undertaken, the miniwall is then brought into the panel to undertake the cutting of the coal in the manner described by Mr Franklin. 144 It seems clear to me that in law and in practice it is not necessary for a mine owner to obtain approval from the DMR pursuant to s138(1) in order to undertake what has been referred to before me as development work or first workings, utilising the bord and pillar method. I understand the view expressed on behalf of the defendants that it would make no practical or financial sense for any mine owner to embark on such an undertaking unless there was an ultimate intention at some time in the future to progress beyond the development or first workings into the second workings utilising the miniwall or some other mining method. That the work being undertaken in 50/51 panel at the time of the inrush was first workings or development work is not in dispute, it seems to me. What is in dispute is that the defendant says that, on any view, the application under s138(1) by the defendants in relation to 50/51 panel included, by implication, the development work being undertaken at the time of the inrush. 145 That contention is not one with which I can agree. On the evidence elicited by the defendant's counsel there is no doubt that approval from the DMR was not required for the development work being undertaken in 50/51 panel in the period leading up to the inrush in November 1996. True it is that the defendants intended to further proceed beyond the development work. If the Narrative that appears in exhibit 57 is to be accepted at face value, once that development work had been completed, it was the intention of the defendants to leave that particular panel at that time and return to extract the coal using the miniwall system at some later time, seemingly in 1997 or perhaps even later. 146 As well, the s138(1) approval given by the DMR points to it being an approval relevant to miniwall mining. For example, the letter from Mr McKensey, the Chief Inspector of Coal Mines, dated 5 January 1995, approving the s138(1) application states that approval was given for 'the proposed miniwall mining operations, in the Young Wallsend Seam.' That approval remained in force until 30 June 1998. The conditions attached dealt primarily with subsidence monitoring at the time of the miniwall mining as well as the need for mine management to notify diverse public utility authorities, owners/occupiers of nominated residential and other private structures in relation to the proposed commencement of miniwall operations. The District Inspector of the DMR was also required to be given one weeks notice. 147 In my view, the work being undertaken by the defendants in 50/51 panel at the time of the inrush was not work for which approval was required pursuant to s138(1) of the CMRA 1982. 148 Having come to that view, it should also be said that s138(2) does require that certain conditions be met in relation to the bord and pillar system of mining. That is, that the pillars shall be of such dimensions as may be prescribed, the width of the roadways, bords, cut-throughs, headings and pillar splits shall not exceed the prescribed width and any variation to the dimensions of pillars or the width of roadways, bords, cut-throughs, headings or pillar splits may be approved by the Chief Inspector of Coal Mines. Further, that pillars shall not be removed except with the approval in writing of the Minister and subject to such conditions as the Minister may impose. In relation to those provisions, the defendants did seek some variation in relation to the width of roadways in relation to the development work being undertaken in 50/51 panel. For example, exhibit P15A is a letter dated 18 October 1996 on OPL letterhead addressed to Mr Van Dijk as the District Inspector for the DMR seeking permission pursuant to s138(2)(d) to 'drive the installation roadway of MW48 and MW49 to a width of 6.0m. This width is required so that the miniwall equipment can be installed in these roadways.' 149 Reference to the accompanying plan to that letter refers to installation roads in MW50/51 6 metres wide. The letter is signed by Mr Porteous as the General Mine Manager. 150 Counsel for the corporate defendants submitted that the application made by the defendants pursuant to s138(1) of the CMRA for approval in relation to the miniwall mining method in 50/51 panel as well as the subsequent application pursuant to s138(2)(d) to widen the roadways is, when taken together, evidence that all of the work being undertaken within 50/51 panel at the time of the inrush was work expressly permitted to be done and accordingly the defence accorded by s33(2) of the OHSA arises. I cannot agree. 151 In the first instance, as I have already said, the approval given under s138(1) was in relation to the second workings component of the miniwall mining activity contemplated. That the driving of roads and cut-throughs was a necessary prerequisite to undertaking the miniwall mining system does not, it seems to me, mean that that procedure is, by implication, included in the application under s138(1). 152 Second, it seems clear that any applications made pursuant to s138(2) are quite distinct and separate from any approval that may be granted pursuant to s138(1). In other words, s138(1) is used in a negative sense in that no method of mining other than bord and pillar should be used without the approval of the Minister on the recommendation of the Chief Inspector, subject to such conditions. Section 138(2) makes it clear that where the bord and pillar system is to be used, that there are certain dimensions relevant to that method that need to be followed and any variation required approval. 153 Even when taken together, it does not seem to me that whatever approval is given pursuant to the respective provisions of s138(1) or s138(2) can be relied upon as a defence simpliciter by reference to the provisions of s33(2) of the OHSA 1983. In other words, if I am wrong as to my conclusion that the approval given by the DMR pursuant to s138(1) of the CMRA 1982 was not applicable to the development work being undertaken in 50/51 panel at the time of the inrush, I am still not persuaded that s33(2) of the OHSA provides the basis for a defence to the matters before me that counsel for the defendants contends. In short, even if the s138(1) approval given by the DMR did cover the development work being undertaken in 50/51 panel at the time of the inrush, it cannot be correct, on any proper consideration of the OHSA to assert that, once such an approval is given, any work being undertaken pursuant to that approval is safe from scrutiny as far as an employer's obligations under ss15(1) and 16(1) of the OHSA are concerned. 154 Before addressing that issue in more detail I turn to consider the question of onus of proof arising under s33(2). On behalf of the defendants it was submitted that the onus of proof under s33(2) is borne by the prosecutor for the following reasons: (i) Before commencing the matter, the prosecutor has a duty to first consider whether or not the acts/omission relied upon to found the charges are expressly permitted under the associated legislation; (ii) To the extent that the prosecutor has expressly relied upon certain provisions of the associated legislation in the particulars provided to found the alleged contravention of ss15 and 16 of the OHSA, it has the onus of proving how the provisions on which it relies were contravened. 155 I do not agree. In the first instance, s33(1) makes it abundantly clear that, except as provided by sub-section (2), the OHSA shall prevail over any provision of the associated health and safety legislation to the extent of any inconsistency between them. Sub-section (2) of s33 provides exception to that in the terms as expressed. In doing so, it affords a person a potential defence in the terms expressed in relation to any charge arising under Part 3 of the OHSA. In other words, where a person (corporate or otherwise) is charged with an alleged offence, any act or omission expressly required or permitted to be done or omitted that constitutes the offence charged operates as a defence to render that person not guilty of an offence. It is not for the prosecutor to establish or determine the act or omission so permitted - it is for the person charged to raise it and establish. It would be no different to the criminal offence of trespass on a person's property. It is not for the prosecutor to establish the defence that the person charged had permission or reasonable excuse to be on the land or premises. It is for the person accused to establish it. Whether that fact is established before or after a charge is laid is not the issue, it seems to me. In the matters before me, it is clear that the prosecutor does not consider that s33(2) operates to afford the defendants the defence they contend it does. To that extent it could be said they have considered such a proposition and rejected it. If the defendants press that contention, as they are entitled to do, the onus of establishing the express permission relied upon rests with the defendants. 156 On this point, I refer to Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449. In that matter, Mr Ganke had been convicted of an offence created by the Companies (New South Wales) Code s375(9). That section provided: Section 375(9) provides that: 'A person who, without reasonable excuse, fails to comply with a provision of this section other than sub-section (7) is guilty of an offence.' 157 Mr Ganke appealed on a number of grounds including the issue going to the onus of establishing the existence or the absence of reasonable excuse in relation to the offence enacted by s375(9). It was argued that the onus on that issue lay with the Crown. In rejecting that proposition, Hunt J said (at 455 - 456): But none of those particular applications of the 'golden thread' principle assists in relation to statutory exceptions. In each case, it must be a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (and so to be proved by the Crown), or whether it is intended to be a ground by which criminal liability may be avoided (and so to be proved by the accused). The principles stated in the cases, such as Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, are of assistance in determining the intended nature of such a provision: see also Ex parte Ferguson ; Re Alexander (1944) 45 SR (NSW) 64 at 66-67; 62 WN (NSW) 15 at 16 and Ex parte R J Wimborne Pty Ltd ; Re Beale (1957) 58 SR (NSW) 353 at 354-357; 75 WN (NSW) 372 at 373-375. The appellant has argued that, as the offence is attended by severe sanctions, a person who has a reasonable excuse may go to gaol 'not because of the commission of an offence but because of his own lack of credibility.' That is not the consequence at all; he will go to gaol only because the court has found that he did commit the offence. If an onus is placed upon the defendant (or the accused), and if through his lack of credibility he fails to discharge that onus, then he may well be convicted. That is not an uncommon event where an onus is placed upon the defendant. But that not uncommon event cannot be used as a rule of construction in determining where the onus of proof lies. 158 On the same point, I refer to and concur with the finding of Peterson J in Rodney Dale Morrison v Coal Operations Australia Ltd [2003] NSWIRComm 249 in the following passages where his Honour treated the making out of the exception under s32(2) to be a defence to be made out by the defendant as follows: [77] If the rule is to be interpreted in this way, it seems to me that the defendant has made out a defence under s33(2) of the 1983 OHS Act in that the act of performing the work was expressly permitted to be done under the CMR Act, Regulations and Rules, they being associated occupational health and safety legislation ….. … … [83] Accordingly, a good defence is made out under s 33(2) of the 1983 OHS Act on this ground also. …… [87] These views mean that the defendant has made out in all relevant respects a defence under s33(2) of the 1983 OHS Act… 159 In my opinion, the proper interpretation is that s33(2) provides a defence to a person who is able to rely on any act or omission expressly required or permitted as the basis for defending an alleged offence under Part 3 of the OHSA. 160 Returning to the primary contention on behalf of the defendants as to the operation of s33(2) of the OHSA as a defence to all of the charges before the Court, relying on the approval given under s138(1) of the CMRA 1982, together and in the alternative with the approval given to widen the dimensions of some roads in 50/51 panel pursuant to s138(2)(d) of that Act. 161 An integral part of that argument on the part of the defendants is that the DMR and its relevant authorised officers were ultimately responsible for approving the work to be undertaken in 50/51 panel and stating any conditions to be imposed pursuant to that statutory approval process. As well, the defendants submitted, the DMR had at its fingertips all of the information necessary for them to discharge their statutory regulatory function. They did so and, the defendants contend, that statutory approval, once given, operated to prospectively extinguish any liability arising, by act or omission, pursuant to the defendant's statutory obligations under the OHSA and the CMRA and regulation and rules as associated occupational health and safety legislation. On any proper consideration of such a contention, it cannot be sustained. 162 That s33(2) offers a defence to what would otherwise be a defence under Part 3 of the OHSA, it does so, in my view, in limited and explicit circumstances. For example, in Rodney Morrison v Tahmoor Coal Pty Limited (2002) 120 IR 153 Haylen J considered, albeit briefly, the operation of s33(2) of the OHSA. On that point and relevant to the facts and circumstances before him, his Honour stated: It was common ground, however, that the Coal Mines Regulation permitted an adequately trained employee to work unaccompanied underground. Mr Hill was authorised under this regulation to work alone. I accept the defendant's submission that the operation of ss 33 and 39 of the Occupational Health and Safety Act 1983 had the effect of rendering a person not guilty of an offence under Pt 3 in respect of any act or omission which is expressly permitted to be done under associated legislation (here the Coal Mines Regulation Act 1982 and the Regulation). 163 On any view, the common ground and facts of the matter, referable as they are to s33(2), have no relevance to the matters before me. In Tahmoor Coal his Honour makes it clear that Mr Hill was expressly permitted by the CMRA 1982 and relevant Regulation to work alone underground. In the matters before me, the defendants were given approval to undertake a specific mining method in 50/51 panel, subject to certain conditions. The prosecution alleges that they did so contrary to their absolute obligation to provide for the health, safety and welfare at work of employees (and non-employees). In so alleging, the prosecutor asserts specific contraventions and, they submit, there is nothing in the CMRA or regulations that expressly required or permitted those contraventions with which the defendants have been charged. I accept that proposition. 164 In other words, s33(2) of the OHSA, when considered together with the approval given under s138(1) of the CMRA cannot, without more, be construed as circumscribing or absolving the defendant's absolute obligations under ss15(1) and 16(1) of the OHSA. That the defendants may feel somewhat aggrieved by placing reliance on maps provided by the DMR as the basis for seeking and getting approval from the DMR to mine in 50/51 panel by the method they intended is one thing. But that is not the issue at this point it seems to me. The issue at this point is whether the defendants have discharged their statutory obligation to provide a safe workplace, free of risks to safety in undertaking the mining activity that they did in 50/51 panel. The prosecution has alleged that they have failed in that obligation in relation to specific and particularised contraventions and the prosecution bears the onus of proving those alleged contraventions. But the defendants cannot be excused from potential liability for those specific and particularised contraventions simply on the basis of an approval to undertake a particular mining method in 50/51 panel, with or without conditions. To the extent that any conditions attached to such approval may be relevant as a defence as an act or omission expressly required or permitted, is a matter to consider relevant to defences available to the defendants in due course. 165 At this point and in the alternative to my preliminary finding, I consider the defendant's primary contention that the application of s33(2) of the OHSA, when considered in light of the approval granted under s138(1) of the CMRA operating as a defence to all charges before the Court, must fail. (iii) Expert witnesses 166 In the proceedings before me, the prosecution called three persons as expert witnesses: Mr Darrel Adam, Mr Neil Buggy and Professor Leon Thomas. Mr Buggy gave expert evidence about risk assessment generally. In relation to Mr Adam and Professor Thomas, counsel for the defendants have submitted that, for the purposes put forward, I could place little or no weight to the opinions expressed by them in relation to their area of alleged expertise. 167 Mr Darrel Adam was called specifically to give evidence about mine surveying and mine management. Mr Adam is currently a consultant to the mining industry which he operates through a company Inami Pty Limited. Mr Adam holds a Master of Engineering (Honours) degree from the University of Wollongong and a Diploma of Teaching from Sydney Teachers College. He holds specific coal mining qualifications, they being the Coal Mine Surveyor's Certificate, the Coal Mining Certificate and the Coal Mining Higher Certificate. Mr Thomas's qualifications in mine surveying were obtained in 1959. Mr Adam spent five years in mine surveying with BHP Southern Collieries in the position of Survey Cadet and Mine Surveyor from 1955 to July 1960. From 1960 to 1975, Mr Adam was employed by BHP Southern Collieries and others in the respective positions of Deputy, Under Manager and Manager in a number of BHP collieries in New South Wales. From 1975 to 1987, Mr Adam was a teacher and then head teacher of mining at the Wollongong College of TAFE and from 1987 to 1991, he was the head of the Division of Mining with the New South Wales Department of TAFE. 168 In relation to Mr Adam's specific knowledge in connection with mine surveying, Mr Adam elaborated on that in some considerable detail as follows: (a) 1955/63: i) Cadet Surveyor then Mine Surveyor at Wongawilli Colliery. (ii) Nature of Work: (1) Routine underground Mine Surveys, lease boundary identification and borehole location in MWS and Dbd Catchment areas. (2) Responsible for engineering survey, work associated with construction of underground and surface decline conveyors, both of which had specifications as 'southern hemisphere' firsts relating to length and drop. Subsequent to completion of this project, I was retained by APEX Belting to conduct check surveys for a similar decline installation at Huntley Colliery. (b) 1956/1973: (i) From 1956 to around 1973, I also worked with two other surveyors conducting surveys at small mines in the Southern Coalfields. During the course of time I progressively accepted responsibility for this work and by around 1962 conducted this work as the Mine Surveyor at both Avondale and Bulli Main Colliery. (ii) Details of work conducted in this period included: (1) Routine mine surveys and preparation of workings and statutory plans at Lock (sic) Catherine Colliery. (2) Routine mine surveys and preparation of workings and statutory plans at Port Kembla No 2 Colliery. (3) Routine mine surveys and preparation of workings and statutory plans at Avondale Colliery together with design of mine layout proposals. Over a period of some 18 years, this mine extended its operations from a single seam, contract operation (men loading 1 ton skips with shovels and coal drawn to central haulage by horses), to a two seam operation in which coal was mined with continuous miners. (4) Survey work included lease identification involving transfer of azimuth and levels to the top of an escarpment some 700' above the mine portals. (5) Lease boundary surveys for the acquisition of new/contested leases and outcrop surveys to determine mining limits and location of secondary mine entries. (6) Retained by Allied Constructions Pty Ltd to conduct survey work for the driving of a cross measure drift through the Illawarra Escarpment. This drift had a gradient of approximately 24% and was driven from each end and connected in the centre. (7) Retained by management of Bulli Main Colliery to conduct routine underground mine surveys, prepare working and statutory mine plans, also resurvey main roadways to identify errors in original surveys which would impede proper installation of a trunk conveyor belt. (c) 1975 to present: (i) As teacher and later Head of Division of Mining New South Wales TAFE, I taught and then supervised mine survey trainees in the area of mining technology and mine survey practice, and following my resignation from TAFE, at the request of my successor at Wollongong TAFE, I supervised a small group of three to four students, studying these topics for a further year. (ii) I have also lectured and conducted field exercises for Wollongong University in the areas of mine survey practice, mining machinery application and mining legislation. (iii) Until about 2000 I provided tutorial assistance for candidates preparing for exams for mine managers certificate of competency including mine surveying. One of these students resided in central Queensland and flew to Sydney on occasions to attend tutorials. (iv) Ending about December 2002 I assisted the National Mining Industry Training Board with the validation of all new training courses for the quarrying industry including the topic of survey practice for quarry operators. 169 As well, Mr Adam elaborated on his experience as follows: I have had particular experience in a mine which worked two seams (Wongawilli and Avondale). We attempted to overlay the workings so that roadways were superimposed on top of those below. During the survey work I did between 1956 and about 1973 (referred to in 22(b)(i)), in general we would visit the mines at 3 monthly intervals, survey the workings that had been completed subsequent to our last visit and update the mine plans. We also marked on the plans the layout which would be used for mine planning prior to our next visit. On our following visit we would go into the mine, survey those workings which had taken place since our previous visit and then come out of the mine and plot those workings on the mine plans. Quite often the workings undertaken between our visits did not correlate with the plans prepared on the previous visit nor did they agree with workings marked on the plans by the Mine Manager. If possible we would then remove the Mine Manager's work from the plan and draw it correctly or if that could not be done it would be necessary to redraw the workings in another colour. 170 The first caveat placed by counsel for the defendants upon Mr Adam's opinions went to what was described as his experience as a surveyor. In summary form, the submissions made was that on any view, the level of practical experience possessed by Mr Adam must be regarded as very limited and relevant only to the periods in which he conducted surveys, that is, 1945-1973. Accordingly, it was submitted, Mr Adam ought not be regarded as an expert on surveying practices in the 1990's and in particular surveying practices involving the use of computer programmes. 171 I have to say that in making such a submission, counsel for the defendants has conveniently chosen to totally ignore the expertise and knowledge gained by Mr Adam during that period up to 1975 and the role of Mr Adam in the area of mine surveying education from 1975 to the present where, as his statement asserts, and about which he was not challenged, he taught and supervised mine survey trainees in the area of mining technology and mine survey practice. As Mr Adam's employment history states and his statement attests, he continued in that educational role including that involving mine survey trainees from the mid 1970's up until December 1991. As he also stated, following his resignation from TAFE and at the request of TAFE, he continued to supervise a small group of mine survey students for a further year. He has also lectured and conducted field exercises for Wollongong University in the area of mine survey practice, mining machinery application and mining legislation. 172 Counsel for the defendants also challenged Mr Adam in relation to his expertise in the area of mine management. They do so on the basis that although Mr Adam holds qualifications as a mine manager, it is stated that he has never managed a coalmine or any other mine. Overall, Mr Adam held positions in mine management that particularly included periods as Under Manager in Charge at Wongawilli Colliery and Under Manager in Charge at Kemira Colliery. As he stated, in his position as Under Manager in Charge at Wongawilli Colliery, he was responsible for nine shift Under Managers, 46 Deputies and 340 mineworkers. In his role as Under Manager in Charge he reported to the Mine Manager. Also, at Kemira Colliery, where he held the position of appointed Under Manager in Charge from 1967 to 1973, he was responsible for six shift Under Managers, 50 Deputies and some 400 underground employees. 173 In an interlocutory judgment of 4 November 2003: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2003] NSWIRComm 392, I considered, amongst other matters, objections raised on behalf of the defendants to the admissibility of Mr Adams' expert witness statement. One of the grounds of objection raised was the field of specialised knowledge that underpinned Mr Adams' statement. The defendant's counsel submitted that Mr Adam had insufficient specialised knowledge to support the opinions he expressed, particularly in the area of mine surveying. 174 In that interlocutory judgment and on the above point, I said: [9] I refer to my earlier judgment already referred to in dealing with expert witness statements of Mr Anderson, particularly para [31]. In applying the concept of specialised knowledge as expressed in that paragraph and as expressed by reference to the judicial authorities referred to therein, I am satisfied that Mr Adam does have specialised knowledge and expertise in the area of mine management and mine surveying and that, on a prima facie reading of his statement, the opinions he expresses are based wholly or substantially on that expertise. I will return to that issue later. [10] I turn now to the argument raised by counsel for the defendants as to Mr Adam's statement and its compliance or otherwise with Schedule K, in particular para [5](b). [11] On the face of it, Mr Adam's statement purports to comply with Schedule K, para [5](b). That is, from para [27] onwards his statement is structured such that he identifies facts, matters and assumptions in relation to a particular subject matter followed by the opinion he then expresses in relation to the previously identified facts, matters and assumptions. [12] Counsel on behalf of the corporate defendants reminded me of the decision of Hayden JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para [85] and, in particular, the following passage: So far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved by the expert; and so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached. That is, the expert's evidence must explain how the field of specialised knowledge in which the witness is expert, by reason of training, study experience, and on which the opinion is wholly or substantially based applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is, strictly speaking, not admissible and, so far as it is admissible, of diminished weight. [13] In many respects it was submitted that Mr Adam's statement does not meet the test as expounded in the above passage. On this issue, I refer to my earlier judgment on the admissibility of the expert witness statement of Mr Ian Anderson and, in particular, para [25] of that judgment. [14] For the moment it is not possible to come to a concluded view having regard to those matters as identified by Hayden JA in Makita to which I have been referred. That is simply because Mr Adam's opinions and the facts, matters and assumptions that he details in his statement have not been subjected to any scrutiny or testing by way of cross-examination. [15] As I indicated earlier, on an initial reading of his statement, structured as it is, Mr Adam's statement has the appearance of compliance. It may be that at the end of the day the opinions he expresses, relying on the facts, matters and assumptions that he does, cannot be identified and properly and relevantly established in a suitable evidentiary way. [16] If Mr Adam's statement is to be challenged in that way, as it has been, more has to be done by the defendants than simply assert that proposition. Mr Adam's statement must be tested in accordance with the principles expressed by Hayden JA in Makita , referred to above. That process of testing can and should be done by the evidence and cross-examination of Mr Adam that goes directly to those issues. Only then can the court come to a concluded view as to the evidentiary soundness or otherwise of Mr Adam's opinions and the weight to be attached to such opinions. [17] On this issue, I am of the view that the proper course would be to have Mr Adam give evidence and be cross-examined as to the basis of his opinions in accordance with the principles required to be satisfied and as expressed by Hayden JA in Makita . 175 Having considered Mr Adams' evidence in the light of subsequent cross examination, I have no cause to question my initial assessment of him as being an 'honest, forthright and considered witness.' While his opinions on some issues were challenged, they were not undermined in any significant way such as to persuade me that the opinion evidence he gave in the area of mine surveying and mine management was based on anything other than his own specialised knowledge and expertise and that the opinions he expressed were based wholly or substantially on that expertise when taken together with the facts, matters and assumptions on which his opinion was based. I consider the opinions he expressed as being fundamentally sound and essentially correct such that I can rely upon them. 176 On behalf of the defendants, it was submitted that Mr Adam ought not to be regarded as an expert on surveying practices in the 1990's and in particular, surveying practices involving the use of computer programmes. 177 Mr Adam's involvement and experience in mine surveying continued in the 1990's. He left his position as Head of the Division of Mining at TAFE in 1991. As he said in his statement, up to the present time, he has had continued involvement with the mining industry including mine surveying in both a practical and educational context. As I understand it, Mr Adam was not called as an expert on surveying practices involving the use of computer programmes. He was called as an expert on mine surveying and in that context, gave evidence as to the import and interpretation of RT 523 Sheets 1,2 and 3 relevant to mining survey practice generally and in particular in relation to the periods in which those Sheets were produced. Sheet 1 was produced in the early 20th century whereas Sheets 2 and 3 were produced in 1979 or 1980. 178 Based on Mr Adam's qualifications together with long experience in the coal mining industry in the relevant area, I am of the view that the cumulative result is a witness who is able to be considered an expert on mine surveying practices relevant to the matters I have before me. 179 Counsel for the defendants also submitted on more than one occasion that the tenor of Mr Adam's evidence was overwhelmingly that of evidence given with the benefit of hindsight and could not be considered evidence that was able to objectively view the matters that were before him from any perspective other than that of a person being overwhelmed by the events of the inrush and very much from the perspective of hindsight influenced by that event. 180 While I can appreciate that is a proposition that would readily spring to mind in considering the events before me, I do not agree that Mr Adam was so overborne by the events of the inrush and the so-called benefit of hindsight that the opinions he expressed were influenced or slanted accordingly. I have said earlier in this judgment that I considered Mr Adam to be an honest, forthright and considered witness. I should also add to that summation that I considered him to be objective in the opinions he expressed. The issue of the inrush affecting both his approach and opinion to the matters he was asked to address were raised in cross examination on at least two occasions, as follows: Q. You've undertaken the exercise you've described in the opinions that you set out in paragraph 33 of your statement? A. That's true. Q. You then looked at the plan and you formulated the view that the workings depicted on RT523, Sheet 1, are most likely one seam? A. That is my opinion. Q. That's your opinion? A. Yes. Q. You formulated it following the process that you set out in paragraph 33 of your statement? A. I formulated that opinion prior to seeing the record tracing, and each step, from black and white to colour copy and then to the original, I believe confirmed that opinion. Q. The opinion that you formed is one that you formed, you told us earlier, for the inquiry? A. Yes. Q. That is, the opinion it was one seam? A. Yes. Q. Of course, as you've told us, you've been asked to assume and you know that there was an inrush? A. Yes. Q. That's a factor that affects the approach that you take, isn't it? A. I don't believe so. Q. You don't believe that the fact of the inrush influences the approach you take to the plans of the old workings that you see? A. Had I been a surveyor at the mine prior to that inrush, I would have taken this approach. Q. By that, do you mean if you'd been the surveyor who was locating on the mine plan the Young Wallsend workings? (sic) A. Yes. 181 As well, the following exchange also attests to this issue: Q. You said that you initially observed some discrepancies in the plan? A. Yes. Q. Those discrepancies you now can't recall which ones you observed first and which ones later? A. That's true. My … Q. But they're the matters that we have been going through earlier in your statement? A. That is true. Q. They're not different matters, are they? A. They're not different matters. I believe the first matter that came to my attention was in the red workings showing bottom seam. All of those roadways were those breakaways, which we've discussed before, which don't seem to go anywhere and indicated or implied in the first instance that there could have been workings that were not shown on that red plan. I think that was probably the thing that I saw first. Q. That's what you think, doing the best you can, was probably the first thing that triggered you to thinking maybe this plan is not complete? A. That's right. That was the most obvious thing that I saw. Q. Of course, you were aware of the fact that there'd been an inrush when you first looked at these plans? A. Certainly. Q. You were also aware that the point of the inrush was not at a point geographically where the black depicted workings could have intersected with the Gretley mine? A. Yes. I think so. Q. It follows just from that that when you first looked at it, you knew that something about those black depiction of workings was inaccurate; otherwise, if they were accurate, the holing in couldn't have happened? A. That's true. Q. That, of course, applying your knowledge of surveying, triggers you to a further inquiry, as you've told us about? A. Yes, that's right. 182 Overall, I considered Mr Adam to be an impressive witness. In saying that, not only do I consider him to have the attributes I have already mentioned, but I observed that he readily conceded alternative possibilities to the opinion he expressed notwithstanding that he consistently returned to the overall opinions he had expressed as being the conclusions that he had reached on the information before him and the basis and assumptions on which he formed that opinion. His preparedness to accept alternative possibilities to various propositions that were put to him in relation to possible interpretations of RT 523 Sheets 1, 2 and 3 did not, in my view, diminish the overall weight of his opinion. If anything, it added to what I consider to be the objectivity that Mr Adam brought to his evidence that he was prepared to concede to alternative possibilities but that at the end of the day he returned to what he considered to be the strongest and most likely conclusions that he drew in expressing his opinions. Indeed, in expressing the ultimate opinion that he held, if there was one other compelling factor to emerge from the opinions he expressed, it was that a proper consideration of RT 523 Sheets 1, 2 and 3, from the perspective of a mine surveyor, raised as many questions as it answered. That, to me, is the nub of Mr Adams' opinion. That is, there is no one concluded view that one can come to such as to be satisfied as to the accuracy of RT 523 Sheets 2 and 3 and which the defendants could have felt confident in relying upon in planning their mining activities at Gretley. 183 Professor Leon Thomas was also called as an expert witness by the prosecution. Professor Thomas has a B.Sc. (First Class Hons) in Mining Engineering and a Ph.D. in Mining, both from the University of Birmingham in 1953 and 1956 respectively. Professor Thomas' Ph.D. was in rock and coal fracture properties. Professor Thomas worked in the United Kingdom coal mining industry from 1948 when he commenced work as an underground miner until 1969 when he migrated to Australia. Between 1948 and 1969, in addition to his work as a miner, Professor Thomas worked as a Trainee Graduate Engineer and later as a Planning Engineer with the National Coal Board (NCB) in the United Kingdom. He also worked at Newdigate Colliery between 1959-60 as a Production Official in charge of 60-70 men working on a hand worked coalface producing 400 tons of coal per shift. 184 For ten years from 1960-69, Professor Thomas was a research engineer at the Mining Research Establishment as part of the NCB. He was Project and then Group Leader. The research work involved underground field trials and research on shafts, tunnels and production faces mainly with the Strata Control Branch as well as consulting duties to various United Kingdom coalmines. 185 In 1957, Professor Thomas also achieved his First Class Certificate of Competency in Colliery Management. This Certificate was subsequently endorsed for professional recognition purposes in New South Wales in 1972. 186 In relation to his overall experience in the United Kingdom, Professor Thomas detailed that in his statement relevantly as follows: I started underground at age 18 pushing wooden mine cars bent over double in a 1.2 m high roadway, and I moved up to the face as a trainee and learnt how to undercut coal with a pick, and load the cars by hand, so I have a close acquaintance with pillar and stall (or Welsh bord) hand mining, and the necessary mine layouts for hand working with horse and wire rope haulage. I also learnt stepped longwall methods. The UK mining industry in 1948 was still using turn of the century mining methods in small mines as a result of the 1920s depression and the war period, but it gradually mechanised. I was studying part-time at a technical college for my mine manager's certificate while I worked, and as a result I was put onto all the new-technology jobs. I helped install some of the mine's first belt conveyors, and operated coal cutters and any other machinery supplied. After two years I received a National Coal Board scholarship and somewhat reluctantly reduced my high contract rate earnings to read mining engineering at Birmingham University. I remained on the colliery books, and each vacation I worked underground to boost my income. Because I was then a casual, but valued worker, I had a wide range of odd jobs, mainly in the repairer classification because I was a skilled collier. We dug out buried machinery, fixed up roof falls, closed off old workings or opened new faces, recapped haulage ropes, filled in for absentee equipment operators, and any other problems that occurred. After my first degree and a Ph.D. in basic rock and coal fracture properties, I started work as a cadet engineer in the National Coal Board's Directed Practical Training (DPT) program. It was a structured program designed to provide a range of experience for the three years that graduates needed to sit for their certificate of competency to be a coal mine manager. … … My controller in the Survey Office as a DPT was H.R. Herbert, who was the chief author of the National Coal Board's Code for Surveying Practice and Statutory Plans. He was the Area Chief Surveyor, and R.J. Orchard, author of the NCB Subsidence Engineer's Handbook, had been the Property Manager and Chief Surveyor for the West Midlands Division before moving to the London Headquarters as Chief Subsidence Engineer. … … As a result of my training, I was aware of the NCB Surveying Practice Code, which was issued in 1951, and I still have a copy of it. As part of my survey work, and in the continuation as an engineer in the Area Planning Office, I had the task of reviewing the older mine workings to examine what areas of coal might be available for remnant extraction with the constraints of multiple safety barriers between old small mines, many of them closed, and under canals, railways, bridges and built-up areas. Consequently I became familiar with old mine plans. As the only mining engineer in the Area Planning Office, where everyone else was a surveyor (eight of them, from memory, plus the Deputy Production Engineer), I handled special planning projects and monitored the routine five year rolling plans, and the production planning and face scheduling. … … I helped deal with mine water, open fires, sealing off districts, roof falls, and a collection of other problems that I was transferred into, before I was promoted to be a research engineer at the headquarters' controlled Mining Research Establishment (MRE) at Isleworth in London. I was the shafts and tunnels field engineer and consultant at MRE over that period, and again as the only mining engineer in my division in a mixture of physicists, geologists, a statistician, and a mechanical engineer, I provided the mining experience for all the projects. 187 Relevantly, during his 21 year period of involvement with the coal mining industry in the United Kingdom, Professor Thomas gained wide ranging hands-on experience in the industry. That wide ranging experience was underpinned by his academic qualifications. As well, the last ten years of his working experience in the United Kingdom was as a research engineer in rock mechanics. 188 In 1969, Professor Thomas migrated to Australia and continued his involvement in the mining industry from positions of academia. From July 1969 to December 1973, he was Senior Lecturer and Head of Department of Mining Engineering at the University of Sydney. He states simply that he taught all of the mining subjects at different times. 189 In 1974, Professor Thomas transferred to the University of New South Wales and was appointed Professor and Head of the Department of Mining and Mineral Sciences at the WS & LB Robinson University College at Broken Hill. That College was part of the University of New South Wales and Professor Thomas remained in that position until December 1984. According to Professor Thomas: My own particular fields of lecturing were Mineral Resources, Mineral Economics, Industrial Relations, Management, and Mining Methods including Petroleum Engineering. My research interests included the behavioural aspects of accidents. I also taught mineral processing, some mechanical engineering design, and electrical power utilisation. 190 From 1985 to September 1991, Professor Thomas was Professor and Director of Research and Postgraduate Studies, Department of Mining Engineering at the University of New South Wales. He concurrently held the position of Head of the Department of Mineral Processing from February 1990 to September 1991. 191 In October 1991, Professor Thomas retired from academic life. He is currently a Mining Engineering Consultant principally dealing with various aspects of accident and equipment problems at coal and metalliferous mines in New South Wales, Queensland, South Australia, Western Australia and the Northern Territory. 192 In addition to his considerable academic experience in Australia coupled with his United Kingdom mining education and practical experience, Professor Thomas had undertaken to acquaint himself with underground mining conditions in Australia, particularly in New South Wales. As a consequence, he had spent between 300-400 shifts in underground coalmines in New South Wales during his years in academia. 193 To start with, counsel for the defendants took exception to Professor Thomas continuing to use the title 'Professor,' claiming it was a title that he was not ethically allowed to use under the university guidelines and he does not hold the title of emeritus professor. The university guidelines were never produced. 194 It is not clear what point is being made in raising the issue or its relevance to the substantive evidence given by Professor Thomas. No issue turns on it and no suggestion has been made, nor should it be in my view, as to Professor Thomas' credibility based on this matter. It is not disputed he held the academic title for some years. 195 That he continues in part to rely on that as a form of address does not, by itself, in my view, constitute any reason for downgrading the weight of opinion expressed by him relevant to his area of expertise. 196 Professor Thomas was called by the prosecution as an expert, amongst other matters, on mining legislation. In his statement provided to the Court, he asserts certain opinions in relation to the proper approach to be taken by mine management relevant to the CMRA 1982 and in particular the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 as well as the Survey and Drafting Instructions for the Survey and Plan Regulation 1984. In his evidence in chief he was asked about this area of expertise as follows: Q. Can you just expand on your expertise in that area? A. Mining courses are virtually prescribed by the Mining Qualifications Board because one of the intentions of a mining engineering course is that the graduate should be able to obtain a mine manager's certificate either in coalmining or in metal mining. Most courses would teach both, so there's always a subject called Mining Legislation in the course and the students are taken through the relevant Acts and the influence of those Acts on the methods of mining as discussed … Q. I'm more interested in, rather than the generality of it, your particular expertise? A. I've taught that subject myself. I've organised lecturers from inspectors of mines to come in and give their opinion of the courses. I've been a member of the Below Ground Mine Managers Examination Board since 1984, so nearly 20 years, and we examine mine legislation and its relevance and we set examination papers in mine legislation for the students to pass. So we go around in a loop from teaching the subject to examining the subject. 197 In cross examination Professor Thomas conceded that the Below Ground Mine Manager's Examination Board was a body established under the Mines Inspection Act 1901, not the CMRA. As his evidence disclosed: Q. In any event, the underground mine managers examination board of which you speak does not itself deal with coalmines at all? A. No, it doesn't. No, not for the examination. Q. Nor for the examination of legislation? A. Do you mean - can you define that a little bit better because we set a paper that's called mine legislation and the candidates have to answer in our paper three sections: the meaning of the Act, the meanings of the regulations, what they understand by them; and then they have two questions on practical case studies where they have to say how the Act and the regulations apply to the particular situation they're looking at. Q. None of which legislation is the Coal Mines Regulation Act or the regulations made pursuant thereto? A. No, we deal with the Mines Inspection Act . Q. So I may have put it imprecisely, when I spoke about the examination of legislation, the examination of legislation in relation to coalmines is not the subject of anything in that board on which you sit? A. No. 198 A perusal of the Mines Inspection Act 1901 discloses that it is an Act that makes provision for the regulation and inspection of mines other than coal and shale mines, to regulate the treatment of the product of those mines and for matters incidental or consequential thereto. 199 The Mines Inspection Act 1901 embodies licensing, regulatory and penalty provisions under the auspices of the Minister and the Department of Mineral Resources and its nominated officers in relation to the type of mines embraced within the Act. In that respect, it follows a similar format to the CMRA 1982. 200 On the evidence before me, it is not possible to state with certainty whether there are precise regulatory parallels as between the CMRA 1982 and the Mines Inspection Act 1901. I accept that Professor Thomas has knowledge of and expertise in relation to coal mining generally. I have no doubt that he is familiar with the provisions of the CMRA 1982 and Regulations. Given that his background in relation to the teaching of mining legislation is grounded in the Mines Inspection Act 1901, I would conclude that he is more familiar with and knowledgeable about that Act rather than the CMRA. Nevertheless, he clearly has a greater than working knowledge of the CMRA and Regulations as a complementary piece of mining legislation. When taken together, I do believe that his overall knowledge about mining legislation generally, including the CMRA 1982 and Regulations as well as his knowledge of the Mines Inspection Act 1901 qualifies him to express the opinion that he does about the mining legislation mentioned in his report in that it is an opinion based substantially on his specialised knowledge about mining legislation generally. Nevertheless, that he purports to express the opinions that he does in relation to the proper construction and practical application of those legislative provisions cannot be taken as absolute. Like all arguments or opinions as to the meaning and application of legislative provisions, it is ultimately a matter for the Court, taking into account the proper approach to be considered in such matters. 201 In addition to mining legislation, Professor Thomas' expert opinion was also sought on the subject matter of barriers and drilling ahead. 202 The undisputed evidence before me was that where the location of former mine workings was known, one of the approaches to be adopted was a barrier of coal would be maintained between those old workings and proposed current workings. As well, drilling ahead when approaching old workings was also undertaken as stipulated in the relevant CMRA Regulation. 203 I am satisfied that Professor Thomas has specialised knowledge in those areas and that the opinions expressed by him in those areas are based wholly or substantially on that specialised knowledge. Having said that, it would be fair to say that the opinions expressed by him in the area were subject to robust cross examination which ultimately, in my view, diminished somewhat the weight one could attach to some of the opinions expressed by him in this subject area. This was particularly so in relation to the views expressed by him about the conclusions to be drawn in relation to an appropriate barrier width between the Young Wallsend old workings and 50/51 panel. His opinion was based on an article by Gupta and Singh which Professor Thomas included with his statement as support for his general proposition as to barrier widths or crush zones. That article titled 'Design of in-seam barrier to prevent water inrush in mines' had been presented at an international conference in Safety in Mines Research Institutes in 1985. As the synopsis for the paper describes: The paper describes a rock mechanics approach to estimate the minimum safe thickness of an in-seam barrier to be left against a waterbody to prevent a sudden in-rush of water into a mine workings. The following three situations are covered: (i) Stable workings on each side of a barrier, (ii) Collapsed workings on each side of a barrier, (iii) Presence of unknown galleries in the waterlogged side of a barrier. A method for estimation of the optimum length of predrilling is detailed. The authors suggest equations based on plate theory and 'stability index' for determining minimum safe parting thickness while driving galleries towards waterlogged workings. A rigorous analysis indicated that generally, a barrier which is strong enough against crushing is able to withstand the sliding forces which act over it due to waterlogged workings. 204 Without canvassing all of the cross examination on this issue, Professor Thomas was asked to express his opinion based on the following two questions: · Calculate what was an adequate barrier between where persons worked in the recent workings of MW 50/51 panel and the old workings of the YWC if there was taken into account that the old workings were known to exist but the position was shown only on an old mining plan or the workings were now inaccessible? · Calculate what was an adequate barrier between where persons worked in the recent workings of MW 50/51 panel and the old workings of the YWC if there was taken into account the width of the barrier to prevent an inrush or inundation of water and/or dangerous gases. 205 In purporting to address those questions, Professor Thomas stated relevantly as follows, relying on the Gupta and Singh article: All of their calculations assume the absence of geological problems. Their first calculation is of the size a pillar needs to be to avoid failure by crushing. An empirical formula for that was established about the time of the 1927 Waters Danger Committee, or before, and was generally taken to be (D/10) + 10, where D was the depth. My recollection from reading old material many years ago was that the original formula was in feet for shallow working, and then changed to yards, because the 10 was a factor to allow for coal edge crushing. The same formula is now used in metres, although I note that Gupta and Singh have used a formula developed by A.H. Wilson, formerly Head of Strata Control at MRE where I worked, to derive a variable depth factor for the crush zone. If one takes that factor, adjusted to b = 0.0049.h.H by Gupta and Singh, and puts the seam height extracted to 2 m, and the depth of working to 500 m, b becomes 4.9 m, so 5 m either side of a pillar is in the right ball park for an estimation of the crush zone without even looking at the coal or rock strength around a mine opening . (emphasis added) 206 To the extent that Professor Thomas was stating that '5 m either side of a pillar is in the right ball park' was an answer to the questions posed, he conceded that in coming to the conclusion he reached, he relied on a depth of 500m. The depth of the Young Wallsend old workings were much less. As he agreed is cross examination: Q. In any event, professor, you have used a 500 metre depth in circumstances where the only two seams of relevance in these proceedings are relevantly 120 and 150 metres; is that right? A. Yes. Q. And you've only used one formula for crush zone in your report, and that was the Gupta and Singh formula; is that right? A. Yes, because I normally use a static allowance. Q. And you have nowhere in the report referred to any other formula? A. No. Q. Using the figure of 120 metres, which is the depth, approximately, of the Young Wallsend seam, one would come to a crush zone of 1.2 metres, not 5 metres? A. Yes. Q. Using that formula, of course? A. Yes. 207 Ultimately, despite the initial misleading impression that Professor Thomas' opinion created in relation to his estimate of crush zones based on the Gupta and Singh article, he summarises his opinion in relation to barriers as follows: My own feeling, and probably that of the Water Dangers Committee seventy years ago, is that a mathematically exact calculation of a safe barrier width is impossible because there are too many assumptions needed to approach the topic as engineering design using material with known properties. Rock and coal strata in situ have inherent geological properties that make them difficult for use in practical design to precise levels. All too often the real properties of bulk rock have been derived by back-analysis of failures. Experience has shown that safety factors in mines need to be a minimum of at least two, and for some critical items such as winding ropes the factor of safety is six, and is eight in some circumstances. It seems that about 20 m of intact rock or coal will hold back a hydrostatic head of water if one can guarantee there are no geological problems. The real problem is whether an engineer can guarantee that the 20 m is actually there. There are recorded instances of accidental holing within a mine's own adjacent workings, so how can one mine trust another mine's plans, even if they are relatively recent. Mine surveyors make their initial plots of extracted workings from the deputy's section plan. Each shift the deputy is supposed to mark his copy with the coal that has been extracted, and show the heading advance or the pillar extraction. If the surveyor's quarterly survey, or work between the quarterly surveys, does not pick up the maximum advance of a heading, then the record tracing compiled from the colliery working plan will be in error if a deputy makes a mistake on his daily sketch. Once extraction retreats from a panel the surveyor cannot go in under unsafe roof to confirm the maximum advance. Doubling a safety pilar to 40 metres by requiring adjacent mines to leave 20 m each should provide a margin for error, and if a mine leaves a notional safety barrier of 40 m between their current working and old workings, that is a notionally safe barrier. The fact that the safety barrier is only notional is shown by the legislation that requires holes to be bored ahead of workings to make sure that they will not hole into a body of water or gas under pressure. 208 I accept that Professor Thomas understands the principles of rock mechanics based on his specialised knowledge. I have some doubt that the opinion he expressed in relation to what was an adequate barrier having regard to the questions he was asked to address can be relied upon except in the most general of terms. In other words, I attach limited weight to the opinions expressed by him on that issue. 209 Professor Thomas was also asked to comment as to his opinion in relation to RT 523 Sheets 1, 2 and 3 in terms of the following questions: · What problems, if any, existed with the use of Sheets 2 and 3 of RT 523? · What problems, if any, existed with the use of Sheet 1 of RT 523? 210 Issue was taken by counsel for the defendants that Professor Thomas was not an expert on mine surveying in that he had no formal qualifications in that area. I agree he has no formal qualifications in mine surveying. Despite that, I restate what I said in the course of the hearing before me as encapsulating the view that I still have as to Professor Thomas' ability to express the opinions that he does in relation to RT 523 Sheets 1, 2 and 3: And let me say this, which may assist you: what I understand Professor Thomas to be perfectly capable of commenting upon, and he does so in his report, and he would get that expertise, I would have thought, from his knowledge as a mine manager, his own general and extensive experience in managing mines, working in coalmines and having to actually read - not survey, read - mine maps. He comments on his view of having read Sheets 2 and 3 and having also seen - and I'm talking now of record tracing - Sheets 2 and 3 and record tracing 1 and he's able to comment quite well with his expertise on what he perceives to be the short-comings. But I say that he's perfectly capable of giving that evidence. However, I hesitate about his ability to actually give expertise about the actual task of surveying. What he seems to be good at, as are others I have had before me, is actually interpreting what he sees on a mine map, rather than actually doing that task, which is a completely separate thing, it seems to me. 211 Taken together, Professor Thomas has some 55 years experience of the mining industry and predominantly the coal mining industry. That experience spans a wide range of activities from working as a miner, research engineer and academic. It is, on any view, a substantial body of experience that I have no doubt has included the study, knowledge and understanding of mine plans. 212 I am satisfied that Professor Thomas has the requisite specialised knowledge based on his training, study and experience to be able to express the opinions that he does in relation to RT 523 Sheets 1, 2 and 3 and that his opinion on those matters is based wholly on that specialised knowledge. 213 To the extent that any reliance is placed by me on opinions expressed by Professor Thomas outside of the areas of expertise commented upon above, I will consider them at that point. (iv) Outstanding evidentiary issues 214 During the course of the lengthy proceedings before me, objection was taken on a number of occasions to the admissibility of certain evidence. The objections raised went predominantly to the issue that, if admitted, whether the evidence was admissible against a particular individual defendant, whether it was admissible against the corporate defendants and, whether it was admissible against all of the other individual defendants. It was agreed by the parties that such evidence would be conditionally admitted with its ultimate admissibility determined once all submissions had been received by the Court. 215 At the conclusion of the evidence and prior to final submissions, counsel for all defendants submitted to the prosecution a schedule identifying the objections still in issue between the parties. A copy of that document was provided to the Court. 216 In short, there were 16 identified evidentiary issues. Of those, ten were identified and admitted as a business record. Four of the issues were admitted on the basis that the defendants did not concede the relevance of the evidentiary material but allowed the evidence to be reviewed going only to the matter of weight to be attached. Two remaining evidentiary issues remained in issue. They were identified as follows on behalf of the defendants: Issue Transcript Objection T1816 L7 - T1818 L24 1. Admissibility of Foley's evidence re conversation with Robinson. T1820 L37 - T1820 L40 Admit against Robinson. T1839 L44 - T1840 L34 Object as to admissibility against all other individual defendants. Admit against NWCC. T1845 L29 - T1846 L22 2. Admissibility of Hartley's evidence re conversation with Robinson. T2110 L13 - T2110 L45 Admit against Robinson. Object as to admissibility against all other individual defendants. Admit against NWCC. 217 Before going to the particular evidence identified above, it is helpful to put it into context. Mr Robinson is one of the personal defendants before me. He was employed by OPL as the Statutory Mine Surveyor at Gretley commencing in September 1995, initially on a temporary basis until October 1996 when he was appointed on a permanent basis. In his position of Mine Surveyor, Mr Robinson was in charge of the survey office at Gretley. One of the survey assistants employed in the Gretley survey office was Mr Michael Foley, who gave evidence before me. 218 Part of Mr Foley's evidence went to a conversation between he and Mr Robinson in the survey office at Gretley. The conversation, as best as can be pinpointed, occurred at some time in the period of late October and the first week of November 1996 (some two weeks or less before the inrush). The conversation as recounted by Mr Foley went to the issue of the plans of the Young Wallsend old workings. That relevant evidence from the transcript pages identified was as follows: (i) T1816 L7 - T1818 L24: Q. Can you recall any of the conversation between you and Mr Robinson on this occasion? A. Some of the conversation, yes. Q. Can you tell the court what was said? Do you remember the exact words? A. Not the exact words, no. Q. Do you recall words that were said like or words to the effect? A. Yes. Q. Can you tell the court what was said by each of you during that conversation? You said you can give words to the effect or words like? A. Mr Robinson queried me when he was referring to a plan that was stuck to the digitiser table, and on that plan or drawing was a representation of the Young Wallsend colliery. He asked me, 'What is this?' And my reply was, 'I believe them to be the workings of the Young Wallsend colliery.' Q. If I could just pause there. Are you able to describe any further the plan Mr Robinson had at the time? A. No, I don't recall, no. Q. Anything about scale or ... A. No, nothing. Q. Can you keep telling the court what was said in this conversation after you made your reply? (sic) A. That's as good as my memory allows me, your Honour. Q. You say this is as good as your memory allows you. Do you know if there was further conversation between both of you? A. Yes. Q. How do you know that? A. I just know. Q. As best you can - you said that you can't give the exact words - who spoke next? A. Mr Robinson. Q. He said words like? A. He wasn't happy with what was on there. Q. Did you see what he was referring to when he said words like he wasn't happy ... Objection: Question rephrased. Q. Mr Foley, when I asked you words to the effect or he said words like, do you remember you responded to the effect that he wasn't happy with what was on there? A. Yes, I do. Q. To the best of your recollection, did Mr Robinson use words like that to you? A. To the best of my recollection, yes. Q. Did you form a perception as to what he was referring to? A. Yes, I did. Q. How did you form that perception in terms of what Mr Robinson was referring to? A. As he asked the question, I physically turned myself in my chair and looked back to where he was standing and took notes of what he was pointing to. Q. What was he pointing to? A. He was pointing to the oval-shaped workings that were referred to. Q. At that stage, were you able to see what type of plan it was on which the oval-shaped workings were shown? A. I don't recall. (ii) T1820 L37 - T1820 L40 Q. Mr Foley, as best you can recall, what did Mr Robinson tell you? A. He spoke to the Mine Subsidence Board and requested some documents off them. (iii) T1839 L44 - T1840 L34 Q. Mr Robinson said, 'Where did the details of the workings come from?' Your statement included that you said, and this is words to the following effect: The information we have is in the filing cabinet. A. That's right, yes. Q. That was part of this conversation with Mr Robinson, that comment by him and your response? A. Yes. Objection: Noted. Q. This was part of that first conversation you gave evidence about involving you and Mr Robinson? A. Yes. Q. This was before anything was obtained from the MSB? A. Yes. (iv) T1845 L29 - 1846 L22 (cross examination) Q. And you had an exchange with him - and I think my friend, Mr Docking, just asked you about that - relating to you saying to him words to the effect, 'They are the old workings'? A. Yes. Q. And/or, in fact, 'They are the old workings of the Young Wallsend colliery'? A. That's correct. Q. Were you more precise and did you say 'the Young Wallsend Seam?' A. No. Q. I think you have said, or you agreed that he then used the words, 'Well, where did the details of the workings come from'? A. Yes. Q. And you answered, 'The information that we now have no the filing cabinet'? A. Yes. Q. At that time you were pointing to the Verti file? A. I don't recall. Q. But, in any event, that is what you were referring to? A. Absolutely. Q. Did Mr Robinson then go into the plan room? A. Yes. Q. When he came out, did you notice that he was carrying a paper plan? A. Yes. Q. And did he ask you or did he indicate to you in a conversation words to the effect that he wanted more detail than what was provided on this? A. Yes. 219 Subsequently, following the conversation with Mr Foley, Mr Robinson rang the office of the Mine Subsidence Board in Newcastle. He spoke with Mr Gary Hartley, a Survey Drafting Officer with the Board. The conversation was about obtaining copies of plans of the Young Wallsend Colliery old workings. The evidence given by Mr Hartley on the issue was: Q. Can you tell us the terms of the conversation, doing your best to do it in the manner I asked you to? A. Mark had rang up that morning and asked to the effect that he was trying to get some information about getting the position of the Young Wallsend Colliery, the Young Wallsend Seam, and wanted to know whether we had any information that might help him. I said to the effect to Mark that we would. From memory, I believe Mark then said to the effect, 'I need a plan, an ISG grid or something on it, to assist to identify that position.' At that time I said - I said to the effect to Mark that we would have a 1:4000 series in that area produced by the let-in process. At that point, I went to where the maps were kept to ensure that those maps had the ISG coordinate values on it. I came back and advised Mark that we did have the coordinate values on it. I believe at that time I asked Mark to the effect that why did he need these plans and Mark, to the effect, replied that, 'We were having a water problem and management wanted to know where these plans were, or the accuracy of the plans.' At that time there was a requirement that Mark had stated, or to the effect that did we have any survey information or copies of the record tracings. I then went from the phone call to our record tracing microfiche, found that we did have it. I went back to the phone call and advised Mark to the effect that, yes, we have it and you can have that information. I believe that is when Mark said to the effect that, 'I'll get somebody to pick them up,' and that was basically the end of the conversation. 220 In pressing the admissibility of the disputed paragraphs, counsel for the prosecutor raised a number of preliminary issues. In summary form they were, firstly, at the time the disputed evidence was given, no objection was raised in relation to parts of it on behalf of any of the defendants (T1817 L7 - T1818 L14) whereas in relation to other parts, objections raised were limited to the other personal defendants and not the corporate defendants (T1820 L37 - T1820 L40 and T1839 L44 - T1840 L34). As well, one of the disputed passages (T1845 L29 - T1846 L22) is in fact cross examination of Mr Foley by counsel for the corporate defendants. 221 In relation to the objection raised in relation to Mr Hartley's evidence (T2110 L13 - T2110 L45) it was pointed out that, at the time, except for Mr Robinson, objection was taken on behalf of the other personal defendants. Further, as was pointed out, there was other evidence of that conversation to which an objection had been taken but that objection has not been pressed. That is because, it was said, evidence of the conversation is linked to exhibit 93. That is a letter on OPL letterhead dated 5 November 1996 addressed to the Mine Subsidence Board and signed by Mr Porteous as General Mine Manager. At the bottom of that letter there is a handwritten entry made by Mr Hartley who gave evidence of the conversation to which objection has now been taken. Exhibit 93 was not objected to and Mr Hartley was cross examined about it, particularly the handwritten entry made by him. 222 I agree with the point made by counsel for the prosecution as to the objection now being taken to that evidence. That is, first of all, the note of the conversation is not objected to. Next, evidence in chief about the note of the conversation is not objected to and then there is cross examination about the same conversation by counsel for the personal defendants. On that basis alone, it is difficult, in my view, for the objection raised by the defendants as to evidence given by Mr Hartley of the conversation he had with Mr Robinson to be sustained. 223 Given the somewhat 'stop start' nature of objections raised at the time the evidence was given, it was submitted it was not open for the defendants to now raise an objection after the evidence in the case was closed. 224 I am not persuaded that the admissibility of the disputed evidence against the category of defendants identified should be determined solely on the basis of the extent or otherwise of prior objections raised in whole or in part. They have been admitted with the consent of the defendant's counsel against some but not all of the defendants. Given the conditional nature of the admissibility in the first instance as well as the tendency, particularly on behalf of the defendants, to raise numerous objections which are not now pressed, I am of the view that the fairest way to deal with the disputed passages now pressed is to deal with them on their merits. No disadvantage is occasioned to the prosecution in such an approach. 225 What is in issue now is the admissibility of the disputed evidence against the corporate defendant OPL and the other personal defendants, excluding Mr Robinson. 226 In pressing the admissibility of the disputed evidence, counsel for the prosecution relied on s87 of the Evidence Act, particularly s87(1)(b) and (c ). Section 87 (1) states: (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. 227 Let me say now that I have no difficulty in coming to the conclusion that the evidence in dispute is admissible against OPL. Mr Robinson was employed by OPL. Elsewhere in this judgment I have concluded that the Gretley mine was an undertaking of both NWCC and OPL. On that basis and in his capacity as Mine Surveyor at Gretley, Mr Robinson had authority to act for both corporate defendants. As well, representations he made that are the subject of objection were representations made and related to an issue within the scope of both of his employment and authority, that is, mine plans. I admit the evidence as against OPL. 228 The prosecution also press the evidence as against the other personal defendants pursuant to the provisions of s87(1)(c). That is, it was submitted, there was a common purpose as between Mr Robinson and the other natural person defendants and the representations made by Mr Robinson were made in furtherance of a common purpose (whether lawful or not). The common purpose, it was submitted, was the management of the Gretley mine. 229 In McAuliffe v The Queen (1995) 183 CLR 108 at 113, the High Court said: The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. ... ... Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. 230 I have difficulty in reconciling the doctrine of common purpose as understood in relation to alleged criminal activity in the context of offences of absolute liability. Counsel for the prosecution contended that, on its face, common purpose is not so restricted in s87(1)(c) applying as it does in furtherance of a common purpose, lawful or unlawful. In my view, that is not the point. For common purpose to apply, there must be evidence of persons acting in concert to commit the crime, implying in my view, an element of mens rea beyond the scope of offences attracting absolute liability. As was said in Tripodi v The Queen (1961) 104 CLR 1 at 7: When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. ... ... It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. 231 As a general proposition, the admissibility of evidence pursuant to s87(1)(c) of the Evidence Act as an exception to the hearsay rule has been given its greatest impetus in relation to criminal offences involving conspiracy. As was said by Odgers in Uniform Evidence Law: 5th edition at p250: The ALRC explained (ALRC 26, vol 1, para 755, pp 423-424) that a previous representation by A, allegedly acting in furtherance of a common purpose with B, will not be hearsay where it is relevant as a verbal act to establish the existence of the common purpose: Evidence of statements made by an alleged conspirator A and tendered as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against alleged conspirator B. The evidence is not tendered for a hearsay purpose and is not caught by the hearsay proposal. Such evidence raises a problem of conditional or provisional relevance - the relevance of the Act of A to the case against B will depend upon a prima facie finding that there was a common purpose between A and B. This issue is covered by the proposal on provisional relevance and can be handled in practice as at present. 232 See on this point Ahern v The Queen (1988) 165 CLR 87. As Tripodi makes clear however, at common law, and it must be said, on the face of it, s87(1)(c), the rule under which charges of conspiracy evidence is admitted of what is done and said by the parties in combination in furtherance of the conspiracy is a rule that does extend beyond conspiracy offences to substantive offences. As was said in Tripodi (at p6): It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. But at the same time it may well lead to error if the question of the admissibility of such evidence in any given case is treated exactly in the same manner as it might be on a charge of conspiracy. For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. 233 In relation to the disputed evidence of the representations of Mr Robinson, I am not persuaded that the underlying principle of preconcert relevant to the subject matter of the conversation has been established as between Mr Robinson and the other natural person defendants such as to render his representations admissible against them pursuant to the provisions of s87(1)(c) of the Evidence Act. (iv) Clause 9 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 234 Counsel for the defendants raise the provisions of the above Regulation as a complete answer to all of the charges or in the alternative, as an element of a s53 defence. 235 Clause 9 of the relevant Regulation, herein after referred to as the Survey and Plan Regulation provides: Notwithstanding any provision of this Regulation, a mine surveyor shall not be liable for the accuracy of surveys carried out or certified by a former surveyor for the mine or surveys certified as correct by another surveyor. 236 The nub of the defendant's argument on this point is that the above Regulations expressly permits the Mine Surveyor (and through him the corporation and Mine Manager) to rely, without liability, upon the accuracy of previously certified mine plans. Relevant to that point, it was stated, the expression 'mine record tracing' is defined in clause 5 of the Survey and Plan Regulation as meaning a complete and accurate copy of the mine working plan. In turn, 'mine working plan' is defined as meaning the mine working plan required to be kept under clause 12(a) of the Regulation. Reference to clause 12 and, as a consequence, clause 13 of the Regulation discloses that the mine working plan is to be prepared by the Mine Surveyor and kept by the Mine Manager. Accordingly, it was submitted, relying as the defendants did on the Record Tracings 523 Sheets 2 and 3 obtained from the DMR as being certified mine plans and which, on a proper analysis, could be the only cause of the risk, was an act or omission expressly required or permitted in the terms as expressed in s33(2) of the OHSA. Therefore, it is said, no offence lies under ss15 or 16 of the OHSA. In short, the defendants relied on the same submission placed before the Court relevant to the operation of s33(2) of the OHSA and s138(1) of the CMRA. 237 For the same reasons as enunciated by me in dealing with that point raised on behalf of the defendants, I reject the primary submission that clause 9 of the Survey and Plan Regulation provides a threshold defence to all of the charges before the Court. In the first instance, clause 9 applies to a mine surveyor in relation to surveys certified by a 'former surveyor' or certified as correct 'by another surveyor.' It has no application to any other defendant before me, corporate or personal. As well, clause 9, as part of the Survey and Plan Regulation must be read in the context of the CMRA 1982, the Regulations and, in relation to the issue of mine surveys, the Surveying and Drafting Instructions for Coal Mine Surveyors (Underground) 1984. It must also and, more significantly, be considered in the context of the CMRA and the Regulations as being associated occupational health and safety legislation, the overriding objective being the requirement to secure the health, safety and welfare of persons at work. 238 In that sense, the Survey and Plan Regulation does not operate to abrogate the general duties and responsibilities that arise for the corporate defendants under the OHSA nor those that arise in the CMRA 1982 in relation to other specific mining officials at Gretley, particularly the Mine Manager. 239 I do not read or construe clause 9 of the Survey and Plan Regulation as expressly permitting anything. What it does is absolve a mine surveyor from liability for the accuracy of surveys carried out or certified by another surveyor. 240 As a matter of construction, the absolute or general duties imposed upon particular mine officials at the Gretley mine and in particular the Mine Manager, cannot be said to be abrogated by the provisions of clause 9 of the Survey and Plan Regulations. For example, in accordance with s37(1)(d), the Mine Manager shall have full charge and control of all persons employed at the mine and all operations at the mine. As well, the Mine Manager is subject to an absolute obligation to avoid inrush under clause 8 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 specifically Part 3 - Prevention of Inrushes. Section 56 of the CMRA permits a Mine Manager to delegate to a mine official, in writing, the exercise of the functions conferred or imposed on the Manager under the CMRA. That power of delegation is quite specific in that not only must it be in writing but it is also required to be counter-signed by the person to whom the authority is delegated and may be revoked wholly or partly, in writing. In short, for a Mine Manager to delegate his or her responsibilities and obligations under the CMRA cannot be done lightly or implicitly. In the facts and circumstances before me, there was no delegation by the Mine Manager to any mine official, including the Mine Surveyor, pursuant to the provisions of s56 of the CMRA. As well, the provisions of clause 8 of the Survey and Plan Regulation state relevantly: 8. A mine surveyor shall - ... ... (f) prepare, or supervise the preparation of, all plans, drawings and sections required to be prepared or kept by this Regulation or the Surveying and Drafting Instructions and shall certify the accuracy of all such plans, drawings and sections in writing thereon; (g) where the mine surveyor has any doubt as to the accuracy of any plans, drawings or sections of the mine not prepared by the mine surveyor, or under the supervision of the mine surveyor, which may have an effect upon the working and operation of the mine or the safety of persons at the mine, draw such doubt to the attention of the manager of the mine; 241 The provisions of the above Regulation, particularly sub-regulation (g), is indicative in my view that the ultimate responsibility for the provision of mine plans that are accurate in all respects rests upon the manager on behalf of the mine owner. In this respect, I accept and agree with the submission of the prosecution that the New South Wales legislation in this respect reflects the same philosophy as its English counterpart. Reliance for that proposition is to be found in a report that formed part of the expert opinion of Professor Thomas. That report, known in it's full title as the Report of the Departmental Committee on the Prevention of Dangers in Mines from accumulations of water or other liquid matter (referred to as the 1927 Report of the Water Dangers Committee). That Report, prepared as long ago as 1927, stated as follows: Evidence was brought before us recommending that direct responsibility under the Coal Mines Act should be placed upon the Surveyor, and that the appointment of the Surveyor should be notified to the Divisional Inspector of Mines in the same manner as that of the manager is now done. We are unable to support this suggestion. We believe it to be contrary to the spirit and intention of Section 2(1) of the Coal Mines Act 1911 . The responsibility for the provision of plans rests upon the owner, agent or Manager by Section 20 of the Coal Mines Act 1911 . The Manager is responsible for the control, management and direction of the mine, and the Surveyor is in turn responsible to the Manager for the accuracy and completeness of his work. The supervision and direction of the Surveyor's work must be part of the Manager's duty and responsibility. We are unable therefore to find that any good purpose would be served by varying the existing statutory requirements in this respect. (emphasis added) 242 In relation to Mr Robinson, it is important to note that the prosecution does not rely on any surveys carried out or certified by a former surveyor for the mine to ground his liability as a personal defendant. In other words, the prosecution do not assert that Mr Robinson had any involvement in failures (c), (d) and (e) as pleaded in the research, planning and assessment charges. By way of reminder, those failures allege: (c) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Application submitted to the Department on or about 6 September 1994. (d) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the redrawn plan, which was forwarded to the Department on or about 27 October 1994. (e) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Variation submitted to the Department on or about 11 August 1995. 243 Those alleged failures go directly to alleged failures of the corporation and, if anybody, the former Mine Surveyor Mr Murray who was responsible as the relevant Mine Surveyor at the time for the completion of the mine plans that accompanied the s138(1) application to the DMR and the subsequent variation applications referred to in particularised failures (d) and (e) of the planning, research and assessment charges. The remaining failures in the planning, research and assessment charges do not place any reliance on surveys carried out or certified by a former surveyor for the mine such that Mr Robinson can rely on the provisions of clause 9 of the Survey and Plan Regulation. 244 In any event, I am not satisfied that the defendants can place reliance on RT 523 Sheets 2 and 3 as constituting certified surveys of the Young Wallsend Colliery. 245 Overall, the background to this submission, as I would understand it, is the reliance placed by the defendants on RT 523 Sheets 2 and 3 as the mine plans that formed the basis by them for planning the mining activities at Gretley and in 50/51 panel in particular. As well, Sheets 2 and 3 were relied upon as the basis for depicting the Young Wallsend old workings in all of the mine plans produced by the defendants in relation to the Gretley Colliery including the s138(1) application to the DMR. As is now known, Sheets 2 and 3 were wrong. They had been provided to the defendants by the DMR as accurately depicting the Young Wallsend Colliery old workings. The defendants say that Sheets 2 and 3 were, at the very least, implicitly certified as accurate surveys by the DMR who represented them as accurately depicting the Young Wallsend old workings. Certainly they were not certified surveys as currently understood and as depicted before me in relation to more contemporary mine plans with a certification of accuracy notation on a successive basis in the top right-hand corner by the relevant Mine Surveyor. Indeed, there is nothing on Sheets 2 and 3 that identifies their authorship, the date they were created nor their source, except the notation 'Copied from RT 523 Sheet 1'. 246 Viewed alone, Sheets 2 and 3 do not contain any certification as to their accuracy. As well, when viewed alone, it is doubtful that Sheets 2 and 3 could be said to be certified surveys. They are copies taken from a copy of an original mine plan dating back to 1892. That much is clear from Sheet 1. 247 In any event, such a matter does not arise when considering RT 523 Sheets 2 and 3. They simply purport to depict workings in the Top and Bottom Seams of the Young Wallsend Colliery. They are not, in my view, certified surveys as generally understood and there is no certification or otherwise to that effect on them. The reality is that Sheets 2 and 3, in relying initially on Sheet 1, are reliant on a Record Tracing which is itself a copy of a mine plan. That Sheet 1 purports to have notations on it in relation to Mr Mining Surveyor E Thomas without more, cannot be taken as any certification as to the survey accuracy of Sheet 1. As well, at the time that Sheet 1 was created and, in my view, added to, there were no regulatory provisions requiring a surveyor's certification of accuracy. Such a provision was inserted into the CMRA 1912 by the Coal Mines Regulation (Amendment) Act 1931 in the following terms contained in s10 of that Act: The Principal Act is further amended - (a) by inserting next after section thirty-nine the following new section:- 39A. (1) The accuracy of every plan, section, and tracing which is made at any time after the expiration of twelve months from the commencement of this Act, for the purposes of section thirty-five, section 35A, or section thirty-nine of this Act shall be certified by a person who is registered as a surveyor under the Surveyors Act, 1929, or who is the holder of a surveyor's certificate of competency granted under this section. 248 Prior to the above amendment, s35(1) of the CMRA 1912 provided only that: The owner, agent, or manager of every mine shall keep in the office at the mine an accurate plan of the workings of the mine, showing the workings up to a date not more than three months previously, and the general direction and rate of dip of the strata, together with the section of the strata sunk through, or, if that is not reasonably practicable, a statement of the depth of the shaft, with a section of the seam, and in addition to the above-mentioned plan there shall also be provided a tracing of a surface plan on the same scale showing thereon all streets, roads, buildings, creeks, rivers, bays, swamps, navigable waters, and limits of any tidal waters within the said boundary. 249 The meaning to be attached to certification is properly to be found in the Coal Mines Regulation (Survey and Plan) Regulation 1984 and particularly the Survey and Drafting Instructions for Coal Mines Surveyors (Underground) 1984. At 2.6 of those instructions the following is stated in relation to certification: Certification: The surveyor shall certify the accuracy of the plan in accordance with the provisions of the Coal Mines Regulation Act 1982, and the surveys shown on the plan have been completed by him or under his immediate supervision to a standard equivalent to the standards set out in the Manual of the New South Wales Integrated Survey Grid. The plan shall be certified in the schedule of certification of accuracy on the plan after each quarterly survey is charted on the plan. If two or more sheets comprise the plan then the certification on one sheet of the plan shall be deemed to be a certification for all sheets. Where the position of the workings is in doubt the plan shall be suitably endorsed. 250 As has already been explained earlier in this judgment, the DMR separated the red and black workings on Sheet 1 into the two separate workings denoted as Top and Bottom Seam in Sheets 3 and 2 respectively. If they did so by way of a tracing exercise, it could hardly be said that RT 523 Sheets 2 and 3 could be said to be accompanied by any certification as to accuracy. If the DMR used any other source of information in creating Sheets 2 and 3, for example, the BHP Shaft survey maps of August 1980, there is no notation on Sheets 2 and 3 to that effect. Given that Sheets 2 and 3 were created before August 1980, it is unlikely that the BHP Shaft Survey could have been relied upon by the DMR in producing Sheets 2 and 3 in the first instance. In other words, there is nothing on Sheets 2 and 3 certifying as to their accuracy. Equally, there is nothing on Sheets 2 and 3 suggesting anything untoward or unusual about the depiction of the old workings. On the evidence before me, where there is any doubt or uncertainty about matters such as the extent of old workings, one would expect to find a notation on the mine survey plan to that effect. 251 Notwithstanding the absence of any notation on Sheets 2 and 3, I am of the view that Sheets 2 and 3 do not represent mine surveys or mine plans reflecting surveys certified by a former surveyor as contemplated in clause 9 of the Survey and Planning Regulations. Even if I am wrong as to that conclusion, for reasons earlier elaborated on, I do accept that clause 9 operates as an answer by way of a complete defence to all of the charges before me as contended on behalf of the defendants. 252 If the corporate defendants are able to rely on clause 9 of the Survey and Plan Regulation as an element of a defence under s53 is an issue I will address in due course. I propose to adopt the same approach in relation to Mr Robinson as to any reliance he can place upon the provisions of clause 9 relevant to defences available to him as a personal defendant under s50 of the Act. (vi) Gretley as an undertaking of OPL 253 At the outset it was conceded on behalf of the corporate defendants that NWCC was the registered holder of the coal leases for the Gretley mine, that in accordance with the CMRA it was the owner of the Gretley mine and it operated the Gretley mine. Clearly, as part of that, the Gretley mine was NWCC's undertaking. 254 It was not conceded, as asserted by the prosecution, that OPL was the owner of NWCC. 255 Both companies are incorporated in New South Wales. The Australian Securities and Investment Commission (ASIC) historical company extracts as at 15 May 2000 reveal a significant inter-relationship between the two companies. The ASIC extract of 15 May 2000 revealed the following in relation to OPL and NWCC: (i) as at 24 July 1991, the current registered office of OPL and NWCC was the same. (ii) the previous registered office of OPL and NWCC prior to 24 July 1991 was the same. (iii) as at 29 January 1996, the current principal place of business for OPL and NWCC was the same. (iv) the previous principal place of business for OPL and NWCC prior to 30 January 1996 was the same. (v) as at 30 March 2000, of the five persons listed as then current directors of NWCC, four of them were, at the same time, current directors of OPL. Appointments to both Boards were effected on the same date, that is, 30 March 2000. (vi) relevant to the period of the charges before me, in whole or in part, the following persons were both directors of OPL and NWCC as follows: Name Director Director OPL NWCC William Mark Hart 1.5.96 - 19.12.97 1.5.96 - 19.12.97 Robert Ainslee Yeates 26.8.94 - 10.10.97 1.6.94 - 10.10.97 Stuart John Middleton 1.8.96 - 10.10.97 1.8.96 - 10.10.97 Jonathan Mark Cook 16.12.94 - 1.5.96 4.4.95 - 1.5.96 John Edward Baum 28.5.93 - 23.3.95 21.6.93 - 23.3.95 Richard Ian Cottee 29.4.94 - 23.3.95 26.8.94 - 15.5.98 and 3.4.95 - 15.5.98 Joseph Edward Bounader 29.4.94 - 1.2.95 18.8.94 - 1.2.95 Anthony Bohm Lawrance 3.9.90 - 30.11.94 18.8.94 - 1.2.95 (vii) during the period of time 16.1.95 - 19.12.97 while a director of OPL, Mr Richard Cottee was the Secretary and a Director of NWCC. Mr Cottee was also Secretary of OPL from 16.1.95 - 19.12.97 (viii) Mr William Mark Hart was, in August 1996, the President of Cyprus Australia Coal Company and Chairman of Oakbridge as well as a Director of NWCC. (ix) Likewise, in December 1994, Mr Jonathan Cook was appointed a Director of OPL. In formalising his appointment, the OPL Board minutes of 16 December 1994 noted that Mr Cook was President and Chairman of Cyprus Australia Coal Company. Mr Cook became a Director of NWCC in April 1995. (x) the current ultimate holding company for NWCC as at 15 May 2000 is Cyprus Amax Minerals Company. The ASIC Docimage Number for that being 000 245 90G AR 1996. Reference is made to AR 1996 indicating that that registration took effect in 1996. (xi) The previous ultimate holding company for NWCC before Cyprus Amax was OPL. The ASIC Docimage Number for that being 000 238 953 AR 1990 - the registration being effected in 1990. (xii) The current ultimate holding company for OPL as at 15 May 2000 is Cyprus Amax Minerals Company, registered in 1996. The previous ultimate holding company is listed as GC Coal Company, that having been registered in 1995. The registered address for GC Coal Company as at that date is the same address as OPL and NWCC. 256 Whether OPL was the owner of all of the shares in NWCC during the charges period is another matter. Counsel for the corporate defendants submitted that, by reference to the ASIC historical company extract for NWCC: '…it was not until January 1999 that OAK became the owner of all the shares in NWCC' (my emphasis) 257 That may be so. It is simply not possible to be sure of that fact on the evidence before me. It is not, it seems to me, a determinative issue in these matters. What is clear is that OPL, as a corporate entity, had a controlling, direct and hands on involvement in the activities of NWCC during the relevant period - and that controlling, direct and hands on involvement embraced the operation of the Gretley mine. In that sense, OPL was the owner of NWCC. I make that statement not simply on the basis of the information contained within the ASIC historical company extracts for both companies that I have detailed above. 258 On behalf of the corporate defendants, it was conceded the Gretley mine was a place of work for NWCC and OPL. 259 Having said that, counsel for the corporate defendants did not concede that the Gretley mine was OPL's undertaking. He submitted that the interests of OPL 'were not such as to make the day to day running of Gretley an OPL undertaking.' He submitted that OPL's interests in Gretley were confined to: (a) labour supply of a very small number of employees (less than UMSS) which were limited to the Mine Managers and temporary appointments; (b) supply of computer programmes with general application; and (c) coordinating activity for general mining issues outside of the day to day operations of Gretley. 260 On the above basis, it was submitted, the non employees of OPL alleged to be at risk were not at risk as a result of the undertaking of OPL but rather, without admission of any risk, because of the operation of Gretley by NWCC. 261 Putting aside for the moment the issue of risk, I turn to consider whether the Gretley mine was OPL's undertaking. Before I address that issue in detail, it should be noted at this point that it is well settled that a single transaction can, under the OHSA, amount to an undertaking for more than one industrial person: See WorkCover Authority of NSW (Inspector Reid) v CSR Limited t/a CSR Wood Panels (1995) 109 IR 275 at 289 where Bauer J stated: It has also been established in a series of cases that the same events can give rise to offences by the one defendant under both s15 and s16 ... ... provided the additional elements of non-employment and 'at his place of work' were also established. 262 On this point, see also: WorkCover Authority v Boral - Montaro Pty Limited: Peterson J: 19 December 1997: No. CT1218/96 at pp 9-10 and WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at para [45]. 263 What was the nature of OPL as an undertaking? To start with, the best encapsulation is that found in a document titled Oakbridge Pty Limited - Proposal for Strategic Planning Assistance: May 1996. This 17 page document was part of the agenda for the General Mine Managers Meeting for the Oakbridge Group held on 10 and 11 May 1996. The introduction to that proposal states: Oakbridge Pty Limited is an amalgam of predominantly thermal coal producers in NSW with an export oriented focus; and Oakbridge Pty Limited is an Australian mining company with diverse offshore ownership operating six mines in the state of New South Wales. The 1996 Budget and Five Year Plan forecasts after tax earnings in 1996 to improve by $23.2 million from the 1995 profit of $20.7 million. 264 It is not disputed that the mines that formed part of the Oakbridge group of mines in New South Wales at the relevant time were: · Bulga Open Cut · South Bulga · Gretley · Clarence · Ellalong/Pelton · Baal Bone 265 The extent to which OPL involved itself in the running of mining activities at Gretley was considerable, on any view. To start with, the Mine Managers were employed by OPL. In addition to holding the position of Statutory Mine Manager, each Mine Manager within the OPL group was also appointed as General Mine Manager. That position had a wider role than that of Statutory Mine Manager as Mr Pala explained in evidence thus: Q. And the distinction, if any, between Statutory Mine Manager and General Mine Manager at South Bulga, can you explain those two terms; namely, Statutory Mine Manager and General Mine Manager? A. Statutory Mine Manager is the position that's prescribed under the Coal Mines Regulation Act ; the General Mine Manager is a corporate title that is intended to encompass a broader range of duties - more duties associated with the total management of the business, not just the statutory function. Q. The corporate title of whom, when you had that title at South Bulga? A. The corporate title of General Mine Manager. And further: Q. Do you remember you explained how, as General Mine Manager, you had other functions above and beyond those of a Statutory Mine Manager? A. Yes. Q. Did you have those extra functions that you have already described when you were the Statutory Mine Manager at Gretley from August 1991 to June 1993? A. Yes. Sorry, I had them during the period that I was the Statutory Mine Manager, not whilst I was a Deputy Mine Manager. So I guess during the period that I was Statutory Mine Manager I had those functions, yes. Q. At Gretley? A. At Gretley. 266 In addition to Mr Pala, who was General Mine Manager and Statutory Mine Manager at Gretley from 1991 to 1993, Mr Porteous and Mr Romcke both held General Mine Manager positions at Gretley, and in the case of Mr Romcke, he went on to hold both positions at Clarence after he left Gretley. 267 Mine management, it would seem, were required to report directly to the Board of OPL in relation to diverse operating matters within each Mine Manager's particular mine. For example, in the Minutes of the Board of Directors of OPL, held on 24 June 1994, the following entry appears in relation to Gretley: 3.6 Gretley Colliery The Executive General Manager tabled a memorandum to Directors on Gretley Colliery. Reported that Management had decided to reduce operations to two miniwall production shifts per day and at the same time add a fourth continuous miner unit shift in order to improve development rates and ratios. This change will require a reduction in work force of 27 people reducing total manning from 194 to 167. Reported that total ROM production is forecast to be 1.15 million tonnes for the 1994 year which is approximately 50,000 tonnes less than the present forecast and that the impact of this rationalisation will be a redundancy cost of $1 million. This will be recovered in wage cost savings over about 6 months and in total profit terms over about 12 months. The profit improvement compared to operating at current levels is estimated to be approximately $1 million per annum. The Board ratified the above actions taken by Management. 268 An examination of the OPL Board meetings that were before the Court during the 1994 to 1996 period shows a consistent pattern of a report being received in relation to each of the mines in the Oakbridge group. While the Minute record of such reports is relatively brief, the matters raised in such reports varied across subject matters such as production, safety and industrial relations matters. As well, each Board meeting approved a Capital Expenditure Report for each of the mines and ratified Capital Expenditure requests for each of them. 269 The evidence before me strongly points to the conclusion that the reports received from the six mines came directly to the Board of OPL. In other words, there is no evidence to suggest that such reports were filtered through the corporate structure of NWCC. Support for that conclusion can be found in the documentation produced under summons returnable on both NWCC and OPL. Item 5 in the schedule of documents identified for production was: Any record relating to the detail of any consideration by the Board of Directors or any Director or Secretary or the Management Committee with respect to the Gretley mine between 1 June 1994 and 1 June 1997. 270 No records of NWCC were produced that would constitute consideration of the Board of Directors or any Director or Secretary with respect to the Gretley mine for the period specified. What was produced were Minutes of the meetings of the Board of Directors of OPL in relation to certain meetings between 25 February 1994 and 2 May 1997. 271 Indeed, the overwhelming impression is that, as a corporate entity, NWCC had a clear but somewhat circumscribed role in the day to day running of the Gretley mine. I say that only to the extent that the role that it did have in relation to the day to day running of Gretley was very much in tandem with and under the overall control of OPL. NWCC was certainly the corporate vehicle whereby application was made to the DMR for the lease of the mine and was by definition the owner of the mine. It was also the corporate vehicle whereby application was made to the DMR pursuant to s138(1) of the CMRA in relation to proposed miniwall mining at the Gretley mine as well as the subsequent applications for variation. The latter application, for example, is on the letterhead of NWCC described as A Unit of Oakbridge Ltd: Incorporated in NSW: ACN 000 245 901. As well, NWCC was the corporate vehicle whereby the requisite Form of Appointment was made pursuant to the CMRA to appoint persons to carry out functions at the Gretley mine. Those appointments were made on NWCC letterhead and signed by Mr Porteous as Mine Manager. For example, (i) Mr Hunter as a mineworker: 18 October 1995 (ii) Mr Kaiser as a mineworker: 23 March 1996 (iii) Mr Shacklady as an Under Manager: 16 August 1996 (iv) Mr Franklin and Mr John Hunter as Vehicle Drivers pursuant to clause 30(1) of the Coal Mines Regulation (Transport - Underground Mines) 1984. 272 Conversely, the application made pursuant to s138(2)(d) of the CMRA 1982 to widen the installation roadways in 50/51 panel was made on OPL/Gretley Colliery letterhead and signed by Mr Porteous as General Mine Manager (exhibit 15A). 273 NWCC is also noted on Group Certificates as the employer of a number of persons at the Gretley mine - the miners in particular, as well as a number of the Under Managers. 274 Another important aspect in relation to NWCC that is implicit in the documentation of the General Mine Manager's Meetings is that, as a corporate entity, NWCC was a subsidiary company of OPL and its (NWCC) corporate structure extended beyond the Gretley mine. On the evidence before me, NWCC embraced Gretley as well as the Ellalong/Pelton mines within the OPL Group. For example, in the papers produced for the General Mine Manager's meeting of 22 and 23 August 1996, one of the agenda items was a presentation and discussion on Marketing as part of OPL's Strategic Planning Project. As was stated on page B1 of that presentation: Price Realisation is the key marketing issue facing Oakbridge, particularly as production expands. 275 One of the matters raised within that topic was titled 'Flexibility is constrained by complex marketing arrangements' accompanied by the following diagrammatic outline: Cyprus/Oakbridge Marketing Arrangements 276 There is other evidence that points to NWCC's extended role beyond Gretley and its subsidiary role vis-à-vis OPL. Contained with documents for the General Mine Manager's meeting of 22 and 23 August 1996 is a document on OPL letterhead detailing the Weekly Site Safety Report for the OPL mines for the week ending 24 August 1996. The letterhead of that document also includes under the OPL name, the following listed as Subsidiary Companies: · Bulga Coal Sales Pty Limited · Newcastle Wallsend Coal Company Pty Limited · Saxonvale Coal Sales Pty Limited · Coalex Pty Limited 277 Also included in the papers for the General Mine Manager's Meeting of 22/23 August 1996 are two documents that were part of strategic planning discussions concerning the future of the various mines in the OPL Group. Included as part of discussions about the Ellalong Colliery there are two pages of what would appear to be mining proposals concerning the Ellalong Colliery. Those two mining proposals in diagrammatic form are under the heading of 'The Newcastle Wallsend Coal Company Pty Limited Ellalong Colliery.' One proposal is titled 'Bellbird South Proposal Option N (including LW 12a) and the other is titled 'LW 9A Planning Milestones.' Also included in that documentation are two further mining proposals for the Ellalong Colliery under the OPL banner under the title of 'Budget - M1 and Budget - Upscale (Version 2).' Those two documents are dated July 1996. 278 In addition to the above, there is also the, albeit limited, evidence of Mr Foley, the Survey Assistant at the Gretley Colliery, that he was employed by NWCC which on his evidence, included the operation of a mine or mines other than Gretley, specifically Ellalong and Pelton. On the material before me, it is clear that Ellalong and Pelton are generally considered together as part of a mine operated within the OPL Group. There is also the evidence of Mr Price who stated in his evidence that he was the Chief Surveyor for NWCC - implying, when one has regard to his evidence and the role of Mr Robinson as Mine Surveyor at Gretley, a wider corporate role beyond Gretley. 279 Another reference to the corporate role of NWCC vis-à-vis OPL can be found in the General Mine Manager's meeting of 10/11 May 1996. In the documents relevant to that meeting there is a graph in relation to OPL (calendar year 1995) setting out in a circular graph format the sales of the corporate structures as between NWCC, Bulga and Coalex. Also on the same page is the same approach for the calendar year 1996 budget. 280 All of the above, when considered individually, would not be definitively conclusive on the role of NWCC vis-à-vis OPL. However, when taken together and objectively considered, there is an overwhelming inference that arises that NWCC as a corporate entity was a subsidiary company of OPL. It should also be said at this stage that, on the evidence before me, NWCC as a corporate entity embraced the Gretley, Ellalong and Pelton mines within the OPL Group. Having said that, I am satisfied that NWCC, while it operated and was, by definition, the owner of the Gretely mine, it did so very much in conjunction with and under the control and direction of its corporate parent, OPL. That control and direction was not just at Board level. It spanned matters that directly impacted on the day to day running of the Gretley mine and the mining activities undertaken therein. It certainly involved a critical role in occupational health and safety. 281 Evidence of the role of OPL in relation to the running of the Gretley mine is diverse. To start with, the General Mine Manager's Meetings held under the Cyprus/OPL corporate grouping clearly determined the policy, planning and strategic directions of the mines that made up the OPL Group. The matters discussed at those meetings were grouped around matters such as marketing, safety, environmental concerns, budget, maintenance management, productivity, industrial relations including performance based management bonus, legal issues, geology, financial quarter results and YTD achievements. 282 Considered as part of those discussions, there were always reports from the General Mine Managers of each of the mines within the Cyprus/OPL Group -generally but not exclusively under each of the subject headings. In that regard, the report was always given on the basis of coming directly from the General Mine Manager of the mine concerned, rather than, for example, any executive management person from NWCC or Coalex or Bulga Sales Pty Limited. In other words, the clear impression yet again is the Cyprus/OPL General Mine Manager's meetings was the corporate management structure that set the strategic direction for the OPL group of mines and within that compass set clear parameters in which the General Mine Managers of each of the mines, including Gretley, were intended to operate. 283 The nature of the discussions at the General Mine Manager's meeting were not of a general, superficial nature centred around the headings identified. They were, based on the documentation produced, discussions that went into considerable detail in relation to the operation of the mines within the OPL Group. For example, at the General Mine Manager's meeting of 10/11 May 1996, there was a presentation by Mr Porteous on behalf of Gretley Colliery that included detailed documentation going to Gretley Colliery goals and objectives for 1996 in relation to productivity, finances and safety; proposed safety strategies for 1996 and forecast capital expenditure for that year. In support of those proposals, there was a plan of the Gretley Colliery under the banner of OPL that was drawn by the Mine Surveyor Mr Robinson, dated 27 April 1996. That plan depicts the mine workings as at the end of April 1996. A second OPL mine plan, also as part of the Gretley Colliery presentation at that meeting, drawn by the Mine Surveyor Mr Robinson, dated 27 April 1996, depicts proposed workings for the 1996/1997 year. 284 One of the issues to which considerable attention was given was workplace safety. The General Mine Manager's meeting of 26/27 July 1996 includes a section on safety. Included in that documentation, amongst other things, is lost time injuries and lost time injury frequency rates in respect of each of the mines under the Cyprus/OPL Group, including Gretley. There is also an Accident and Incident Report in respect of each of those mines. Again, in relation to Gretley, the report identifies the following types of accidents and incidents: · Achilles tendon damage while training · Laceration to leg while reversing MPV · Back strain handling drill steels · Back pain lifting a box of chemicals · Stopping fell pinning a miner · Sprained wrist lifting vent tube 285 Reference to safety issues is to be found throughout the documentation of the General Mine Manager's meetings in respect of those meetings that were produced before the Court, namely 10/11 May 1996, 26/27 July 1996, 22/23 August 1996, 24/25 October 1996, 29 November 1996 and 19 December 1996. In addition to the documentation incorporated in the General Mine Manager's meetings, there is other evidence that shows that OPL was directly involved with respect to safety issues at Gretley. For example: (a) The Oakbridge Audit Questionnaire: That document was utilised in each of the OPL mines, including Gretley. (b) 12 October 1994: the Oakbridge Pty. Limited Occupational Health and Safety Bench Audit, with handwriting on the front page 'Gretley Systems Audit.' (c) Between about 9 June 1995 and 28 June 1995, the Oakbridge Occupational Health and Safety Bench Audit was completed. A copy before the Court bears the notation on the front left hand corner of the cover page: Richard Porteous, Gretley Colliery. The audit completed known as the Oakbridge Pty Limited Bench Audit covered Pelton/Ellalong, Baal Bone, Clarence, Gretley, Bulga and South Bulga Collieries. The topics covered in the audit included: · 1.1 Occupational Health & Safety Policy; · 3.5 Risk Assessment; · 4.8 Safety Crew Talks; and · 5.4 Emergency Preparedness. (d) On NWCC/Ellalong Colliery letterhead Mr Bob Keegan advised that the site audits were to be conducted during November/December 1995. Mr Keegan was the OPL Group Manager for Occupational Health and Safety. The Oakbridge Pty Limited Audit Timetable was sent to all Mine Managers, Employee Relation Managers and Safety Managers. The persons listed as Team Leaders for the audit all held positions of General Mine Manager; the protocol was introduced some time after November 1995. (e) On Cyprus Australia Coal Company letterhead dated 24 September 1996, Mr Keegan provided further information and timetables for the forthcoming annual Site Safety Audits which were to follow the Cyprus/Oakbridge Audit Protocols and Procedures consistent with the year before. The information was provided to General Mine Managers and Mine Managers, Safety Managers and Human Resource Managers. (f) The 'Gretley Grapevine' newsletter dated 3 October 1996 advised under the heading Safety: that the Oakbridge Audit Team was to carry out a safety audit at Gretley Colliery in late November 1996. 286 Overall, the detailed role of OPL as a corporate entity in the minutiae of safety matters in each of their mines is readily apparent on a reading of the General Mine Manager's meeting documents. As well, there is evidence of Oakbridge Corporate Safety meetings. In relation to the latter meetings, for example, the minutes of the Oakbridge Corporate Safety meeting of 2 November 1995 details the level of involvement of OPL in relation to safety matters at its mines. That meeting was attended by the General Mine Managers including the senior management personnel of OPL. On that occasion Mr Keegan was welcomed as the new Oakbridge Group Safety Manager. At that meeting, Mr Yeates as the Managing Director of OPL, was present as well as Mr Cook who, at that time, was the President of Cyprus and Chairman of OPL as well as a Director of NWCC. 287 As the details of those minutes reveal, each Mine Manager provided a written report in relation to each of the mines. Specifically in relation to Gretley, the following entry appears: Gretley: Written reports submitted · R Porteous advised of an incident which occurred to an employee when he was burned as a result of spurting liquid from a radiator cap; As a result of this incident, correct procedures have been circulated re what to do in the event of a burn. · A Deputy experienced an injury when his index finger was amputated as he placed his hand between the steel plates whilst watching a moving trolley. It was found that on investigation of the accident that this type of injury/near miss had occurred several times over the past seven years. Currently investigating preventative actions to prevent recurrence of the injury. S Middleton requested a copy of Gretley's findings. 288 In addition to the above, the following matters appear under Item 5 and following of those minutes: 5. OH& S Workshop: R Yeates advised that various tasks were allocated to members of the workshop to be actioned. A booklet was distributed on Corporate OH&S Strategy Action Plan. Items covered in the report are as follows: Employee Survey: (M Cook / R Watts) M Cook advised that a safety survey was distributed to all employees throughout the group. A 25% response was received. He advised that the encouraging part of the survey was that there was a 10:1 response in favour of awareness that there was in fact a company policy in place. It was also fairly well recognised that the company's commitment to safety is genuine but that the company failed in action. Survey comments will be attempted to be addressed. There was a general criticism of OH&S committees. M Cook advised that R Keegan will be developing a response to the people who submitted the reports and these response should be sent out sooner than later. M Cook stated: 1. Remember why we put this together. The response back to people should definitely include: · A 25% response was received (in a pleasant manner) but send this message to everyone (the workforce needs to be committed to safety as well) 2. Summarise results and attempt to summarise the major common trends or themes from the survey and what we are going to do about it. That is, not what we are going to do but what programmes are being put in place to correct the safety at our mines. M Cook stated that the company is doing a lot in the safety area at corporate level but it is not being communicated to the workforce. Senior management needs to take on board where they are going in regard to safety and deliver this message to the workforce. Hazard ID/Standards Monitoring Criteria (J Romcke) J Romcke advised the meeting that he attempted to put a paper together on this subject that would set out some clear corporate criteria that would outline each site's requirements. The first area that was looked at was hazard identification and standards which was aimed at middle management, ie their ready acceptance of sub-standards and poor operations at our sites. The second area looked at was out ability to communicate. Discussion took place on the contents of J Romcke's team's recommendations in regard to Hazard Identification. The committee agreed to accept the guidelines as prepared but that the word 'Audit,' p.2 item (d) be changed to 'check.' M Cook stated that by the committee accepting the criteria as set down for Hazard ID, etc, that each manager is buying into this agreement - it is up to each site to get this up and running and that this should be in place within six months time. OH&S Audit Procedure: (S Middleton) G Linford delivered a summary of this subject. In regard to Audit Workshop dates it was decided to break the workshop into two days as follows: 23.11.95 J Pala, W Archer, S Egan 24.11.95 J Romcke, S Middleton, R Porteous Venue (both days): Kurri Kurri TAFE College Time (both days): 8.00am G Linford will send out a memorandum in this regard. R Yeates requested all personnel at the meeting to review the safety mission, statement, protocol etc as prepared by S Middleton and team, and report any comments back to G Linford one week prior to the upcoming workshop. 289 The overwhelming conclusion that one comes to when reading all of the material included in the General Mine Manager's meeting documents, the minutes of the Board of Directors of OPL and the minutes of the Corporate Safety meetings under the Oakbridge corporate structure is that OPL was very much a hands on and dominant parent company in relation to the running of all of it's mines within the Group. In other words, it was more than a corporate entity whose role included the coordination of activities or general mining issues outside of the day to day operations of Gretley as was contended by counsel on behalf of OPL. Indeed, OPL was concerned to ensure that the strategic and policy directives that it put in place were transmitted into practical reality at the workplace and it achieved this by a high degree of direct control over significant issues, including safety. It was not just a matter of setting policy in relation to safety but of putting in place policy guidelines, overseeing that by undertaking audit compliance and insisting, properly so in my view, on report back as to the outcome of those activities. In relation to the General Mine Manager's meetings, it is also clear when one has regard to those persons present that the participants were there very much as part of the Cyprus/Oakbridge Group and to that extent, the corporate identities such as NWCC (as well as Coalex and Bulga) were simply subsumed into those discussions. 290 In addition to the General Mine Managers of the mines within the OPL Group there were also presentations at those meetings made by persons who held management positions within Cyprus as well as Oakbridge. In many respects, many of those persons also held directorships of NWCC at the same time. Those persons included: (i) David Conde – Company Secretary of Oakbridge: The OPL Historical extract records that he was the previous OPL Secretary from 31/03/87 to 27/6/97. (ii) Rob Yeates – Managing Director of Oakbridge: (1) The OPL ASIC Historical Company Extract records that he was a Director appointed 26 August 1994 and ceased 19 December 1997. The NWCC ASIC Historical Company Extract records he held a directorship in respect of NWCC from 1/6/94 to 10/10/97. (2) As the Managing Director OPL, Mr Yeates advised the DMR in 1995 that Undermanager Chris Nicholls and Production Manager Alston were to perform the duties of the Mine Manager whilst Mr Porteous was on annual leave. Also, as Managing Director OPL, he advised in March 1996 that Mr Alston was to perform the duties of the Mine Manager for a period of 8 days. (3) In the Gretley Colliery Emergency Procedures Document used on the day of inrush and last updated in February 1996, Mr Yeates is identified as a Senior OPL official to be contacted. 291 In addition to the above, there are practical examples contained in the evidence before me as to the impact that the corporate structure and relationship as between OPL and NWCC had on the day to day workings of the Gretley mine. In the first instance, as part of the overall strategic planning for its mines, OPL was directly involved in resource planning and budgeting in relation to Gretley, amongst others. The evidence in support of that is to be found in exhibit P24A. That exhibit consists of three pages from a document titled Oakbridge Limited - 1995 Budget: Gretley Colliery: Overview. The Mission Statement of Oakbridge in relation to the Gretley Colliery for the 1995 Budget year was: To supply coal of consistent quality into traditional markets at an FOB cost equivalent to other Oakbridge (like) suppliers and to maintain a safe work environment providing skills for the workforce that will enhance their security. 292 The remaining two pages include a map of the Gretley Colliery under the title NWCC Pty Limited: 1995 Five Year Plan. The map indicates, by reference to a grid indicator, those parts of the Gretley mine that were proposed to be mined over the years indicated. 293 In addition to the map, there is one page under the OPL 1995 Budget heading detailing the specific objectives and strategies for achievement at Gretley Colliery in the 1995 budget year. 294 In relation to the 1996 Budget year there is documentation that again demonstrates the close involvement by OPL in relevant planning and budgeting decisions in relation to Gretley. For example, the OPL Gretley Colliery Budget presentation of September 1996 included the following statements: (i) Two short blocks, originally named MW 50 and MW 51, will not be worked this year, although they will be developed. (ii) Accompanying the budget presentation is a mine plan titled 'Proposed workings 1997 in relation to the Gretley Colliery.' That mine plan is dated 13 September 1996 and is drawn by MR, the initials properly ascribed to Mr Mark Robinson, the then Mine Surveyor for Gretley. 295 In addition to the planning and budget matters identified above, OPL was also involved in those matters that went directly to mining activity being undertaken at the Gretley Colliery. For example, on 18 October 1996, a letter on OPL and Gretley Colliery letterhead was sent by Mr Porteous as General Mine Manager to Mr Van Dijk, the District Inspector for the DMR. In that letter, Mr Porteous, seemingly on behalf of OPL and the Gretley Colliery, sought approval pursuant to s138(2)(d) for the installation of roadways in MW 50/51 panel. In addition to the letter, there was a mine plan attached under the OPL banner, also dated 18 October 1996 and titled 'Installation RDS - MW 50/51 Gretley Colliery 6m.' In the relevant entry point it is indicated this plan was drawn by MR indicating Mr Robinson, the Mine Surveyor. 296 There is also evidence that OPL was involved in the minutiae of such matters as the appointment of various miners to undertake specific duties at Gretley. For example, in March 1996, a document on OPL/Gretley Colliery letterhead, acted to appoint Mr McCallum as a Vehicle Driver. In that documentation under OPL's banner, it is stated: As required by clause 30(1) Coal Mines Regulation (Transport - Underground Mines) 1984 , I hereby appoint John McCallum to operate vehicles as authorised below. 297 This authorisation is said to be signed by Mr Porteous under the heading 'Authorised by Manager.' Similar such appointments on the same letterhead and in the same wording but unsigned above the 'Authorised by Manager' provision appear in relation to Mr Wayne Nicholls on 17 December 1994, Mr Mark Kaiser in March 1996 and Mr S Brown in September 1996. All of the above persons, with the exception of Mr S Brown, were members of the crew working the night shift on 13/14 November 1996, when the inrush occurred. On that shift, Mr S Brown was employed in conveying supplies to MW 50/51 panel amongst other places and on that particular shift, was in the crib room at 6 cut-through in 50/51 panel when the inrush occurred. 298 A further example of the integration of the undertakings of OPL and NWCC in relation to running the mining operation at Gretley can be found by reference to exhibit P66. This 63 page document is encompassed within an OPL-Gretley Colliery letterhead. The covering first page states: Please find attached a copy of GRETLEY COLLIERIES OTHER MANAGEMENT SCHEMES AND POLICIES. Most all written Schemes and Policies are included but there are other policies that are undertaken such as risk analysis on new tasks and on most all new equipment that comes on site. Attached copies are: Health and Safety Policy Rehabilitation Policy Rehabilitation Procedure Environmental Policy Eye Protection Policy Disciplinary Procedure Chemical Control Interim Waste Management Control Noise Control and Hearing Protection Housekeeping Standards Self Auditing System-Housekeeping OH&S Policy Directives Confined Spaces Confined Space Audit Mine Site Security Overhead Work Smoke Free Workplace Policy Educational Assistance Policy 299 The second page of that document is titled Oakbridge Ltd: Health and Safety Policy. It sets out a six point charter and is signed by R. A. Yeates as Managing Director of OPL and Mr Porteous as then Mine Manager at Gretley. The two signatures are dated 28 February 1995 and 17 October 1995 respectively. 300 The tandem role of NWCC and OPL in the conduct of the day to day running of Gretley was reflected in the evidence of many of the miners who confused the identity of their employer and nominated OPL rather than NWCC as shown by various responses given to the questions about the identity of their employer at the time of the inrush: (a) Mr Franklin responded: 'Well, Oakbridge Colliery, or Newcastle Wallsend.' (b) Mr Atkins responded: 'Oakbridge - Newcastle Wallsend Coal Company, Oakbridge.' (c) Mr Hardman said 'Cyprus, or Oakbridge.' (d) Mr McLean identified Oakbridge as his employer. (e) Mr Nunns responded: 'It was Oakbridge.' (f) Mr Matthews replied: 'Oakbridge mining.' (g) Mr Pugh answered: 'Originally it was the Newcastle Wallsend Coal Company. That changed hands several times and they kept changing names, so I'm not quite sure who. I think it was Oakbridge in November of '96. I think it was Oakbridge, but I couldn't be certain.' 301 As was clear from the documentary evidence before me, in addition to NWCC and OPL, there were additional corporate entities that had, as I would characterise it, an overarching corporate role in relation to the Gretley mine. Those two corporate entities, as identified before me, were Cyprus Amax Minerals and Cyprus Australia Coal Pty Ltd. I have already made reference to Cyprus Amax Minerals as being registered in the ASIC Historical Company documents as the current ultimate holding company for OPL as at 15 May 2000, that having been registered in 1996. As well, a number of the persons who were Directors of NWCC and OPL at relevant times were office bearers with Cyprus Australia Coal Company at the same time. That is, Mr William Mark Hart and Mr Jonathan Mark Cook. As well, the diagrammatic outline referred to in para [275] of this judgment suggests the overarching role of Cyprus in relation to, amongst others, OPL and NWCC. 302 There was some evidence given by Mr Pala, a former Mine Manager at Gretley and other OPL mines, as to his understanding of the role of Cyprus Australia Coal Company and Cyprus Amax Minerals. That evidence was elicited both in chief and in cross examination, relevantly, as follows: Q. Do you have any understanding of the connection, if any, between Cyprus Australia Coal Company and Oakbridge Pty Limited? A. Yes, I do. Q. What is your understanding? A. Cyprus Australia Coal was the management company. Q. Management of what? A. Of Oakbridge. 303 As well, in response to a question from me as to whether Cyprus Amax was the same as Cyprus Australia Coal, Mr Pala said: A. 'Amax' was the parent company at the time and Cyprus Australia Coal was the Australian subsidiary of the Cyprus Amax Coal Company. Q. Cyprus Australia Coal was the management company of Oakbridge? A. That's correct, your Honour. 304 In cross examination, Mr Pala further stated as follows: Q. I will do my very best. Cyprus Australia Coal, did it take over the management of Oakbridge Pty Limited? A. Yes, it did. Q. Do you recall when that happened? If you can give us an approximate time? A. About the time that I left Gretley was about the time that Cyprus came on the scene. I think it actually happened shortly after I left Gretley that they came on the scene. Q. So to the best of your recollection, shortly after June of 1993? A. That's correct. Q. Were you aware whether Cyprus Australia Coal Pty Limited had a parent company? A. Yes, it did. Q. Were you aware of the name of that company? A. The name of the parent changed between the time that Cyprus took a stake in Oakbridge and the time they left Australia. They merged with the Amax Coal Company and they became Cyprus Amax - and Cyprus Australia Coal Company as a subsidiary of Cyprus Amax. Q. Cyprus, before it merged with Amax, was an American-based company? A. Yes. Q. And when Cyprus Australia Coal Pty Limited took over Oakbridge were there American senior executives installed in the operation of the running of that company? A. Yes, there were. Q. When the amalgamation between or merger between Cyprus and Amax took place, was there a continuation of the American senior executives in the operation of Cyprus Australia Coal Pty Limited? A. Through the entire time. 305 Notwithstanding the above evidence from Mr Pala, there is no substantive evidence before me that would allow me to determine with certainty the role of Cyprus Coal Australia in the day to day management of the Gretley mine. Mr Pala did not participate in OPL Board meetings and, based on the information contained in those Board meetings, Cyprus Coal Australia certainly had representation on the OPL Board - as did other corporate interests. 306 To the extent that reference is made to Cyprus Coal Australia or Cyprus Amax on any document produced under the auspices of the OPL General Mine Manager's meetings, is not conclusive of any direct role, particularly by Cyprus Coal Australia, in relation to the operation of the Gretley mine. In any event, on this point, I concur with the submission made by counsel for the prosecutor. That is, even if the role of Cyprus Australia Coal Company was as perceived by Mr Pala, the only consequence is it might mean that that company had an undertaking in relation to Gretley in addition to NWCC and OPL so that it was a further possible defendant. See James Manassa v WorkCover Authority [2003] NSWIRComm 348 at [45] and [46]. 307 Counsel for the corporate defendants contended that OPL's interests in Gretley were, in part, confined to that of a labour supply company, supplying a very small number of employees, which were limited to the Mine Managers and temporary appointments. 308 The evidence is not conclusive as to exactly how many persons OPL employed at Gretley. OPL certainly employed the Mine Managers, the Under Managers in Charge as well as the Mine Surveyor, Mr Robinson. There may well have been others. In any event, OPL was much more than a labour hire company. As I have already stated, OPL had a major role with NWCC in the day to day running of the Gretley mine. I have already pointed to the role that OPL played in appointing persons to specific positions throughout the mine - from management down to minor mining activities within the mine itself. 309 Further, the persons appointed by OPL to manage the Gretley mine were also discharging statutory functions and responsibilities under the CMRA. Those responsibilities included the overall conduct of, and responsibility for, occupational health and safety issues pertaining to persons at the Gretley Colliery. 310 OPL's undertaking could thus be characterised as not only the provision of labour but also as the provision of the services of managing Gretley, including the overall conduct of and responsibility for the OHS issues at the colliery. OPL's employees were not merely labourers or production workers, but rather they included a critical number of the management employees at the Colliery. 311 OPL provided the services of these managerial employees on the basis that they would exert the authority and responsibilities given to them by NWCC as the operator of the Gretley mine. Having done that, OPL cannot then abdicate its statutory obligations under the OHSA 1983 to NWCC or any other body. To the extent that management persons took direction and control from NWCC, this circumstance does not exonerate the defendant and thereby allow it to avoid liability. 312 Likewise, the creation of multiple computer generated mine plans relating to Gretley under the OPL banner, both pre and post inrush. They were not produced, in my view, on the basis of some arms length service agreement as between NWCC and OPL. They were produced under the OPL banner because of OPL's direct relationship with Gretley concerning its overall mining activities. That included the need to generate mine plans coupled with the fact, in my view, that OPL considered the Gretley mine to be its undertaking. 313 Overall, having regard to all of the above, I am satisfied beyond reasonable doubt that the operation of the Gretley mine and the incident giving rise to the incident of potential risk was so connected with the business and activities of OPL that it was part of, and occurred in the course of, an undertaking of OPL. Elements of offences under s15 and s16 of the Act 314 There is no dispute as to the well established elements of offences under ss15(1) and 16(1) of the Act. 315 As to s15(1) of the Act, those elements are: (i) the defendant was an employer at the time of the alleged breach; (ii) that there was a risk to employees' health or safety; (iii) that there was a causal nexus between the defendant's breach and the risk to employees' safety; (iv) that the risk was to employees at work. 316 The elements of an offence under s16(1) of the Act are: (i) the defendant was an employer; (ii) there were persons not employees of the defendant exposed to risk to their health and safety; (iii) the risk arose from the conduct of the defendant's undertaking; (iv) the exposure to risk was at the defendant's place of work. 317 In relation to element (iii) identified above, the prosecution is required to prove that the defendant was conducting an undertaking and a risk arose from the undertaking: Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (2000) 102 IR 84 at 15. Relevant principles 318 It is stating a general principle long established that s15 imposes an absolute liability on an employer subject to s53 which provides for a defence in certain defined circumstances: Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 at 431: Shannon v Comalco Aluminium Ltd (1986) IR 358 at 359. 319 The same general principle applies in relation to liability arising under s16(1) of the Act. 320 The absolute nature and extent of the liability arising under s15(1) (and s16(1)) of the Act was described by the Full Bench in Drake Personnel t/a Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 449 in the following terms: This Court and its predecessors have frequently emphasised the breadth of the duty imposed by s15(1) of the OH&S Act: see, for example, WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at 478 and WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85. The duty imposed by s15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty. 321 The duty imposed by s15(1) requires an employer to provide a workplace free of risks to safety. As the Full Court of the Industrial Court of New South Wales expressed in Haynes v C.I and D Manufacturing Pty Limited (1994) 60 IR 149 at 157 stated: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace . (emphasis added) 322 As in all criminal matters, the absolute nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the employer's failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated: Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. 323 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the alleged conduct of the defendant and the alleged risk. In relation to s16(1) the prosecution must establish beyond reasonable doubt a causal nexus between the breach and the risk to the person not in the defendant's employ. 324 This point was emphasised in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) where a Full Bench of the Court stated at 449: However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injury to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees. 325 On that point see also: McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241; Cullen v State Rail Authority of NSW (1989) 31 IR 207 at 209; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 and Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 at 156-157. 326 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt. 327 The risk to safety only has to be a potential risk, not an actual incident causing an injury; See Drake Industrial v WorkCover Authority of NSW at 452 where it is stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 328 The Occupational Health and Safety Act 1983 does not define what is meant by risk. Section 7 of the Occupational Health and Safety Act 2000 (the 2000 Act) provides some assistance in that, in relation to that Act, risks arising out of the activities of persons at work includes risks attributable to: (a) the manner of conducting an undertaking, or (b) the plant or substances used for the purposes of an undertaking, or (c) the condition of premises (or any part of premises) used for the purposes of an undertaking. 329 The above provisions would seem to do little except state what authorities of this Court have long established, that is, for risk to be established, it must arise out of or be attributable to the overall conduct, including plant and equipment, of the employer's undertaking. 330 Counsel on behalf of the prosecutor put forward as persuasive authority on this issue the decision of the English Court of Appeal in R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171 where it was held at 1177 that in the context, the word 'risks' conveys the idea of a possibility of danger rather than actual danger. 331 The prosecution relevant to the above appeal decision was framed under s3(1) of the Health and Safety at Work etc Act 1974 (UK). That provision creates a duty on an employer to ensure, as far as is reasonably practicable, that relevant persons are not 'exposed to risks to their health and safety.' 332 While the employer's obligations are not cast in the absolute terms of the New South Wales legislation with which I am concerned , it seems to me that in the context of applying the employer's obligations not to expose people to risks to their health and safety, there are parallels with the critical objective of the New South Wales legislation, that is, obviating potential risks to safety in the workplace. 333 In saying that, I would agree with the conclusion reached in R v Board of Trustees of the Science Museum as to the proper approach to the notion of risk in the 1983 OHSA. Potential risk to safety 334 When taken together the three charge periods identified by the prosecutor span the period commencing between 22 March 1994 up to and including the end of the night shift at 7:30am on 14 November 1996. The planning, research and assessment charges cover the whole of that period. The system of work charges are pleaded to commence about 16 September 1996 to 11:30pm on 13 November 1996. The night shift charge covers, as its title suggests, the night shift commencing at 11:30pm on 13 November to 7:30am on 14 November. 335 The date of 22 March 1994 identified as the commencement of the planning, research and assessment charges is the date on which NWCC signed Coal Lease 1343 with the DMR relevant to proposed mining activity at the Gretley Colliery. Clearly, at that time, the potential risk as pleaded did not exist. It is necessary to determine when it did. 336 The reason for undertaking such an exercise is relevant to the issue of the potential risk identified - the risk of inrush from water and/or dangerous gases. The prosecution submitted, correctly in my view, that the prosecution only has to prove potential risk, not an actual incident causing injury: As was stated by the Full Bench in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 452: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 337 Further on that issue see Haynes v CI & D Manufacturing Pty Limited (1994) 60 IR 149 at 157-158 where a Full Court of the Industrial Court stated: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace . The OHS Act, as its long title indicates, has the prime purpose '(t)o secure the health, safety and welfare of persons at work' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. (emphasis added) ... ... The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating 'risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. 338 It has been submitted by the prosecution that the potential risk to safety certainly existed for the whole of the system of work charge period or, in the alternative, arose at some point in that period as the mining activity got even closer to the actual old workings in the Young Wallsend Seam until, by the end of the charge period (11:30pm on 13 November 1996) the mining activity was only some few metres from the old workings. 339 Between the resumption of work in September 1996 and the time of the inrush on 14 November 1996, work had progressed some 369 metres (from 4 cut-through to the face of C heading). As the evidence disclosed, that distance was progressed incrementally on a shift by shift basis and as each driveway was developed, progress was measured by the Deputy on each shift and entered in the Production Report for that shift. 340 By reference to those Production Reports in particular and noting the drivage distance mined by the crew of each shift, it is possible to determine the approximate point mining activity had reached on any particular day between 16 September 1996 and 14 November 1996. Undertaking such an exercise must be accompanied by the caution that such conclusions as are reached must be viewed as approximate only. 341 On behalf of the defendants, it was submitted that the actual risk to safety did not arise until the continuous miner was some 400mm from the old workings because there was no evidence at the holing-in point of an outburst of water such that the coal face between 50/51 panel and the old workings was pushed outwards. As well, it was pointed out, the teeth marks of the pick of the continuous miner were still evident. 342 In my view, the potential risk of inrush arose once the defendants commenced their mining activities in 50/51 panel relying on RT 523 Sheets 2 and 3 as to the location and extent of the Young Wallsend old workings. The first evidence of that anticipated activity is the application made by NWCC to the DMR in September of 1994 followed by subsequent variation applications in 1995. The actual development work in 50/51 panel up to the point of 4 cut-through was undertaken, as best as can be ascertained, in the period between August 1995 and 16 September 1996. Certainly, it is known that on 16 September 1996 mining activity resumed in 50/51 panel at 4 cut-through. 343 As was said in CI & D Manufacturing, ss15 and 16 of the Act comprehend the commission of an offence 'where the circumstances are such that an employers act or omission has created a situation of potential danger to the health and safety of persons at his workplace'. Once the defendant failed to properly research the location and extent of the Young Wallsend old workings and relied on Sheets 2 and 3 in planning and then undertaking its mining activity in 50/51 panel, the potential risk to the health and safety of persons required to work in 50/51 panel arose. That reliance on inaccurate mine plans meant that, from the very beginning, the mining activity in 50/51 panel, planned as it was and in the direction it was heading, always represented a potential risk of inrush of water and/or dangerous gases from the Young Wallsend old workings. True it is that, for example, in September 1996 the potential risk of inrush was latent in that it was not immediately likely to cause actual injury. Nevertheless, given the planned direction of the mining activity in 50/51 panel bearing directly and inexorably towards the Young Wallsend old workings in the Young Wallsend Seam, the potential risk of inrush was very much alive. As the mining activity continued in 50/51 panel, the potential risk of inrush was heightened as the work approached the Young Wallsend old workings. In other words, the potential risk became more and more proximate to the actual inrush that caused death and injury. Type 3: planning, research and assessment charges (1) IRC Matter No. 3200/00: Alleged breach by NWCC of s15(1) of the Act 344 In relation to this charge, the prosecution alleges that there was a risk to the health and safety of its employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal workings, namely the Young Wallsend coal workings. 345 In relation to this alleged offence (IRC Matter No 3200/00) the defendant admits the following numbered further particulars: [1] The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . [2] For the purposes of the Coal Mines Regulation Act 1982 , the defendant was the owner of the Gretley Mine. [3] The defendant was the operator of the Gretley mine. [4] Between about 22 March 1994 and 14 November 1996 the defendant employed Darren Wayne Atkins, Edward Samuel Batterham, Dallas Bellamy, Clive Arthur Bernard, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, Bernard Francis Brown, Alistair Buchanan McLean, Wayne Charles Nicholls, Ian Robert Nunns, Barry Neville Stewart, John Riley, David Pugh, David Hern and Darrel Martin ("the employees"), at the Gretley mine. [5] On or about 6 September 1994 an application was submitted to the Department of Mineral Resources ("the Department") being an "Application for Approval to Use the Miniwall Mining Methods for Panels MW39 to MW 45". On or about 27 October 1994, a redrawn plan was forwarded to the Department. [6] The Application was approved on 5 January 1995. [7] On or about 11 August 1995, a variation was submitted to the Department being a "Variation of Approval to Extract Miniwall Panels MW39 - 45". [8] The Variation was approved on 1 September 1995. MW 44 - 45 later became MW 50 - 51 ("50/51 panel"). [11] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [14] On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. [15] The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. [16] On 14 November 1996, Mr Batterham and three other mine workers, suffered fatal injuries at Gretley mine when they were swept away and drowned by the inrush of water. 346 Those numbered further particulars that the defendant takes issue with are as follows: [9] There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal mine workings namely the Young Wallsend coal workings. [10] Between about 16 September 1996 and about 14 November 1996 the employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in 50/51 panel. [12] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [13] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. [16] On 14 November 1996, Mr Batterham and three other mine workers, suffered fatal injuries at Gretley mine when they were swept away and drowned by the inrush of water. [17] On 14 November 1996, Mr Nicholls, Mr Frankilin and two other mine workers were exposed to the risk of injury. 347 It is easy to understand why the defendant would not admit further particulars [9] and [17] as pleaded given the plea of not guilty that has been entered. The position adopted on behalf of the defendants in relation to the remainder of the further particulars is a little more difficult to fathom. 348 In relation to further particular [10], it was stated on behalf of the defendant: The defendant says that not all employees or other mine workers were required to work during the period pleaded in 50/51 panel. 349 With the exception of Mr Batterham, the mine Deputy drowned in the inrush, and three others, Mr Len Collins, Mr Bernard Brown and Mr John Riley, all of the defendant's employees named in further particular [4], which is admitted, were called by the prosecution. Each of those called confirmed they had worked at C heading in 50/51 panel in the period pleaded in the charge. 350 Of the three not called, Mr Collins and Mr Bernard Brown are listed in the Production Reports on any number of occasions as a member of a crew working in C heading in 50/51 panel during the relevant period. It should be noted that in addition to them, there are other mine workers listed as being crew members working at C heading in 50/51 panel during the relevant time. 351 In relation to Mr John Riley, evidence was given by Mr Bellamy and Mr Hern that Mr Riley was a maintenance fitter and was employed on the day shift at C heading in 50/51 panel on 12 and 13 November. 352 None of the above evidence was challenged in any way and there is no evidence to contradict it. 353 I am satisfied as to further particular [10], that is, that between about 22 March 1996 and 14 November 1996, the employees identified and other mine workers were required to work on the development of a roadway (known as C heading) in 50/51 panel. 354 In relation to further particular [12] counsel for the defendant stated: The defendant admits that the Young Wallsend coal workings contained water which was released and flowed into C heading under some pressure. 355 In other words, the matters in dispute would appear to be whether the workings were 'full of water' and 'under a head of pressure' rather than 'some pressure.' 356 In the first instance, the defendant did know that the Young Wallsend coal workings were 'full of water.' It said so in its s138(1) application to the DMR in September 1994 in the following words at 2.2.6 of its application: Young Wallsend Colliery worked the Young Wallsend and Borehole Seams. These workings are known to be filled with water. 357 As well, evidence was given by Mr Cowan, a District Inspector of Coal Mines with the DMR. Mr Cowan described how, in around August 1992, he was present when the shafts that were part of the Young Wallsend old workings were filled and capped. As Mr Cowan described: I basically went out there the first day when they started filling the shafts and at that stage they were using some large rocks and that to go to the bottom. I looked down the shaft and the water level was somewhere between 60, 80 metres down. On days after, as I went back, slowly the water level rose in the shaft as the filling went in until finally, after the third day, they had filled the shaft with rubble and dirt and other material that they gathered from around the site and the water level did come up to the top and there was a sticky mess on the top of the shaft. 358 It is clear that in addition to rocks and other debris, the water level in the shafts reached ground surface level before the shafts were capped. 359 The top of the shafts relative to the Young Wallsend Seam where 50/51 panel was located was between 450 and 460 feet (or some 150 metres). The evidence of Professor Thomas on this point about which he was not challenged was: …I believe that there would have been a head of water of about 150m in the YWC shafts ... 360 As counsel for the corporate defendants stated by way of a question to Professor Thomas: Q. And in the case of a mine, the pressure that operates in a flooded mine, assuming the water to be static, is dependent upon the depth of the water in the shaft? A. Yes. 361 On that point, Professor Thomas further elaborated: Water will flow very rapidly, at least initially, from a holed working because of the high pressure head. If there were any old cavities not filled with water, the gas in them would be under pressure equal to the head of water, and blackdamp and maybe stinkdamp (hydrogen sulphide) would outburst with the water. 362 I am satisfied that in relation to further particular [12] the Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. 363 In relation to further particular [13], it was stated on behalf of the defendant: Not all employees and/or other mine workers were required to use the continuous mining machine. 364 I have to say that I do not read further factual particular [13] as pleaded as reflecting the defendant's contention. The prosecution pleads that the work being undertaken in 50/51 panel 'included the operation of a continuous miner by the employees and/or other mine workers.' That is so. There is evidence that there were other activities undertaken as part of the overall mining activities in 50/51 panel. Some of the employees who gave evidence before me drove the continuous miner, some presumably did not. The factual particular is pleaded in the alternative. As well, I would take a broad view of the word 'operation' as meaning all those mining activities required to keep the continuous miner operating rather than a narrow construction as meaning the physical act of driving it. The evidence is that when it was operating, the continuous miner required the combined activity of the crew members to keep the machine moving forward, both for roof bolting and coal cutting operations, to maintain the integrity of the power cable and to shuttle coal away. I am satisfied that the work being undertaken in 50/51 panel included the operation of a continuous mining machine and that that operation was part of a combined effort by all of the section crew members, they being the employees and/or other mine workers. 365 In relation to further particular [16], it was stated on behalf of the defendant: The defendant admits the person(s) suffered fatal injuries and drowned, but does not otherwise admit that paragraph. 366 The matters in issue are that the prosecution pleads that the mine workers were 'swept away and drowned by the inrush of water.' Given that the defendant admits that the workers drowned, one is left to determine whether they were swept away by the inrush of water. I do not have any difficulty in coming to such a definitive conclusion. 367 Exhibit P1A depicts where the bodies of the drowned men were located after the inrush. The evidence is that immediately before the inrush they were all engaged in operating the continuous miner at the face of C heading. After the inrush, and relying of the measurements undertaken by Mr Foley at the time, it is clear that the bodies were located as follows: (i) Mr Batterham and Mr Hunter's bodies were located approximately halfway between 6 and 7 cut-through with Mr Batterham's body being marginally inbye of Mr Hunter's. (ii) Mr Kaiser and Mr Murray's bodies were located between 4 and 5 cut-through with Mr Murray's approximately halfway between the two cut-throughs and Mr Kaiser's some two thirds between them, closer to 5 cut-through. 368 Based on the measurements taken by Mr Foley, which I accept as correct, I deduce that Mr Batterham and Mr Hunters' bodies were located approximately 120 metres from the face of C heading and Mr Kaiser and Mr Murrays' bodies were approximately within 315 to 320 metres from the face of C heading. On any considered view, they did not get there any other way except by the force of the water from the inrush. That there was considerable force to the inrush of water is evidenced dramatically, in my view, by the fact that the continuous miner weighed in the vicinity of 45 tonnes, as built. It was located 17.5 metres from the face of C heading after the inrush, wedged diagonally across C heading. Only a force of water of considerable strength would have been able to push such a machine back that distance. 369 In addition, the bottom half of exhibit P1A is a cross section of C Heading that shows the water mark left by the inrush and gives an indication of the height the water reached in the heading. The blue dotted line on the diagram indicates that during the inrush the flow of water in the heading was at the level of the roof for 49 metres from the face. The watermark then subsides and is still at about half the height of the heading at cut through 6 which is 169 metres from the face. 370 The risk to safety as pleaded identifies ten particularised failures that go to precise aspects of what is alleged to be part of the planning, research and assessment of the development of the Gretley Colliery: (a) failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings namely Young Wallsend coal workings. (b) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on any of the mine plans. (c) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Application submitted to the Department on or about 6 September 1994. (d) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the redrawn plan, which was forwarded to the Department on or about 27 October 1994. (e) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Variation submitted to the Department on or about 11 August 1995. (f) A failure to undertake planning by way of a risk assessment for the development of the Gretley mine. (g) A failure to plan by way of risk assessment for the development of 50/51 panel. (h) A failure to carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. (i) A failure to plan by means of test drilling, to establish the location and the extent of the Young Wallsend coal workings, prior to the development of 50/51 panel. (j) A failure to ensure such steps were taken as may be necessary to prevent inrush of water and/or dangerous gases. (i) Failure to undertake planning by way of properly researching available sources and information on the location and the extent of old coal mine workings namely Young Wallsend coal workings 371 In establishing this failure, the prosecution relies on evidence from which it says sufficient inferences can be drawn such that the Court would be satisfied beyond reasonable doubt as to the defendant's failure as alleged. 372 As earlier indicated, when underground mining activity is contemplated, the presence or otherwise of old mine workings is understandably important. Abandoned mine workings are known, more often than not, to be filled with water that has accumulated over time. An accumulation of water in abandoned mine workings can be one source of inrush where later mining activity occurs. In the underground mining industry, the hazard of inrush from water or 'inflammable or noxious gas' is well known. As a potential source of accumulated water, abandoned mine workings must be treated with great care and caution when further mining is contemplated in the vicinity. To start with, old mine workings need to be accurately identified as to their location and extent. Next, if further mining is planned, steps must be taken, as may be necessary, to prevent inrush occurring. Such steps may involve draining the water from the old workings or maintaining a barrier of unworked coal around the old workings sufficient to prevent the escape of water or gas, as the case may be. 373 The obligation of mine management to be aware of the dangers of old workings as a potential source of inrush has been given statutory force: Part 3 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 deals with Prevention of Inrushes. Clause 8 of Part 3, Manager's duties, states in subclauses (1), (2) and (3) as follows: (1) The manager of a mine shall ensure, in respect of every working in the mine, that such steps are taken as may be necessary to prevent any inrush into the workings of flammable or noxious gas from disused workings (whether mine workings or not) or of water or material that flows when wet (whether from disused workings or from any other source). (2) The manager of a mine shall take such steps as may be necessary to ensure that the manager is at all times in possession of such information as would indicate or tend to indicate the presence in the vicinity of any workings carried on, or proposed to be carried on, in the mine of - (a) any disused excavations or workings (whether mine workings or not); (b) any rock or stratum containing or likely to contain an accumulation of water which may endanger the workings or proposed workings; or (c) any peat, moss, sand, gravel, silt or other material that is likely to flow when wet. (3) In fulfilling the duties imposed by subclause (2), the manager of a mine shall have regard to such information as may be available from the Department or the Department of Mineral Resources in addition to any other information available to the manager. 374 The obligation imposed on a mine manager by the above provisions are clear and unequivocal. That is, the manager 'shall ensure … that such steps are taken as may be necessary' and 'shall take such steps as may be necessary to ensure' (s8(2)). In relation to the provisions of s8(2) in particular, I would consider that the Mine Manager's obligation 'to ensure' the matters identified should be construed no differently to the approach enunciated by Watson J in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 where his Honour stated: In their context and purpose, there would appear to be no reason to make any implication that the words to ensure are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. 375 While his Honour there was referring to the words 'to ensure' within the context of s15(1) of the Act, I see no distinction or difference in the context and purpose of 'to ensure' in s8(2) of the above-mentioned Regulation to suggest a different meaning. 376 As clause 8(3) above makes clear, the statutory obligations imposed concerning the prevention of inrush made it necessary for those charged with responsibility for the conduct of mining operations at Gretley to have regard to whatever historical information as could be obtained from the DMR as well as 'any other information available to the manager' to assist them to accurately identify disused workings or excavations in the area in which future mining activity was contemplated. 377 In New South Wales, the DMR is the obvious starting point for any person or corporation seeking historical information about mining activity in the State. The DMR and its statutory predecessors have had statutory powers and obligations in relation to the granting and regulation of mining leases in the State since the early 19th century. One of the important pieces of historical information held by the DMR in relation to former mine workings are copies of old mine plans or Record Tracings, as they are known. 378 When received by the DMR in accordance with the statutory requirements, a mine plan, or a copy of it, becomes known as a Record Tracing (referred to as a RT). Record tracings are, in effect, copies of successive mine plans showing the extent of the workings of a mine at a particular point in time. They are required to be sent by mine management to the DMR at regular intervals while mining activities are in progress. 379 Evidence about the role of record tracings in mining activity was given by Miss Marjorie Roberts (now retired) who had been the custodian of mine record tracings at the DMR for many years. In her evidence Miss Roberts confirmed that the original mine working plan is always retained at the mine site and a copy of the mine working plan is sent to the DMR, generally within three months of the preparation of the mine working plan and thereafter every six months. As Miss Roberts' statement explains: [3] RTs are required to be submitted to the Chief Inspector of Coal Mines within six months from the time when the first coal has been extracted, then every six months after that they are sent out by the Department for an update by the colliery until the date of discontinuance or abandonment. The Department holds copies of old and abandoned mine plans (RTs) within the State of New South Wales; these plans are available to the public for viewing or to obtain copies. Copies of current RTs may only be issued with the written consent of the Chief Inspector of Coal Mines or the mine owners. [4] It is also my job to issue the new RT numbers to any new mine and, if requested by the Mine Surveyor, to advise the correct map sheet number from the State ISG grid numbering system. [5] Before forwarding RTs to the mines for update, I usually phone the surveyor to find out which sheets are needed for the last six months' workings. Mine plans have been lost in the past, so it is better to send only the sheets needed for that particular period. [6] When the plans are returned, I have to check them against a checking sheet, a blank copy of which is annexed 'A', to make sure they conform with the requirements of the 'Survey and Drafting Instructions for Coal Mine Surveyors'. They then have to be sent out for scanning in order to be able to produce 1:10,000 plans of the RTs for ourselves and for the Newcastle Mine Subsidence Board. [7] In the past, RTs were used as a means of checking production of mines for royalty purposes. However, nowadays, the checking is done directly by royalty officers, who visit the mines in person. [8] The Coal Compensation Board uses information in RTs for purposes of calculating compensation to private coal owners whose rights were taken by the Government in 1982. Officers of the Board visit the Department from time to time to view relevant RTs and take prints off them as required. 380 The statutory requirement of the mine management, particularly the Mine Surveyor, to provide regular record tracings to the DMR is to be found in Part 3 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 (Survey and Plan Regulation) at clause 14. 381 Once submitted, record tracings (or RTs) are assigned a number and each successive tracing received is given a sheet number in numerical order. For example, the Gretley Colliery had an allocated RT number of 574. 382 In relation to the old abandoned workings of the Young Wallsend Colliery, the DMR had copies of a prior RT. The Young Wallsend Colliery RT number was 523 and there were three separate sheets (or mine plans) making up that RT. That is, RT 523 Sheets 1, 2 and 3. Those record tracings were filed and stored with the DMR. As Miss Roberts explained, any member of the public may access or obtain copies of RTs of abandoned collieries. In relation to working collieries, while access to mine RTs requires the permission of the mine operator or the Chief Inspector of Coal Mines, the Coal Compensation Board and the Mine Subsidence Board may access them at any time. 383 The records tracings (RTs) produced by the DMR in relation to the Young Wallsend Colliery assumed critical significance in the proceedings before me. As earlier stated, there were three such Sheets, identified respectively as RT 523 Sheets 1, 2 and 3. Sheets 2 and 3 are more recent in origin, being on a clear, heavy duty plastic based material identified as chronaflex (exhibits 118 and 119). According to Miss Roberts, when she viewed Sheets 2 and 3 held by the DMR in relation to the Young Wallsend old workings, she observed 'that they were not original documents.' Further, as a visual inspection of RT Sheet 1 compared with RT Sheets 2 and 3 discloses, the latter two Sheets appear to be a breakdown of what is depicted on Sheet 1 in that it separates the mine workings on Sheet 1 into two distinct mine workings. That first glance assessment requires some explanation. 384 RT 523 Sheet 1 is obviously an old document being produced on a waxed linen based, heavy duty material that, with the passage of time, is now quite fragile. It bears the title Plan Shewing (sic) Young Wallsend Coal Workings, with a scale indication ½ " = 1 chain. In the bottom left hand corner the following inscription appears: Copied from the Colliery plan at the coal field office by Herbert Winchester. 21st March 1892 385 There is also a notation in red ink along the lease boundaries that states: Dotted lines in red show part of West and South boundaries of portion 60 as defined by Mr Mining Surveyor E. Thomas Plan 14136 Mines. 386 The notation made with reference to Mr E. Thomas arises from work performed by Mr Thomas as a Mining Surveyor with the Department of Mines (as it then was) in 1909. On the evidence before me, in documentary form from old DMR files, it would appear that Mr Thomas was instructed to undertake survey work of the Lymington and Young Wallsend Collieries in 1908. He commenced the work on 27 January 1909 and completed it on 4 February 1909. There are, however, entries made on the red drawings in Sheet 1 that refer to dates after 1909 that would suggest that whatever survey work was undertaken by Mr Thomas in relation to the Young Wallsend old workings is incorporated into Sheet 1 as the entry would suggest. That is, the dotted lines show the boundaries as defined by Mr Thomas in Plan 14136. What is not clear is whether entries made in red on Sheet 1 and dated after February 1909 were made by Mr Thomas or some other person. 387 As well as the above, there are some entries under the heading Notes and a boxed area titled Seam Section with no entries, also in the left hand corner of Sheet 1. 388 Depicted on RT Sheet 1 are old mine workings. There are two such depictions - one in black and one in red. Both of the workings depicted would, to the informed observer familiar with mine plans, appear at first glance to depict areas of coal that had been extracted. Curiously as well, the two sets of workings appear to overlay each other. In doing so, the red workings extend beyond the boundaries of the black workings, particularly in the north western and south eastern boundaries. Any person looking at RT 523 Sheet 1 could not help but wonder as to the precise import of the red and black workings and their relationship to each other. 389 Reference to RT 523 Sheets 2 and 3 would suggest an answer to some aspects of the red and black workings in RT 523 Sheet 1. Sheets 2 and 3 are, as earlier stated, of much more recent origin than Sheet 1. That fact is not in dispute. The precise origin of Sheets 2 and 3 can be traced to a request made to the DMR by the Broken Hill Proprietary Company Limited (BHP) in February 1980. In making its request, BHP stated it wanted one copy each of the workings of Young Wallsend Colliery, Young Wallsend Seam and Young Wallsend Colliery, Borehole Seam. That request, expressed in that way, indicates a belief on the part of BHP as to old workings in the two seams. The basis of that belief is unknown. In any event, the DMR proceeded to produce Sheets 2 and 3 in the way they did. The only explanation is to be found in a Minute Paper dated 13 May 1980 from the Principal Officer, Mapping Section, Coal Development Branch of the DMR to the then Chief Inspector of Coal Mines (amongst others) that states relevantly: In the attached order, the Broken Hill Proprietary Company Limited has requested chronaflex copies of the plans of abandonment of the Young Wallsend Colliery. The order emanated from a telephone conversation with Mr D Browning a geological draughtsman with the Company. The plans are required for completion of their geological mapping as well as assisting in assessing coal reserves. The Young Wallsend Colliery worked in both the Borehole and Young Wallsend Seams until 1912. It was officially abandoned in 1928. The workings of both seams (which directly overlay each other) are shown by differing colours on the one plan of abandonment. ie. R.T. 523. Due to this fact as well as the poor condition of the plan a separate tracing of each workings had to be made. The workings of the Young Wallsend Colliery is not within a Colliery Holding, although it is surrounded by Colliery Holdings. 390 It is clear that RT 523 Sheets 2 and 3 were produced within the DMR following the request from BHP in 1980. 391 Beyond the above, it is impossible to be more precise as to the origin of Sheets 2 and 3 in that neither is dated nor is there any identification of the party responsible for creating the sheets or any formal legend or surveyor notation. Both Sheets 2 and 3 bear the inscription: Traced from Record Tracing 21 March 1892. 392 As well, in the margin of each Sheet there is a notation stating respectively: RT 523 in 3 Sheets: Sheet 2 and Sheet 3 RT 523 in 3 Sheets: Sheet 3 393 What Sheets 2 and 3 do is to separate the red and black mine workings depicted on Sheet 1. The workings depicted in black on Sheet 1 are reproduced on Sheet 3 with the heading Young Wallsend Coal Workings Top Seam. Those workings were referred to before me as the oval shaped workings and prior to the inrush were understood by the defendants to be workings in the Young Wallsend Seam. The mining activities being undertaken by the Gretley Colliery, particularly in 50/51 panel, were in the Young Wallsend Seam. The depiction of the Top Seam workings of the Young Wallsend Colliery old workings as workings in the Young Wallsend Seam appeared on successive mine plans produced by Gretley Colliery management from at least 1994 onwards. 394 RT 523 Sheet 2 reproduced the workings depicted in red on Sheet 1 with the heading Young Wallsend Coal Workings - Bottom Seam. The workings were referred to before me as the two arrowhead shaped workings, seemingly linked by roads. 395 Prior to the inrush, reference to the Bottom Seam on Sheet 2 was understood by the defendants to be workings in the Borehole Seam. The Borehole Seam was part of the former Young Wallsend Colliery workings with an 18 metre interburden or distance between the Young Wallsend Seam and the Borehole Seam. This much was acknowledged by NWCC when it made its s138 application to the DMR in September 1994. At 2.2.6 of that application the issue of prior old workings was referred to as follows: Wallsend Borehole Colliery old workings to the north of the application area contained approximately 500 Ml of water. This area is currently being dewatered via the Harris Street Borehole. Dewatering will be completed by an inseam borehole. Young Wallsend Colliery worked the Young Wallsend and Borehole Seams. These workings are known to be filled with water. Drilling ahead of workings will be carried out when approaching the old workings in the Young Wallsend Seam and a sufficient barrier will be left between the old workings and extraction panels to maintain the safety of the current workings. The Borehole Seam workings are limited to single or two heading driveages, adjacent to MW42. The interburden is 18m thick and these workings do not pose a danger to Gretley workings. The old workings in the Borehole Seam, adjacent to MW45 are first workings only. The interburden will be intact, providing a separation between the old workings and Gretley minwall panels. 396 Also included as part of the s138 application was a mine plan titled The Newcastle Wallsend Coal Company Pty Limited Gretley Colliery: MW 35-36 Approved Plan drawn to a scale of 1:4000, dated 31 July 1994 and signed by the then Mine Manager, Mr Romcke and Mine Surveyor, Mr Murray. 397 That particular mine plan depicts the Young Wallsend Colliery old workings but only those depicted on RT 523 Sheet 3 as the Top Seam workings that were in the Young Wallsend Seam. 398 That the mine management at Gretley knew of the purported workings in the Borehole Seam as depicted in RT 523 Sheet 2 prior to the inrush is undisputed. As stated in the s138 application in September 1994 'The Borehole Seam workings … do not pose a danger to the Gretley workings.' 399 It is not in issue that the mine management at Gretley made their decisions as to mining operations at Gretley and 50/51 panel in particular, reliant on the Young Wallsend old workings being as depicted in RT 523 Sheets 2 and 3. That is, separate and distinct workings in two seams, 18 metres apart. 400 Reliance on Sheets 2 and 3 required one to be satisfied as to Sheet 1. That there had to be a Sheet 1 is evident from the notation on Sheets 2 and 3. For example, the notation in the margin of Sheet 3 reads RT 523 in 3 sheets: Sheet 3. Likewise, on Sheet 2 the notation is RT 523 in 3 sheets: Sheet 2. On any view, seeing those notations, one would enquire about Sheet 1. A visual inspection of Sheet 1 would immediately give rise to a number of questions, not least of all being that given the depiction of the workings in Sheet 1, what was the rationale behind them being separated in the way they were in Sheets 2 and 3? 401 The inescapable conclusion, when one considers RT 523 Sheets 2 and 3 is that whoever created them interpreted Sheet 1 in a particular way. That is, the red and black workings depicted as superimposed on each other in Sheet 1 had been separated out and depicted as stand alone workings in two different seams, vertically 18 metres apart. On any view, that was a big call to make and one that was critically important as to its accuracy. It would be important for any party coming after to be able to view RT 523 Sheets 1, 2 and 3 and, together with additional historical material available to them, be able to satisfy themselves that the assumptions made in the production of Sheets 2 and 3, depicting the old workings in the way that was done, were accurate and able to be confidently relied upon when planning future mining activities in the vicinity of the Young Wallsend old workings. Given the known dangers of mining in the vicinity of old mine workings such considerations were paramount, particularly where safety was concerned. 402 It is clear that in the first instance, the responsibility for researching sources about old mine workings rests with the Mine Surveyor and ultimately the Mine Manager. On that issue, the provisions of the Coal Mines Regulation (Survey and Plan) Regulation 1984 are instructive. Relevantly, they provide as follows: PART 2 - SURVEYING Duties of mine surveyor 8. A mine surveyor shall - (a) be thoroughly acquainted with and comply with the Surveying and Drafting Instructions; (b) be responsible for setting out the working places and headings at the mine at such distances and widths and in such directions as the manager of the mine may from time to time instruct in writing; (c) draw the attention of the employees at the mine or mining officials to any neglect or deviation from the centres, or marks, or instructions given, and shall report to the manager of the mine any deviation considered by the mine surveyor to be excessive or outside the deviation limits set out by the manager; (d) make such surveys and take such levels as may be required by the Act, the Regulations or the Surveying and Drafting Instructions and have such surveys and levels plotted with reasonable despatch; (e) report to the manager of the mine without delay any matter or thing coming under the mine surveyor's notice which the mine surveyor cannot perform and which is necessary to be observed or carried out in order to comply with the Act, the Regulations or the Surveying and Drafting Instructions or to secure the safety of employees at the mine; (f) prepare, or supervise the preparation of, all plans, drawings and sections required to be prepared or kept by this Regulation or the Surveying and Drafting Instructions and shall certify the accuracy of all such plans, drawings and sections in writing thereon; (g) where the mine surveyor has any doubt as to the accuracy of any plans, drawings or sections of the mine not prepared by the mine surveyor, or under the supervision of the mine surveyor, which may have an effect upon the working and operation of the mine or the safety of persons at the mine, draw such doubt to the attention of the manager of the mine; (h) ensure that all survey records which were necessarily made for the preparation or checking of any plans, drawings or sections required to be made or kept by this Regulation or the Surveying and Drafting Instructions are kept in safe keeping; and (i) when the survey records referred to in paragraph (h) are not kept at the mine, make such arrangements as will ensure that upon the mine surveyor ceasing to hold the position of mine surveyor, or upon the abandonment of the mine, all such records are transferred to the possession and care of the owner, superintendent or manager of the mine. (emphasis added) PART 3 - PLANS Plans and maps to be kept at the mine 12. The manager of a mine shall keep at the office at the mine or at such other place as may be approved by the district inspector - (a) a mine working plan; (b) a geological map of the district in which the mine is situated; (c) in the case of an underground mine, a plan showing the ventilation system of the mine; (d) a surface plan of the mine; and (e) separate plans for the purpose of showing any other specified matter. Mine working plan 13(1) The mine working plan shall be prepared in accordance with the Surveying and Drafting Instructions by or under the supervision of the mine surveyor within 3 months after the opening of the mine or such other time as the Chief Inspector may direct by notice in writing served on the manager of the mine. (2) The mine working plan shall consist of - (a) in the case of an underground or open cut mine, a separate plan for each seam being worked in the mine showing the information specified in subclause (3); (b) in the case of an open cut mine, a separate cross section sheet corresponding to each sheet of the plan referred to in paragraph (a) showing cross sections of the open cut working and such other information as may be required in the Surveying and Drafting Instructions for open cut mines, except that where separate plans are prepared and kept for 2 or more seams being worked, 1 cross section sheet corresponding to each sheet of the plans will suffice to illustrate composite sections of the seams worked within the area shown on the cross section sheet; (c) such sections of the seams being worked in the mine as may be necessary in the opinion of the manager of the mine or the mine surveyor to show any substantial variation in the thickness or character thereof; and (d) such sections may be necessary in the opinion of the manager or the mine surveyor to enable the relation between the seams being wor ked in the mine to be determined at any place within the boundaries of the mine. (3) The mine working plan shall show - (a) all current workings of the mine in the seam or seams of the mine up to a date not more than 3 months before the making of the plan; (b) any workings of the mine in the seam or seams which are abandoned, discontinued, disused or worked out ; (emphasis added) (c) any current workings, up to a date not more than 6 months before the making of the plan, of any other mine and any abandoned, discontinued, disused or worked out workings of any other mine located within a distance measured horizontally of 100 metres outside the boundaries of the colliery holding for the mine; (d) such workings or goaf areas in the seam or seams of the mine as contain or are likely to contain an accumulation of water or gas which may be a danger to the mine or part thereof; (e) any barrier or protective pillar to be left in the mine in the seam or seams and which is within a distance measured horizontally of 1 kilometre from the workings of the mine in the seam or seams; (f) in the case of an underground mine, all shafts, outlets, drifts or staple shafts from, to or within the mine; and (g) such other information as may be required to be shown in accordance with the provisions of this Regulation and the Surveying and Drafting Instructions. 403 The above statutory obligations of a mine surveyor must be read in conjunction with the provisions of s37, Functions of Managers of the Coal Mines Regulation Act 1982 which states as follows: 37 Functions of managers (1) Subject to any instructions given to the manager of a mine or to another person employed at the mine by: (a) the owner of the mine, (b) a superintendent of the mine, or (c) an assistant superintendent of the mine, (excluding instructions which are required under section 52 or 54 to be confirmed in writing and which have not been so confirmed), the manager of a mine: (d) shall have full charge and control of: (i) all persons employed at the mine, and (ii) all operations at the mine, (e) shall enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder, and (f) shall have such other functions as may be conferred or imposed on the manager by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder. (2) Without limiting the generality of subsection (1), the manager of a mine shall: (a) appoint the requisite number of officials of the mine required by this Act or the regulations (other than officials who are senior to the manager) to exercise the functions conferred or imposed on those officials by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder, (b) ensure that the machinery, apparatus and equipment in use at the mine is maintained in a safe working condition, (c) if the mine is an underground mine: (i) ensure that the height and width of roadways in the mine are at all times not less than those specified in the transport rules made in respect of that mine, and (ii) ensure that the roof and sides of working places and roadways in the mine (other than roadways located in a part of the mine which is fenced off in pursuance of the regulations) are adequately supported where necessary for safety, (d) ensure that officials at the mine are in possession of such information and plans as are necessary to enable those officials to ensure that all operations at the mine for which they are responsible are carried out in a safe manner, (e) ensure that the officials appointed by the manager are trained in the exercise of any functions which they are required to exercise under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder, (f) display in such manner and for such periods as may be prescribed copies of all exemptions from complying with any provisions of, or made under, this Act which have been granted in respect of the mine, (g) take steps to ensure that any matter which is of an abnormal or unusual nature and which could affect the safety of persons in the mine is promptly brought to the manager's attention, (h) take such steps as may be necessary to ensure that at all times the manager is in possession of all available information relevant to the behaviour of strata surrounding the mine and its relationship to the safe working of the mine and all available information regarding disused excavations or workings in the vicinity of the mine, and (emphasis added) (i) subject to subsection (3) (b), read each report, record or other item of information which is required to be made or recorded under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder immediately upon the manager becoming aware of the existence of the report, record or other item. (3) The manager of a mine shall be deemed to have complied with: (a) (Repealed) (b) subsection (2) (i) in respect of a report, record or other item of information referred to in that paragraph if: (i) the manager ensures that it is read by a person appointed by the manager in writing (being a person having such qualifications as may be prescribed for the purposes of this subparagraph) immediately upon that person's becoming aware of the existence of the report, record or other item, and (ii) the manager has taken steps to ensure that any matter disclosed in the report, record or other item which is of an abnormal or unusual nature and which could affect the safety of persons in the mine is promptly brought to the manager's attention. 404 As is abundantly clear, the ultimate responsibilities placed on mine managers in relation to the operation of a mine are onerous and in many respects absolute. That is not surprising given the inherently dangerous nature of mining and underground mining in particular. 405 Part 3, Division 4 of the CMRA 1982 makes specific provision for a Mine Manager to delegate, in writing, such of the functions conferred or imposed on him by or under the CMRA. Not only must the instrument of delegation be in writing, it must be countersigned as being accepted by the mining official to whom the instrument of delegation is directed (s56). Such a person may refuse the delegation and must do so in writing within seven days of the delegation being executed by the Mine Manager (s57). As well, any act or thing done by a delegate pursuant to the function delegated has the same force and effect as if the act or thing had been done or suffered by the Mine Manager (s56(a)). 406 It seems clear that, in the absence of express delegation as provided in Part 3, Division 4, the Mine Manager retains the ultimate responsibility for the overall operations of the mine, as provided in the CMRA and Regulations. 407 In relation to the facts and circumstances before me, there was no function conferred on any mining official at Gretley pursuant to Part 3, Division 4 of the Act. 408 Of all the mine plans produced in evidence before me relevant to the Gretley Colliery from March 1994 and until the date of the inrush in November 1996, the only part of the Young Wallsend Colliery old workings consistently depicted are those workings identified as the Top Seam workings in RT 523 Sheet 3 and described as the oval shaped workings. 409 The Mine Surveyor in 1994 and at least until mid 1995 was Mr Michael Murray. At or about mid 1995, Mr Murray went on sick leave from which he did not return. He died on 2 October 1996. Mr Mark Robinson, one of the personal defendants before me, was appointed in his place, initially on an acting basis and ultimately by permanent appointment in October 1996. 410 It was Mr Murray as Mine Surveyor who oversaw and signed off on the authorised mine plans that accompanied the applications made by NWCC pursuant to s138(1) of the CMRA in 1994 and 1995. On each occasion the Young Wallsend old workings were depicted as earlier described in para [399] above. 411 On the basis of his signature appearing on the mine plans accompanying the s138(1) application and the subsequent variation application, Mr Murray was the Mine Surveyor initially and primarily responsible for researching available sources and information as to the location and extent of the Young Wallsend old workings. 412 There is no dispute that the location and extent of the Young Wallsend old workings, as depicted in RT 523 Sheets 2 and 3, were wrong. As the defendants concede, they relied on them as accurately reflecting the Young Wallsend old workings when they planned their mining activities at Gretley. 413 The basis on which the defendant came to place reliance on RT 523 Sheets 2 and 3 is critical when considering the prosecution's allegation that the defendant failed to properly research available sources and information in order to satisfy themselves as to the accuracy of RT 523 Sheets 2 and 3 in depicting the location and extent of the Young Wallsend old workings. 414 That it was essential to be confident as to the accuracy of Sheets 2 and 3 is abundantly self evident given the potential consequences if they were wrong. There was also the clear statutory obligation placed on mine managers to ensure such information is accurate as s37(2)(h) of the CMRA provides that the Mine Manager shall: (h) take such steps as may be necessary to ensure that at all times the manager is in possession of all available information relevant to the behaviour of strata surrounding the mine and its relationship to the safe working of the mine and all available information regarding disused excavations or workings in the vicinity of the mine. 415 As well, as earlier referred to, the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 at subclauses 8(1) and (2) squarely addresses the Mine Manager's responsibilities in the prevention of inrush. In fulfilling what is, on any view, an absolute obligation, subclause (3) states: In fulfilling the duties imposed by subclause (2), the manager of a mine shall have regard to such information as may be available from the Department or the Department of Mineral Resources in addition to any other information available to the manager . (emphasis added) 416 With Mr Murray's death, any possibility of a first hand account of his researches in relation to the Young Wallsend Colliery have been lost. Notwithstanding that, the prosecution would contend that by reference to a range of extrinsic evidence, the Court could be satisfied that the NWCC failed in this important first step of properly researching the location and extent of the Young Wallsend old workings relevant to the proposed mining activities at Gretley. 417 Even when Mr Robinson succeeded Mr Murray as Mine Surveyor, initially on an acting basis and from October 1996 on a permanent basis, the prosecution alleges that the circumstances did not change. That is, Mr Robinson, as Mine Surveyor at Gretley, also failed to undertake any or any proper steps by way of researching available resources in relation to the Young Wallsend old workings. There is evidence that in or about late October or early November 1996, Mr Robinson did make enquiries of the Mine Subsidence Board in Newcastle, requesting copies of mine plans and record tracings held by them in relation to the Young Wallsend Colliery old workings. That evidence was admitted by the defendants as against NWCC and Mr Robinson. I have also ruled, for the reasons earlier given, that it is admissible as against OPL. That evidence goes to the request made by Mr Robinson to the Mine Subsidence Board at Newcastle for copies of the 1:4000 series of mine plans kept by them in relation to Young Wallsend Colliery. The inference arising from such an inquiry is that mine management, through Mr Robinson, were responding to reports of water in 50/51 panel that were surfacing at about that time and that Mr Robinson was double checking the location of the Young Wallsend old workings. 418 While there is no direct evidence from Mr Robinson or any of the other personal defendants as to whether that was the case, the conversations between Mr Robinson and Mr Foley and between Mr Robinson and Mr Hartley at the Mine Subsidence Board would strongly point to the conclusion that the report of water in 50/51 panel at or about that time was the genesis for Mr Robinson's inquiries to the Mine Subsidence Board. This is so when, on the evidence of Mr Hartley, which I accept, was that in making his request for copies of the 1:4000 series in relation to the Young Wallsend Colliery, Mr Robinson said words to the effect of: 'We were having a water problem and management wanted to know where those plans were, or the accuracy of the plans.' 419 In any event, there is no specific evidence that indicates that Mr Robinson, once having received the copies of the mine plans from the Mine Subsidence Board, took any particular steps that resulted in a fundamental reappraisal of the accuracy of RT 523 Sheets 2 and 3. 420 With the exception of RT 523 Sheets 2 and 3, there is evidence available to identify with some specificity what additional information sources were accessed by Mr Murray as Mine Surveyor on behalf of the defendant. This is certainly the case in relation to copies of diverse mine plans. The issue of what research and/or information the defendants did not access is an altogether different issue. 421 After the inrush, a number of mine plans of diverse aspects of the Gretley Colliery workings, copies of RT 523 Sheets 2 and 3, a prior survey map plan of the shafts of the Young Wallsend old workings as well as mine plans of adjoining mine leases and their workings were located. Mr Price, the chief surveyor for NWCC, gave evidence that after the inrush he located the following documents relevant to the Young Wallsend old workings in the survey office at Gretley: (a) Two small scale reductions of the top and bottom seams, i.e. copies of RT 523 Sheets 2 and 3; (b) Two small scale reductions of the top and bottom seams that were slightly different to the first two in that they had a record tracing number on them, i.e. copies of both Sheet 2 and 3 of RT 523 on a reduced scale; (c) Two full size plans of both top and bottom seam workings on a scale of 1:1584; (d) Two seam sheets scale 1:4000 each showing part of the YWC in the Borehole Seam; (e) Two seam sheets, scale 1:4000 each showing part of the YWC in Young Wallsend Seam; (f) Sheet of the Wallsend Borehole, either mine record tracing or mine working plan; (g) BHP plan of a survey of the YWC shafts undertaken in August 1980 (exhibit P129). 422 Mr Price gave evidence that, in toto, there where some 200 or so mine plans retrieved from the Gretley survey office after the inrush. Clearly, some of them would have had no relevance to the matter before me. In addition to those documents that he was able to specifically recall, there were additional geological plans relevant to the Young Wallsend Colliery that Mr Price was able to identify (exhibits P130A and P130B). 423 While the specific plans identified by Mr Price were in the possession of the defendant at the time of the inrush, it is not possible to know what reliance, if any, the defendant placed on all or any of those plans. It is fair to assume, I believe, that they must at least have been perused and considered - if only to provide some corroboration as to the purported accuracy of Sheets 2 and 3. If that was the case, then it does raise a problem for the defendant in one particular respect. I have already referred to the geological plans that were among the many plans located in the Gretley survey office. They were identified by Mr Price and marked as exhibits P130A and P131 identified as: (i) Exhibit P130A: Map with plastic tag, yellow coloured with the words BHP Geology Borehole Seam Sheet 5, 20 chains. (ii) Exhibit P131: Map titled Newcastle Coalfield, Colliery Holdings and Seam Development, BHP Coal Geology Section - Dated 13.11.1961. 424 The documents depict, in geological terms, the Young Wallsend Colliery. What is critical about these documents is that, when looked at through the eyes of a person familiar with such geological plans, the workings of the Young Wallsend Colliery in both the Young Wallsend and Borehole Seam are depicted in reverse seam order to that as depicted in RT 523 Sheets 2 and 3. 425 As part of his expert evidence Mr Adam stated that in relation to exhibit P130A, he would not rely heavily on it to indicate the location of the workings with any degree of accuracy. Likewise in relation to exhibit P131. He also agreed in cross examination that he would not go to geological plans to determine the appropriate survey position of old mine workings. He also agreed that both geological plans depicted workings in both seams but in reverse order to that depicted on Sheets 2 and 3. He expressed his opinion on this issue as follows: I have been asked whether as a surveyor I would ignore this plan if given the task of establishing the nature and extent of the old workings in the Young Wallsend Colliery. Due to the scale of the plan I would not rely heavily on Sheet 5 to indicate the location of those workings with any degree of accuracy. However, if I had doubts about the validity of the information I had already obtained from other places I would certainly examine all evidence available to me including Sheet 5 and note the interpretation of the relative position of the workings in the supposed two seams. 426 Reference to Sheet 5 above is reference to exhibit P130A. 427 The defendants submit that in relation to P130A, the plan was not drawn to scale and as a result 'the positioning detail was not shown.' It is not clear what that means but if it is meant to suggest that Mr Adam conceded that he was not able to determine that P130A depicted the workings of the Young Wallsend Colliery as being in reverse order to Sheets 2 and 3, then I do not agree. That question was never put to him in such precise form. The cross examination of Mr Adam on this issue went as follows: Q. If you could just have a look at subparagraph (d), you refer there to the fact that you had doubts about the validity of the information you had already obtained from other places, you certainly had examined all evidence available to you, including Sheet 5. Is that sheet 5 what is exhibit [P_130A]? A. Yes. Q. So you are just referring to exhibit [P_130A]? A. That is correct. Q. And when you examined [P_130A], so far as this exercise is concerned - that is, what is really depicted on Sheet 1 of RT 523 - all you could draw from it is the possibility that there are workings in two seams? A. Yes. Q. And you really couldn't draw anything else, could you? A. Anything else, no. Q. Certainly not to precise location? A. No, there is no detail in it. Q. Nothing as to the extent of the workings? A. No. Q. Nothing as to how the depiction on Sheet 1 should be particularly interpreted? A. That is correct. 428 There is nothing in that exchange that suggests Mr Adam resiled from his initial observation that both sets of plans depicted the workings of the Young Wallsend Colliery in reverse order to Sheets 2 and 3. True it is, the full extent and detail is not apparent or possible because of the size of the depiction, particularly in exhibit P131. But that does not detract from the primary observation of Mr Adam as to the reversal of the Top and Bottom Seam workings. The defendants point out that Mr Adam concedes, contrary to his expert opinion, the two geological plans depict the fact that whoever drew them took the view there were workings in two seams as part of the Young Wallsend Colliery. Mr Adam always conceded that possibility while at the same time affirming his expert opinion that, on his proper analysis, Sheet 1 depicted workings in the one seam. What the geological plans reinforce (as well as other information) is that the accuracy of RT 523 Sheets 2 and 3 had to be questioned, further research undertaken and/or the whole of the area covered by the Young Wallsend Colliery in both the Young Wallsend and Borehole Seams be approached with great caution. 429 The relevance of what is depicted in P130A and P131 is that, prior to the inrush, the defendants had two pieces of information that, when properly considered, raised at least a question as to the accuracy of Sheets 2 and 3 or the accuracy of P130A and P131. Either way, the question is there - which of the plans accurately depicts the seam workings of the Young Wallsend Colliery? If BHP have chosen to depict them in this way, on what information did they base their conclusions? Whether such questions were raised and asked is not possible to say. 430 Given the nature of the cross examination of Mr Adam about this issue, it is possible to conclude that the defendants' position in relation to the geological plans is that, to the extent they were or are now relied upon, they corroborate the view held by the defendant that the Young Wallsend Colliery included workings in both seams. 431 Further, they are not of sufficient detail as to be relied upon and they were not the sort of plans that one went to, to determine the appropriate survey positions of old mine workings. But they were plans that, on the face of them, were at odds with RT 523 Sheets 2 and 3 as far as workings vis-a-vis seam depiction was concerned. 432 The depiction of workings in two Seams as part of the Young Wallsend Colliery became a significant issue in the proceedings before me, particularly given the evidence of Mr Adam. Before I deal with that, I wish to comment on the issue of survey accuracy in relation to the Young Wallsend old workings. 433 In preparing its mine plans, the defendant relied on computerised mapping software programmes. Mr Foley identified then as Mindraft, Surpak, Autosketch, Autocad, Autocad LT, Autocad 2000, Autocad release 14, release 13. Of those programmes, Mindraft was the computer programme used for storing mine plans. That programme was set up in 1987 and continued to be used until, and possibly after, November 1996. 434 As I understand the evidence, as a general approach to the preparation of mine plans, the relevant coordinates, to a standard equivalent to the Manual of the NSW Integrated Survey Grid (ISG), were entered into the programme. That information was permanently stored and was able to be retrieved when a particular mine plan was required. It would seem that the relevant coordinates in relation to the Young Wallsend old workings were entered into the computer programme in the Gretley survey office. That information was based on the information provided in RT 523 Sheets 2 and 3 as to the depiction of the old workings and the position of the shafts. The location of the shafts were surveyed by BHP in 1980 and that survey was located in the Gretley Survey Office after the inrush (exhibit P129). 435 There is no doubt that in locating the lease boundaries and shafts in relation to the Young Wallsend old workings, the coordinates and other relevant information entered and stored on the defendant's computerised storage programmes was survey accurate. That much was evident when, on the day of the inrush, Mr Robinson merged the depictions of Sheets 2 and 3 into one plan in overlay format. As Mr Cowan stated in evidence: Q. If I could go to the day of the inrush. Did you make any investigation of where the holing-in occurred? A. What I did around about half past 11, when Bill Flett arrived at the mine, we went into the surveyor's office and I asked the surveyor if he could plot on what we thought was the Borehole Seam workings where the current Young Wallsend Seam workings were. And he plotted that for us and the plot indicated that the current Young Wallsend Seam workings were precisely at the lowest point on the Borehole Seam workings. Q. Now, when you say the surveyor, who are you talking about? A. Mark Robinson. Q. When you are talking about the Borehole Seam workings that you looked at, did you look at a plan? A. They had a plan there which had the Borehole Seam workings on them. They - I asked them did they, and they brought out a plan in which the Borehole Seams (sic) were on. It might have been an overlay, but I asked them to do it. It might have been an overlay. They used an overlay with the Borehole Seam which they overlaid over the Young Wallsend Seam. 436 Mr Foley subsequently undertook such an exercise on the instruction of Mr Price and the same result emerged. 437 While the depiction of the lease boundaries and shafts were always survey accurate, what was not accurate was the depiction of the extent of the workings in the two seams worked as part of the Young Wallsend Colliery. For that, the defendants relied on Sheets 2 and 3 which they obtained from the DMR. It is that reliance that goes to the heart of the defendants' alleged failure and, the prosecution asserts, the defendants' failure to objectively consider and question the accuracy of Sheets 2 and 3 and/or go beyond them in order to independently confirm their accuracy such that they could confidently rely on them in planning their mining activities at Gretley and 50/51 panel in particular. 438 The defendant has chosen to call no evidence that would assist the Court in understanding what steps it did take to research the Young Wallsend old workings. Even absent Mr Murray, it is difficult to accept that Mr Romcke and Mr Porteous, as successive Mine Managers at the relevant time, did not have any discussions or give any directions to Mr Murray that went to the issue of the Young Wallsend old workings and their relevance to Gretley's mining operations. Likewise, in relation to Mr Robinson, the Mine Surveyor who succeeded Mr Murray for all relevant purposes in or about September 1995. 439 The prosecution case in relation to the alleged failure is not easily established. It is almost entirely circumstantial in that the prosecution seeks to establish the failure beyond reasonable doubt by reference drawn from such facts as it is able to prove. As was confirmed by the High Court of Australia in Weissensteiner v R (1993) 178 CLR 217 at 217, such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within that person's knowledge. 440 While it is patently not possible to hear first hand from Mr Murray on behalf of the defendant that is not the case with Mr Romcke and Mr Porteous. For example, Mr Romcke's signature as Mine Manager (along with Mr Murray's) appears on the mine plan, dated 26 October 1994, that accompanied the application by the NWCC to the DMR for approval to undertake miniwall mining extraction in MW 39-45. That mine plan was signed and approved by Mr McKensey as Chief Inspector of Coal Mines on 5 January 1995. A copy of that signed mine plan is part of exhibit P17A titled NWCC: Gretley Colliery: MW 39-45 - Approved Plan: AO - 1994 - 14. 441 Mr Porteous' signature as Mine Manager appears on a similar mine plan as part of an application by the NWCC dated 15 August 1995 seeking approval for a variation in relation to miniwall mining extraction. Mr Murray's signature as Mine Surveyor also appears. A copy of that signed mine plan is part of exhibit P18A titled NWCC: Gretley Colliery: MW 39-45: Approved Plan: AO - 1995 -4. 442 Both signed mine plans depict the Young Wallsend Colliery old workings as depicted in RT 523 Sheet 3, that is, the purported Top Seam. 443 It is obvious, in my view, that Mr Romcke and Mr Porteous would be able to give evidence of relevant facts and circumstances directly pertinent to the creation of those mine plans, the extent to which the Young Wallsend old workings were depicted and what discussions, if any, they would have had with Mr Murray as Mine Surveyor in order to satisfy themselves as to the accuracy of the mine plan depicting the location of the old workings. They are matters that would be within the sole knowledge of Mr Romcke and Mr Porteous, as Mine Managers. Indeed, it was part of their statutory responsibility to satisfy themselves as to the accuracy of the mine plans on which they placed their signature supporting the Mine Surveyor's certification as to its accuracy: see s37(1)(e) and s37(2)(h) of the CMRA 1982 and clause 8 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984. 444 The inference that arises from their failure to give evidence about those matters is that in relation to this alleged failure, the inferences I am being asked to draw by the prosecution from the facts established are inferences I can more safely rely upon in coming to the conclusions that I do. 445 The prosecution submitted that there were a number of available sources of information as to the location and extent of the Young Wallsend old workings that would have been available to the defendants and which, it says, I can be satisfied that the defendants did not access and/or obtain copies of. 446 The first and perhaps the most obvious is RT 523 Sheet 1. It is clear by reading the notation in the margin of Sheets 2 and 3 that they are part of a set of three Sheets of RT 523. It is a reasonable proposition, in my view, to state that any Mine Surveyor reading those notations would enquire as to Sheet 1. It was available for perusal and copying from the DMR. It would be natural to assume that a party in the position of the defendant or somebody on its behalf with responsibility for such matters would obtain a copy of it for their records and background information. After all, the defendant had copies of Sheets 2 and 3 in its survey office - why not a copy of Sheet 1 to complete the set? Equally, one would expect to find it with the other mine plans, including Sheets 2 and 3, within the survey office at Gretley. It was not so. 447 After the inrush, when Mr Price produced a large number of mine plans and maps from the Gretley survey office, no copy of Sheet 1 was produced. Further, Mr Price gave evidence that before the inrush and before undertaking the search of the Gretley survey office, he had never seen a copy of RT 523 Sheet 1. As the Chief Surveyor for NWCC at the time, that is surprising. What was even more surprising and troubling was that Mr Foley had never seen Sheet 1 before the inrush. Mr Foley was employed at Gretley as the Assistant Surveyor in 1996 and had held that position since 1981. On his evidence, which was unchallenged, he was familiar with the contents of the various file plans held in the survey office at Gretley. 448 Given the involvement by Mr Foley in the production of various mine plans at Gretley, the fact that he had never seen Sheet 1 at any time before the inrush must be of concern. 449 As part of it's preparation for this matter, the prosecutor served two summonses for production dated 14 October 2003. One was returnable by the defendant, the other by OPL. The summonses required the production of any copy of RT 523 Sheet 1 that was held by Gretley Colliery, NWCC or OPL before 14 November 1996. No such document has been produced by NWCC or OPL. 450 Counsel for the defendants submitted that the evidence before me would suggest that if the defendant or somebody on its behalf had asked for a copy of RT 523 Sheet 1, it would have been refused by the DMR. The basis of that assertion, it is said, is to be found in the request by BHP in February 1980 to the DMR. In making its request, BHP stated it wanted one copy each of the workings of the Young Wallsend Colliery, Young Wallsend Seam and Young Wallsend Colliery Borehole Seam. The DMR proceeded to produce Sheets 2 and 3 in the way they did. The explanation for that is to be found in a DMR internal Minute Paper dated 13 May 1980 that states relevantly: The plans are required for completion of their geological mapping as well as assisting in assessing coal reserves. The Young Wallsend Colliery worked in both the Borehole and Young Wallsend Seams until 1912. It was officially abandoned in 1928. The workings of both seams (which directly overlay each other) are shown by differing colours on the one plan of abandonment. ie. R.T. 523. Due to this fact as well as the poor condition of the plan a separate tracing of each workings had to be made. 451 In ultimately providing the copies as requested, the DMR advised BHP as follows: The delay in attending to your request was occasioned by the need to have a separate tracing of each set of workings made; because both sets of workings were originally drawn on the one plan and the poor condition of the plan made photography difficult. 452 There is nothing in that material or elsewhere that suggests the DMR refused or failed to disclose the existence of Sheet 1 to BHP. Certainly a decision was made for the reasons expressed to produce Sheets 2 and 3 as separate tracings. As I would understand the evidence of Miss Roberts, if anybody from BHP had wanted to come in and view Sheet 1, they would have been able to do so. Miss Roberts' evidence on that availability was not challenged. Likewise, I am satisfied that, if Mr Murray or somebody else on behalf of the defendant had wanted to view Sheet 1, they would have had ready access to it if they had gone to the DMR and requested it. 453 As Miss Roberts said, any member of the public were able to seek access to or obtain copies of old and abandoned mine plans (RTs) held by the DMR. Miss Roberts said that, to her knowledge, neither Mr Murray nor Mr Robinson, as Mine Surveyors at Gretley, came to the DMR offices while she was there to access or obtain a copy of RT 523 Sheet 1. 454 Miss Roberts' evidence by itself would not be conclusive. It does however, when considered together with the other circumstances I have referred to, point to the very persuasive conclusion that the defendant did not have a copy of RT 523 Sheet 1 as a starting point in its research and planning of mining activities at Gretley. 455 Should the defendant, or more properly the Mine Surveyor on its behalf, have viewed the original RT 523 Sheet 1? Absolutely, in my view. Any party relying on the accuracy of Sheets 2 and 3 to plan future mining activities in the vicinity of the Young Wallsend old workings and knowing the imperative for accuracy where old workings were concerned, would want to source the origin of those Sheets. According to the expert opinion of Mr Adam, which I accept, it would be important for a surveyor to see Sheet 1. 456 In relation to RT 523 Sheet 1, Mr Adam expressed the following opinion: [32] Having viewed exhibit P111 (RT 523 Sheet 1) it confirmed my opinion that this is the document I would have sought had I been the surveyor at that time. 457 The evidence of Mr Adam was that it would be important for a surveyor to see the original of Sheet 1. He provided the following reasons for the opinion: (a) The surveyor would be looking for a plan which was as close to the original mine plan as could be obtained. (b) Before the advent of computer drafting systems there was one main plan for each mine or seam - the main mine plan. It was the official working document within the colliery, drawn 2 chains one inch (44 yards to the inch). That plan could be expected to have the maximum amount of survey information. (c) The Department of Mineral Resources required that an up to date tracing of that plan should be provided every six months. (d) Every transcription is liable to create errors. Every copy from the plan, therefore, is suspect. Copies from copies become progressively less accurate. The surveyor would, therefore, be looking for the original. For that reason, Mr Adam would not go to the Mines Subsidence Board. Based on his knowledge of the Mines Subsidence Board their statutory purpose does not require survey accuracy. Their plans are determined by 'the best fit'. They are prepared at a high reduction ratio (1:10,000) and then expanded to 1:4000. That process itself is likely to induce error. According to Mr Adam, that fact is not significant to this event, but it simply underlies that the Mines Subsidence Board is not the place to go to obtain survey standard accuracy. All information they have, moreover is derivative. The derivation process itself involves compromises and the potential error. (e) Mr Adam would therefore go to the charting branch of the Department of Mineral Resource and ask to see everything they have in relation to the mine. (f) Mr Adam said he would not be looking for a copy of the original, but the original itself. If the original is manually traced, there is still the possibility that something will be missed, or mistranscribed. If it is photographically reproduced, there is the possibility that something will be lost in terms of definition either in the ink or markings on the plan. 458 On behalf of the defendant it was submitted that I could not be certain beyond reasonable doubt that Mr Murray, or somebody else on behalf of the defendant, did not view Sheet 1. Relying only on the evidence of Miss Roberts that she had never seen Mr Murray or Mr Robinson at the DMR record tracing section and the absence of a copy of Sheet 1 in the defendant's Survey Office at Gretley, that may well be right. But that is missing the point. That is, if the defendant did access and consider Sheet 1, then they clearly have failed to properly research available sources and information about the Young Wallsend Colliery old workings if the end result of accessing and considering was reliance as it was on RT 523 Sheets 2 and 3. The reason for that conclusion is obvious when one looks at Sheet 1. 459 To the inexpert eye, Sheet 1 presents a real puzzle when confronted with the apparent Young Wallsend old workings. To start with, the red and black workings overlay each other. What does that mean? There is no legend one would normally associate with such a mine plan to assist in understanding the depictions in Sheet 1 and no survey notations readily apparent. Even if one was to come to an initial conclusion that they must be workings in different seams, which one was which as between the red and black depictions? That answer is not readily apparent and, on any view, further and more detailed information and research would be required before a definite conclusion could be reached. In other words, looking at Sheet 1 could not be seen as the end of the research process because of the significant number of important questions that it raises. 460 On the expert evidence of Mr Adam, which I accept, an examination of RT 523 Sheet 1 discloses a number of anomalies that throw considerable doubt as to the depiction of Sheets 2 and 3 as being workings in the seams respectively identified as the Top and Bottom Seam. As Mr Adam stated, when examining Sheet 1, for the first time the features that come to mind instantly are: (a) One possibility is that the plan depicts workings in two seams, and there is insufficient evidence to determine which workings are in which seam. (b) The plans may depict workings in only one seam, and there is disagreement as to the location of the faces. 461 Ultimately, after considering all of the aspects of Sheet 1 and taking into account the facts, matters and assumptions on which his opinion was based, Mr Adam concluded: (a) An examination of the original tracing held by the Department of Mineral Resources would indicate to a surveyor who was experienced in older styles of mining operations that the workings shown in red were actually a redefinition of those shown in black and were therefore of the same seam. (b) He (Mr Adam) disagreed with the conclusions made by the Chief Inspector of Coal Mines (ref: original tracing 'CICM') in that he could see no evidence to support the idea that the workings as shown represented those workings in two separate seams. 462 The basis for Mr Adams' opinion to that effect is summarised as follows: (a) It very difficult to overlay the workings in two seams so that roadways are superimposed on top of those below. (b) The regularity in shape and alignment of the black workings is likely to be an idealised or stylised plan, rather than an accurate survey plan. The plan implies that the miners were able to drive roadways to an exact alignment, to turn the boards at exact distances and drive them at exact widths. In contrast, the red roadways show more detail of deviation. This is consistent with general working practice in an era of hand working. (c) There is nothing on the black workings that indicate that the workings had been drawn as a result of a survey conducted by a mining surveyor. (d) The air shaft does not line up on the two plans. (e) The red workings are incomplete. This supports the hypothesis that a resurvey was done and the only area that they were particularly interested in was the actual position around the faces at that time. (f) If the red workings represented the bottom seam it would be extremely difficult if not impossible to ventilate and extremely difficult to even drive that roadway in the first instance. (g) The information in the legend (on P111) explains the doors and stoppings lines drawn on the plan. From this information the general ventilation circuit of the mine can be determined for the working shown in black but not those in red. The black workings may have been drawn to depict where the air would flow through the mine. (h) P111 provided strata section details but no mention of workings in a second seam. (i) The actual record tracing (P111) has no reference either in the title, the legend or elsewhere to suggest that two seams were worked. (j) There are no survey dates shown in black on the plan but the red workings show survey dates which is consistent with re-survey. It is unlikely that a surveyor would work to the degree of detail that is show in the red workings and date his work and then in the same mine not provide similar information in the opposite seam. (k) The discrepancy between the length of the roadways to the staple shaft. There is no connection shown between the two seams. The usual function of a staple shaft is to connect two seams. (l) There are no lines on the plan that indicate the limit of workings at the time of abandonment. You could never be sure that this plan was up-to-date at the time the mine was closed. 463 During lengthy cross examination, Mr Adam conceded that there were other possible explanations that may point to the depictions on Sheet 1 being workings in two seams. Indeed, it was Mr Adam's initial view when he first examined Sheet 1 that one of the possibilities was that it depicted workings in two seams but there was insufficient evidence to determine which workings were in which seam. Notwithstanding that, I believe that the crux of Mr Adams' expert evidence is simply this - there are strong and very credible reasons why the red and black workings on Sheet 1 are workings in the one seam. To the extent that there are other possible explanations as to what the red and black drawings may depict, one thing is certain - there is no certainty, nor could there sensibly be, about the interpretation of Sheet 1, simply by looking at Sheet 1 alone. The alternative possibilities put to Mr Adam, which he quite correctly acknowledged, truly emphasised that any examination of Sheet 1 by a competent surveyor raises as many questions as it answers. 464 In other words, if the defendant was to accept the accuracy of Sheets 2 and 3 as properly representing the Young Wallsend old workings, a competent surveyor acting on its behalf would not simply accept copies of Sheets 2 and 3 with their limitations unless they had gone to the source of those Sheets, which was Sheet 1. According to Mr Adam, and I accept his evidence on this issue, any competent Mine Surveyor would not only ask to look at and obtain a copy of Sheet 1, but having done so, would immediately be alerted to the anomalies and irregularities in Sheet 1 and question the basis of the decision made within the DMR to separate and depict the red and black workings in the way that was done. 465 I am satisfied that neither Mr Murray nor any other person on behalf of the defendant viewed RT 523 Sheet 1 as part of its research and planning inquiries relevant to proposed mining activities at Gretley. If I am wrong in that conclusion and a person on behalf of the defendants did view Sheet 1 as a preparatory research and planning step then, in my view, they have clearly failed to undertake that research and planning in a proper way in that they failed to independently and objectively consider the anomalies that RT 523 Sheet 1 discloses and Sheets 2 and 3 do not resolve. 466 Accepting as I do, that no reference was made to Sheet 1 by the defendant, it is not sufficient, in my view, for the defendant, or the Mine Surveyor on its behalf, to accept the accuracy of Sheets 2 and 3 without question. Not only is that disregarding the absolute nature of the statutory obligation cast by both the CMRA and the OHSA, it is also failing to acknowledge the reason why there was the need to be certain as to the location and extent of the Young Wallsend old workings - lives were at stake and safety was paramount. It is simply neither desirable nor consistent with its statutory obligations under the OHSA for the defendant to rely without question on the copies of Sheets 2 and 3 supplied to them by the DMR. There is no doctrine of implied infallibility to be applied to the information, documentary or otherwise, given out by any government department. While it is reasonable to presume that such information would generally be correct, that in no way removes the defendant's independent obligation to ensure the accuracy of the information released relevant to its obligations under the OHSA and the CMRA 1982 as associated health and safety legislation. In this case that meant critically scrutinising Sheets 2 and 3 and seeking the all important background information to satisfy itself about the background information that caused Sheets 2 and 3 to be depicted in the way they were. 467 Somebody within the DMR produced Sheets 2 and 3. There had to be some basis for separating the black and red drawings in the way they were. It was important for a Mine Surveyor looking at Sheets 2 and 3 to satisfy himself or herself that the conclusions depicted on Sheets 2 and 3 were correct. Given the paucity of information on Sheets 2 and 3 and the absence of any identification as to their accuracy, there had to be a research process undertaken in order to be confident they were correct and could be relied upon. 468 The need for a competent surveyor to go behind Sheets 2 and 3 in order to determine their accuracy was commented upon by Mr Adam. His evidence was: …that a competent surveyor, examining RT 523 Sheet 2 and Sheet 3, (exhibit P80 and P81) would conclude that the depiction of the YWC workings on Sheets 2 and 3 could not be relied upon to accurately depict the location and extent of the YWC workings. ... ... that he would have grave doubts about the accuracy of the information contained on the two plans. The reasons for this opinion are outlined in paragraphs 82 to 85 of his statement. In summary: (a) It is more likely that Sheets 2 and 3 of RT523 show the results of two separate surveys of the same seam. (b) The lack of detail shown in the plan of the Top Seam suggests that it has not been drawn from a proper survey conducted by a competent surveyor. (c) There are variations and inconsistencies in the workings shown on Sheet 2 and 3. (d) The Bottom Seam plan is not complete. (e) The Top Seam plan is regular in shape, unlike the Bottom Seam plan which appears far more random in structure and appears to be more consistent with the normal layout of hand workings. (f) The Top Seam plan shows a number of lines across the workings the significance of which are not apparent. (g) The similarity in the structure of the two working but the more detailed Bottom Seam plan and the variations in the directions of the main roadways. (h) The workings in the south eastern region between the two sets of headings do not make sense. Sections which indicate solid coal can also represent open roadways. (i) The reference to a second seam as shown at the staple shaft but no indicated connection to the workings of a second seam. 469 In expanding on his opinion, Mr Adam made reference to and marked exhibits P80 and P81 in order to illustrate the points made. 470 Professor Thomas was also asked to express his opinion as to what problems, if any, existed with the use of Sheets 2 and 3 of RT 523. For the reasons I have already given, I am satisfied that Professor Thomas is able to express an expert opinion on that subject having regard to his specialised knowledge, expertise and extensive experience in the field of mining generally and the reading and interpretation of mine plans. While his opinion statement is extensive, I refer to the following paragraphs as indicative of the general tenor as to the views he expressed in relation to RT 523 Sheets 2 and 3: When one looks at the apparent absence of roadways in the centre of Sheet 2, the immediate thought should be 'how did they ventilate the mine'? The air shaft has only one connection, but the obvious ventilation for the south workings was down the haulage way at the entrance of the bords, back through the snickets, or cut-throughs, and the ends of the bords at the corner of the lease, and then into the heading that runs through the 'e' of "mines". That heading should then turn north parallel to the intake airway and go back to the air shaft. The presence of entries off the main road heading north west implies that there were bords there that ran through. Shaft pillars were based on 11o angles about 1900 and any coal much outside of the pit bottom shunt would have been worked on the advance to earn income. .... .... The north west single heading has no ventilation return, its openings are so irregular along the main road that they cannot be true even if the deputy set them out with his stick. In the centre of the oval shape there are several false strokes on the north side of the road and there are pillars opposite bords. Part of the plan top left is a shambles: the openings have been marked but someone has confused the edges of pillars with the edges of bords. Given the shape of the north-west workings, with no other plan, one would expect an airway back to the partially drawn north headings to connect back to the air shaft. There must be some roads, and possibly some workings, missing. ... ... Looking at Sheet 3 of Record Tracing 523, the surface portion numbers (59, 60, 72, 70) are shown and the workings look as though they have been aligned to mine coal from portion 60, perhaps on the basis of purchasing the coal on a property-by-property basis as the mine progressed, perhaps with some future options arranged. The workings look too regular, both in contrast to sheet 2, and in contrast to what one would expect to see on a surveyed plan. There are again some false lines, but not as many. The peculiar pillar shapes to the south-west are a little worrying because they indicate a lack of surveying in contrast to sheet 2. ... ... The absence of scale lines or of any information should have been a worrying point. Record tracings normally carry marginal notes with shaft coordinates, depths of shafts, strata logs, records of pillar extraction approvals, references to Departmental file numbers, and generally all the data one needs to verify the plan. Nothing has been copied, so the veracity of the plan cannot be checked. The plan can be ventilated so the main roads are probably all there, but the pattern of developing the main roads and then immediately opening out the next bord has not been continued at both ends, so it may not be accurate. 471 There was no suggestion nor could there be that the opinions expressed by Mr Adam and Professor Thomas in relation to Sheets 2 and 3 were anything other than their expert opinions expressed independently of each other. While there may be some differences between them, the opinions expressed by Mr Adam and Professor Thomas in relation to Sheets 2 and 3 are similar in one fundamental respect. That is, both of them express significant reservations about Sheets 2 and 3 in a number of important areas pertinent to accuracy and pertinent to the extent to which they could be relied upon without question. To put it another way, a careful consideration of Sheets 2 and 3 by a competent surveyor would raise a number of important questions that required further information and research before Sheets 2 and 3 could be accepted as accurately depicting the Young Wallsend old workings. 472 I am satisfied that, in addition to the absence of any referral to RT 523 Sheet 1, the defendant and those acting on it's behalf failed to recognise the glaring inconsistencies that Sheets 2 and 3 presented as far as purporting to rely on their accuracy in relation to the Young Wallsend old workings. 473 They were not such inconsistencies that a competent surveyor should have failed to recognise them. The evidence of Mr Adam in particular is compelling as to the extent of the basic surveying principles ignored by those charged with the responsibility to check such matters and who seemingly embraced Sheets 2 and 3 without question. 474 In addition to the Record Tracing Sheets, the DMR is the repository for other additional information pertinent to old and abandoned mines. The prosecution contends that if the defendant or Mr Murray on its behalf had 'properly' researched all available resources, there are a number of other documents and/or files they would have been able to locate within the DMR. 475 Within the DMR, the first logical step in the research process after the Record Tracings would be the Abandonment Register. The Abandonment Register is a record maintained by the DMR relating to the abandonment of coalmines. It is available to be accessed in the same way as Record Tracings. In relation to Young Wallsend Colliery, the original Register was produced. The relevant entry in relation to Young Wallsend Colliery appears on page 21 with an additional page depicting part of a map identifying the Colliery. There is a notation in red in the top right hand corner of p21 stating: Declared Abandoned 19.6.28 Ms 28/7067 Plan M18914 476 In addition, still on page 21 and against the sub-heading Papers, is the entry: R & I 09/5674 Revised Misc 12.2071 477 It is reasonable, in my view, that recourse would be had to the Abandonment Register, with a view to ascertaining the final position in relation to the Young Wallsend old workings. 478 It has long been an established statutory provision that when a mine is abandoned, the mine operator is required to send a copy of the mine working plan to the DMR, noting the final workings of the mine. That is known as a Notice or Plan of Abandonment. The intention behind that process is to ensure a degree of certainty as to the exact extent of the mine workings at the point of abandonment or closure, particularly for those who come after in relation to further mining activities. 479 In relation to the Young Wallsend Colliery, no plan of abandonment was ever filed - it was declared abandoned in 1928 and the last known working of the Colliery was in 1912. The failure to file a plan of abandonment at the relevant time meant that there could be no absolute certainty as to the extent of the final workings given that mining activity could have continued on for a period of six months from the time of filing the prior Record Tracing and final abandonment. As Mr Adam stated in evidence: Q. Finally, Mr Adam, dealing with A20, did you notice on the first page of the minute paper there's the handwriting "no notice on plan of Abandonment Register appears to have been received"? A. I think it actually says 'no notice or plan of Abandonment Register' had been received across the middle of the page . Q. Thank you. Did you also read that, on the second page of the minute, it's the third paragraph, last sentence, in the typing it states: It is pointed out that no plan of abandoned workings has been lodged. A. I did. Q. Upon reading both of those comments, one in handwriting and one typed, did that raise any concerns in your consideration of these plans? A. It does. Q. Why? Objection: Question clarified. Q. You said it does. Did it raise any concerns for you - look still at the board - as to exhibit [P_081] bottom seam and exhibit [P_080] top seam? A. It gives me great cause for concern. I've had personal experience with this problem. The requirement was, I believe, at that time that the plans - sorry, that the record tracing be updated each three months. It is, therefore, possible for that plan to be out of date by three months less one day. If that was the situation - in other words, if no survey had been done in the previous almost three months - the plans which are held at the mine and then copied last to the record tracing could be three months, if not six months, out of date. The requirement of preparing a plan at the time of Abandonment Register was to ensure that the record tracing was current at that time and in fact showed all of the workings up to the time of Abandonment Register. The fact that such a plan had not been lodged would give me concern that the - even the record tracing as it existed at that time could possibly be significantly out of date. Q. In that answer you referred to "could be three months, if not six months, out of date". Why do you include both of those two periods? A. The mine plan had to be kept up to date on a quarterly basis. The record tracing had to be kept up to date on a six-month basis. So it would be possible for the record tracing to be almost six months out of date. 480 I am satisfied that as a basic research step in relation to the Young Wallsend Colliery, a copy of the relevant entry in the Abandonment Register should have been obtained as part of the relevant historical data concerning those old workings. It would seem that that was not the case. 481 Certainly Mr Price, to the best of his recollection, did not find a copy of the two page entry from the Abandonment Register during his search of the Gretley survey office after the inrush. 482 Summonses for production dated 14 October 2003 were returnable on OPL and NWCC required the production of any copy of the DMR Abandoned Mines Register, or part thereof, in relation to the YWC which was held by Gretley Colliery, NWCC or OPL before 14 November 1996. No such document has been produced by either corporation. 483 I accept the prosecution submission that the compelling inference is the defendant never considered the Abandonment Register within the DMR in relation to the Young Wallsend old workings. 484 A failure to consult the Abandonment Register certainly meant that no steps were taken on behalf of the defendant to seek access to the DMR files relevant to the Young Wallsend Colliery and noted in the Abandonment Register. 485 Evidence was given by Mr John Carroll who was a legal officer with the DMR between 1995 and 2001. Mr Carroll confirmed that reference to Ms 28/7067 in the Abandonment Register relevant to Young Wallsend Colliery was reference to a DMR file - the '28' being reference to 1928 and '7067' denoting the specific serial number for the file. 486 After the inrush in November 1996, there was a request for the DMR to produce all its files relevant to the Young Wallsend Colliery. As legal officer Mr Carroll put in train a process for recovery of Ms 28/7067. A request was made of the Records Branch of the DMR, referring only to the file number. That request drew a blank. Mr Carroll made a second request in slightly different terms. As he said in evidence: Q. Those inquiries, you put in place for a second occasion, were they referred to what you have called the records branch of the department? A. They were. Q. Can you, please, tell the court what was the information you provided on the second occasion? A. If I may refer to the document? Q. Certainly. You're referring to electronically as exhibit [31.01]? A. That's right, yes. I requested the records branch to make a search, not within the department this time but within the State Archives, for files numbered Ms 28/7067 and there was also a reference to an "Misc", which I took to be miscellaneous, "12:2071", which I took to be another possibly relevant file from 1912. Assuming that I was going to draw a blank finding files that old, I also asked, "Could you make a search against the name 'Young Wallsend Colliery' and see what that turns up?" Q. I'll deal with parts of your answer in turn. The reference to "Misc" I think you said to the effect that you took as "miscellaneous"? A. Yes. Q. Why did you do that? A. That is a common reference to miscellaneous. Q. And the reference to the number 12 in 12:2071 .. A. Yes. Q. Did you form a view as to what "12" meant? A. 1912. Q. Why is that? A. Again, because that seemed to be consistent with the filing system that the department had in place. Q. As a result of the second occasion you put in place inquiries with the records section of the department, did you receive anything? A. I did. 487 What Mr Carroll received was the file Ms 28/7067. That file was not located within the DMR but at the State Archives. Although the file was located relatively quickly at State Archives, the process of successfully producing such a file is not an easy task. Evidence about the complex and difficult nature of the task was given by Ms Emily Hanna, a Senior Archivist, Access and Information (Western Sydney) with the State Records Authority of NSW. Ms Hanna's evidence was predominantly in sworn statement form. In that, she stated: [6] My job as Senior Archivist, Access and Information, is to oversight and manage the Western Sydney reading room. This includes assisting the public to locate material in the State archives collection. [7] I have been asked to assume that State Records has been approached by a person (the researcher) who requests documentation about the Young Wallsend Colliery which is near Newcastle. [8] I have also been asked to assume - the researcher makes an enquiry about the Young Wallsend Colliery and has the following information about documentation concerning the colliery: (a) Ms 28/7076 (b) Misc 12:2071 [9] An enquiry such as the one outlined in paragraph 8 above is very complicated and would require a high level of skilled research. Many researchers would not have the time, experience or understanding of the records to complete the research successfully. The research process is outlined more fully later in the statement. [10] The enquiry is complex because of the original record keeping practices of the Department and the poor descriptive information provided at the time the records were transferred to State Records. In addition, the infrequency of such enquiries means there are fewer past staff experiences from which to draw a more intimate knowledge of the records. [11] State Records staff assist in identifying and locating likely sources for researchers but it is not our policy, nor within our resources, to conduct further research on the behalf of most clients. This enquiry would demand a greater level of staff assistance than most, with the researcher guided step by step through research methods by reading room staff. [12] Because the enquiry relates to a colliery and from my knowledge of the records I would assume that Ms 28/7076 and Misc 12:2071 are possible references to Department of Mineral Resources or its predecessors ("DMR") Departmental files from 1928 and 1912 respectively. [13] Many NSW State archives that are more than 30 years old are open to public access. This includes the records of the DMR. I would therefore be able to assist a person with enquiries about locating Young Wallsend Colliery documents. [14] If the researcher simply asked to locate documentation about the Young Wallsend Colliery I would show the researcher how to consult the finding aid called the Concise Guide to the State Archives of NSW ("the Concise Guide"). The version of this aid used in the reading room in 1996 is approximately 2200 pages in length. [15] The Concise Guide is a comprehensive finding aid to the holdings of State Records received up to July 1991. [16] In consulting the Concise Guide I would direct the researcher to the heading 'Mines later Mineral Resources.' Under that heading there is a list of all record series transferred from the DMR prior to 1991. [17] Under the Mines heading there is a section titled "E Coal Fields Branch." This section begins on page 54 of the Concise Guide (Ma-Mi). A copy of this section of the Concise Guide is attached and marked "A." [18] At series 2 under the heading "Coal Fields Branch" it states: Colliery Holding Files, 1896 - 1947 (Kingswood 19/1276 - 320). 45 boxes [19] There is no description information relating to the contents of this series in the Concise Guide. [20] As this entry appears likely to refer to files with respect to various colliery holdings around the relevant dates, I would show the researcher how to seek further information about the contents of the 45 boxes. [21] To do this I would obtain the item list (previously called "SHELF LIST"). This document contains a description of the files in the 45 boxes referred to and shelf location details. A copy of this item list is annexed and marked "B." [22] Having consulted the item list document I would arrange for my staff to look in the box corresponding to the word "Young." Although one cannot be certain that this will contain the required information it appears to be the most likely on the list. That is, the box "19/1319" would be consulted for the file. If the file were in the box it would be issued to the researcher. [23] I can tell from the file retrieval documentation that the actual file about the Young Wallsend Colliery in box 19/1319 was recalled by the DMR in 1997. 488 Ms Hanna further stated that if she had sought to find Ms 28/7067 simply by reference to the number alone and without reference to Young Wallsend Colliery, she would not have located the file. That part of her evidence corroborates Mr Carroll's evidence in that it was only after he added the words 'Young Wallsend Colliery' to his request that the file was able to be located. 489 The prosecution contends that the recovery of Ms 28/7067 was not a difficult process and that once the file was requested by reference to the name of the colliery, it was located and provided within 24 hours. 490 That may be so but I believe that submission must be considered in light of the circumstances prevailing at the time the file was located. The holing-in with its fatal consequences had occurred. A judicial inquiry to be followed by a coroner's inquest was in train. There was a significant and understandable public interest in determining the causes of the tragedy. The role of the DMR and it's files was critical and I have no doubt the DMR was under a degree of pressure to respond quickly, leaving no stone unturned, to locate all files in relation to the Young Wallsend Colliery. That factor in itself would have added an impetus to the task that may otherwise not have existed if the request had been made in the normal course of business. As Ms Hanna herself stated: 'Many researchers would not have the time, experience or understanding of the records to complete the research successfully' and '…it is not our policy, nor within our resources, to conduct further research on behalf of most clients. This enquiry would demand a greater level of staff assistance than most with the researcher guided step by step through research methods by reading room staff.' 491 Reference by Ms Hanna to 'clients' of State Archives would suggest that their client base was restricted to those government departments and statutory instrumentalities who lodge material with State Archives. My conclusion for that view is the evidence of Ms Hanna as follows: Q. Now, can I ask you this: what advertising, if any, is done to the public or potential clients of the services of State Archives to perform research on their behalf? A. We don't perform research on behalf of the public. Q. So do I take it from that there is no advertising of any such service? A. Yes. Q. And do I also take it if someone asks State Archives to do the research that you performed you wouldn't or couldn't do it; is that right? A. We wouldn't do it, that's right. Q. I don't think I asked you this question, but how long have you been employed at State Records Authority? A. Since October 1994. Q. And have you always been in the section in which you are now employed? A. Not always, but for most of the time. Q. I said "are now employed". I'm assuming you are now employed in the same section you were when you were asked to do this in 2003? A. Yes. Q. Now, I think you have said that the researching of the inquiry would be very complicated? A. Yes. Q. That relates to the general inquiry re Young Wallsend? A. Yes, and also the other inquiry with the file numbers. 492 Given the above evidence and absent what I would believe was a sense of urgency and added importance to the later request of the DMR in 1997, I do not believe it is possible to conclude with any sense of certainty that, first of all, the defendant or somebody on its behalf would have been able to make the request directly to State Archives in 1994 or thereabouts. Secondly, if the request had been made by the DMR following a request from the defendant in or about 1994 or earlier, I am not satisfied that one could further conclude with sufficient certainty that the file Ms 28/7067 would have been located. 493 That does not mean Mr Murray, or somebody on his behalf, should not have attempted to retrieve the file. Indeed, every effort should have been made to do so and a formal request made to the DMR for its production. The importance of locating that official archival material was commented upon by Professor Thomas as follows: One of the most important aspects of checking old workings is to attempt to locate the original material, such as surveying field books, and official correspondence about the mine. Those documents will complement the record tracing, and items such as reports of visits by inspectors of coal mines will provide information about conditions in the mine. The documents can include information about roadway closure, roof conditions, water handling, workforce statistics, casual comments about mine layout, and general background that enable one to assess the likely conditions in workings that cannot be inspected. ……... The official archived mine files are the most likely definitive source of information, although having them located and arranging to read them at the Mines Department might take some time. If those documents, which are the most likely to contain accurate information, are scanty, one has to start looking at external resources such as newspaper articles and local handbooks. The official documents are still the best bet for a complete picture. The official files should have been read in conjunction with the original record tracing. The more people who give their opinion, the more likely it will be that a reasonably accurate picture of the mine layout will be obtained. Two or three people each studying the record tracing independently, and writing down their impressions before a joint meeting, will probably get the best result. 494 There is no evidence that would allow me to state with certainty that the defendant did request from the DMR access to the old files relevant to the Young Wallsend Colliery as identified in the Abandonment Register. In the absence of any copy of the entry from the Abandonment Register relevant to the Young Wallsend Colliery within the defendants survey office or elsewhere, the strong inference, in my view, is that no steps were taken by the defendant to make any request to the DMR to locate the referenced files mentioned in that Register. What is abundantly clear is that if Mr Murray or others on behalf of the defendant had located and examined file Ms 28/7067, alarm bells would have rung as to the accuracy and reliability of Sheets 2 and 3. 495 Mr Adam examined the file and the critical aspects of his evidence about that was: (a) The Departmental file shows that somebody had questioned exhibit P111 in the past and instructed Mr Surveyor Thomas to determine the exact location of the workings. So it puts the whole environment of the plan in question. (b) At a later stage someone from the Department has interpreted the black and red workings as two seams. (c) This shows that someone has interpreted the red and black workings as two seams but in the opposite way to Exhibit P81. Again this calls into question the reliability of the plans. There does not appear to be any proof as to which, if either, is correct. (d) The same records also state that the mine was ventilated by a steamjet in the upcast shaft. Such an unusual device would have great difficulty providing sufficient energy to concurrently ventilate workings in two seams. There is no reference to ventilation in any other area of the mine. A steamjet was an unusual device as he believed from his research that most mines in that period would have been ventilated by a furnace shaft. A furnace shaft is connected to a fire box somewhere near the surface. A fire is lit in the fire box and the hot air from that fire is directed into the shaft and the difference in density of air caused because of that hot air in one shaft causes the air in that shaft to rise and the air in the opposite shaft, being the down cast shaft, would go downwards. For this reason it is my opinion that the steamjet was more likely to be used to ventilate only one seam. 496 By way elaboration on the above opinion, Mr Adam pointed to mine tracings within the file that show a complete reversal of what is depicted in Sheets 2 and 3. That much is patently self evident to the casual observer. There is nothing in the file to explain any workings in the Borehole Seam let alone the fact that the depictions that were there had the arrow shaped workings in the Young Wallsend Seam and the oval shaped workings in the Borehole Seam. Indeed, further documentation in the file pointed to further uncertainty as to the extent of the workings, particularly as to whether they were in one or two seams. Again, the absence of any plan of abandonment having been filed only added to what Mr Adam expressed would be a 'great cause for concern' as to the overall location and final extent of the old workings. 497 Mr Adam was also asked to express his opinion based on the following assumptions: (a) A search of the survey office at Gretley after the inrush revealed that Gretley did not hold any field book in relation to the location and extent of the Young Wallsend Coal Workings, any surveyor's notes, any surveyor's calculations or any surveyor's file in relation to the location and extent of the Young Wallsend Coal Workings. (b) In answer to a summons to produce, namely, any field books, survey notes, surveyors calculations and/or surveyors file in relation to the location and extent of the Young Wallsend Coal workings before 14 November 1996, no such documents were provided by Gretley Colliery. 498 His opinion evidence was as follows: (i) Based on my training, study and experience these references to the need for field notes and calculation sheets show that it is well recognised by the Coal Mining Qualifications Board and the surveying profession in general that the making and preserving of accurate field notes is an essential part of a surveyor's professional practice. For this reason, when Gretley Colliery was working towards the old workings that were full of water, I would expect that Gretley Colliery management would have files containing field notes and associated calculations which would show the basis upon which they made their decisions about the relevant positions of the old and new collieries. (ii) If the assumptions are correct, I find this to be a most unusual circumstance. It is the role of the surveyor to measure, to make calculations and to determine the relevant positions of various features. For such an important event such as the potential joining of two collieries I would expect these calculations to be filed or recorded. (iii) If reliance was placed at Gretley Colliery on computer based calculations, there should at least be some record of those on the computer system and probably evidence of manual calculations to confirm the order of magnitude of the information determined by the computer calculations. 499 I would find it surprising to say the least if it was not part of the professional practice of surveying to maintain and preserve accurate field notes incorporating calculations and other relevant data to support the decisions ultimately made in relation to the surveying of current mine workings and the checking of old workings. 500 That no such survey field book, notes, calculations or files was able to be located within the survey office at Gretley is understandably a cause for concern. Such documentation would be owned by the defendant and it would be expected to be part of the business records of Gretley. More significantly, one would have expected Mr Robinson to have it at his fingertips. That is, in taking over from Mr Murray in 1995 and substantively in 1996, it would be expected he would have inherited a file from Mr Murray containing the field book, survey notes, calculations and other relevant documentation relating to the Young Wallsend Colliery old workings and its incorporation into the mine plans for Gretley. It is no answer, in my view, for counsel on behalf of the defendants to assert that the use of computerised mapping systems obviated the need for any documented notes. On this point, I accept the opinion expressed by Mr Adam on this issue as nothing more than self evident. That is, that there should be at least some record of those on the computer system and probably evidence of manual calculations to confirm the order of magnitude of the information determined by the computer calculations. 501 The prosecution assert that a further source of information for the defendants about the location and extent of the Young Wallsend Colliery workings was diverse publications that recorded the workings of the Young Wallsend Colliery. In his statement, Mr Adam expressed the importance of undertaking such research in order to assist in ascertaining as much information as possible in order to confirm the accuracy of information already to hand. In his evidence Mr Adam referred to a number of texts and relevant newspaper articles which, when considered in totality, certainly raise some doubt as to the extent of mining activity that did take place in the Borehole Seam before the Young Wallsend Colliery closed in 1912. For example, in a book titled Youngy Then and Now (The Story of Young Wallsend/Edgeworth): Chapter 3 titled Young Wallsend Colliery Opens Out, the following commentary appears at p20: By November the main shaft reached the Borehole Seam at a depth of 530 feet. At the bottom of the shaft headings (tunnels) seven feet six inches high, five yards wide and thirty-three yards long were driven north and south. Twenty yards from the shaft, east and west headings were driven to open out the mine. The winding engines, cages and platforms were all ready for work. About thirty men and boys were employed and everything in and around the shaft was satisfactory, the Mining Act being strictly complied with. The colliery was now ready to start work. However, owing to more wet weather, the opening was delayed. 502 Reference to 'By November' would appear, on a full reading of the article, to refer to the period 1888-1889. 503 In Chapter 5 of the same text, titled Depression, it is reported as follows on p38: At the beginning of 1912 the Broxburn Coal and Shale Company (which was also operating Broxburn-Maitland, formerly Ebbw Main) obtained an interest in the Young Wallsend Colliery. The Company planned to work the previously undeveloped Borehole Seam . It seemed that prosperity would again return to Young Wallsend, but this was not to be. Only six men were employed. On 4 October, Mr O'Neill notified the New South Wales Department of Mines that work had been suspended and the colliery would be closing down. The mine never re-opened. In all it had only worked for two short periods: 1889-1892 and 1907-1912, a total of ten years. (emphasis added) 504 In a further text titled The Coal Mines of Newcastle, NSW: Their Rise and Progress by George Kingswell (1890) the following commentary appears at p56: The work of opening out the Young Wallsend Colliery has been accomplished with a dispatch which reflects considerable credit on the directors and officials. In December, 1887, the work of sinking the mine was commenced, and the shaft has been put down to the Borehole or Wallsend seam a depth of 530ft. At the bottom, headings are driven north and south, with a height of 7ft 6in. and having a width of 5 yards. These have been opened thirty-three yards each side of the pit, and timbered every 4ft. At a distance of twenty yards from the shaft, main headings have been driven 20ft each way, east and west, to open out the mine. The pit at present is ready to start work with thirty-six miners, and as it opens out more will of course be required. The slides and buttings in the shaft are all ready to receive the cages, which have been constructed on the premises, and are now ready for work. Platform, screens and kickups are also all completed, and only waiting further developments before being used. The main winding engines, having 26-inch cylinders and 4ft stroke, are also in working order. The horse power of the engines is 80 nominal or 130 effective. An engine-house of brick, 41ft by 32ft, is completed, and the boilers are now roofed. The shaft being sunk to the lowest point of the dip causes a slight rise from it each way, and in consequence the underground haulage in the mine will be effected without much difficulty. There are two seams in the mine, and the bottom one, which is to be worked, is 7ft in thickness. 505 The year of publication of Kingswell's text is 1890. From that portion of Sokoloff's book, Youngy Then and Now, made available to the Court, it is obvious it is more recent in origin, dealing as it does with the history of its subject matter up to the end of World War 1 in 1918. 506 There are other texts and newspaper articles, particularly from the Newcastle Herald, of the period 1898 through to 1912 that contain references, some of them relatively brief, where mention is made to Young Wallsend Colliery. Without detailing them all, the general tenor of the reporting is that they refer to the sinking of a shaft to the Borehole Seam with reference to what would appear to be a limited opening out of the Borehole Seam. In other words, the impression clearly gained from a reading of those articles and texts is that while a shaft had been sunk to the Borehole Seam with the intention of being extensively worked, there was ultimately limited work undertaken in the Borehole Seam - certainly not to the extent that RT 523 Sheet 2 would suggest. In other words, the depiction of the extent of the workings as depicted in Sheet 2 is inconsistent with the reporting in the publication references which, at best, report a shaft being sunk and, maybe, some opening out of a limited nature around the shaft. 507 In short, as Mr Adam pointed out, a reading of the material which he himself referred to would reveal significant inconsistencies as to what was being reported in relation to the extent of active working in the Borehole Seam and what was depicted in Sheet 2. I would agree. 508 On behalf of the defendant it was submitted that there is nothing in the publications relied upon by Mr Adam that supports his view that there was only one seam worked in the Young Wallsend Colliery mine and that was depicted by both the black and red workings on Sheet 1 of RT 523. Indeed, all of the references support the view that two seams were worked at the mine. 509 I agree that there is nothing in the publications that would point to the conclusion that the Young Wallsend Colliery worked only in the Young Wallsend Seam. There is sufficient reference to a shaft being sunk to the Borehole Seam with some limited opening out at that level. It is not my understanding that Mr Adam has put these publications forward to support his ultimate opinion that the workings depicted in Sheets 2 and 3 were workings in the one Seam. The basis of referring to those publications was to highlight the importance of comprehensive research when uncertainty exists as to the accuracy of the depiction of old workings. Mr Adam's evidence goes, in my view, to the central proposition that, on a proper and objective consideration, Sheets 2 and 3 contain inconsistencies and anomalies that should have caused the defendant to research further to confirm their accuracy. That further research should have led the defendant to Sheet 1. Next, any careful consideration of Sheet 1 should have caused the defendant to go further in its inquiries in order to be certain as to the accuracy of Sheets 2 and 3. The provisions of clause 8(3) of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 clearly insist on such inquiries. Quite apart from further information from the DMR such as access to the Abandonment Register and archival matter, the provisions of clause 8 clearly provide that the Mine Manager 'shall have regard to such information' and that information shall include 'other information available to the manager.' 510 Further, I do not consider that Mr Adam's opinion is so cast as to suggest that he totally excluded the possibility of workings in a second seam in relation to the Young Wallsend Colliery. He did not. As he said when he viewed Sheet 1, one of the possibilities that occurred to him was that the plan depicted workings in two seams, but that there was insufficient evidence to determine which workings were in which seam. True it is that, when considering all of the anomalies that he observed in Sheet 1, he formed the view that, in his opinion, the workings in Sheet 1 depicted workings in the one seam - the Young Wallsend Seam. In cross examination, he quite properly conceded possibilities that could not rule out that there had been some working in the Borehole Seam but ultimately adhered to his opinion. The real evidentiary value of Mr Adam's evidence is that Sheets 2 and 3 alone revealed uncertainties as to accuracy, whereas a consideration of Sheet 1 confirmed them. In short, the more carefully one considered Sheet 1, according to Mr Adam, the greater would be the need for certainty surrounding the accuracy of Sheets 2 and 3. And one of the sources of certainty or inconsistency, as the case may be, would be the historical search of the type of publications he referred to in his evidence. 511 Mr Adam's opinion was, in large part, independently verified by a drilling programme undertaken by the defendant, commencing in December 1996 and continuing through until February 1997. That drilling programme established that the purported Borehole Seam workings in the south-eastern direction, as depicted in Sheet 2, did not exist as had been depicted. The defendant, via OPL, certainly confirmed the uncertainty surrounding the extent of workings in the Borehole Seam in December 1997. At that time, the corporate defendants made application to the DMR seeking approval pursuant to s138(1) of the CMRA 1982 to use the miniwall mining method for panels MW54 to MW59. At page 4 of the Report accompanying the application, the following appears: The longhole drilling programme and risk assessment mentioned later in this section will be and have been undertaken because plans and record tracings for the Young Wallsend Colliery have been found to be unreliable. A drilling programme conducted by Gretley Colliery has proven the Southern extent of the old workings in the Young Wallsend Seam (within the vicinity of Miniwall 50/51 headings). ... ... The extent of Young Wallsend Colliery's workings in the Borehole Seam has not been proven conclusively by the current drilling programme. Hole 6 intercepted old workings at a length of 298m, which indicates workings around the base of Young Wallsend Shaft in the Borehole Seam. Holes 202 and 203 did not intercept any old workings. 512 On the evidence before me, I have no way of knowing with absolute certainty whether Mr Murray or anybody else on behalf of the defendant did undertake any research of publications such as that identified by Mr Adam but I would say that the overwhelming inference is that it did not. I come to that view because it is difficult, if not impossible, to reconcile the defendant pushing ahead with its mining activities at Gretley, particularly in 50/51 panel, relying on the accuracy of Sheets 2 and 3 when a reading of the publications to which Mr Adam has referred raise the inconsistencies that they do, particularly as to the accuracy of Sheet 2. 513 Further, I have already concluded that on the evidence before me, the defendant did not have a copy of or view RT 523 Sheet 1. That being the case, it is reasonable to assume, in my view, that no steps would have been taken such as the researching of diverse publications relevant to the history and development of the Young Wallsend Colliery. 514 On the basis of all that I have detailed above and the conclusions I have reached, when taken together, I am satisfied beyond reasonable doubt the defendant NWCC failed to undertake planning by way of properly researching available sources and information on the location and extent of the Young Wallsend old workings. 515 In applying the well settled approach in considering causation to the failure before me, I am satisfied that a causal nexus is established to the risk to safety as pleaded. The reliance by the defendant on Sheets 2 and 3 as the basis for their planning of mining activities at Gretley, and in 50/51 panel in particular, created a potential and real risk to the health and safety of its employees working in 50/51 panel. That risk was the potential risk of inrush of water and/or dangerous gases. Whilesoever the defendant continued to mine in 50/51 panel relying on Sheets 2 and 3 as the basis for their planning, that potential risk was ever present. (ii) Failures (b) - (e) as follows: (b) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on any of the mine plans. (c) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Application submitted to the Department on or about 6 September 1994. (d) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the redrawn plan, which was forwarded to the Department on or about 27 October 1994. (e) A failure to accurately depict the location and the extent of the Young Wallsend coal workings on the Variation submitted to the Department on or about 11 August 1995. 516 The above failures as pleaded will all be dealt with together because of the common factual element that underpins them. That is, the alleged failure by the defendant to accurately depict the location and extent of the Young Wallsend coal workings on any of those mine plans specifically identified. 517 This multiplicity of pleading what is, on one view, simply a continuation of the primary failure already established, is indicative of what I have earlier referred to in relation to technically correct but unnecessary duplicity in pleading alleged failures. These four failures, when grouped together, are a good example of what I am referring to. 518 It is apparent it seems to me, once it is established that the defendant failed to accurately depict the Young Wallsend old workings on the initial mine plan for Gretley, then they would continue to do it on all future mine plans, whole or part thereof, that were subsequently produced relevant to Gretley and 50/51 panel in particular. That is so for two main reasons. The first is, as the evidence before me disclosed, the mine plans for Gretley were largely computer generated. In relation to the Young Wallsend old workings, the relevant ISG coordinates were entered into the computerised programme Mindraft. Once that was done, all future mine plans produced in relation to Gretley Colliery and 50/51 panel in particular that traversed the area plotted as depicting the Young Wallsend old workings was automatically incorporated into the subsequent mine plans produced. 519 Second, the Young Wallsend old workings were entered into the computer database in accordance with RT 523 Sheets 2 and 3. In saying that, it is possible that the defendant had also cross checked the survey location of the shafts as depicted in Sheets 2 and 3 against the BHP Shaft Survey undertaken in August 1980. In any event, once entered, it seems that those survey coordinates and the depiction of the Young Wallsend Colliery old workings were locked in for all purposes in the creation of mine plans or mine section plans for Gretley. 520 As the depiction of the Young Wallsend old workings in Sheets 2 and 3 were inaccurate as to the location and extent of the workings in the Young Wallsend and Borehole Seams, it follows that mine plans produced by the defendants that were derived from Sheets 2 and 3 would also be inaccurate. This is exemplified by exhibit P14A which is a mine section plan relevant to 50/51 panel dated 16 September 1996 and titled Oakbridge Pty Ltd: Use of an Auxiliary Plan: MW 50-51 Development. That section plan depicts intended development in 50/51 panel from 4 cut-through and includes roadways and cut-throughs all pointing in the direction of the Young Wallsend Colliery workings in the Young Wallsend Seam. In that mine section plan only a portion of the purported Top Seam workings are depicted. 521 The inaccuracy in relation to the depiction of the Young Wallsend old workings was not confined, the prosecution asserts, to the inaccuracy in relation to the Top Seam workings in the Young Wallsend Seam. The inaccuracy as to the location and extent of the workings also extends to the failure by the defendants to, at any time, depict the presumed Borehole Seam workings on any mine plan in relation to Gretley Colliery and 50/51 panel in particular. Support for this proposition came from Professor Thomas who stated: I consider that the colliery working plan for Gretley should have shown the presumed Borehole Seam workings as well as the presumed Young Wallsend Seam workings. 522 In expressing that opinion, Professor Thomas pointed to a source that, in his view, supported such a proposition as follows: (i) Information Circular 8741: Results of Research to develop guidelines for mining near surface and underground bodies of water: Issued by United States Department of Interior, Bureau of Mines: 1977. 523 In a section of that document dealing with mine maps and underground waters, the following is stated, inter alia, as to the features which should appear: Whether or not combined on the same sheet with surface features, at least one set of maps showing underground features should be composed on the same scale. Pertinent information to be recorded on the mine map should include: ... ... 8. Location and extent of adjacent active or abandoned underground workings above, below, or in the same seam. If abandoned workings are known to exist in an area, but exact extent is not known, it should be so indicated. 524 Professor Thomas also referred to the Surveying Practice and Statutory Plans: Part 1: National Coal Board (UK): 1951 particularly at 5.7: Old Workings Nearer the Unconsolidated Deposits. I did not find Professor Thomas' evidence on that provision particularly helpful on this issue given the meaning attached to unconsolidated deposits being alluvial deposits on the surface. 525 In relation to any relevant provisions applying in New South Wales, as Professor Thomas stated relevant to the United States IC 8741 above: The topics in the list are all in New South Wales current legislation but it is not expressed as clearly for adjacent seams. 526 While Professor Thomas does not mention which legislation he is referring to, the provisions of the Coal Mines Regulation (Survey and Plan) Regulation 1984 would appear to be relevant. Clause 13(3) of that Regulation relevantly provides: The mine working plan shall show - (a) all current workings of the mine in the seam or seams of the mine up to a date not more than 3 months before the making of the plan; (b) any workings of the mine in the seam or seams which are abandoned, discontinued, disused or worked out; 527 As Professor Thomas quite properly points out, subclause (b), which is the most pertinent to the issues being considered, provides that the mine working plan shall show any workings of the mine in the seam or seams which are, inter alia, abandoned or discontinued. The workings proposed at the Gretley Colliery, particularly in 50/51 panel, were in the Young Wallsend Seam. On a strict application of clause 13(3)(b) of the Survey and Plan Regulation, the only abandoned or discontinued workings of the Young Wallsend old workings required to be shown on the Gretley mine plan or sections thereof was the presumed old workings in the Young Wallsend Seam. That is, the workings as depicted on RT 523 Sheet 3. 528 Having said that, it does not seem to me that strictly complying with a narrow view as to the meaning of clause 13(3)(b) in relation to the depiction of old workings on the current mine working plan can be seen as discharging the defendant's absolute obligation to provide for the health, safety and welfare at work of all its employees. The regulatory provisions of the CMRA 1982 are minimum regulatory provisions that must be met. Overriding those minimum regulatory provisions is the obligation on employers to 'ensure' a workplace free of potential risk to safety. The defendant knew that the Young Wallsend old workings in the Young Wallsend and Borehole Seams were full of water. The need to be alert to the potential for inrush with all its known attendant consequences was very real. The presumed old workings in the Borehole Seam were 18 metres below the mining activities taking place in 50/51 panel. The depiction of the presumed old workings in the Borehole Seam were within 100 metres or so to the planned direction of mining activities in 50/51 panel. In fact, if the presumed depictions of the old workings had been accurate, the mining activities in 50/51 panel would have mined directly above those presumed old workings in the Borehole Seam. There is no evidence before me that allows me to determine with certainty the mining implications of that but there was a suggestion in a question asked of Professor Thomas in cross examination that, at some earlier time, the defendants had mined over the top of known old workings with much the same vertical interburden without any untoward outcome. Nevertheless, I perceive compelling commonsense from the perspective of safety in the evidence of Professor Thomas as to the wisdom of depicting those presumed old workings in the Borehole Seam on the mine plans for Gretley. As Professor Thomas said: It is not necessary to show the complete detail of the old workings on items other that the colliery working plan, but I would consider that an outline and a warning line (as in Section 5 of Attachment 2) is essential. I do not think it is sufficient to provide a separate plan so that one plan has to be mentally superimposed on another. If the deputy's section plan, and the other working plans of the Young Wallsend seam displayed at Gretley Colliery, had carried the outlines of the presumed Borehole seam workings in the YWC and its warning barrier, all the discussions about water trickling in from the floor (Deputy McLean's evidence, Assumption M20, for example), would have had a very different impact. Rightly or wrongly for which seam they were in, water from the floor near the edge of workings supposed to be 18 m below should have raised far more alarm than for workings supposed to be over 100 metres further away. [See Coal Mines Regulation Act 1982 Section 139 (1), (2) and 4(b).] 529 Having regard to the above, I am satisfied the failures as alleged have been established. I am of the view that ultimately the mine plans prepared by the defendant in relation to the Gretley Colliery and 50/51 panel in particular failed to accurately depict the location and extent of the Young Wallsend old workings in two respects: (i) The depiction of presumed workings in the Young Wallsend and Borehole Seams relying on those workings as depicted in RT 523 Sheets 2 and 3 were wrong. Consequently, any depiction of the presumed Top Seam workings of the Young Wallsend Colliery in any mine plan produced in relation to the Gretley Colliery and relying on Sheet 3 was inaccurate. (ii) The full extent of the presumed Young Wallsend old workings in both the Young Wallsend and Borehole Seams were never depicted on any mine plan for Gretley in a way that would have been a constant reminder for mine officials and employees of that fact, having regard to the need to be alert to the danger of inrush and the presence of water in 50/51 panel. 530 On the issue of causation in relation to these failures, I am satisfied that the errors and inaccuracies in relation to the depiction of the Young Wallsend old workings on the Gretley mine plans or sections thereof, particularly concerning 50/51 panel, created a clear risk to the safety of the employees undertaking mining activity in 50/51 panel. Those employees were working in accord with and reliance on mine plans that were inaccurate and, in the absence of any notation as to the presumed Borehole Seam workings, incomplete. The inaccuracy of those mine plans in particular created a potential risk of inrush to employees because central to those inaccuracies was the location and extent of the Young Wallsend old workings that were known to be full of water. 531 As earlier indicated, and to the extent necessary, the obvious duplication in relation to these failures (b) to (e) inclusive can be properly addressed to the extent necessary as part of the sentencing process. (iii) Failures (f) to (h) as follows: (f) A failure to undertake planning by way of risk assessment for the development of the Gretley mine. (g) A failure to plan by way of risk assessment for the development of 50/51 panel. (h) A failure to carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. 532 As is self evident, the above three failures are all centred around the issue of risk assessment. 533 In relation to failure (f) above, the prosecution conceded that as between failures (f) and (g) in terms of the evidence, they could not say that the failure arose other than in relation to work in 50/51 panel. Accordingly, failure (f) was not pressed. 534 At the outset it can be said that the defendant was very familiar with the concept of risk assessment. As the evidence demonstrated, a number of formal risk assessments had been undertaken by the defendant at Gretley in relation to particular tasks prior to the inrush. For example, in 1992 the then Mine Manager, Mr John Pala, had notified the DMR of a proposal to hole into the Wallsend Borehole Colliery at MW3. In detailing the proposed procedure, Mr Pala wrote: B Preliminary Work A preliminary procedure and sequence plan was prepared. Personnel were trained in 'Risk Review methods' and a group put together a risk hazard analysis on the procedure and presented it to the manager. And on page 7 of the document: Risk Analysis A risk analysis group consisting of the undermanager in charge, Safety/CSS Controller/Deputy (all of whom were trained in a course on 'Risk Review Methods') and two operators conducted the risk analysis. 535 There was also a documented risk analysis undertaken at about the same time on the use of a horizontal boring machine. As well, early in 1994, when approaching old workings of the Wallsend Borehole Colliery, mine management at Gretley undertook a risk assessment for dewatering Wallsend Borehole 85 for the south panel. 536 In addition to the above, there is considerable evidence contained in the documents of the General Mine Manager's meetings prior to the inrush of emphasis as to the need for risk assessments and safety audits in relation to work to be undertaken. For example, in 1995 the then Managing Director of OPL Mr Yeates and Mr Porteous as Mine Manager at Gretley co-signed a 63 page document titled Gretley Collieries Other Management Schemes and Policies. Most of those policies went to safety issues. On the covering page it is stated: Most all written Schemes and Policies are included but there are other policies that are undertaken such as risk analysis on new tasks and on most all new equipment that comes on site. (emphasis added) 537 Expert evidence as to risk assessment was called by the prosecution. That evidence came from Inspector Neil Buggy. At the time of his evidence, Inspector Buggy was the Acting State Coordinator - Plant with the WorkCover Authority of New South Wales. He has been employed by WorkCover since 1994. His evidence as to the provisions relating to risk assessment in 1996 was admitted generally, noting that Inspector Buggy did not purport to be an expert in specific aspects of risk assessment relevant to the underground coal mining industry in 1996. 538 In McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 470 I gave an interlocutory judgment in relation to objections raised by the defendants to certain aspects of Inspector Buggy's statement. In that interlocutory judgment I stated, in part, as follows: [9] At the outset, Inspector Buggy was quite clear as to the basis and extent of his expertise in the area of risk management and risk assessment. As he said on page 17 of his statement: The knowledge I possess in the area of risk management, including the use of risk assessment, is based on the application of training and experience over time, within the various roles I have held in the substantive or relief capacity with my current employer . This knowledge is based upon generic aspects of risk management and risk assessment. The writer does not profess to be experienced with any particular risk identification system or study, nor any particular risk analysis approach, which may be adopted for particular application in specialised areas. (emphasis added) [10] As well, on page 32 of his statement, Inspector Buggy confirms that he has 'no experience in the underground mining industry.' Accordingly, he says, he is 'unable to provide any direct comparison of relative performance in 1996 between the underground mining industry and industry in general within New South Wales.' He confirmed his lack of knowledge about the mining industry in evidence before me. [11] Further, Inspector Buggy's knowledge of the relevant provisions of the Coal Mines Regulation Act and Regulations was and is limited to an extract of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 that was provided to him by the prosecutor's solicitors as part of material for him to peruse prior to preparing the statement before me. [12] Having regard to those clear limitations that Inspector Buggy himself acknowledges, I would consider the major import of Inspector Buggy's opinion evidence to be that of expressing general principles of risk management and risk assessment that, in his opinion, would have, indeed should have, been incorporated into workplace safety considerations in 1996. In his opinion, the legislative obligations imposed on employers by the Occupational Health and Safety Act 1983 , would have embraced risk management and risk assessment policies and procedures, admittedly with flexibility as to the form of such policies and procedures. Given that the Occupational Health and Safety Act 1983 applied to the mining industry as much as any other in 1996, in Inspector Buggy's opinion, the general principles of risk management and risk assessment would have applied equally to that industry, as any other. As a general proposition, that would be difficult to argue against I would have thought. What might be arguable is how those general principles were applied in practice in particular industries in 1996 specifically, in relation to the matters before me, the coal mining industry. That is the point, I believe, where the defendants take issue with Inspector Buggy as to the opinions he expresses beyond the general principles he has identified. ... ... [15] By November 1996, Inspector Buggy had been with the WorkCover Authority for just on two years. During that time he had completed a Diploma of Injury and Illness Management and Prevention with the WorkCover Authority in 1995. That, it seems, was a prerequisite for all inspectors employed by WorkCover. In short, it would be fair to say, the bulk of Inspector Buggy's knowledge and expertise in the area of risk assessment and risk management has been obtained from 1996 onwards. That he is now being asked to project his current accumulated knowledge and expertise back to 1996 and, in doing so, somehow discounting or ignoring the past seven years to a precise point in his overall memory as to expertise and knowledge at that time is, on any view, fraught with great difficulty. I accept that Inspector Buggy has generally sought to do so but that does not discount the caution that I believe should accompany the receipt of his opinions expressed in 2003 as to what were the standards applying in risk management and risk assessment in 1996 except in the most general of terms. ... ... [26] Inspector Buggy's field of specialised knowledge is the general principles of risk management and risk assessment. He has no specialised knowledge or practical experience as to the proper application of the general principles of risk management and risk assessment in the mining industry either as applicable in 2003 or, I would conclude, in 1996. 539 Evidence as to risk assessments (not of an expert nature) was also given by Mr John Pala, former Mine Manager at Gretley between August 1991 and June 1993. Mr Pala was asked: Q. What does the expression "risk analysis" mean, according to your understanding? A. It's essentially a process where you examine or you can examine either a proposed activity or a piece of equipment or something that you generally intend to do, which is a change, and together with a cross-section of people and using accepted protocols, you then study that piece of equipment or machinery or process to try and determine what types of risks there may be associated with that, and you try and evaluate those risks on the basis of the probability of certain things happening and the consequence, so that you attain a risk ranking. And then using that group, you try and determine what sort of control measures may be appropriate to reduce that risk. That's a condensed - a condensed description, if you like. 540 That process described by Mr Pala, howsoever condensed, clearly involved a systemic approach to risk assessment. That approach accords with the evidence of Inspector Buggy as follows: To make a determination that plant or systems of work were safe and without risk, I am of the opinion that some systematic application of risk identification, assessment and control, in this respect was necessary. However, for industry in general, flexibility existed as to the particular risk management system adopted and the risk management tools used to achieve those general obligations imposed by the 1983 Act. This flexibility was underpinned by the necessity for implementing minimum risk controls, identified within various Regulations created under the 1983 Act. These Regulations related to specific known hazards at that time. Associated legislation also provided for particular controls for some industry sectors such as factories, construction work and mining. ... ... For industry in general terms, the minimum provisions for a risk management system could not be gauged only by an absence of incident or injury. The absolute nature of ensuring the absence of risk required adoption of a risk management system that enabled employers to foresee and avert situations where persons could be exposed to risk of injury, was necessary. It is the writers' opinion that this necessitated application of a system or an approach, which made it impossible to ignore risk in the undertaking of any workplace task, applied in a manner resulting in control of the same. In 1996, adoption of any number of risk management systems, made available at the time through various publications, Standards and guidance material was reasonable. In broad terms, it is again my opinions that within any risk management system, certain elements were necessary to achieve the outcomes identified above. In summary these elements include - · Commitment to establish, implement and review risk management systems; · A program to implement risk management practice; · Determined criteria against which risks are to be evaluated and the choice of analyses; · A means of consultation and communicating information; · A process of risk identification (as a basis for analysis); · A process of risk assessment (including analysis and evaluation); · A mechanism for implementing risk controls (priorities, time frames & responsibilities); · A process of review. 541 In elaborating on the element of consultation and communication as identified, Inspector Buggy confirmed that that meant involvement by and with those persons involved in overseeing and participating in the particular activity being risk assessed. 542 As to the need for documentation of risk identification and assessment in 1996, Inspector Buggy stated: In 1996, it is my opinion that for industry in general and the large majority of hazards presenting in workplace situations, the necessity for documentation supporting risk identification, assessment and control was necessary in practical terms. Some inconsistency was present at the time as to how this was satisfied, which was often related to the size and nature of the workplace undertaking. Again, some exceptions did exist for certain hazards such as manual handling, hazardous substances and to a lesser extent, noise control, where specific Regulations provided strong guidance and a prescriptive requirement for documentation for workplace situations where such hazards existed. This opinion is based upon my knowledge of legislative requirements and my experience and observation of a variety of workplace situations. Although documented systems were perceived at the time to be unnecessary by some industry sectors, the provisions of the 1983 Act required outcomes, which achieved the absence of risk at all workplaces. This had different connotations for different workplaces. ... ... Considering a large corporation, it would seem highly unlikely that absence of risk regarding work systems and plant could be ensured, across a range of workplaces, work situations, work environments and with numerous employees unless a systematic approach with some form of integrity and quality were adopted. It is my opinion that documentary evidence is a necessity to achieve quality management, contractual management and environmental management. To exclude safety management from this approach, again in my opinion is an inappropriate conclusion in terms of business risk, and the review or management approach necessary to achieve continual improvement and business continuity. Based upon my knowledge and experience, I am of the opinion that best practice and hence minimum requirements for documentation of risk identification, assessment and control in 1996, would have included - · Risk management policy; · Duties and responsibilities of persons involved; · A risk register; · Risk action plan. ... ... Risk analyses is a breakdown or separation of any given risk to determine how often an event may occur and the severity of the consequences should this event occur. Risk evaluation, is a determination of priorities, by comparison against predetermined criteria that relate to economics, production, reputation etc. This was often equated to, and presented as, a tabulated matrix that enabled some logical plan to be developed in relation to implementation and monitoring of appropriate controls. 543 In elaborating on his 'risk register' and 'risk action plan', Inspector Buggy explained: A. 'Risk register' is a document. They're both documentation associated with the risk management process. A risk register is a record of a particular risk, the assessment of that risk, usually in relation to existing controls. There's an identified risk level associated with that and often a risk priority if it's been assigned within a risk register. Q. The next expression, 'Risk action plan'? A. 'Risk action plan' typically lists risk identified from the register and contains information on possible and preferred risk control or treatment options, a rating or a ranking after those treatment options are applied, and it also provides for assigning duties and responsibilities and time frames to certain control methods and in best cases a review mechanism. Q. What do you mean by that last expression, 'review mechanism'? A. A means of assessing or ascertaining if the control measure proposed has actually been undertaken and the degree of success. 544 On any view, the evidence adduced would indicate that, overall, the defendant would not take issue with the general tenor of Inspector Buggy's evidence as to the need for a systematic and documented approach to risk analysis and risk assessment pertinent to relevant activities at Gretley during the period of the charge. One of those relevant activities was the development of 50/51 panel. Indeed, it was submitted on behalf of the defendants that, in making it's application pursuant to s138(1) of the CMRA, the defendant supported the general principles of risk assessment as enunciated by Inspector Buggy and that the s138(1) process was akin to a risk assessment. 545 Two problems emerge in relation to that latter assertion on behalf of the defendant. The first is that such a proposition was never put to Inspector Buggy to enable him to comment. His general expertise in risk assessment would certainly have qualified him to comment. Second, there is no evidence contained within the s138(1) application that would point to a planned and systematic approach to assessing and analysing the risks inherent in undertaking mining activity in 50/51 panel that involved ongoing consultation and communication with those involved in the mining activities within the panel and a documented process that identified the risks and the risk control measures to be adopted by all concerned working within 50/51 panel. The only party who ultimately came to view the s138(1) application was the DMR - not the persons involved in undertaking the mining activities in 50/51 panel. The s138(1) application is not such a risk assessment and risk analysis system in documented form encompassing those elements as identified in Inspector Buggy's evidence above. 546 Putting to one side for the moment those matters that the defendant raises relevant to a defence under s53 of the OHSA, counsel for the defendant also submitted that the prosecution has failed to establish beyond reasonable doubt that a risk assessment of a format other than the s138(1) process would have led to the error in the plans being discovered and the incident of the inrush averted. On that issue, it is worthwhile considering the decision of the Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 where it was stated in relation to risk assessments at para [66]: Although there is no specific requirement in s16(1) to carry out a risk assessment there is a strict duty on the employer to ensure that persons not in the employer's employment are not exposed to risks to health or safety. If one means of fulfilling this duty was to assess the risks to health or safety in the conduct of an undertaking then a risk assessment cannot be objectionable. 547 In Mainbrace at para [73], it was submitted on the part of the company and on the question of risk assessment 'that it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse.' Clearly, having regard both to general principles and the particular facts of the matter before them, the Full Bench said at [73] - [74]: [73] Given the nature of the risk, an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident, but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and the equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focussed on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety. [74] It seems to us that, if after such a risk assessment had been carried out, the risk assessor asked himself or herself whether any action was required to ensure the safety of persons using the ceiling as a walkway the answer would inevitably have been 'yes'. 548 Returning to the issue raised by the defendant, there is no doubt that, given the nature of the risk, a proper and adequate risk assessment should have been undertaken in relation to the mining activity to be undertaken in 50/51 panel. The presumed presence of old workings was known and even on the defendants' own admission were full of water. True it is the defendants' proposed method of dealing with that, as far as the presumed Top Seam workings were concerned, was to leave a sufficient barrier between them and work being planned. In relation to the presumed Borehole Seam workings, the defendants simply stated that those workings did not pose a danger to the Gretley workings. 549 Given that a risk assessment of the mining activity in 50/51 panel should have been undertaken, the question then is - did the failure of the defendant to undertake such a risk assessment for all or any part of the charge period cause the risk to safety as alleged? In my view, the answer must be yes. In coming to that view, I adopt the approach as expressed by the Full Bench in Mainbrace at para [73] making provision only for the differing facts in the matter before me. 550 Given the nature of the risk, an adequate risk assessment would have encompassed much more than acknowledging the presence of the old workings and the intention to leave a barrier. In identifying risk as being the risk of inrush from water and/or dangerous gases, the consequences of such a risk would have been identified as death or injury to workers. This would have highlighted as a risk prevention strategy the need to ensure that the depiction of the Young Wallsend old workings could be relied upon without question as to their accuracy. 551 The requirement to be satisfied as to that was paramount. Further, such a requirement would have, should have, put the defendant on notice as to the need to obtain every available piece of information relevant to those old workings. Further, the consultative and communication process with the employees working in 50/51 panel would have alerted them to be particularly vigilant in acting upon and/or following through in relation to matters that might otherwise be considered within acceptable parameters. For example, knowing of the risk, having addressed it in a systematic way and put in place strategies to deal with the risk of inrush may well have prompted the defendant to respond more quickly and proactively to the reports of unusual water emanating in C heading in 50/51 panel toward the end of October and the first week of November 1996. The extent to which a proper risk assessment would have identified and prioritised the risk of inrush might not have been evident in such a process but, as was said in Mainbrace at [73] it 'would have at least raised the issue in the mind of the assessor'. As the prosecution submitted, and I agree: If during or after a risk assessment had been carried out on the development of the miniwall panels around the YWC, the risk assessor asked himself or herself whether any action was required to ensure the health and safety of persons working in 50/51 panel the answer would inevitably have been 'yes'. For example, the consequences of an inrush occurring in the Gretley Colliery from the workings of YWC would obviously be identified as death or injuries to workers. It would then be obvious that the location and extent of the YWC would want to be known. This would have led to pro-active action by the corporate defendants to ensure the health and safety of persons at Gretley and in particular those working in 50/51 panel, such as obtaining information on the old workings, drilling ahead, issuing instructions to employees and other persons at risk, setting an appropriate barrier on the basis that the location and extent of the workings was not known with certainty, or alternately draining the workings or abandoning work in these relatively short panels. 552 The defendant's contentions in relation to failure (g) as pleaded is summarised as follows: In summary, the development of MW50/51 occurred within the over-arching framework of s138 applications; submitted by the mine and approved by the CICM. By reference to the central principles enunciated by Buggy and Pala, the s138 process was akin to a risk assessment. In addition, the Defendants exhibited a strong corporate commitment to safety and a familiarity with more targeted forms of risk assessment. Such risk assessments were implemented at the mine as necessary, for example, in relation to the holing-in to the Wallsend Borehole workings. The Defendants also implemented training of mine workers; emphasising that safety was paramount and that the workplace should be constantly assessed and any concerns reported immediately to a Deputy or Undermanager. A critical form of risk assessment also occurred in the adherence by mine officials to their statutory duties. These duties, prescribed by the Regulations in order to address the ever changing nature of underground coalmines, required Undermanagers and Deputies to perform constant and ongoing inspections and to document their observations in statutory reports. Finally, the Prosecutor has not established beyond reasonable doubt that the implementation of a risk assessment in a format other than the s138 process and other risk assessment measures implemented at Gretley would have likely revealed the error in the plans which led to the incident. Accordingly, the Prosecutor has not established this failing. 553 They are matters more properly to be considered relevant to a defence under s53 of the OHSA. I propose to deal with them in that context. 554 In relation to failure (h) as pleaded, the prosecution stated in his opening address: Now, failure H is a different type of risk assessment. It refers to a failure to carry out an assessment of the risk to the health, safety and welfare of the employees in the event of an inrush of water and/or dangerous gases. The evidence of the prosecutor will go to this question and go to the contention that pre-inrush, a risk assessment should have already identified what the crew involved in an inrush should do in the event of an inrush. One can go to the actual incident to see the failings in relation to this matter. For example, it appears insufficient consideration was given for Mr McCallum's safety after the inrush, when he was requested to go towards the area from where the inrush was coming and was overcome by dangerous gases. We will contend that the evidence demonstrates that the management didn't provide appropriate evacuation procedures. This is reflected in the reaction of the crew in 50/51 panel. I've already mentioned the fact that Mr Pritchard, even later, went down into the dangerous area. 555 The Gretley mine did have a Gretley Collieries Emergency Procedure Document. Section 6 of that document is titled 'Whole or Part of the Mine to be Evacuated.' In the initial pages of the document, Explosion/Inrush of Water is stated to be a Major Incident warranting the whole or part of the mine to be evacuated. A reading of Section 6 identifies what I would characterise as a series of itemised Duty Cards identifying clear procedural steps to be followed at an administrative level once the incident leading to a decision to evacuate has occurred. There is nothing in the document that I observe that is directed to the actual employees at the site of the major incident, telling them what to do in the event of an incident such as explosion or inrush of water. 556 No direct evidence was received from any witness who worked at the Gretley mine as to their knowledge of and reliance upon the Emergency Procedure Document. Where the document was located is unclear. In relation to the Emergency Procedure Document, Inspector Buggy stated that in his opinion: ... this exhibit and corresponding assumptions provided as (assumption R16), although specifying actions of identified individuals and offering a means of recording such actions, emergency procedures did not prescribe evacuation steps to be followed by persons working within panel MW50/51, should inrush or inundation of water or gas occur in the area of work. 557 In addition to highlighting the inadequacy of the defendant's Emergency Procedure Document, the prosecution points to two documents in particular as evidence of a lack of preparedness on the part of the defendant as to this issue. The documents are: (i) A 45 page document titled Oakbridge Audit Questionnaire. It is undated and its use and application to Gretley can be inferred. That is, it formed the basis of the safety audits coordinated by OPL via the General Mine Manager's meetings during the period of the charge. Reference has been made to that issue in this judgment in addressing the issue of Gretley as an undertaking of OPL. 558 That document reveals that one of the matters addressed as part of the Safety Audit was Emergency Preparedness. There were a number of questions to be posed as part of the questionnaire on the topic at p43. They were: 1. Have you been informed as to what emergencies could occur at the workplace? 2. Have you received training in what to do in the event of an emergency? 3. Have you been involved in any emergency drills in the last two years? 4. Are you confident that you would know what to do in the event of an emergency? " 559 While the above document is not complete, it correlates precisely with a document titled Oakbridge Pty Ltd: Occupational Health and Safety Audit: 12 October 1994. That document has handwritten on the front page: Gretley Systems Audit. 560 That document is completed by way of a points assessment following the same section and subject matter breakdown as the Questionnaire. I infer from that correlation that the uncompleted Questionnaire was the basis of the proposed safety audit undertaken at Gretley as well as other OPL mine sites in 1994 and the report in relation to Gretley was 12 October 1994. 561 In that document, under Section 3 Risk Assessment, the following handwritten entry appears, amongst others, as a comment: No policy risk assessments as req. 562 Under Section 5, Emergency Preparedness, the comment is: Simulated emergency require planning 563 It should be noted that the Emergency Preparedness audit gave a maximum score to the question: Has the site a written emergency procedure for major unplanned events? 564 The above audit was completed in October 1994. What was done by the defendant as a response to that audit is unclear, but again an inference can be drawn. 565 First, there is no evidence to show that any steps were undertaken by the defendant subsequent to the safety audit and prior to the inrush to develop a plan and undertake any simulated emergency response in order to deal with a major incident such as an inrush (or explosion for that matter). There should have been, for two reasons. The first is that ongoing training of employees in simulated emergency response in the coal mining industry and the type of work undertaken would be essential. The defendant's own audit establishes that. Second, the presence of the Young Wallsend old workings in close proximity to planned mining activity in 50/51 panel should have heightened the awareness, in risk assessment terms, of the risk of inrush and the need to address that issue. One of the areas that would arise in considering that risk would quite properly be emergency preparedness. 566 Next, there is no evidence before me to show that the defendant acted upon the recommendation of the audit to develop a risk assessment policy outlining in what circumstances and when a risk assessment should be undertaken. On that point it should be noted that on 24 September 2003, the prosecution served a summons on the defendant, seeking production, inter alia, of the following: 1. Any record in relation to any risk assessment for the development of the Gretley Mine between 22 March 1994 and 14 November 1996. 2. Any record in relation to any risk assessment for the development of 50/51 panel in Gretley Mine before 14 November 1996. 3. Any record in relation to any assessment of risks to the health, safety and welfare of employees and mine workers in the event of an inrush of water and/or dangerous gases into 50/51 panel of Gretley Mine before 14 November 1996. 567 The response on behalf of the defendant on 1 October 2003 in seeking an extension of time to comply with the summons was that in relation to items 1, 2 and 3 as identified above, the defendant was carrying out further investigations. 568 Ultimately before the Court were a number of documents that went to specific identified tasks that were the subject of risk assessment by the defendant during the period of the charge. But there was no risk assessment policy produced and no document dealing with emergency preparedness apart from the Emergency Procedure Document already referred to. The limitations and inadequacy of that document have already been commented upon. 569 In relation to failures (g) and (h), I am satisfied in the first instance that the failure to plan by way of risk assessment for the development of 50/51 panel is causally related to the identified risk to the employee's safety, the risk of inrush. A primary step in such a risk assessment process, when done in consultation and communication with the employees concerned, would have undoubtedly identified the Young Wallsend old workings as a hazard and the risk to safety as being the risk of inrush. A risk control strategy would have included the need for accuracy as to the location of those workings and the need to have a documented systematic approach to deal with the risk to safety identified. A failure to undertake this risk assessment process in relation to 50/51 panel undoubtedly potentiated the risk to safety by not alerting the persons working in 50/51 panel to those matters that a proper assessment would have identified and in which they would have been involved and informed. 570 On the question of causation in relation to failure (h), I accept the proposition as advanced by the prosecution that, at the time of the inrush, the reaction of the crew who survived reflected their lack of knowledge about the old workings in their responses at the time of the inrush. That is, not knowing where the water was coming from and not realising the direction of the flow. I accept that the reaction of the crew who survived, notwithstanding the relative suddenness of events when the inrush occurred, was such as to leave them ill prepared as to what to do and uninformed as to the dangers they were confronting immediately following the inrush. That was particularly so in relation to Mr McCallum. In short, the emergency preparedness was inadequate and inadequately documented. As was said by the Full Bench in Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 at 72: The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe. 571 In applying that principle to the matter before me, the inadequacy of risk assessment in relation to emergency preparedness by the defendant exacerbated the risk to the health and safety of the persons concerned at the time of the inrush and their exposure to water and dangerous gases. 572 I am satisfied that failures (g) and (h) as pleaded are established. 573 The defendants have raised matters that go directly to a defence under s53 of the OHSA. I will address those matters in due course. Failure (i): A failure to plan by means of test drilling, to establish the location and the extent of the Young Wallsend coal workings, prior to the development of 50/51 panel 574 The prosecution stated that this failure, as part of the planning, research and assessment charges, deals with one of the purposes for which drilling is undertaken. That purpose is to determine, with accuracy, the location of old workings and, in particular, the extremities of those old workings. That requires holing in to the old workings. 575 Accordingly, the prosecution asserts, the failure as pleaded here goes to that purpose and is limited to the failure to conduct longhole drilling prior to the post 16 September 1996 development of 50/51 panel. The prosecution alleges that longhole drilling should have been used prior to the development of 50/51 panel to locate the nature and extent of the Young Wallsend old workings. 576 There is no doubt that the defendant was fully acquainted with the purposes for which drilling was undertaken. It had been part of work undertaken at Gretley prior to the inrush in relation to other mining activities. For example, evidence was received as to drilling ahead when the mining activities of the defendant approached the Wallsend Borehole Colliery old workings. 577 That the defendant intended to drill ahead on the basis of the presumed Young Wallsend old workings was not in dispute. Evidence was given by Mr Flett, the then District Inspector of Coal Mines, as follows: Prior to the application for mini-walls 39-45 being submitted, in about August 1994, I saw the proposed plans for these mini walls which, as stated previously, approached the abandoned workings of the Young Wallsend and Wallsend Borehole Collieries. The proposed plan showed the workings of mini-wall 39 within approximately twenty metres of the Wallsend Borehole workings. I asked the Mine Manager, Mr Romcke: 'What is your proposal as regards this panel?' He said words to the effect of: 'The same that was proposed on the other side of the Wallsend Borehole workings, when within 50 metres of the old workings we will drill ahead towards the old workings and ensure we have at least a 10 metre barrier to the old workings'. This was in accord with Clause 9 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 and we had earlier been through a similar exercise for mini-walls 35-36, in about early 1994. I said: 'I thought these old workings were drained as part of the mini-walls 35-36 application?' Mr Romcke replied: 'The area has not been drained because mini-wall 36 did not proceed, but it will be drained for mini-wall 40'. 578 Miniwalls 39-45 were later re-numbered to include 50/51 panel. 579 As well, in September 1994, as part of the defendant's application to the DMR pursuant to s138, it was stated at 2.2.6: Young Wallsend Colliery worked the Young Wallsend and Borehole Seams. These workings are known to be filled with water. Drilling ahead of workings will be carried out when approaching the old workings in the Young Wallsend seam and a sufficient barrier will be left between the old workings and extraction panels to maintain the safety of the current workings …. 580 That the defendant did not test drill in the period prior to September 1996 in order to determine the location of the Young Wallsend old workings prior to the development of 50/51 panel is abundantly clear. It was not done because the defendants were relying at all times on RT 523 Sheets 2 and 3 as accurately identifying the location and extent of the Young Wallsend old workings. 581 That the defendant failed to properly research the location and extent of the Young Wallsend old workings has already been determined. If the defendant had properly researched that issue as it should have, I am satisfied that the result, based on evidence as to the defendants action on prior occasions, is that drilling ahead prior to the development of 50/51 panel would have been done given that there would have been a significant degree of caution exercised as to the accuracy of Sheets 2 and 3. That, in turn, would have caused the defendant to take precautionary steps to determine the location and extent of the old workings with such accuracy and certainty that mining activity in 50/51 panel could be planned and undertaken safely and without risk. Not only had the defendant drilled ahead before. It proposed to do it in 50/51 panel at the appropriate time, as it perceived it, relying on Sheet 3 and its presumed depiction of the Young Wallsend old workings. 582 There is no doubt that a failure to drill ahead where there is uncertainty about the location and extent of the Young Wallsend old workings is causally related to the risk of inrush as pleaded. Accordingly, I am satisfied that failure (i) as pleaded is established. 583 That drilling ahead was not done during the period prior to September 1996 is a failure that arises derivatively from the defendant's failure to properly research the location and extent of the Young Wallsend old workings rather than as a failure that arises independently of such activity. That is a factor that arises for consideration as part of any sentencing process yet to occur. Failure (j): A failure to ensure such steps were taken as may be necessary to prevent inrush of water and/or dangerous gases 584 The wording of this alleged failure comes directly from clause 9(1)(a) of the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 that provides: 9(1) Any official of a mine to whom is reported any matter concerning the safety of the mine or the persons employed therein shall forthwith - (a) to the extent of the official's jurisdiction, take such action as may be necessary in the interest of the safety of the mine and the persons employed therein; and ... 585 The prosecution has pleaded this alleged failure with respect to all of the three time period charges. In relation to the planning and research period which I am currently considering, the prosecution relies upon clause 8 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984, as follows: Manager's Duties 8(1) The manager of a mine shall ensure, in respect of every working in the mine, that such steps are taken as may be necessary to prevent any inrush into the workings of flammable or noxious gas from disused workings (whether mine workings or not) or of water or material that flows when wet (whether from disused workings or from any other source). (2) The manager of a mine shall take such steps as may be necessary to ensure that the manager is at all times in possession of such information as would indicate or tend to indicate the presence in the vicinity of any workings carried on, or proposed to be carried on, in the mine of - (a) any disused excavations or workings (whether mine workings or not); (b) any rock or stratum containing or likely to contain an accumulation of water which may endanger the workings or proposed workings; or (c) any peat, moss, sand, gravel, silt or other material that is likely to flow when wet. (3) In fulfilling the duties imposed by subclause (2), the manager of a mine shall have regard to such information as may be available from the Department or the Department of Mineral Resources in addition to any other information available to the manager. (4) The manager of a mine shall ensure that - (a) at least 2 separate means of egress to the surface are provided from each ventilation district and from any other area in which persons regularly work so that, in the event of either means of egress becoming impassable at any point, the other will afford means of egress to the surface; and (b) those means of egress are adequately signposted so as to minimise the risk of persons losing their way. 586 The prosecution further submitted: The prosecutor does not have to prove what steps and/or actions needed to be taken to prevent any inrush of water and/or dangerous gases or in the interests of the safety of the mine and persons employed. The measures or steps which may have been taken to prevent any failure or act or omission are a matter which might be raised for consideration by the defendants under s 53 OHS Act . However, the prosecution relies on the evidence adduced in relation to the other failings in relation to each charge. It is self evident that a failure to take such steps as may have been necessary to prevent any inrush of water and/or dangerous gases or such action as may have been necessary in the interests of safety of the employees creates a potential risk to safety of those employees. 587 I am not persuaded that the prosecution has established this failure independently of the other specific failures they have pleaded. In other words, this failure merely duplicates, in a non-specific way, the particular specific failures as pleaded. In that sense it is clearly duplicitous but it also lacks clarity as to what were the steps, as may be necessary, that the prosecution asserts should have been taken. The prosecution says that it does not have to prove what steps needed to be taken. I disagree. 588 Clause 9(1)(a) refers to steps as may be necessary in the interest of the safety of the mine ... relevant to 'the extent of the official's jurisdiction'. The prosecutor then points to clause 8 of the Methods and Systems of Working Regulation dealing with a Mine Manager's responsibilities in the prevention of inrush. That is, the Manager shall ensure ... that such steps are taken as may be necessary to prevent inrush.' 589 In relation to both of the regulatory provisions relied upon, clear particularisation by the prosecution is called for as to what is relied upon as action or steps that 'may be necessary'. If the prosecution does not particularise that phrase, the defendant has no way of knowing what the specifics of the charge are that it must meet and defend. That the prosecution recognises that is evidenced by the fact that it has particularised alleged failures which, it is presumed, were steps that the prosecution asserts should have been taken in the interests of the safety of the mine overall and particularly to prevent inrush. 590 The fact that the prosecution simply points to the evidence adduced in relation to the other alleged failings in the charge as evidence of this failing, without more, clearly points to the duplicitous nature of this failure. 591 In any event, I accept the defendant's contention that, in relation to the failure, the prosecution has relied upon general assertions but not established causal nexus in relation to the general assertions. I agree. To which I would only add that, even if I was satisfied this failure had been established, it would add nothing to the overall criminality of the defendant in relation to the charge before me. Failure (j) as pleaded is dismissed for lack of particularity and duplicity. 592 In relation to IRC Matter No. 3200/00, I find the offence proved as alleged in relation to the particularised failures (a) to (e) and (g) to (i) as pleaded. In coming to that conclusion, I am also satisfied as to factual particulars [9] and [17] as pleaded. In relation to factual particular [17], I am satisfied that reference to the 'two other mine workers' exposed to risk of injury were Mr Stephen Brown and Mr John McCallum. Both were in the crib room at 6 cut-through at the time of the inrush. Mr McCallum in particular as the person who went up B heading after the inrush to see what was happening was clearly overcome by a combination of dangerous gases such as to cause him to initially collapse and subsequently stagger outbye in B heading after his attempt to reach 7 cut-through immediately after the inrush. 593 I am satisfied, as a direct consequence, a risk arose to the health and safety of the defendant's employees at their place of work. That risk was the risk of inrush of water and/or dangerous gases into the Gretley mine from the old coal mine workings of the Young Wallsend Colliery. 594 In coming to that conclusion that I do, I emphasise the duplicitous and/or derivative nature of a number of the failings to which I have referred and which will be taken into account in the sentencing process. (2) IRC Matter No. 3203/00: Alleged breach by NWCC of s16(1) of the Act 595 In relation to this charge, the prosecution alleges there was a risk to persons not in the defendant's employment in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal mine workings, namely the Young Wallsend coal workings. 596 In relation to this matter, the defendant admits the following numbered further particulars: [1] The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . [2] For the purposes of the Coal Mines Regulation Act 1982 the defendant was the owner of the Gretley mine. [3] The defendant was the operator of the Gretley mine. [4] Between about 22 March 1994 and about 14 November 1996 the defendant employed Edward Samuel Batterham, Frederick Jay Franklin and Wayne Charles Nicholls ("the employees") at the Gretley mine. [6] On or about 6 September 1994 an application was submitted to the Department of Mineral Resources ("the Department") being an "Application for Approval to Use the Miniwall Mining Methods for Panels MW39 to MW 45". On or about 27 October 1994, a redrawn plan was forwarded to the Department. [7] The Application was approved on 5 January 1995. [8] On or about 11 August 1995, a variation was submitted to the Department being a "Variation of Approval to Extract Miniwall Panels MW39 - 45". [9] The Variation was approved on 1 September 1995. MW 44 - 45 later became MW 50 – 51 ("50/51 panel"). [12] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [15] On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. [16] The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. 597 Those numbered further particulars which are not admitted in whole or in part are: [5] Between about 22 March 1994 and about 14 November 1996 Stephen Bailey, Stephen Brown, John Michael Hunter, Mark Kenneth Kaiser, John McCallum, Damon Murray, Michael Francis Alston, Michael John Coffey, Christopher Wayne Nicholls, Phillip John Pritchard, John Riley, and Terence Shacklady ("the persons not in the defendant's employment") were working at the Gretley mine. [10] There was a risk to the health and safety of the persons not in the defendant's employment in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal mine workings namely the Young Wallsend coal workings. [11] Between about 16 September 1996 and about 14 November 1996 the employees and the persons not in the defendant's employment worked as required on the development of a roadway (known as "C" heading) in 50/51 panel. [13] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [14] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and some of the persons not in the defendant's employment. [17] On 14 November 1996, an employee of the defendant, Mr Batterham, and three of the persons not in the defendant's employment, namely Mr Hunter, Mr Kaiser and Mr Murray, suffered fatal injuries at Gretley mine when they were swept away and drowned by the inrush of water. [18] On 14 November 1996, two employees of the defendant, Mr Nicholls and Mr. Franklin and two of the persons not in the defendant's employment, namely Mr Brown and Mr McCallum were exposed to the risk of injury. 598 As indicated earlier in relation to IRC Matter No. 3200/00, I put to one side for the moment the defendant's position in relation to further particulars [10] and [18]. I will deal with them as part of my ultimate conclusions in this matter. 599 In relation to further particular [5], the defendant does not admit that paragraph in relation to Michael Coffey, Christopher Nicholls, John Riley, and Terence Shacklady as persons not in the defendant's employment during the charge period. As well, the defendant does not admit that all the persons named worked for the entire period. 600 I have already determined in this matter that, as statutory Under Managers, Michael Coffey, Christopher Nicholls and Terence Shacklady were employed by NWCC at all relevant times. Accordingly, I do not admit them for the purposes of this charge. 601 Likewise, Mr John Riley. On the prosecution's own evidence (exhibit P50A), Mr Riley was employed at the relevant period by NWCC. I also do not admit him for the purposes of this charge. 602 As to whether the persons admitted for the purposes of this charge worked for the entire period, in my view that fact is not relevant. What is relevant is that all of the persons named and admitted did work in 50/51 panel during the charge period. As such, to the extent that a risk to safety existed, they were exposed to that risk during the period of time they worked in 50/51 panel within the charge period. 603 In relation to further particular [11], the defendant says that not all employees and the persons not in the defendant's employment worked as required in 50/51 panel during the period pleaded. 604 On the evidence before me, I am satisfied that during the period pleaded, Stephen Brown, John Hunter, Mark Kaiser, John McCallum, Damon Murray, John Riley and Stephen Bailey did work as required in 50/51 panel during the period of the charge. The evidence of that is clear and unchallenged. Three of the above-named persons were among those swept away and drowned at the time of the inrush. 605 In relation to further particular [13], the defendant admits only that the Young Wallsend coal workings contained water which was released and flowed into C heading under some pressure. 606 On this point, I rely on my findings and conclusions in relation to IRC Matter No. 3200/00 as set out in paras [265] to [273] above. I find the further particular as pleaded established. 607 In relation to further particular [17], the defendant admits the persons named suffered fatal injuries and drowned but does not otherwise admit that paragraph. 608 On this point, I rely on my findings and conclusions in relation to IRC Matter No. 3200/00 as set out in paras [276] to [280] above. I find the further particular as pleaded established. 609 In relation to further particular [14], the defendant says that not all employees and other mine workers were required to use the continuous mining machine. 610 On this point, I rely on my findings and conclusions in relation to IRC Matter No. 3200/00 as set out in paras [274] to [275] above. I find the further particular as pleaded established. 611 The alleged failures of the defendant particularised by the prosecution are in the same terms as those expressed in IRC Matter No. 3200/00. 612 For the reasons already elaborated upon in IRC Matter No. 3200/00, I am satisfied that persons not in the defendant's employment, as admitted, were exposed to risks to their health and safety arising from the conduct of the defendants undertaking while they were at it's place of work. Further, in finding the offence proved, I do so with respect to failures (a) to (e) and (g) to (i). In so doing, I am satisfied that further particulars [10] and [18] have been established. 613 I find failures (f) and (j) not established for the same reasons as expressed in IRC Matter No. 3200/00. (3) IRC Matter No. 3206/00: Alleged breach by OPL of s15(1) of the Act 614 In relation to this charge, the prosecution alleges there was a risk to the health and safety of the employees in that there was a risk of inrush and/or dangerous gases into the Gretley mine from old coal mine workings, namely Young Wallsend coal workings. 615 In relation to this matter, the defendant admits the following numbered further particulars: (1) Newcastle Wallsend was the registered holder of coal leases for the Gretley Colliery (the Gretley mine) including Coal Lease dated 22 March 1994 that made reference to the Coal Mining Act 1973 whereas the lease was granted pursuant to the Mining Act 1992 . (2) The defendant employed Jonathan Erik Humphries Romcke as Mine Manager between 11 June 1993 to 28 October 1994 and then Richard Myles Porteous as Mine Manager. (3) The defendant admits employing Mr Alston and Mr Pritchard at the Gretley mine. 616 The numbered further particulars that are not admitted in whole or in part are: [1] The defendant was the owner of The Newcastle Wallsend Coal Company Pty Ltd ("Newcastle Wallsend"). [3] The defendant employed Mr Alston, Mr Coffey, Mr Nicholls, Mr Pritchard and Mr Shacklady as Under-managers ("the employees") at the Gretley mine. [4] On or about 6 September 1994 an application was submitted to the Department of Mineral Resources ("the Department") being an "Application for Approval to Use the Miniwall Mining Methods for Panels MW39 to MW 45". On or about 27 October 1994, a redrawn plan was forwarded to the Department . [5] The Application was approved on 5 January 1995. [6] On or about 11 August 1995, a variation was submitted to the Department being a "Variation of Approval to Extract Miniwall Panels MW39 - 45". [7] The Variation was approved on 1 September 1995. MW 44 - 45 later became MW 50 - 51 ("50/51 panel"). [8] There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal mine workings namely Young Wallsend coal workings. [9] Between about 16 September 1996 and about 14 November 1996 employees of Newcastle Wallsend and other mine workers were required to work on the development of a roadway (known as "C" heading) in MW 50 - 51 ("50/51 panel"). [10] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [11] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [12] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees of Newcastle Wallsend and/or other mine workers. [13] The employees were required from time to time to work in 50/51 panel. [14] On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. [15] The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. [16] On 14 November 1996, an employee of Newcastle Wallsend and three other mine workers suffered fatal injuries at Gretley mine when they were swept away and drowned by the inrush of water. [17] On 14 November 1996, two employees of Newcastle Wallsend and two other mine workers were exposed to the risk of injury. 617 The first sentence of further particular [1] that is not admitted asserts that that OPL was the owner of the Newcastle Wallsend Coal Company Pty Ltd. I am satisfied that it was. My reasons for coming to that conclusion are contained within my conclusion elsewhere in this judgement that the Gretley mine was an undertaking of OPL. I do not propose to repeat those reasons at this point. Suffice to say that, on the evidence before me, I am satisfied that, as a corporate entity, NWCC was owned by OPL. There seems little doubt the corporate entity of OPL was made up of corporate partners but, as the corporate entity, OPL owned NWCC at the relevant period. 618 Even if I am wrong in that conclusion, it does not alter the fact that all the evidence compellingly points to Gretley being an undertaking of OPL. 619 In relation to further particular [3], I do not admit Mr Coffey, Mr Nicholls and Mr Shacklady as persons employed by OPL at the Gretley mine. In relation to Mr Pritchard and Mr Alston, I am satisfied that they were employed at Gretley during the period of the charge. 620 That the defendant does not admit the remainder of the further particulars as alleged is not surprising given it's primary assertion that the Gretley mine was a place of work for OPL but the Gretley mine was not it's undertaking. I have determined that it was. 621 As I have determined, OPL as an employer was inextricably involved with NWCC in the operation of the Gretley mine. Not only did it employ persons at the mine, it's corporate role and authority was asserted at diverse levels throughout the operation of Gretley, ranging from the setting of strategic policy and planning initiatives including occupational health and safety and coordinating safety audits at the mine through to communicating with the DMR in relation to certain aspects of mining activities at Gretley. At the same time, OPL was involved in the minutiae of daily management at Gretley such as issuing relevant authorities to miners in relation to operating particular machinery. OPL's involvement in the running of Gretley as a component of it's business operations was all encompassing. In coming to the conclusion that I do on that issue, I refer to my reasons elsewhere in this judgment. 622 Given my findings on that issue, I am satisfied that I can properly conclude that the further particulars [4] to [17] are established as against OPL. I do so for the same reasons reached in relation to NWCC in IRC Matter No's 3200/00 and 3203/00. For the same reasons, I am also satisfied that the failures (a) to (e) and (g) to (i) as particularised, have been established as against OPL. For the reasons already enunciated, failures (f) and (j) as pleaded are not established. 623 Accordingly, I am satisfied that during the charge period the defendant OPL, being an employer, failed to ensure the health, safety and welfare at work of it's employees, in particular Michael Francis Alston and Phillip John Pritchard, contrary to s15(1) of the OHSA 1983. (4) IRC Matter No. 3209/00: Alleged breach by OPL of s16(1) of the Act 624 In this matter, the defendant takes issue with the same further particulars as were raised in relation to IRC Matter No. 3206/00. For the same reasons, I determine the disputed particulars in this matter in the same manner as determined in IRC Matter No. 3206/00. 625 For the reasons already enunciated, I am satisfied that this offence is proved as against OPL, specifically with respect to the particularised failures (a) to (e) and (g) to (i). Failures (f) and (j) as pleaded are not established. 626 Accordingly, I am satisfied that during the period of the charge, the defendant being an employer, failed to ensure that persons not in it's employment, so named, were not exposed to risks to their health or safety arising from the conduct of it's undertaking while at it's place of work, contrary to s16(1) of the Act. Type 2: system of work charges (1) IRC Matter No. 3199/00: Alleged breach by NWCC arising under s15(1) of the Act 627 The time period for these offences is between about 16 September 1996 and about 13 November 1996. Specifically, the prosecution identifies the end of the evening shift at Gretley on 13 November - that being 11:30pm. 628 The prosecutor alleges there was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. 629 In relation to this matter, the defendant admits the following further particulars: [1] The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . [2] For the purposes of the Coal Mines Regulation Act 1982 the defendant was the owner of the Gretley Mine. [3] The defendant was the operator of the Gretley mine. [4] Between about 16 September 1996 and about 13 November 1996 the defendant employed Darren Wayne Atkins, Edward Samuel Batterham, Dallas Bellamy, Clive Arthur Bernard, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, Bernard Francis Brown, Alistair Buchanan McLean, Wayne Charles Nicholls, Ian Robert Nunns, Barry Neville Stewart John Riley, David Pugh, David Hern and Darryl Martin ("the employees"), at the Gretley mine. [7] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. 630 The numbered further particulars that are not admitted in whole or in part are: [5] There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. [6] Between about 16 September 1996 and about 13 November 1996 the employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of the Gretley mine called 50/51 panel. [8] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [9] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. 631 Putting aside further particular [5] that goes to the establishment of the risk relied upon, the remaining further particulars are all matters that I have already determined relevant to NWCC in IRC Matter No. 3200/00. For the reasons given in that matter relevant to these disputed particulars, I am satisfied they are established as pleaded by the prosecution in the matter now being considered. 632 The prosecutor particularises the alleged failures as follows: (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (b) Allowing the operation and use of the continuous miner at the face of "C" heading. (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. (d) A failure to ensure that there was any adequate barrier between where the employees were working and the Young Wallsend coal workings. (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. (f) A failure to test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings. (g) Allowing mining operations to proceed in 50/51 panel without draining the Young Wallsend coal workings. (h) A failure to investigate, adequately or at all, the Deputies written reports on 1 November 1996, 4 November 1996 and 13 November 1996 and two oral reports on 4 November 1996. (i) A failure to inform Deputies, the employees and other mine workers that 50/51 panel was heading towards the Young Wallsend coal workings. (j) A failure to inform Deputies, the employees and other mine workers that the Young Wallsend coal workings were full of water and under a head of pressure. (k) A failure to instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. (l) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees. . 633 In the overall facts and circumstances surrounding the charge before me, the genesis of many of the defendant's alleged failures derives from what I characterise as its primary failure to properly research the location and extent of the Young Wallsend old workings. Fundamental to that primary failure was the defendant's reliance on RT 523 Sheets 2 and 3. It seems incontrovertible to me that once that failure is established, as it has been, then to a large extent, the other charges and the particularised failures therein within them arise derivatively from the primary failure. I have already stated as much in relation to a number of the particularised failures in the planning, research and assessment charges. In the current charge, that is also the case, I believe, in relation to failures (a), (b), (c), (d), (e), and (f). As to alleged failure (g), I will comment on that in due course. 634 There is no evidence before me that would suggest that any of the above particularised failures would have arisen but for the defendants primary failure to properly research the location and extent of the Young Wallsend old workings. In other words, it is proper to infer, in my view, that assuming the defendants had properly researched the location and extent of the Young Wallsend old workings, they would have planned the mining activities in 50/51 panel to take account of them by taking the steps that the prosecution alleges they failed to do as part of this offence. That is, the defendant would have drilled ahead and left a barrier of at least 50 metres between its mining activity and the proven old workings. It would, if it considered it appropriate, have drained the old workings as it had done previously, except on this occasion it had considered and rejected the notion of draining the presumed old workings and determined to leave a barrier instead. As part of that activity, it would have planned its mining activity in 50/51 panel and the use of the continuous miner accordingly. These are all proper and, in my view, correct inferences that I am able to draw from the evidence before me both as to the defendants actions on prior occasions when approaching known old workings and its expressed intention in relation to the presumed old workings in the Young Wallsend and Borehole Seams as depicted in RT 523 Sheets 2 and 3. 635 For example, allowing the employees to work in the area of 50/51 panel and in particular C heading (alleged failure (a)) would not, of and by itself, constitute a failure on the part of the defendant when viewed against the risk identified. What gives that activity a particular dimension such that it constitutes a failure is that the defendant allowed employees to work in 50/51 panel against the backdrop of its reliance on Sheets 2 and 3, which were wrong. 636 As to the particularised failures going to the inadequacy of barriers and a failure to test drill both as to barrier adequacy and location of the old workings, more needs to be said. 637 The evidence of Mr Adam in relation to an acceptable barrier of coal was: If a prudent surveyor had exhibits P80 and P81 I would expect that he would recommend at least a 50 metre barrier around both sets of workings. He may recommend a greater distance depending on his confidence in the information available to him. 638 Professor Thomas' evidence on the safest distance for barriers was somewhat muddied by the reliance he sought to draw from the Gupta and Singh article earlier referred to. It is clear however that he viewed the statutory provisions as a minimum standard. Section 139 of the CMRA provides relevantly in relation to barriers: (1) The owner of a mine shall not mine or cause to be mined any seam of coal in the mine without leaving a barrier of the specified width: (a) against the external boundaries of the colliery holding in which the mine is situated, (b) against any outcrop of the seam, and (c) between any underground workings and any open cut working situated within the colliery holding in which the mine is situated. (2) For the purpose of subsection (1), the specified width is 20 metres or such other distance as the Minister may specify in a direction given to the owner, the superintendent or the manager of the mine. ... ... (4) In making a direction under subsection (2) or (3), the Minister: (a) may fix the width of a barrier in respect of any seam or portion of a seam within a mine and specified in the direction or in respect of all the seams within a mine or all seams within a mine other than those so specified, and (b) shall so fix the width of a barrier in respect of any seam so that a barrier of not less than 40 metres shall be maintained between workings of adjacent mines. 639 In relation to the presumed old workings of the Young Wallsend Colliery as depicted in Sheets 2 and 3 and on which the defendant relied, the defendant at all times intended to more than comply with the statutory provisions of s139 in relation to barrier width as well as meeting the approval of the DMR. The evidence of Mr Flett, the District Inspector of Coal Mines, as to his discussion with Mr Romcke on this issue in August 1994 was as follows: I said to Mr Romcke, 'These workings (pointing to proposed mini-wall 43 on the plan) are very close to the old Young Wallsend workings, they are less than twenty metres'. He said, 'When within fifty metres of the old workings we will drill ahead'. I said, 'If you intend to go that close to the old workings you will have to drain the workings'. I asked what Gretley's proposal was for the area and Mr Romcke said, 'We propose to leave a barrier'. I said, 'If you don't propose to drain the old workings, what do you propose in the way of a barrier?' He replied, 'To leave a sufficient width barrier around the old workings'. I asked, 'How wide a barrier?' He replied, 'I believe fifty metres would be appropriate and if we go within that we will have to drill ahead'. I said words to the effect of: 'If we adopt that then these workings of mini-wall 43 (referring to plan) need at least a fifty metre barrier on this side of the old workings and I don't believe any mini-wall extraction should be closer than fifty metres'. 640 The intention to maintain a 50 metre barrier between 50/51 panel and the Young Wallsend old workings was further confirmed by Mr Porteous, the then Mine Manager to Mr Van Dijk, District Inspector with the DMR on 4 November 1996. 641 As well, in discussions with Mr Romcke after August 1994, Mr Flett stated: I asked about the draining of the Young Wallsend seam workings and Mr Romcke said words to the effect of: We have considered that but it presents some major problems for the mine. The development of the headings is some distance away and we would have to have time to drive roadways to drain the area and would need extra pipes and pumps installed and an area for water standage. I cannot afford to stop mini-wall development or the mine will close if the mini-wall stops for too long. He also said, 'There are also environmental problems of getting the water out of the mine'. I accepted this proposition after some further questioning on the above details and decided to accept the barrier principle. Mr Murray, the Mine Surveyor, was present at the meeting and I asked: 'How much water is in the old workings?' He replied: 'The shafts were about half full before they were filled'. I took this to mean that the water level in the shafts before any filling was approximately 60-70 metres from the surface. I agreed fifty metres was an appropriate barrier as I was aware that Liddell Colliery was at this time operating with a 40 metre barrier between the Liddell mine and the abandoned Foybrook mine with a head of water of just over 100 metres against the barrier, and had been doing so for approximately six years. I was aware of some geotechnical work that had been carried out by Liddell Colliery that had shown that a barrier of approximately 30 metres would be a long-term stable at this head of water. The height of the coal seam at Liddell was approximately three metres. I was Inspector at Liddell Colliery at about this time. I did not discuss my experience at Liddell Colliery with the Mine Manager. Based on this knowledge, I had no doubts as to the reliability of a barrier of less than fifty metres. There is also no doubt in my mind that if the seam correlation of the Young Wallsend workings had been correct the barrier left would have been more than adequate. (emphasis added) 642 There is little doubt in my view that any failure by the defendant in relation to the inadequacy of barriers in relation to mining activity in 50/51 panel arises directly, as Mr Flett stated, from the incorrectness of the 'seam correlation' of the Young Wallsend old workings - and that in turn arises directly from the defendants failure to properly research the location and extent of the Young Wallsend old workings. 643 The use of boreholes for test drilling purposes has first to be considered in light of the provisions of clause 9 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984. That clause provides: 9. Where any workings in a mine approach within 50 metres of - (a) a place which is likely to contain an accumulation of water or material that flows when wet and which may endanger the workings; (b) a place which is likely to contain an accumulation of flammable or noxious gas which may endanger the workings; or (c) disused workings which have not been examined and found to be free from any accumulation of water, material that flows when wet or flammable or noxious gas which may endanger the workings; there shall be constantly kept at a sufficient distance in advance of the workings, not being less than 10 metres, at least one bore hole near the centre of the workings and sufficient flank bore holes on each side of the workings. 644 It was the opinion of Professor Thomas that, when properly considered, clause 9 had a wider application. He stated in his Report, relevantly, on this issue as follows: Clause 9 of the Methods of Work Regulation is not restrictive to single seam work. It has to cover any mine with more than one seam, and not one sub-clause uses the words 'in the seam' or 'in the same seam'. The actual words used are: Where any workings in a mine approach within 50 metres of – (a) a place which ……… (b) a place which ……… (c) disused workings which have not been examined ... protective boreholes have to be used. I would consider that from logic and from the context of the 1927 Committee Report, that the 50 metres is a hemispherical barrier, not only a barrier in the same seam of coal. The wording for the boreholes is also suitable for any direction. The boreholes have to be: constantly kept at a sufficient distance in advance of the workings, not being less than 10 metres, at least one bore hole near the centre of the workings and sufficient flank boreholes on each side of the workings. Those words have to cover inclined seams as well as cross-measure drifts and shafts, because they are all "workings". Clause 5 of the Regulation defines a 'roadway' as including any bord, heading, cut-through or pillar split, and Clause 5 of the Act defines 'roadway' as any passageway in coal or stone. 'Working' is not defined but generically for centuries it has been any place in a mine where people work. It has to cover everything from single headings to longwall faces. Consequently, as logic and common sense would imply, any opening in a mine that is approaching a dangerous accumulation of gas or water at any angle requires a safe barrier. Precautions must be taken if plans indicate that the safety zone has been reduced to 50 metres. 'Place' is defined in Clause (3) of the Act, and includes any pit, shaft, drive, level, or excavation. If one looks at "working" as a part of the verb "to work", then clauses such as clause 35 of the Act (Duties of Owners), that refer to "the mine is so managed and worked", imply that a working is any place where people work in the mine. 645 Reference to the 1927 Committee Report is reference to the 1927 UK Water Dangers Committee Report already referred to in this judgment. In making reference to it, Professor Thomas refers to factors identified by the Committee in determining the width of barriers as follows: No general rule can be laid down to determine the thickness or width of a barrier necessary to retain water. The circumstances of each case must decide the matter. Generally it is clear that Mining Engineers have designed such barriers with a view to resisting the percolation of water, and the width of barrier necessary to prevent percolation is invariably greater than that required to prevent the dislocation or collapse of the barrier in such a manner as to endanger life by inrush. Factors in deciding the width of a barrier - The principal factors which have to be taken into account in deciding the width of a barrier are:- 1. The thickness of the seam and its depth from the surface. 2. The friability of a seam and its porosity. 3. The nature of the parting between the seam and its roof and floor. 4. The inclination of the seam and the direction of the barrier in relation to the inclination. 5. The maximum pressure of water to which it may be subject. 6. The porosity of the strata above and below and their tendency to close tightly in the waste. 7. In some degree, the system of working the minerals at the sides of the barrier, and the support that may be afforded by the worked out area, for example, by packing. 8. The degree to which its strength is diminished or increased by fault fractures and their direction. 9. The risk of disturbance by workings under or over the barrier. It is impossible to lay down the degree of importance to be attached to each of these factors. It will vary with every seam and in every coal field. The decision as to the design of a barrier must be left in the hands of those with knowledge and experience of the particular locality. So far as we have been able to form an opinion by the study of past occurrences it may be safely so left. 646 In considering the issue of barriers, the Water Dangers Committee was considering the then provisions of s68 of the Coal Mines Act 1911 (UK). It came to the view that s68 was held to be defective, relevantly, because it was stated 'The Section has not been held to apply to water over or under an approaching seam'. In suggesting the application of the principle of deciding each case on its merits, the Committee Report stated: The variety of conditions under which danger from accumulated water in mines occurs, and the diversity in the degree of knowledge of the position and outline of disused workings likely to contain water, are so great that in our opinion it is impossible to frame any workable rule or set of rules defining in detail the precautions necessary to avoid danger. The evidence before us has clearly proved that the conditions and the degree of risk both vary infinitely. We recommend that the principle governing the amendment of Section 68 which clearly is necessary, should be to make provision for each case of danger, or apprehended danger, to be considered upon its merits. The consideration of recent as well as of former accidents has driven us to the conclusion, however, that the detail of the precautions to be observed cannot justifiably be left in all cases to the sole discretion of one person, and we therefore recommend that the Manager should be required to taken steps similar in principle to those required by Part V of the General Regulations of 30th July, 1920, as to workings under moss. Notification on approach - The Manager should be required to notify the Divisional Inspector, and the representative of the persons employed in the mine, upon any working approaching within 100 yards in any direction of any place known or likely to contain accumulated water, and to communicate to these two parties the details of the precautions which he proposes to take, having regard to the circumstances and the reliability of the information as to the position and extent of the 'place.' 647 I do not know what, if any, legislative change resulted in the UK legislation arising from the 1927 Water Dangers Committee Report as to the issues referred to herein. 648 To the extent that the Water Dangers Committee outlined factors and the application of principles in relation to water accumulation in old workings and barriers, Professor Thomas adopts them in support of the opinion he now expresses as to the proper construction and application of clause 9 of the Methods and Systems of Working Regulation. 649 The prosecution submits that the logic of what Professor Thomas says on this issue in his report is compelling and adopts it in full. 650 The effect of applying Professor Thomas' interpretation of clause 9 is that at the time of undertaking its mining activity in 50/51 panel and relying on the presumed location of the Young Wallsend old workings as depicted in Sheets 2 and 3, the defendants should have been drilling boreholes downwards into the presumed Borehole Seam workings at a point when they were within 50 metres of those presumed old workings noting that the interburden between the presumed Borehole Seam workings and the workings in the Young Wallsend Seam being undertaken at Gretley was 18 metres. In other words, if the presumed Borehole Seam workings were correct, they were well within the distance provisions of clause 9 of the Methods and Systems of Working Regulation which requires that when mining within 50 metres of disused workings, a barrier of not less than 10 metres is to be maintained and proven by drilling ahead. 651 The defendant rejected Professor Thomas' interpretation as to the hemispherical (or orbital) application of the borehole rule as provided in clause 9 of the relevant Regulation. Indeed, quite apart from expressing his opinion as to what Professor Thomas describes as the 'logical' interpretation of that Regulation, counsel for the defendant highlighted that the opinion expressed by Professor Thomas on this matter was not consistent with the material submitted by Professor Thomas to support his assertion. As was stated on behalf of the defendant: ... the Prosecution states that it cannot therefore be suggested that Professor Thomas' opinions on barriers and drilling were formulated in the industry only after the Gretley inrush. The prompt sheet prepared by Professor Thomas suggests the contrary. It makes no reference to orbital drilling, but does refer to drilling "in the seam" and by means of "flank boreholes" defined by Professor Thomas in cross-examination to mean the "sides" or "ribs". Neither of which we say could be construed as depicting an opinion on orbital drilling. Thomas relies on a number of attachments to his report dealing with the approach to old workings. Each of the suggested methods adopted by him depict drill holes in the flank or rib and the face straight ahead. No method adopts the hemispherical approach he suggests should be used. See Attachment 5 Water Hazards, Figures WH1, 2, 3, 4; attachment 9 Report Water Damages Committee Boring at Bignall Hill Colliery 652 What the defendant asserts as to the material submitted by Professor Thomas is correct. Every illustration depicts the drilling of boreholes as drilling ahead in the sense of being in advance of the seam of coal then being worked. 653 That it is possible to test drill in diverse directions and at angles is not disputed. Nevertheless, despite the opinion expressed by Professor Thomas as to the 'logic' behind his construction of clause 9 of the Methods and Systems of Working Regulation, it is not a logic that I agree with the certainty that is pressed upon me. 654 The regulatory provisions of clause 9 provide for the approach distance and places in which boreholes shall be drilled. In establishing and maintaining the prescribed boreholes, they are to be kept at a sufficient distance in advance of the workings. The word 'advance' has a number of meanings but, in the context of the provision before me, it is properly defined, in my view, as meaning 'to move forward in place; to move, put or push (a thing) forward; to move (oneself) forward; to move or go forward; to proceed: see the Compact Oxford English Dictionary: New Edition. 655 As a general proposition, the words 'in advance of the workings' strongly imply, in my view, that the prescribed boreholes would be undertaken going forward of the workings then being undertaken with at least one borehole near the centre of the workings and sufficient flank boreholes on each side of the working. In other words, as the current workings were progressively advanced so too would the borehole advance, always at a minimum distance of 10 metres. I accept that it is possible to move forward in a downward trajectory. But if I understand Professor Thomas' opinion on this matter, he asserts that the proper interpretation of this clause is that there is a requirement for hemispherical (or orbital) drilling of boreholes contained within the provisions of clause 9. While I can understand the reason why Professor Thomas may see such an interpretation as a sensible one, it is not an interpretation, I believe, that arises readily or even logically from a proper consideration of clause 9. It is asking the Court to construe the words 'in advance of the workings' by the addition of the words 'in a hemispherical direction'. The workings of a mine being undertaken at any time are planned to proceed in a particular direction. The intention of clause 9, as I construe it, is that the boreholes to be drilled in advance of the workings also imply the drilling is to be undertaken in advance of the workings then being undertaken in that particular seam of coal as planned at that time. 656 Even if Professor Thomas' interpretation was correct, it is hard to visualise how that takes the defendant's failure to test drill, for the purposes as alleged by the prosecution, any further. In other words, even if the defendant had maintained a borehole, presumably at set intervals along the floor of C heading, and directed it downwards to a distance of not less than 10 metres from the presumed Borehole Seam old workings, there would have been no certainty, it seems to me, that it would have disclosed the absence of the presumed old workings. That is, if the defendants had maintained a minimum 10 metre borehole in the direction of the presumed old workings at regular intervals along the floor of the work being undertaken in C heading (even allowing for the length of the drill) they would not necessarily have encountered a void sufficient to signify the old workings unless they had drilled beyond the 18 metre interburden between the two seams. 657 Notwithstanding the above and for the reasons given, I am satisfied that the prosecution have established the particularised failures (a) to (f). . 658 The alleged particularised failure (g) is not established. It was always the defendants considered decision not to drain the presumed old workings of the Young Wallsend Colliery. There is clear evidence to this effect from Mr Flett, the then District Inspector with the DMR, as to his conversation with Mr Romcke about this issue, that is, draining the old workings. As I understand the evidence, where old workings full of water are known to be present, there are two generally accepted ways of dealing with it when further mining activity is contemplated. One is to drain the old workings, the other is to leave a sufficient barrier between the old workings and the mining activity contemplated. In other words, it is not considered necessary to do both, that is, drain the old workings and leave a barrier. In relation to the Young Wallsend old workings, the defendant always intended to leave a barrier. It had considered the alternative of draining then and rejected it for the reasons detailed in Mr Flett's evidence. Further, the evidence of Mr Flett was that in considering that decision as made by Mr Romcke, Mr Flett said: I accepted this proposition after some further questioning on the above details and decided to accept the barrier principle ... I agreed fifty metres was an appropriate barrier as I was aware that Liddell Colliery was at this time operating with a 40 metre barrier between the Liddell mine and the abandoned Foybrook mine with a head of water of just over 100 metres against the barrier, and had been doing so for approximately six years. I was aware of some geotechnical work that had been carried out by Liddell Colliery that had shown that a barrier of approximately 30 metres would be a long-term stable at this head of water. 659 It seems apparent to me that, assuming the defendant had properly researched the location and extent of the Young Wallsend old workings, the decision in relation to those old workings would have been the same. That is, it would not have drained the old workings - it would have left a 50 metre barrier. At the same time, it would have allowed mining operations to proceed in 50/51 panel which, on all the evidence before me, would not have created the risk to safety as alleged. As Mr Flett stated in his evidence in relation to the 50 metre barrier proposed by the defendant: Based on this knowledge, I had no doubts as to the reliability of a barrier of less than fifty metres. There is also no doubt in my mind that if the seam correlation of the Young Wallsend workings had been correct the barrier left would have been more than adequate. (emphasis added) 660 That the defendants proposed 50 metre barrier was prudent was also supported by Mr Adam. 661 It does not seem to me that the defendant can be cited for two particularised failures that, on the evidence before me, are accepted alternative methodologies for dealing with the risk to safety as alleged. Given the factual circumstances as to the defendants intended action to drill ahead and leave a barrier, which I have found established, I do not accept on the evidence before me that failure (g) as particularised can be sustained. . 662 The alleged particularised failures (h), (i), (j) and (k) can, in my view, be considered together, constituting as they do the alleged collective failure of the defendant to investigate, inform and instruct the relevant mine Deputies and other persons in relation to those identified matters relevant to mining activity in 50/51 panel during the charge period. 663 The presence of water in an underground mine is not, by itself, unusual. In other words, there is evidence that some mines are known as wet mines where it is not uncommon for water to be consistently present and in some quantity. For example, Mr McLean, one of the mine deputies who gave evidence, had some 30 years experience as a miner. On the issue of the presence of water in mines, Mr McLean's evidence was as follows: Q. Do you recall being asked a question in relation to your experience in mining generally, do you recall that; and being asked whether you had a seen water and you giving an answer that you'd seen water actually run like a tap from drill holes; do you recall that? A. That's correct. Q. And you've seen water spurting from the ribs in your experience? A. Yes. Q. And dripping from the ceiling or roof? A. That's correct. Q. And you also said it is not unusual to see water in a mine? A. That's correct. Q. In fact, it would be unusual not to see water in a mine, wouldn't it? A. That would be, yeah, that would be correct. All depends, yes. …… Q. You've also said and you know, don't you, that it's not usual to see water running from the face? A. That's correct, in certain areas of the mine, yes. Q. And you've seen all of those things at Gretley or some parts of Gretley? A. Yes. Q. You've seen water in such quantities that it had to be put in dams outbye on the lot? A. Yes. 664 Notwithstanding the above evidence, it would be correct, in my view, to conclude that while the presence of water was not unknown within the Gretley Colliery and in 50/51 panel, the working conditions within 50/51 panel were comparatively dry when assessed against other parts of the Colliery and other mines in particular. As well, there was an acknowledged slope in the seam within 50/51 panel declining to the left from C heading to A heading and from 7 cut-through to 4 cut-through. 665 Within the Gretley Colliery there were a series of storage dams and associated pumping processes in order to deal with water runoff from ongoing mining activities. Indeed, when the holing in occurred and water poured down C heading towards other areas of the mine, it was thought at first by Mr Bernard, another mine Deputy on that night shift, that 'one of the storage dams that was outbye had let go which had caused the water to come through.' Mr Bernard was on his way to check the dams when he encountered two of the miners from 50/51 panel, Mr Franklin and Mr Nicholls, who gave him reports of excessive water into their crib room. Mr Bernard went ahead and checked the dams. As he recounted: A. I then went and inspected the dams. They weren't broken or had not let go. There was an amount of water flowing over the top of the dam, but not enough to cause the amount of water I had seen. I then came back out to the phone area where I was again talking to Wayne Franklin and Jay Nichols. They informed me they had been in the crib room area of 50/51 and they had water come through that crib room. From that, I straight away assumed that they had holed the old workings. 666 After the inrush, there was, not surprisingly, considerable focus on establishing whether there had been any indication in the weeks preceding the holing in of any unusual or abnormal signs of water in or about 50/51 panel that may have alerted mine management that something may be amiss. As the evidence disclosed, two of the mine Deputies working in 50/51 panel in the two weeks before the inrush did have cause, independently, to report on the presence of water in 50/51 panel. One was Mr McLean, the other was Mr Bernard. 667 Turning first to Mr McLean. Mr McLean was employed at Gretley Colliery for approximately 30 years. At the time of the inrush in November 1996 he had been a mine Deputy for 16 years. He worked on day shift and had worked in 50/51 panel for some six months or so prior to the inrush. At the time he was employed by NWCC. 668 As a Deputy, Mr McLean was in charge of a crew of miners on a production shift. Gretley Colliery worked three shifts in a 24 hour period. Two of those shifts, the day shift and the night shift, were production shifts. The evening shift was a maintenance shift. As is self evident, the production shifts were involved in direct mining activity geared towards producing coal as part of the development work then being undertaken. 669 As a mine Deputy, Mr McLean had a number of responsibilities. Many of these are spelt out in the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 particularly in Part 6, Deputies and Part 7, Inspections and Reports of that Regulation. The provisions of clause 64 and 65 of that Regulation provide the obligatory inspections and reports by a mine deputy as follows: [64] (1) Before the commencement of any shift in a deputy's district (production), a deputy appointed by the manager of the mine for that purpose shall inspect every part of that district in which persons are to work or pass or which are temporarily standing places. (2) An inspection referred to in subclause (1) shall be made not earlier than 4 hours before the commencement of the shift. (3) For the purpose of subclause (1), 2 or more shifts succeeding one another without any interval shall be deemed to be one shift. (4) A deputy making an inspection of a part of a mine in pursuance of subclause (1) shall inspect - (a) for the presence of flammable or noxious gases; (b) the state of the ventilation; (c) the state of the roof and sides; (d) the general safety of the part of the mine inspected; (e) all falls, cavities, seals and stoppings along the course of the main ventilation current on the intake side of the last working place; and (f) the edges of goaves and waste workings. (5) No person, other than a mining official senior to a deputy, shall pass beyond a deputy's station which is situated in a deputy's district (production) unless the deputy of that district authorises the person to do so or has indicated by a notice in the station which is signed and dated by the deputy that it is safe to do so. (6) The manager of a mine shall, in respect of every deputy's district (production) in which persons are working, appoint a deputy to inspect - (a) at intervals not exceeding 2 hours - every place in which a continuous mining machine is operating; (b) at intervals not exceeding 4 hours - (i) every place in which persons are working and where the roof and sides are removed, supported or interfered with; and (ii) every working face and safely accessible roadway within 100 metres of any working face; and (c) at intervals not exceeding the duration of a shift - every place or roadway (including all return airways in that district) which have not been inspected pursuant to paragraph (a) or (b). (7) A deputy making an inspection of a part of a mine pursuant to subclause (6) shall inspect - (a) for the presence of flammable or noxious gases; (b) the state of the ventilation; (c) the state of the roof and sides; (d) the general safety of the part of the mine inspected; (e) all falls, cavities, seals and stoppings along the course of the main ventilation current on the intake side of the last working place; and (f) the edges of goaves and waste workings. [65] (1) A deputy who has made an inspection pursuant to clause 63 (1) or (3) or 64 (1) shall, after completing the inspection, without delay complete and sign an approved report form. (2) Where a deputy makes a report as provided in clause 63 (4) (b), the person to whom the report is made shall complete and sign an approved report form specifying therein the matters reported by the deputy to that person. (3) A deputy who has made an inspection pursuant to clause 63 (1) or 64 (6) shall, before leaving the deputy's district, complete and sign an approved report form. (4) The reports made under this clause in respect of a mine shall be kept at the surface of the mine and shall be accessible to workers employed at the mine. (5) A copy of a report made under subclause (3) in respect of a mine shall be kept at the deputy's station in the district to which the report relates and shall be accessible to workers employed at the mine. 670 As well, clause 54 further provides in relation to the completion and reading of reports thus: (1) A deputy to whom a deputy's district has been assigned for a shift shall not leave the district at the end of the shift until the deputy has completed a report on an approved form containing all information relevant to safety in the district. (2) A deputy to whom a deputy's district has been assigned for a shift shall, before commencing duty, become acquainted with any report made under subclause (1) in respect of the preceding shift in the district and shall initial and date that report. 671 The reports completed in accordance with the above requirements are known as Statutory Reports. In those reports, each deputy is required to make specific entries in relation to the following matters: · Flammable and noxious gases and action taken; · State of ventilation and action taken; · State of roof and sides and action taken; · General safety and action taken; · State of falls, cavities, seals and steppings; · State of goaf edges; · Any other matters. 672 There is also a requirement to denote what parts of the section the Deputy has inspected during the shift and at what intervals and time. 673 In addition to the Statutory Report, each Deputy in charge of a shift is required to complete a Production Report. That Report, amongst other matters, identifies the panel and places worked as well as the location of the current face in metres. As I understand it, the latter detail enables mine management to calculate, on an ongoing basis, the number of metres advanced per shift as part of coal production. As well, provision is made for the Deputy to record the time and nature of any delays in scheduled work as well as the work done during the shift. 674 In his role as mine Deputy in 50/51 panel, and prior to the inrush on 14 November 1996, Mr McLean made three entries in his Statutory Reports relevant to the presence of water in 50/51 panel. On each occasion, he made those notations under the 'Any other matters' section of his report. Those reports and the entries made by Mr Mclean were: (i) 1 November 1996: Nuisance accumulation of water in C-B 7 CT; (ii) 4 November 1996: Large amount of nuisance water in C-B 7 CT; (iii) 13 November 1996: Coal seam is giving out considerable amount of water seepage at face of C heading. 675 As one would expect, after the inrush, Mr McLean was further questioned about the significance of the above entries. In relation to his entry of 1 November, Mr Mclean confirmed that the water he observed was in the same area as that observed by Mr Bernard at or about the same time. That is, water accumulated in 7 cut-through towards B heading. When asked in evidence how much water was there, Mr Mclean recollected 'probably up to your gum boots; probably just workable.' His gum boots were knee high. 676 In relation to his entry of 4 November, Mr McLean gave the following evidence: Q. Can you just tell us what the entry is under 'Any Other Matters'? A. 'Large amount of nuisance water in C to B 7 cut-through.' Q. What's that a reference to? A. That's a reference to the amount of water in C to B cut-through 7. Q. Is that the same water that you had referred to on 1 November? A. Yes. That would be correct. Q. Was the water in exactly the same state? A. It would have grown. It was - it would be a bigger amount. 677 Mr McLean was further questioned in chief as follows: Q. You gave some evidence before about the height of the water on 1 November, do you remember that, by reference to your boots? A. Correct. Q. What was the height of the water on 4 November? A. It was over your boots. Her Honour: Q. Do you mean over your gumboots? A. Yes, sorry, over my gumboots. Mr Crawshaw: Q. How far over your gumboots? A. It probably would have been in the middle of the cut-through; it would have been over my gumboots, in the middle. Q. How far over, do you remember? A. I don't know. I don't know. I didn't get my feet wet. 678 In relation to his entry of 13 November, Mr McLean stated that he saw a trickle of water coming from behind the continuous miner at the commencement of the shift. Production was delayed for a few hours for other reasons and when it did commence, Mr McLean stated that the water was still trickling from under the miner. On investigation, Mr McLean said 'the water appeared to be accumulating at the foot of the face and running back under the miner.' The trickle was about half to three quarters of an inch wide. The face of C heading was 'damp.' He said he looked again after production started and the water appeared to have dried up. 679 Mr McLean raised the presence of water with Mr Collins, one of the miners on his shift, but stated that Mr Collins could not see any water. Unfortunately, Mr Collins did not give evidence before me. 680 Mr McLean handed in his Statutory Report to Mr Coffey as Under Manager at the completion of that shift. His entry was noted by Mr Coffey and according to Mr McLean: A. I turned to go out of the office and Mr Coffey called me back. He said, "Hey, what's this - what's this considerable amount?" I said, "It's only a trickle", that there was nothing to worry about. I recall saying there was nothing to worry about, that it was only a trickle. Q. Was anything else said by you or him? A. I don't recall. Q. Do you have any recollection of describing to him what you'd actually seen? A. I said to him that there was a trickle - a small amount of water coming from the face trickling underneath the miner, it's not squirting out of the face like water pistols, and that's - that was about it. 681 As a mine Deputy, Mr Bernard also commented on the presence of water in 50/51 panel in the weeks leading up to the inrush on 14 November. 682 Mr Bernard's position at Gretley on a fulltime basis was that of outbye Deputy but from time to time he relieved as production Deputy in 50/51 panel. He remembered 50/51 panel. 683 Mr Bernard was shown a number of documentary exhibits consisting of both Statutory and Production Reports in which he identified his signature appearing on them. Those reports confirm that on the dates of those reports i.e. the night shifts of 31 October and 1 and 4 November 1996, Mr Bernard relieved as production Deputy in 50/51 panel. 684 Mr Bernard gave evidence that he saw no unusual signs of water in 50/51 panel but he says he saw some evidence of increased 'water make' as he described it in a blind cut-through which he identified on exhibit P1B. 685 On the presence of water in 50/51 panel, Mr Bernard's evidence was: Q. Could I just ask you this: when you were making your inspections in 50/51 panel, while carrying out those production deputy duties, did you make inspections in relation to unusual signs of water? A. Not unusual signs of water, but water was part of the mining process and it was there. Q. During the time you were in 50/51 panel, as a production deputy, what, if any, observations did you make about water? A. I noticed in one of the cut-throughs, I think it was 7 cut-through at the time, that the water make had increased from the first time I was in there to the preceding shifts, it had risen approximately 300mm to 400mm in depth in the blind cut-through. 686 When asked to indicate where exactly he had seen the water referred to, Mr Bernard hand drew a diagrammatic plan depicting the point he was referring to. Reference to that document (exhibit P8H) disclosed that the water observed by Mr Bernard had collected in 7 cut-through which, at the time, was being driven across to B heading. B heading was also being driven to meet up with 7 cut-through. In effect, therefore at the time Mr Bernard observed the water that he did, 7 cut-through had not joined up with B heading - hence his reference to the fact that 7 cut-through was 'blind' and, as he agreed, was creating its own dam-like effect. This was the same area identified by Mr Mclean in his Statutory Report of 1 November 1996 when he mentioned a 'Nuisance accumulation of water in C-B 7 CT'. 687 When asked further about his observation of water, Mr Bernard gave evidence as follows: Q. Mr Bernard, do you remember when you observed this water? A. While doing the section inspections in that area on the days of the production shifts. Q. Do you remember which day, though? A. Well, it was there all days that I was in there on those production functions. Q. What, if any, action did you take in relation? A. I didn't take any action in relation to it at all because it wasn't a problem in such that there was water there. (sic) Q. All right. Did you make any report to anyone? A. I verbally mentioned it to the undermanagers after the completion of one of those shifts that it was unusual for a section in such good work (sic) to have the water make that we had that was actually making water. Q. When you say you mentioned it to the undermanagers, do you remember who you mentioned it to? A. I believe it was Mike Alston and I think Phil Pritchard was in the office at the same time. Q. Do you remember where you were when you made this report? A. In the undermanager's office in the lamp room. 688 Following his verbal report, Mr Pritchard as Undermanager later came down to 50/51 panel to inspect the water. According to Mr Bernard, the view expressed by Mr Pritchard and earlier by Mr Alston was that the water 'was probably coming from the old workings.' 689 The other mine Deputy who gave evidence as to the presence of water in 50/51 panel was Mr William Hegarty. Mr Hegarty was the Deputy on the afternoon shift in the weeks leading up to the inrush. He had worked in 50/51 panel regularly since the commencement of the panel. It was Mr Hegarty as the incoming shift Deputy who would have read Mr McLean's Statutory Reports of 1, 4 and 13 November 1996 where reference was made to the presence of water. Mr Hegarty recalled water being present in 7 cut-through because he set up a pump there. He read Mr McLean's report of 13 November where he had noted the presence of a 'considerable amount of water seepage at C face heading.' Mr Hegarty confirmed he had read that. His evidence as to his actions following that was this: Q. Did you make any investigation in relation to that matter? A. I did, yes. Q. What did you do? A. When I inspected that particular heading, I took extra time to see just what that report meant just so I could work out what he was talking about, yes. Q. What did you do by way of inspections? A. Well, it's a visual inspection, plus also an inspection for the state of the ventilation and the gas and that sort of thing. That's - sort of requires a visual inspection, obviously, that sort of report, and I had a good look to see where this water problem was. Q. Did you see any evidence of water? A. I did. Q. What did you see? A. Well, as I think I reported, there was a trickle of water running down the centre of the board back out behind where the miner was parked. It was just a small trickle, about 25mm, approximately, wide sort of thing, just trickling down the road on an exposed area of ground. Q. Right. Did you see any other evidence of water other than that? A. That was the only evidence of water that I could actually find. Q. Right. When did you see that trickle of water? A. While I was walking up into the panel doing the inspection. Q. How many inspections did you do? A. On that particular night, as I remember, I did three inspections specifically in the miner board. Q. Did you see the trickle of water on each of those inspections, or only on some of them? A. No, it was there during - yes, for the three inspections. Q. Did you have any discussion with Mr Shacklady about that? A. There was no discussion about - no, there was no discussion about that. Q. With any other undermanager? A. No. Q. Did you inspect the face for water? A. Yes. Yes. Q. Did you see any water? A. No, there was no evidence of water make at the face. Q. What did the face of C heading look like, do you remember? A. As I recall, it was just a normal cut face. There was nothing significantly different about it. It looked the same as it used to normally look. It's wet to touch, but it's always wet to touch, but there was no evidence of running water or make of water over and above what was normal in the panel. 690 Overall it is apparent that, when reports of water in 50/51 panel were made, they were investigated. Admittedly, this investigation took place against the background of the presumed old workings of the Young Wallsend Colliery being as depicted on Sheets 2 and 3. As far as the Deputies and other mine workers were concerned (and quite possibly the Undermanagers) the only Young Wallsend old workings they knew of were in the Young Wallsend Seam and they were some considerable distance away. The presumed old workings in the Borehole Seam were never depicted on any mine or section plan for Gretley. There is no evidence before me to enable me to conclude with certainty that, apart from the Mine Managers and the Mine Surveyor, other mine officials including the Undermanagers and Deputies as well as the mine workers were ever informed about the presumed old workings in the Borehole Seam. If they had, whether it would have made a difference as to the way in which the reports of water were investigated in early November is not clear on the evidence. As Professor Thomas stated when asked what would be the appropriate response of mine management to small inflows of water or leakages when developing the present workings of an underground coalmine towards old colliery workings: This is probably the hardest question of all to answer. There are statutory requirements for supervisors (e.g. Clause 9 of the Managers and Officials - Underground Mines Regulation 1984 ) to investigate any safety problems brought to their notice. Clause 13 requires a manager to investigate any complaint, and clauses 28 and 39 require undermanagers specifically to do that. In fairness to Mr Coffey in respect to his statutory duty, he glanced down the statutory form given to him, and in a manner described in training manuals as management by exception, he noticed that one of the answers on the form was not what he expected to see. Mr Coffey was in the office with Mr Shacklady but immediately called Mr McLean back to ask him to explain (page 1405 of the transcript - Assumption 20 - McLean). I was not party to the discussion but Mr McLean and Mr Coffey could be said to have investigated the complaint by virtue of the interchange of views. The problem that I see is that the investigation in the undermanagers' office was apparently flawed by the fact that Mr Coffey's plan and the deputy's section plan indicated that the YWC workings in the 'upper seam' were still far enough away for it to be unlikely that the water was seeping through from the old workings in the Young Wallsend seam, and there was either no indication of the presumed subjacent Borehole seam workings on those plans, or the officials had not been warned of their potential danger. There was no real reason for Mr Coffey to suspect that water was likely to inrush through the floor, so the problem did not appear urgent. There were other possible reasons for the water, as in other parts of the mine. 691 On the same issue, Mr Adam stated: As an Undermanager if I received a report about the existence of water in a development roadway my response to the report would depend on my knowledge of the mine, or that part of the mine, and the general seam conditions. If it was a mine known for its water problems I would probably review the report simply as one that may require me to change operational procedures. If a mine did not have a history of water in the seam or surrounding strata I would arrange for additional examination of the area to be made. In some mines water is relatively unknown and the faces are quite dry and therefore the presence of any water is worth noting. If a mine has experience of water in the strata appearing and disappearing and then returning, depending on the porosity of that particular seam, the Deputy would be within his right and within his duty to report it. If the Undermanager on that or some other shift went to the place and looked at it and saw something that in his opinion was consistent with normal conditions and was not, in his opinion, an abnormal condition, I believe it would be within be within his right to say 'well I've had a look at it and I believe there is nothing there of any great danger'. This is so particularly if he had referred back to the plan and in his belief the face was 100 meters away from the known hazard. I believe that would be within his normal duties and a responsible response to the original deputy's report. (emphasis added) If the conditions were totally abnormal to the mine or to that particular part of the mine I believe he would have an obligation to report it to the Undermanager-in-charge or the Manager immediately because that water may not necessarily be coming through that 100 metres but it could have come from above or below or through some geological abnormality. There could be a number of reasons why water could traverse 100 meters or strata without necessarily even requiring the presence of other mine workings in the area. 692 Overall, as Mr Adam stated, the reports of water need to be considered in light of what is normal for that particular mine. 693 If I was to characterise the nature of mining conditions in 50/51 panel based on the evidence received, it was a panel in which water was present but not in the quantities that were known to be present elsewhere in the mine and tolerated as coming within normal mining conditions. In other words, water is a constant in underground mining conditions and is accepted as part of normal mining activity. It is apparent that the presence of water can sometimes be considerable. For example, there did not appear to be anything unusual in evidence received from Mr McLean as to the depth of water in 7 cut-through, at one point being mid-calf in depth. As well, Mr Van Dijk, the District Inspector of Coal Mines, inspected 50/51 panel with the Mine Manager Mr Porteous on 4 November 1996. He observed water up to one metre deep. As he said: I observed that 7 cut-through C to B had been driven across. I observed that some water had accumulated in this cut-through. I observed that the continuous miner was about to hole 7 cut-through where the water had accumulated. I said to the Deputy, whose name I cannot remember, words to the effect: 'What do you propose to do with this water?' He said words to the effect: 'I am going to install a pump to remove the water before the place is holed.' ... ... I observed that the water was approximately 1 metre deep at the face at 7 cut-through. I did not observe a watermake of any sort. I observed that the water was not flowing. 694 In cross examination on this issue, he stated: Q. So your observation of water, as you've identified in paragraph 39, was an observation of a kind that you'd made regularly on inspections of various mines in this area? A. Yes, that's right. Q. And it didn't appear to you to be anything out of the ordinary? A. That's correct. Q. You say in paragraph 42 that the water was approximately 1 metre deep. Did you actually walk through it? A. I walked into the water as far as my wellies - I walked on the right-hand side of seven cut-through where the ventilation tubing was. I went to the end of the tubing and couldn't get to the face because the water was too deep. Q. That was in the area that you were walking? A. That's right. 695 Again it has to be said that Mr Van Dijk gave evidence that when he spoke with Mr Porteous earlier on 4 November 1996, Mr Porteous had shown him a plan and said words to the following effect: '50/51 panel is being terminated 50 metres outbye of the old Young Wallsend Colliery workings.' He pointed to a plan and said: 'Here are the old Young Wallsend Colliery Workings.' 696 Mr Van Dijk confirmed in evidence that the plan he was shown was Sheet 3, that is, the Top Seam workings of the Young Wallsend Colliery depicting workings in the Young Wallsend Seam. He was not shown the presumed Borehole Seam workings. As well, he was not asked whether his view that the presence of water in 50/51 panel on 4 November 1996 as not being anything out of the ordinary would have been different if he had been made aware of the presumed Borehole Seam workings when he visited the Gretley mine that day. 697 As the conditions in 50/51 panel were understood at the time, the presence of water as reported orally and in the Deputy reports as denoted, was investigated adequately. What I mean by that is that, having regard to the then presumed old workings of the Young Wallsend Colliery, the water reported was, in all the circumstances, not considered excessive or an immediate cause for undue alarm. 698 As well, there is evidence that would infer the reports of water in 50/51 panel had been passed on to mine management and that steps were being taken to drill ahead. The precise details are unclear but there is the evidence of Mr Mr Robinson's conversation with Mr Hartley at the Mine Subsidence Board at the end of October or early November requesting copies of mine plans relevant to the Young Wallsend Colliery. That is the conversation where Mr Robinson stated to Mr Hartley, in part: I believe at the time I asked Mark to the effect that why did he need these plans and Mark to the effect, replied that 'We were having a water management problem and management wanted to know where these plans were or the accuracy of the plans. 699 Admittedly, the conversation as between Mr Robinson and Mr Hartley is not conclusive that reference to 'a water management problem' directly related to the reports about water that had been made in relation to 50/51 panel. Given the time frame in which the conversation is said to have occurred and the time period over which the reports of water is 50/51 panel were made, there is a strong inference that it was those reports Mr Robinson was referring to. 700 As well, there is some evidence of an intention by the defendant to drill in 50/51 panel in the period immediately before the inrush. Evidence of that was given by Mr Dale McNamara of Firefly International. Firefly is a company that hires out diverse heavy duty equipment. In 1996, it hired out an Eimco mounted hydraulic drill rig to the Gretley Colliery. It was a drill rig used for drilling ahead work. In dealing with Gretley Colliery about the hire of the drill, Mr McNamara said he dealt with 'the purchasing and production people' and that, more particularly he: ... had discussions with Michael Coffey in regards to the drill rig but I'm sure that I would have had other discussions with other production people at the Colliery. 701 Mr McNamara remembered Mr Coffey, particularly a conversation he had with him shortly after the inrush. The gist of that conversation was that Firefly's Eimco drill rig was in the Colliery and seemingly somewhere in the vicinity of 50/51 panel. As well, Mr McNamara gave evidence that to the best of his recollection Mr Coffey told him that it had been intended to use the Eimco drill rig to drill in 50/51 panel the day of or the day after the inrush. The inference of Mr McNamara's evidence was that, in his conversation with Mr Coffey after the inrush, Mr Coffey stated that it had been the defendant's intention to drill ahead in 50/51 panel on a shift shortly after the inrush. 702 Apart from Mr McNamara's understandable inability to be definite about the precise details of his conversation with Mr Coffey some seven years after the event, there is no other evidence that allows me to conclude with certainty that the defendant intended to drill ahead at C heading in 50/51 panel at the time suggested and if so, that it was connected to the reports of water that had been received. The prosecution assert that it was. They point also to a reference in the Weekly Planning Schedule meetings of the week 12 November 1996 to 19 November 1996 in relation to 50/51 panel. The relevant entries there are: · Drill to prove dyke at A6 to A7 when C/T finished · Advance drill 60m to prove ground to be driven. 703 The prosecution assert that those entries point to the defendants intention to drill ahead in 50/51 panel in that week in response to the reports of water. In the absence of any evidence as to the precise import and application as to those entries, it is simply not possible to be certain as to the basis of the decisions made to drill as indicated. In any event, if it is as the prosecution contends, it adds weight, in my view, to the conclusion that the defendant did adequately investigate the reports of water in 50/51 panel as identified in the failure as particularised. 704 Ultimately, it has to be said the steps and investigations undertaken to investigate the reports of water in 50/51 panel as particularised were made against the background of the presumed location of the Young Wallsend old workings, particularly in the Young Wallsend Seam, being 100 metres or more away. Whether the depiction of the presumed Borehole Seam workings on the Gretley and section mine plans would have heightened peoples concerns when the water was observed in the way that it was is not a conclusion I can come to with certainty on the evidence before me. In other words, there is some limited evidence in cross examination of Professor Thomas that the defendant had previously safely mined over known old workings in the Dudley Seam in similar circumstances to that as between the Young Wallsend and Borehole Seams without any untoward or unsafe impact. Overall, I am not satisfied that failure (h) has been established to the requisite standard. 705 I am satisfied that the Deputies and the other mine workers (employees and non-employees) were informed and aware that the mining activity in 50/51 panel were heading towards the Young Wallsend old workings in the Young Wallsend Seam. In other words, they knew they were working towards those old workings where they presumed them to be. This information was contained in the mine and section plans concerning the Gretley mine and 50/51 panel in particular that were displayed in diverse locations around the mine where the miners would be able to read them as well as the section plans in the Deputy's pod within 50/51 panel that were available for the miners to read. As well, it is clear that the Check Inspector for the mine and the workplace delegates for the miners were advised by the Mine Manager of the presumed old workings in the Young Wallsend Seam. 706 What the Deputies and other mine workers were not informed about was the extent of the Young Wallsend old workings and the presence of the presumed old workings in the Borehole Seam. Clearly they should have, on any view. As Professor Thomas said: If the deputy's section plan, and the other working plans of the Young Wallsend seam displayed at Gretley Colliery, had carried the outlines of the presumed Borehole seam workings in the YWC and its warning barrier, all the discussions about water trickling in from the floor would have had a very different impact. Rightly or wrongly for which seam they were in, water from the floor near the edge of workings supposed to be 18 m below should have raised far more alarm than for workings supposed to be over 100 metres further away. 707 As well, any knowledge about presumed old workings being full of water and under a head of pressure was more a matter of speculation based on experiences on the part of some of the mine workers, including the Deputies, rather than any direct statement by way of information from the defendant. In other words, a number of the mining witnesses called agreed that, from their prior knowledge of old mine workings, the presumed old workings of the Young Wallsend Colliery were likely to be full of water. 708 Mr Bernard, who was the outbye deputy who worked twice in the production panel of 50/51 panel on 1 and 4 November, recalled a conversation with Mr Alston and Mr Pritchard on one of those occasions which included Mr Alston saying: We can expect a bit of water make because we're heading towards an old workings full of water and the seam is actually impregnated with water because we are heading towards old workings full of water. 709 Likewise, there was no specific instruction from the defendant to Deputies or other mine workers to be vigilant in looking for signs of watermake whilst working in 50/51 panel. What was meant by watermake was explained by Mr Bernard as: When there is a quantity of water and it is increasing. 710 While Mr Bernard was not called as an expert, he was a Deputy at Gretley with significant experience in the industry. His evidence on this issue was not challenged and accords with the evidence received by other witnesses when using the term. I accept it to be correct. 711 Having said that, there was abundant evidence from the miners called that any concern they had as to safety was able to be, and encouraged to be, raised by them with their immediate Deputy or Undermanager. Apart from the reports of Mr McLean and Mr Bernard, no miner witness called who was working in 50/51 panel during the period charged, or even on the shift where the inrush occurred, observed anything, particularly increased watermake, such as to give them any cause for concern or to raise any alarm or report. 712 The defendants submit that the alleged particularised failures (i), (j) and (k) cannot be said to have caused the risk of inrush, being the risk to safety pleaded by the prosecution. I disagree. The causal relationship of those failures to the risk as pleaded, when viewed in conjunction with the defendants primary failure to properly research the location and extent of the Young Wallsend old workings are self evident. But, in my view, they can also stand alone. In circumstances where there are presumed known old workings such as the Borehole Seam workings, the obligation to ensure a safe system of work requires an employer to guard against potential risk. Known old workings full of water 18 metres from where current mining activity was in progress were, on any considered view, a potential risk. The consequences of any potential inrush were too great to ignore with impunity. As Professor Thomas said: Potentially hazardous events are supposed to be anticipated so that officials and men would be warned fully of any potential dangers and would be looking out for any unusual signs, and would immediately warn senior officials. ... ... There is no substitute for taking mine officials into full confidence about unusual events, such as approaching old workings. A general conference with the panel deputies and shift undermanagers, and the mine check inspector, would be as useful as a formal risk assessment because any unusual event would then be taken more seriously. 713 It is abundantly clear to me that the Deputies and mine workers should have been made aware of the full extent of the presumed Young Wallsend old workings in both the Young Wallsend and Borehole Seams. The dangers of inrush from water and/or dangerous gases with presumed known old workings so proximate to the mining activity in 50/51 panel was not such that it could simply be ignored by management. Accordingly, it was crucial it seems to me, to place the Deputies and mine workers in the best position to address risks to their safety by fully informing them of all matters pertinent to risks to safety, thereby alerting them to bring matters to the attention of management, particularly, it seems to me, when mining near water is concerned. As Mr Adam stated: Mining near abandoned workings containing water, in my opinion, is not an everyday activity in coal mining in Australia. However, this means in Australia when mining near water it should make those responsible pause and realise that what they are faced with is something different and unusual compared to normal mining operations. Precautions are therefore required to safely deal with mining near water. 714 Allowing for the presumed Borehole Seam workings, one of the precautions would inevitably be to advise the Deputies and mine workers about those workings, that they were full of water and to instruct them to be vigilant for signs of watermake in 50/51 panel. 715 A failure to undertake these steps would invariably potentiate the risk to safety as pleaded, whether the risk of inrush was from the presumed Borehole Seam or the Young Wallsend Seam old workings. 716 I am satisfied that failures (i), (j) and (k) have been established. . 717 I dismiss failure (l) for the reasons already expressed in relation to the similar failure as pleaded in relation to the planning, research and assessment charges. 718 In relation to failures (a) to (f) inclusive, I am satisfied as to the causal nexus between those failures and the risk to safety as pleaded. As earlier stated, I see failures (a) to (f) inclusive as being derivative failures but failures nevertheless that arise from the defendants primary failure to research the location and extent of the Young Wallsend old workings. 719 For all of the above reasons, I am satisfied that the offence as charged is proved with respect to particularised failures (a) to (f) and (i) to (k) as pleaded. (2) IRC Matter No. 3202/00: Alleged breach by NWCC arising under s16(1) of the Act 720 This offence is in exact terms to IRC Matter No. 3199/00 except to the extent that it embraces persons not in the defendant's employment. 721 The defendant admits the following numbered further particulars: [1] The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . [2] For the purposes of the Coal Mines Regulation Act 1982 , the defendant was the owner of the Gretley mine. [3] The defendant was the operator of the Gretley mine [4] Between about 16 September 1996 and about 13 November 1996, the defendant employed Edward Samuel Batterham, Frederick Jay Franklin and Wayne Charles Nicholls ("the employees") at the Gretley mine. [8] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. 722 Objection is raised on behalf of the defendant, in part, to the following numbered further particulars: [7] The employees and some of the persons not in the defendant's employment worked as required on the development of a roadway (known as "C" heading) in an area of Gretley mine called 50/51 panel. [9] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [10] The development work included the operation of a continuous mining machine ("the continuous miner") by the employees and some of the persons not in the defendant's employment. 723 In relation to those paragraphs, I find those further particulars established for the reasons already given in IRC Matter No. 3200/00. 724 In relation to para [5] of the alleged further particulars, the defendant does not admit Michael Coffey, Christopher Nicholls, John Riley, Terence Shacklady and Franciscus Van Dijk as persons not in the defendant's employment as working at the Gretley mine during the relevant period. 725 I have already determined that Mr Coffey, Mr Nicholls and Mr Shacklady were employed by NWCC during the relevant period of the charge and therefore they are not admitted. Likewise, Mr John Riley was employed by NWCC during the same period. Mr Van Dijk, as District Inspector of Coal Mines for the DMR, visited the Gretley mine on 4 November 1996. During that time, he went down with the Mine Manager Mr Porteous and inspected 50/51 panel. He observed water in 7 cut-through and spoke with the crew Deputy about it. I am satisfied Mr Van Dijk was working at the time, that he was not in the defendant's employment at the time and he was working in 50/51 panel at the Gretley mine during the relevant period of the charge. 726 As already determined, it is not necessary in my view, for the persons identified as not being in the defendant's employment to have worked in 50/51 panel for the entire period of the charge. It is sufficient that they worked there between the period specified in the charge period. 727 The alleged particularised failures in this matter are identical to those in IRC Matter No. 3199/00 for the same charge period. Accordingly, I make the same findings with respect to them concerning the defendant. That is, particularised failures (a) to (f) inclusive and (i) to (k) inclusive are established. The alleged particularised failures (g), (h) and (l) are not established. 728 The issues of causation and potential risk as determined in IRC Matter No. 3199/00 apply equally in relation to this offence. 729 I find the offence proved. (3) IRC Matter No. 3205/00: Alleged breach by OPL arising under s15(1) of the Act 730 Save for a number of further particulars, the alleged particularised failures of OPL for this charge period are in identical terms to IRC Matter No.'s 3199/00 and 3202/00 relating to NWCC under ss15(1) and 16(1) of the Act respectively. 731 In relation to the further particulars as pleaded, the defendant admits the following: [1] ... Newcastle Wallsend was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . 732 The defendant does not admit the first sentence of para [1] of the further particulars. That is, that it was the owner of the Gretley mine. I have already determined that issue in IRC Matter No. 3206/00 against the defendant and do so again here for the same reasons. 733 In relation to para [2], the defendant does not admit that it employed Mr Coffey, Mr Nicholls and Mr Shacklady during the charge period. I have already determined that those persons were employed by NWCC during that period and accordingly they are not admitted. 734 I again restate the determination I have made as to the defendant's assertion that it does not admit that those named persons who were employed by the defendant worked for the entire period. Apart from affirming, it is sufficient that the named employees worked between the period specified in the charge. It is my understanding of the evidence in relation to Mr Porteous and Mr Pritchard that they were employed by the defendant at Gretley for the entire period of the charge. 735 The defendant does not admit the following further particulars: [3] There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. [4] Employees of Newcastle Wallsend and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of Gretley mine called 50/51 panel. [5] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [6] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [7] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by employees of Newcastle Wallsend and/or other mine workers. [8] Between about 16 September 1996 and about 13 November 1996 the employees were required from time to time to work in 50/51 panel. 736 Putting aside particular [3] which pleads the alleged risk to safety, particulars [4], [5], [6] and [7] have already been determined by me in relation to OPL in IRC Matter No. 3206/00 (where they were pleaded there as factual particulars [9], [10], [11] and [12]). In this matter I make the same findings for the same reasons. 737 In relation to further particular [8], I am satisfied that Mr Porteous and Mr Pritchard were both required to work from time to time during the charge period in 50/51 panel. There is evidence of Mr Porteous and Mr Pritchard both being present in 50/51 panel during that period. 738 In IRC Matter No. 3206/00, I reaffirmed my threshold determination that the Gretley mine was an undertaking of OPL as well as for NWCC. That finding was for the period of the planning, research and assessment charges - which period embraces the period of the charge before me. Accordingly, for the reasons already enunciated, I am satisfied that the Gretley mine was an undertaking of OPL during the whole of the charge period. 739 The findings made by me in relation to NWCC in IRC Matter No. 3199/00 as to the particularised failures as pleaded apply equally to OPL in the matter before me. 740 The issues of causation and potential risk as determined in IRC Matter No. 3199/00 as against NWCC apply equally in relation to OPL in this offence. 741 Accordingly, I find the offence proved against the defendant with respect to particularised failures (a) to (f) inclusive and (i) to (k) inclusive. (4) IRC Matter No. 3208/00: Alleged breach by OPL under s16(1) of the Act 742 This matter is pleaded in identical terms to IRC Matter No. 3205/00 in relation to OPL except to the extent that it embraces persons not in the defendant's employment. 743 In relation to paras [1] and [2] of the further particulars, the defendant takes the same objection as it took in IRC Matter No. 3205/00 as to the admission of the first sentence in para [1] and the admission of Mr Coffey, Mr Nicholls and Mr Shacklady as employees of the defendant during the charge period. For the same reasons as stated in that matter, I admit the first sentence of para [1] and do not admit Mr Alston, Mr Coffey and Mr Shacklady in para [2] of the further particulars. 744 The defendant does not admit further particulars paras [3], [4], [5], [6], [7] and [8]. Further particulars [5], [6], [7] and [8] are particulars that I have already determined in relation to OPL in IRC Matter No. 3206/00 (where they were pleaded as further particulars [9], [10], [11] and [12]). In this matter, I make the same findings for the same reasons. 745 Putting aside further particular [4] which pleads the alleged risk to safety, that leaves further particular [3] which pleads as follows: Between about 16 September 1996 and about 13 November 1996, Darren Wayne Atkins, Edward Samuel Batterham, Stephen Donald Bailey, Dallas Bellamy, Bernard Francis Brown, Stephen Brown, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, John Michael Hunter, Mark Kenneth Kaiser, John McCallum, Alistair Buchanan McLean, Damon Murray, Wayne Charles Nicholls, Ian Robert Nunns, John Riley, Barry Neville Stewart, Franciscus Joseph van Dijk, David Pugh, David Hern and Darryl Martin ("the persons not in the defendant's employment") were working at the Gretley mine. 746 I have to say I am puzzled as to this refusal on the part of the defendant to admit this further particular which identifies those persons who were working at the Gretley mine during the charge period and were persons not in the defendant's employment. 747 The evidence before me in oral and/or documentary form establishes that those persons named in para [3] of the further particulars were employed at Gretley and worked in 50/51 panel during the charge period. With the exception of Mr Van Dijk, the respective employers were either NWCC or United Mining Support Services (UMSS) as follows: NWCC UMSS Mr Darren Atkins Mr Stephen Bailey Mr Edward Batterham Mr Stephen Brown Mr Dallas Bellamy Mr John Hunter Mr Bernard Brown Mr Mark Kaiser Mr Leonard Collins Mr John McCallum Mr Frederick Franklin Mr Damon Murray Mr David Hardman Mr William Hegarty Mr Alistair McLean Mr Wayne Nicholls Mr Ian Nunns Mr John Riley Mr Barry Stewart Mr David Pugh Mr David Hern Mr Darryl Martin 748 Accordingly, I am satisfied that the above persons were persons not in the defendants employment and who were working at the Gretley mine and in 50/51 panel during the period of the charge. 749 As earlier indicated in IRC Matter No. 3202/00 in relation to Mr Van Dijk, and for the same reasons, I am satisfied that Mr Van Dijk was a person not in the defendant's employment working at the Gretley Colliery during the charge period. 750 The findings made by me in relation to the defendant in IRC Matter No. 3205/00 as to the particularised failures as pleaded apply equally to the defendant in the matter before me. 751 The issues of causation and potential risk as determined in IRC Matter No. 3205/00 apply equally in relation to this offence. 752 I find the offence proved against the defendant with respect to particularised failures (a) to (f) inclusive and (i) to (k) inclusive. Type 1: night shift charges (1) IRC Matter No's 3198/00 and 3201/00: alleged breaches by NWCC arising under ss15(1) and 16(1) of the Act respectively 753 The time period for these charges embraces the night shift that commenced at 11:30pm on 13 November 1996 until 7:30am on 14 November 1996. The inrush occurred at or about 5:30am on 14 November 1996. 754 I have already expressed the view that in relation to the system of work charges, the majority of the particularised failures alleged derived from the defendant's primary failure to properly research the location and extent of the Young Wallsend old workings. I refer in particular to my earlier comments in this judgment as to that issue. 755 That they are derivative failures, as I characterise them, does not negate the fact that they are failures nonetheless. What it does do, however, is put those derivative failures into context for sentencing purposes. . 756 In the Type 1 (night shift) charges now being considered, further particulars aside for the moment, the alleged particularised failures (a) to (e) are in the exact same terms as the particularised failures (a) to (e) in the system of work charges. The only minor difference is in relation to particularised failure (d) where, in the night shift charge, the failure pleaded is a 'failure to ensure there was any or any adequate barrier...' whereas in the system of work charge that failure is pleaded simply as a 'failure to ensure there was any adequate barrier ...' The reason for the minor difference is obvious. At 5:30am on 14 November, when the inrush occurred, there was not any barrier between the employees who were working and the Young Wallsend old workings. 757 What that minor difference does is simply highlight what I believe is symptomatic of the way in which the overall facts and circumstances of this matter have been pleaded in relation to the offences before me. By way of repetition, let it be stated again that the genesis of the corporate defendants failures, by and large, started with their reliance on RT 523 Sheets 2 and 3 because of their failure to properly research the location and extent of the Young Wallsend old workings. 758 Once that failure arose, it set in train a series of failures of acts and omissions by the corporate defendants that only came to light when the tragedy of the inrush occurred. Along the way, the defendants did and failed to do things that, on the evidence before me, would not have occurred but for the defendant's primary failure to properly research the location and extent of the Young Wallsend old workings. This is particularly so in relation to the alleged particularised failures in the four offences arising against the corporate defendants in the night shift charges before me. That is, IRC Matter No.'s 3198/00 and 3201/00 with respect to NWCC and 3204/00 and 3207/00 with respect to OPL. Those failures as particularised are pleaded as follows: (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (b) Allowing the operation and use of the continuous miner at the face of "C" heading. (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. (d) A failure to ensure that there was any, or any adequate, barrier between where the employees were working and the Young Wallsend coal workings. (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. 759 For the reasons expressed, I have already determined that the failures particularised in the same terms in the system of work charges have been established against the respective corporate defendants. Subject only to the further particulars of the offences as pleaded, there is nothing to suggest that the particularised failures in all of the four offences charged within the night shift charges are not established as against the respective corporate defendants. Save for some aspects of those further particulars and the temporal component of the night shift of 13/14 November 1996 and those persons employed (or not employed as the case may be) by the respective corporate defendants, the particularised failures identified are simply a continuum of the defendants acts and/or omissions that grounded the corporate defendants failures in the charge period immediately preceding the commencement of the night shift at 11:30pm on 13 November. 760 IRC Matter No.'s 3198/00 and 3201/00 concern the night shift charges arising under ss15(1) and 16(1) of the Act with respect to NWCC. 761 In relation to IRC Matter No. 3198/00, the defendant admits the following numbered further particulars: [1] The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992. [2] For the purposes of the Coal Mines Regulation Act 1982 the defendant was the owner of the Gretley Mine. [3] The defendant was the operator of the Gretley mine. [4] The defendant employed Edward Samuel Batterham, Frederick Jay Franklin and Wayne Charles Nicholls ("the employees") at the Gretley mine on the night shift of 13 November 1996 and 14 November 1996. [6] The employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of the Gretley mine called 50/51 panel. [7] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [10] On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. [11] The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. 762 The defendant does not admit further particulars [5] and [13] that go to the alleged risk to safety, pleaded as follows: [5] There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. [13] On 14 November 1996, Mr Nicholls and Mr Franklin were exposed to the risk of injury. 763 Those further particulars to which the defendant raises certain objections as to admission are: [8] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [9] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. [12] On 14 November 1996, Mr Batterham suffered fatal injuries as he was swept away and drowned by the inrush of water. 764 The basis of the defendant's objections and my reasons in finding against it in relation to them are dealt with in IRC Matter No. 3200/00. In that matter, the further particulars numbered [8], [9] and [12] in this matter were numbered [12], [13] and [16] respectively. I apply the same reasons and admit the further particulars [8], [9] and [12] against the defendant in the matter currently before me. 765 Having regard to my findings and conclusions in IRC Matter No. 3199/00 and with respect to particularised failures (a) to (e) therein, I am satisfied that particularised failures (a) to (e) in this matter (IRC Matter No. 3198/00) are established. The reasons and conclusions that I relied upon in relation to the particularised failures (a) to (e) in IRC Matter No. 3199/00 apply mutatis mutandis to the particularised failures (a) to (e) in IRC Matter No. 3198/00. When coupled with the continuation of those particularised failures throughout the period of the night shift of 13/14 November up until the time of inrush, I am satisfied that the further particulars [5] and [13] are established. That is, that as a consequence of the defendant's failures: (i) There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. (ii) On 14 November 1996, Mr Nicholls and Mr Franklin were exposed to the risk of injury. 766 The issues of causation and potential risk as determined in IRC Matter No. 3199/00 apply equally in relation to this offence. . 767 I find the offence proved against the defendant with respect to particularised failures (a) to (e) inclusive. Failure (f) is dismissed for the reasons already expressed in relation to the same failure as pleaded in IRC Matter No. 3200/00. 768 In IRC Matter No. 3201/00, the offence is pleaded in identical terms save only as to those persons not in the defendant's employment. Those persons so identified are admitted by the defendant. Save only for that issue, those further particulars admitted by the defendant are in similar terms to those admitted in IRC Matter No. 3198/00. Those further particulars to which some limited objection has been taken by the defendant are admitted for the reasons already given, initially in IRC Matter No. 3200/00 and again relied upon in IRC Matter No. 3198/00. 769 For the same reasons and conclusions given in IRC Matter No. 3198/00, I am satisfied that particularised failures (a) to (e) inclusive are established. Equally, for the same reasons, I am satisfied that the further particulars [6] and [14] are established. That is, as a consequence of the defendant's failures: (i) There was a risk to the health and safety of the persons not in the defendant's employment in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. (ii) On 14 November 1996, two employees of the defendant, Mr Nicholls and Mr. Franklin and two of the persons not in the defendant's employment, namely, Mr Brown and Mr McCallum were exposed to the risk of injury. 770 The issues of causation and potential risk as determined in IRC Matter No. 3199/00 apply equally in relation to this offence. 771 I find the offence proved against the defendant with respect to particularised failures (a) to (e) inclusive. Failure (f) is dismissed for the reasons already expressed in relation to the same failure as pleaded in IRC Matter No. 3200/00. (2) IRC Matter No's 3204/00 and 3207/00: alleged breaches by OPL arising under ss15(1) and 16(1) of the Act respectively 772 IRC Matter No.'s 3204/00 and 3207/00 concern the night shift charges arising under ss15(1) and 16(1) of the Act with respect to OPL. 773 My reasoning and conclusions in relation to Gretley being an undertaking of OPL apply with equal force in relation to these charges. 774 In IRC Matter No. 3204/00, the defendant OPL admits the following further particulars: [1] ... Newcastle Wallsend was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . [2] On the night shift of 13 November 1996 and 14 November 1996 the defendant employed Phillip John Pritchard as Under-manager ("the employee") at the Gretley Mine. [8] The employee was required from time to time to work in 50/51 panel. 775 The defendant does not admit the following further particulars: [1] The defendant was the owner of the Newcastle Wallsend Coal Company ... [3] There was a risk to the health and safety of the employee in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. [4] Employees of Newcastle Wallsend and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of the Gretley mine called 50/51 panel . [5] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [6] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [7] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees of Newcastle Wallsend and/or the other mine workers. [9] On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings [10] The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. [11] On November 1996, one employee of Newcastle Wallsend and three other mine workers suffered fatal injuries as they were swept away and drowned by the inrush of water. [12] On 14 November 1996, two employees of Newcastle Wallsend and two other mine workers were exposed to the risk of injury. 776 Putting aside particulars [3] and [12] as pleaded, going to the issue of potential risk, the other particulars are all matters that I have admitted in other charges before me. 777 Given the conclusions I have reached in relation to Gretley being an undertaking of OPL and given my reasons for admitting the disputed particulars in the other charges before me both as against NWCC and OPL, I admit the further particulars to which objection has been taken in this matter, except at this point, further particular [3] and [12] as pleaded. 778 For the same reasons and conclusions given in the night shift charges as against NWCC pursuant to s15(1) of the Act (IRC Matter No. 3198/00), I am satisfied that particularised failures (a) to (e) inclusive are established. Equally, for the same reasons, further particulars [3] and [12] are established. That is, as a consequence of the defendant's failures: (i) There was a risk to the health and safety of the employee in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. (ii) On 14 November 1996, two employees of Newcastle Wallsend and two other mine workers were exposed to the risk of injury. 779 The issues of causation and potential risk as determined in IRC Matter No. 3199/00 apply equally in relation to this offence. 780 I find the offence proved against the defendant with respect to particularised failures (a) to (e) inclusive. Failure (f) is dismissed for the reasons already expressed in relation to the same failure as pleaded in IRC Matter No. 3200/00. 781 In IRC Matter No. 3207/00 the offence is pleaded in identical terms save only as to those persons not in the defendant's employment. Except for the defendant's admission as to Mr Porteous being an employee of the defendant at the relevant time, the defendant does not admit reference to 'the Under-managers' in para [2] of the further particulars. 782 I have to say reference to the phrase 'Under-managers' is confusing and lacks the certainty one would look for in such particulars. This is so given the number of Under Managers at Gretley and that some were employed by NWCC and some were employed by OPL. During the period of the night shift charge, Mr Shacklady was the Under Manager for a short period until Mr Pritchard arrived. Mr Shacklady was employed by NWCC and Mr Pritchard was employed by OPL. In the absence of any certainty as to which Under Managers are being referred to, the phrase is not admitted. 783 The defendant does not admit the following persons as persons not in the defendant's employment and working in the Gretley mine on the night shift: Edward Samuel Batterham, Stephen Brown, Frederick Jay Franklin, John Michael Hunter, Mark Kenneth Kaiser, John McCallum, Damon Murray and Wayne Charles Nicholls. There is abundant evidence to the contrary and I admit that further particular. 784 Putting aside further particulars [4] and [12] as pleaded, going to the issue of potential risk, the other particulars are all matters that I have admitted in other charges before me in relation to both corporate defendants. 785 Given the conclusions I have reached in relation to Gretley being an undertaking of OPL and given my reasons for admitting the disputed particulars in the other charges before me, both as against NWCC and OPL, I admit the further particulars to which objection has been taken in this matter except, at this point, particulars [4] and [12] as pleaded. 786 For the same reasons and conclusions given in IRC Matter No. 3204/00, I am satisfied that particularised failures (a) to (e) inclusive are established for this offence. Equally, I am satisfied that the further particulars [4] and [12] are established. That is, as a consequence of the defendant's failures: (i) There was a risk to the health and safety of the persons not in the defendant's employment in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. (ii) On 14 November 1996, four of the persons not in the defendant's employment, namely Mr Brown, Mr Franklin, Mr McCallum and Mr Nicholls, were exposed to the risk of injury. 787 The issues of causation and potential risk as determined in IRC Matter No. 3199/00 apply equally in relation to this offence. 788 I find the offence proved against the defendant with respect to particularised failures (a) to (e) inclusive. Failure (f) is dismissed. Section 53 defences 789 The corporate defendants raise certain matters going to a defence arising under s53 of the Act. Section 53 of the Act provides: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 790 In raising certain defences, the defendants rely on both s53(a) and (b). 791 It has long been established that the raising of a defence under s53 of the Act places an onus on the defendant. That onus is a civil onus: see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) 90 IR 432 at 457. 792 The obligation on the Court to consider a defence under s53 can only arise once there has been a finding that an offence has been committed. 793 A defence under s53(a) requires the defendant to meet the objective test as to whether it was reasonably practicable for the defendant to have complied with the Act. As was stated by Walton J VP in WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at 204: An objective determination must be made as to what measures were reasonably practicable in the circumstances of the case. This determination is not restricted to the state of knowledge of the defendant or to the measures, if any, which the defendant had contemplated. 794 In Cleary Bros, Walton J received the relevant authorities as to the proper meaning and application of the words 'reasonably practicable'. Amongst others, he considered the judgment of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 (particularly at 712) as well as the decision of the High Court in Slivak v Lurgi (Australia) Pty Ltd (2001) 75 ALJR 481. In summation, his Honour said at 206-207: It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle. At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 795 The principles expressed by Walton J in the above passage were supported and expressed to be compelling by the Full Bench in WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 at 467. 796 As to the application of the principles enunciated in relation to s53(a) of the Act, the defendants submitted: · The cause of the inrush was the depiction of the workings in the YWC seam and the Borehole seam on the Gretley mine plan. · From at least the time the Gretley mine acquired the lease of the area containing the YWC it was required to depict on its mine working plan the YWC workings provided originally by the DMR. · The depiction of the YWC workings was entered onto the computer software at Gretley mine by Mr Tilden or Mr Murray. The depiction corresponded with known surface features such as the ISG points, the lease boundaries and the surveyed location of the YWC air shaft. This is permitted under section 2.4 of the Survey and Drafting Instructions which states that a mine plan is to be based on the ISG Survey System. It was not possible, let alone reasonably practicable to survey the flooded YWC mine in the charge period. The details of what is required on a mine plan is set out in section 2.5 of the Instructions. · To succeed in making out the offence of failing to adequately research available resources and information on the YWC the prosecution must establish that there were for the relevant charge period resources that i) were available (and not just physically in existence) to the defendants and that ii) the resources contained information that would have led to the accurate depiction of the YWC workings. It is not sufficient for the prosecution just to assert that such information existed without proof of the same. · It does not follow as a matter of logic that because the mine plans did not accurately depict the YWC that no research or, inadequate research, was conducted by the defendants. · The defendants say that the resources that were available at the time of the charge period did not disclose information that would have informed them that the depiction of the YWC workings was incorrect. In particular, the defendants rely on the fact that the DMR files Exhibit P74 and Exhibit P157 were not available at the time of the charge period. The defendants also rely on the fact that the texts and other resources cited by Mr Adam, Mr McMartin and Professor Thomas would not have disclosed information about the seams worked at the YWC had they been consulted at the time of the charge period. Further, no plans, maps or diagrams available to the defendants at the relevant time disclosed any information that would indicate that the depiction of the YWC was incorrect or problematic. · Significantly, all of the resources and information that would have been available to the defendants at the relevant time would have confirmed the manner in which the mine plan depicted the YWC. · The prosecution has asserted that the risk of inrush was a known danger and that it was readily foreseeable given that mining occurred near flooded old workings. The defendants say that the risk while known was not readily foreseeable. It was not foreseeable because at all relevant times the defendants believed and any proper analysis of the material then available required the belief that the mining in panel MW50/51 was some 107m or more away from the old workings. Further, there were no physical signs in the panel as it was worked that would have alerted the defendants that the YWC workings were closer than what was depicted on the mine plan. Mr Adam at paragraph 198 of Exhibit P138 stated that water could travel 100m without requiring the presence of other mine workings in the area. Any reports of water were thoroughly investigated at the time by both the deputies and the under managers working in the panel MW50/51. · The defendants had complied with the provisions of the CMRA and regulations in relation to both where they mined and how they mined. Evidence was given about the various systems in place at the mine such as risk assessments, safety audits, drilling ahead and other measures to ensure safety. · The defendants say that in all of the circumstances they did all that was reasonably practicable to ensure the safety of persons working in panel MW50/51, or anywhere else, in the relevant charge periods. 797 I should deal first with the issue of foreseeability. In doing so, I refer in the first instance to the comments of Walton J VP, with which I concur, in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No. 1) (1999) 101 IR 239 at 259 as follows: It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. 798 In the context of the overall proceedings before me, what was reasonably foreseeable and should have been considered by the defendants was the risk of inrush if the defendants did not research and accurately identify the location and extent of the Young Wallsend old workings. The risk of inrush from old workings, known to be full of water, was real. It was imperative that the defendants approach mining activity within the vicinity of known old workings with great care and caution and by adopting the principle well established in relation to the dangers and risks of inrush. Those principles were referred to by Mr Adam by reference to and adoption of well known texts used as a teaching resource for mining studies in NSW. One such text Mr Adam referred to was Colliery Explosions and Recovery Work: a text book for Candidates for the first class Managers and Under Managers Certificates: J W Whitaker and H L Willett: 1946: Pitman & Sons (UK). In Chapter XX of that text, which Mr Adam adopts and acknowledges as valid principles, the following appears: Serious accidents involving the simultaneous loss of many lives at collieries fall into three main categories: (1) firedamp explosions; (2) coal-dust explosions; and (3) inundations. It remains to treat of the third class, namely, inundations, or inrushes of large quantities of water into the mine. In recent years there have been two or three grave accidents from this source. ... The precautions to be observed are (1) The making of thorough inquiries regarding all old workings. (2) The inspection of all plans of previous workings. (3) The recording of the results of (1) and (2) on a special plan or on the working plan. (4) The issuing of instructions to the mine officials and workman to report at once any unexpected or serious inflows of water. (5) The carrying out of the Coal Mines Act Regulations regarding the procedure to be adopted when approaching old works and when working under moss. ... the accuracy of old plans must always be questioned until proved. (emphasis added) 799 As well, a further text used as a teaching reference for mining students in TAFE NSW was referred to and adopted by Mr Adam as emphasising the dangers of inrush and the importance of accurate plans. That text is Practical Coal Mining for Miners by E Mason: 2nd edn: 1951 Vol 1: Virtue & Co. (UK). In Chapter 24 of that text dealing with Water Dangers and Precautions, Mr Adam accepts the validity of the following principles: Inrushes of large quantities of water into mine workings have resulted in very grave accidents involving loss of life and creating circumstances which made rescue work extremely hazardous and difficult. 800 On the importance of accurate plans in order to safely address the danger of inrush, Mr Adam emphasises the following passage under the heading The Importance of Accurate Plans: The reader will now appreciate the real need of plans being as accurate as modern methods of surveying will permit, and the exacting nature of legislation in this connection. In fact, inaccurate plans can be a source of danger and distraction in many ways. 801 It should be said that the overwhelming tenor of the evidence of Mr Adam and Professor Thomas was the need to ensure the location and extent of old workings with accuracy and approach with great care and, where any uncertainty existed, to err on the side of abundant caution. 802 The consequences to the health and safety of the mine workers should mine plans be inaccurate and the risk of inrush eventuate was of such a magnitude that it demanded a proactive approach by the defendants to ensure the health, safety and welfare of the mine workers. 803 That proactive approach extended to ensuring the accuracy of the location and extent of the Young Wallsend old workings. 804 It is abundantly clear in my view, that a failure to research the location and extent of the Young Wallsend old workings with the certainty, surety and caution that the defendants statutory obligation demanded, created a working environment encompassing those old workings that was fraught with risk to safety that was real and foreseeable. 805 The defendants submit that the cause of the inrush was the incorrect depiction of the workings in the Young Wallsend Seam and the Borehole Seam as provided to them by the DMR in RT 523 Sheets 2 and 3. I fundamentally disagree. The cause of the inrush, in my view, was the failure by the defendants to properly research the location and extent of the Young Wallsend old workings. That failure resulted in the defendants reliance on the copies of the mine plans provided to them by the DMR, identified as RT 523 Sheets 2 and 3. Those Sheets wrongly depicted presumed old workings in the Young Wallsend and Borehole Seams, identified respectively as Top and Bottom Seam workings. Once the defendants placed reliance on those Sheets without more, they set in train the series of failures that were alleged and as I have identified, I am satisfied have been established. 806 The defendants have consistently submitted that they were entitled to rely on the mine plans depicted in RT 523 Sheets 2 and 3 as being accurate with respect to the Young Wallsend old workings. To a point I would agree. But it does not excuse the defendants from their independent statutory obligation under the OHSA or the CMRA to ensure a safe system of work. Nor does it relieve the defendants of their obligation to satisfy themselves by way of their own research as to the accuracy of Sheets 2 and 3 given to them by the DMR. On any considered view, Sheets 2 and 3 were seriously deficient in purporting to depict old coal workings in a way that one could be confident of their accuracy. Securing that step was vital to the defendants ability to plan its mining activities at Gretley safely and without risk. The defendants did not take that step. 807 The defendants submit that they entered the depiction of the Young Wallsend old workings into their computerised mapping programme and that the depiction corresponded with known surface features such as the ISG points, the lease boundaries and the surveyed location of the Young Wallsend Colliery shafts. That is correct. What they did not do, because it was not possible, let alone reasonably practicable, it was submitted, was to survey the flooded Young Wallsend Colliery old workings during the charge period. That is also correct. But that is not the point. The point is that the defendants had an obligation to ensure that their planned mining activities at Gretley were carried out safely and without risk. They knew the Young Wallsend old workings were present in the very vicinity in which they wished to mine, particularly 50/51 panel. They knew those old workings were full of water. They knew of the danger of inrush from water and/or dangerous gases and their statutory obligation to specifically prevent that situation occurring: Part 3 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 makes that clear. 808 Accordingly, the defendants, in my view, knew or ought to have known how critically important it was to ensure that the mine plans they were relying on as depicting those old workings were accurate - not just as to ISG points, lease boundaries and surveyed air shafts, but also seam correlation. This was so, in my view, particularly where it was known at the very least that the Young Wallsend Colliery had undertaken work in two seams, that no Notice or Plan of Abandonment had ever been filed with the DMR, the depiction of the presumed old workings on RT 523 Sheets 2 and 3 were not certified as to accuracy and they depicted anomalies that, on the evidence, should have been questioned and independently researched by the defendants. The fact that it was not possible to survey or enter the flooded old workings cannot be excused on the basis of not being a reasonably practicable thing to do. What that factor should have done is cause the defendants to double their efforts to independently research the location and extent of the Young Wallsend old workings, question Sheets 2 and 3 until they were proved and plan their mining activities at Gretley with parameters that took into account the possibility that the depiction of the presumed old workings of the Young Wallsend Colliery may be inaccurate and mining activity should be planned on that basis. 809 The defendants submit that the resources that were available to them at the time of the charge period did not disclose information that would have informed them that the depiction of the Young Wallsend Colliery old workings was incorrect or problematic. The defendants point particularly to exhibits P74 and P157 as information sources they say were not available to them at the time of the charge period. Exhibit P74 is DMR file No. M28-7067. That file was stored with State Archives and was only located after the inrush at the time of the judicial inquiry chaired by Mr J Staunton AO QC. I have already determined that, as the evidence was presented before me, I could not be confident beyond reasonable doubt that the defendants would have got access to that file if they had made a request to the DMR at the time they were planning their mining activities at Gretley and, as they should have done, researched all available sources within the DMR and elsewhere. Having said that, I am of the view that they did not make such a request. I say that because I am satisfied the defendants did not seek access to and/or obtain the relevant extracts from the Abandonment Register held by the DMR in relation to Young Wallsend Colliery old workings. It is in the Abandonment Register that reference is made in the first instance to M28-7067. The Abandonment Register was readily available to the defendants and would have been a definite source of information to which the defendants could have gone to as part of their attempts to research the location. It would be expected, in my view, that a copy of the relevant two page extract from the DMR Abandonment Register pertaining to the Young Wallsend Colliery would be obtained and retained by the defendants as part of the collection of information kept by them in the survey office at Gretley. No such copy was found in the survey office at Gretley after the inrush and nor was it produced by the defendants under subpoena. 810 The lack of access to DMR File M28-7067 does not assist the defendants. What it would have done is confirm to them that RT 523 Sheets 2 and 3 required to be treated with doubt until proved as to their accuracy and cause the defendants to proceed with caution in any reliance they placed on them. 811 Notwithstanding the absence of DMR File M28-7067 and the Abandonment Register, the defendants still had available to them RT 523 Sheet 1. Despite submissions to the contrary, I am satisfied that no steps were taken on behalf of the defendants to secure access to Sheet 1 and to obtain a copy of it as part of their overall information in relation to the Young Wallsend Colliery. On behalf of the defendants, it was submitted that Sheet 1 was not available to them or if a copy had been requested of the DMR, it would have been refused. I reject that submission outright. There is no evidence to that effect. There is evidence that when copies of the Top and Bottom Seam workings of the Young Wallsend Colliery were requested by BHP early in 1980, the DMR decided to create the copies that became RT 523 Sheets 2 and 3. In doing this, somebody within the DMR separated out the red and black workings depicted on Sheet 1. Reference to exhibit P157, which is DMR File M77/2855, would suggest that that was done because of the differing colours and the poor condition of Sheet 1. That being the case, there was and can be no suggestion that, if requested, a copy of Sheet 1 could not or would not be made available. In any event, it was at all times available to be inspected and perused. I am satisfied the defendants never requested a copy of Sheet 1 and I am satisfied that nobody on their behalf ever inspected Sheet 1. As indicated earlier this judgment, no copy of RT 523 Sheet 1 was ever located within the survey office at Gretley. As head surveyor for NWCC, Mr Price had never seen it. Nor had Mr Foley, who worked as a surveyor's assistant in the Gretley survey office. On any view, it should have been there and it was available to the defendants if they had availed themselves and made such a request to the DMR. 812 If somebody on behalf of the defendants did peruse Sheet 1 at the DMR as they should have and would have been able to do, then that simply exacerbates the defendants failure in relation to researching the location and extent of the Young Wallsend Colliery old workings. A perusal of Sheet 1, as I have already stated, presents a real puzzle to the uninformed observer. To the informed observer, such as a Mine Surveyor or a person familiar with mine plans, it raises any number of questions to which no ready answer is provided by reference to Sheet 1. Those questions and the concerns raised have already been detailed earlier in this judgment on the evidence of Mr Adam and Professor Thomas. When explained by reference to Sheet 1, the anomalies and concerns become apparent. What Sheet 1 does, in my view, is to highlight significant inconsistencies and anomalies in relation to the depiction of Sheets 2 and 3 such as to raise concerns as to their accuracy. 813 There is no absolute information that has been placed before the Court that would have independently and conclusively established that Sheets 2 and 3 were incorrect. What there was however, including Sheet 1 and Sheets 2 and 3, as well as the other texts and resources highlighted by Mr Adam, Mr McMartin and Professor Thomas, was information that strongly pointed to the real possibility that Sheets 2 and 3 could not and should not be relied upon for accuracy when planning mining activities at Gretley, particularly in relation to 50/51 panel. Contrary to the assertion made by the defendants, the resources and information readily available to the defendants at the relevant time, would have and should have caused them to question the depiction of the Young Wallsend Colliery as depicted on RT 523 Sheets 2 and 3. There is nothing, in my view, that the defendants can rely upon as information that was anything other than reasonably practicable for them to access and that a critical, objective and questioning analysis of RT 523 Sheets 1, 2 and 3 would not have revealed and sent them in search of more information. 814 To the extent that certain additional texts and sources of information have been placed before me, they only confirm what Sheets 1, 2 and 3, when considered collectively, reveal. That is, that Sheets 2 and 3 could not and should not have been conclusively relied upon by the defendants as accurately depicting the location and extent of the Young Wallsend Colliery old workings - particularly in relation to the extent of the workings in the respective seams. 815 As I have characterised them, the derivative failures, pleaded and established, that flowed from the defendants primary failure to research the location and extent of the Young Wallsend Colliery were all matters that it was reasonably practicable for them to have complied with. In that sense, I echo the view expressed by Walton J VP in WorkCover Authority v Kellogg (No. 1) at 260 when his Honour stated: In relation to the reasonable practicability of taking measures to remedy the potential threat to the safety of the defendant's employees, I consider that the formula identified in negligence cases such as Paris v Stepney Borough Council [1951] AC 367 at 375-376 is relevant. In short, the issue to be addressed may be expressed as follows: the greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if these are expensive or difficult to adopt. 816 Here, if there was inaccuracy as to the location and extent of the Young Wallsend Colliery, the magnitude of the risk and the gravity of the potential harm was great. There can be nor was there any suggestion on the part of the defendants that the precautions were too expensive or difficult to adopt. In fact, they were in many instances precautions the defendant had adopted on prior occasions in relation to their mining activities at Gretley, both in relation to approaching old workings and associated mining activities. Accordingly, it was always reasonably practicable for the defendants to: · plan by way of risk assessment for the development of 50/51 panel. · carry out an assessment of the risks to the health, safety and welfare of the employees and mine workers in the event of an inrush of water and/or dangerous gases. · plan by means of test drilling, to establish the location and the extent of the Young Wallsend coal workings, prior to the development of 50/51 panel. · Allow or not, as the case may be, employees to work in the area of 50/51 panel and in particular in 'C' heading. · Allow or not, as the case may be, the operation and use of the continuous miner at the face of 'C' heading. · Prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. · Ensure that there was an adequate barrier between where the employees were working and the Young Wallsend coal workings. · Test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. · Test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings. · Inform Deputies, the employees and other mine workers that 50/51 panel was heading towards the Young Wallsend coal workings. · Inform Deputies, the employees and other mine workers that the Young Wallsend coal workings were full of water and under a head of pressure. · Instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. 817 In my view, the defendants have not discharged the onus required to establish it was not reasonably practicable for them to comply with ss15(1) and 16(1) of the Act. Accordingly, their defence under s53(a) of the Act must fail. 818 The defendants also raise a defence under s53(b) of the Act in that, they submit: · The existence and availability of information on the location and extent of the YWC workings was not within the control of the defendants. · The errors made by the DMR were not under the control of the defendants. 819 In McMartin v Broken Hill Proprietary Co Ltd (1988) 100 IR 241 Grove J determined that in considering a defence under s53(b), the defendant must combine its proof that the facts giving rise to what would be an offence occurred due to causes over which it had no control and demonstrate that it was impracticable for it to make provision against the causative facts contained within the meaning of 'commission of the offence'. 820 As to the first contention raised by the defendant, I reject that out of hand. With the exception of DMR File M28-7067, all other relevant information that went to researching the location and extent of the Young Wallsend Colliery old workings was within the control of the defendants in that it was readily accessible by them. That was RT 523 Sheets 1, 2 and 3 as well as the Abandonment Register with the DMR. In addition, the BHP Geology Borehole Seam Plans (exhibits P130A and P130B) depict the Young Wallsend Colliery workings in reverse to those depicted in RT 523 Sheets 2 and 3. Further, the identified texts and references were all readily available and accessible to the defendants. They certainly had the resources and personnel to enable them to carry out that task. 821 Lack of access to DMR File M77/2855 also does not place any barrier in the defendants path concerning access to information about the location and extent of the Young Wallsend Colliery that would have put the defendants on notice to critically question the accuracy of Sheets 2 and 3 and plan accordingly. All that M77/2855 discloses is the background whereby Sheets 2 and 3 came into existence. Information in that file throws no light on the anomalies and questions that a proper consideration of Sheets 2 and 3 should have raised in the context of the need to ensure the accuracy of those depictions having regard to the obvious risks to safety if that was not so. 822 It is correct for the defendants to assert that the errors made by the DMR were not under the control of the defendants. But again, that misses the point. The defendants are not being held liable for errors made by the DMR. The defendants are being held liable for their failure to properly research the location and extent of the Young Wallsend Colliery workings and, as a consequence of that failure, for the failures that followed. It is of no assistance to the defendants at this point to simply point to the DMR and assert it had no control over the errors it (the DMR) made in preparing Sheets 2 and 3 in the way they did. That may be a proper and understandable factor to be considered within the context of the sentencing process. 823 The obligations that arise under ss15(1) and 16(1) of the Act are not only absolute in nature, but non-delegable - subject only to the defences available under s53. Having regard to the approach to be taken where a defendant raises a defence under s53(b), as enunciated in McMartin v Broken Hill, the defendants at all times had control over the cause leading to the commission of the offences before the Court. That is, it had control of the means and the experienced personnel to critically appraise the information provided to them by the DMR in Sheets 2 and 3 and to question further. It had the means and the experienced personnel to obtain and/or access and peruse Sheet 1 and the extract of the Abandonment Register. There was no barrier, in my view, to the defendants obtaining that information. Beyond that, it was always within the defendants control to use the experienced and considerable resources at their disposal to undertake what is the primary causative factor in the totality of the proceedings before me, which was the duty to properly research the location and extent of the Young Wallsend old workings. 824 In my view, the defendants have failed to discharge the onus placed upon them in relation to the defence raised under s53(b) and accordingly, it must fail. Concerned in the management of the corporation 825 In relation to the named personal defendants, counsel has raised, as a specific defence, that the personal defendants were not 'concerned in the management of the corporation' as provided in s50(1) of the 1983 Act. 826 Section 50(1) of the Act provides: Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 827 The above provisions impose on directors and managers of the corporation a liability for a breach of the Act where the corporation is in breach of the Act. As is evident, the only defence to that deemed liability is if the director or manager satisfies the exceptions provided in s50(1)(a) or (b). In providing for those defences, s50(1) reverses the onus of proof that would otherwise rest with the prosecution. 828 Notwithstanding that, it is still necessary for the Court to be satisfied beyond reasonable doubt, that the personal defendants were 'concerned in the management of the corporation.' The onus for establishing that preliminary condition rests with the prosecution. That was not disputed in the proceedings before me. 829 The fundamental principle behind s50(1) it seems to me, is to impose a liability on those persons whose acts or omissions are related to the offence of the corporation. In other words, s50(1) does not deem a director or a manager to have committed an offence simply because the corporation committed it. Section 50(1) imposes a liability because the acts or omissions of the director or manager are complicit in the activities of the corporation that created the breach. That much is abundantly clear when one has regard to the defences available under s50(1)(a) and (b). Those defences go directly to the personal role, function or acts of or by a director or manager of the corporation that, when considered, would establish that he or she was not in a position to influence the conduct of the corporation in relation to the breach or, being in the position, he/she used all due diligence to prevent the breach. As was said by Fisher P in Inspector Cameron v Wanless: Fisher P: 8 October 1997: CT 1127/96 at p16: The act under s50 seeks to mark our and underline managements particular responsibility for safe working … 830 A similar approach was confirmed in the decision of the High Court in Hookham v The Queen (1994) 181 CLR 450. In that matter the appellant, Mr Hookham, had earlier pleaded guilty to nine offences against s221F(4) of the Income Tax Assessment Act of failing to pay group tax. Mr Hookham was charged under s8Y of the Taxation Administration Act 1953 (Cth) as a director who had been concerned in or taken part in the management of the Markham Boat Company Pty Limited. He was convicted, fined and ordered to pay reparation. Mr Hookham appealed against the reparation order contending, inter alia: It was the corporation that committed the act or omission that constituted the offence. The effect of the deeming is to create a statutory fiction: although the appellant has not himself committed the offence, he is deemed to have committed it. 831 Section 8Y of the Taxation Administration Act 1953 (Cth) provides relevantly: (1) Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly. (2) In a prosecution of a person for a taxation offence by virtue of subsection (1), it is a defence if the person proves that the person: (a) did not aid, abet, counsel or procure the act or omission of the corporation concerned; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation. (3) For the purposes of subsection (1), an officer of a corporation shall be presumed, unless the contrary is proved, to be concerned in, and to take part in, the management of the corporation. (4) In this section, 'officer', in relation to a corporation, means: (a) a director or secretary of the corporation; … 832 In dismissing Mr Hookham's appeal, the majority (Deane, Dawson and Gaudron JJ) held at pp 458 - 459: The appellant's argument misconceives the function of s.8Y. That function is to reverse the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is concerned in, or takes part in, the management of a corporation is a participant in a taxation offence by reason that he or she aided, abetted, counseled, procured or was knowingly concerned in, or party to, its commission. Apart from the reversal of the onus of proof, it is to the same effect as s.5(1) of the Crimes Act which provided: Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly. That provision, extended to persons knowingly concerned in the commission of offences, merely reflects the position at common law, namely, that a person who intentionally assists in the commission of an offence or encourages its commission may be convicted as a party to it. That is to say, there may be parties to the one offence, other than the actual perpetrator, with varying degrees of participation, each of whom commits the offence. The 'deeming' provisions in both s.5(1) of the Crimes Act and s.8Y of the Taxation Administration Act do not create a situation in which one person is to be regarded as having committed another person's offence. Rather, they require persons with the specified complicity in an offence to be regarded as parties to that offence ((2) See Lee v Mallan (1949) SASR 17; Mallan v Lee (1949) 80 CLR 198). Section 8Y, in providing that the person is 'punishable accordingly,' is not providing for punishment for an offence which was really committed by the corporation and is only 'deemed' to have been committed by that person; it is providing for punishment for an offence to which that person is deemed to be a party because of his or her complicity in it. The offences of which the appellant was convicted under s8Y were the same offences as those committed by the corporation and he therefore fell within the words of s21B of the Crimes Act making him liable to an order for reparation. 833 There is no definitive authority of this Court or its statutory predecessors as to the proper construction of the phrase 'concerned in the management of the corporation' as found in s50 of the Act. Three past decisions have been drawn to my attention by the prosecution as relevant to offences under s50(1) of the Act: See in the first instance the judgment of Fisher P in Inspector Ian John Batty for the WorkCover Authority of New South Wales v C.I & D Industries Pty Limited (ACN 001 119 026), C.I & D Manufacturing Pty Limited (ACN 001 002 446) and Kyle Leslie Grigor (Matter No's CT 1192, 1193, 1194 and 1195 of 1994) 14 December 1995, unreported. In all matters the defendants entered a plea of guilty. In that matter Mr Grigor was employed as the Production Manager of the operations of Manufacturing. His Honour also noted (at p11) that Mr Grigor was a Director of Manufacturing. The agreed statement of facts stated at para [5]: Kyle Leslie Grigor was at all material times employed by Industries as a plant manager and was a person concerned in the management of Manufacturing and Industries for the purposes of Section 50 of the Occupational Health and Safety Act . He was a person responsible for ensuring that all appropriate training, instruction and supervision was provided to employees of Manufacturing at the factory premises. 834 As well, his Honour stated in relation to Mr Grigor: He is implicated by evidence of employees which I accept in the removal of safety devices fencing part of the GRC machine placed in position by direction of Inspector Batty. The risks so run could not be more clearly demonstrated by the sad history of management's failure to securely fence dangerous parts of the machine. 835 The second matter was a decision of Maidment J in WorkCover Authority of NSW v John Anthony Brown (Matter No's CT 1024, 1025, 1026, 1027 and 1028 of 1996), 29 July 1997, unreported. 836 Mr Brown was a director of Brown Brothers Contractors Pty Limited. Following an accident on a construction site, five summonses were issued against him alleging that Brown Brothers contravened s15(1) of the Act and that by force of s50(1), he was deemed to also have contravened s15(1). 837 While the matter was defended, Mr Brown as a Director of Brown Brothers was unrepresented and a significant amount of evidence went before his Honour without objection. His Honour's conclusions were as follows: The evidence demonstrates that the corporation contravened s15(1) as alleged. Mr Brown has not demonstrated facts which would satisfy any of the defences provided in s50(1); to the contrary I am convinced that he had knowledge of the matters constituting the offences by the corporation, that he was in a position to influence the conduct of the corporation as to those matters and that he failed to display all due diligence in relation to them. 838 The third decision to which I was referred was the decision of Walton J, VP in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Limited and anor (2001) 105 IR 348. The second defendant was Mr Andrew Bell who was an employee of the Berrima Coal and Mine Manager at the Berrima Colliery. 839 Mr Bell was prosecuted and pleaded guilty to an offence arising under s15(1) and s50(1) of the Act. The summons was pleaded in the following terms: The Defendant is a person concerned with the management of a corporation, to wit, Berrima Coal Pty Limited ACN 064 237 092, an employer WHICH FAILED on 23 April, 1996 contrary to section 15(1) of the Occupational Health and Safety Act 1983 to ensure the health, safety and welfare at work of employees in the employment of the said Berrima Coal Pty Limited in that it failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees pursuant to the provisions of section 15(2)(c) of the Occupational Health and Safety Act 1983 AND the Defendant being a person so concerned, is deemed to have contravened the same provision pursuant to section 50(1) of the Occupational Health and Safety Act 1983 . 840 I accept that on a limited basis and to the extent revealed within each of the judgments, it is possible to glean in each of the matters referred to, that the known facts embraced the notion that s50(1) was applied to natural person defendants involved at the workplace rather than in the boardroom or corporate headquarters. It should be noted however that both Mr Brown in John Anthony Brown and Mr Grigor in Kyle Leslie Grigor were directors of the corporate defendant involved. In the matter of Berrima Coal Mr Bell was the Mine Manager appointed under the CMRA and was an employee of the corporate defendant. 841 The assistance of the above judgments as to the proper construction of 'concerned in the management of the corporation' is understandably limited. In all three matters, no issue was taken in relation to the phrase and its relationship or otherwise to the associated substantive offences under ss15 or 16 of the Act. 842 In the matters before me, the natural person defendants are all employees. Some are employees of NWCC and some are employees of OPL. What they all share in common is that they all occupied statutory positions under the CMRA. 843 That an employee is able to be a person 'concerned in the management of the corporation' is unassailable and it was not seriously contended otherwise on behalf of the natural person defendants. What is important is that before a conclusion can be reached it is necessary to determine what proper construction should be placed on the phrase and, having done that, what evidence is available to consider in the light of that construction relevant to the personal defendants. 844 The predominance of authorities to which I was referred on this issue involve considerations of the phrase 'concerned in management' within the context of other statutory regimes, most notably companies legislation. Accordingly, while such authorities may be of assistance in the proper approach to be taken, ultimately the phrase must be construed within the normal rules of statutory construction including the context in which it appears and the objects of the OHSA 1983. 845 The Occupational Health and Safety Act 1983 is all embracing in its intended application to safety at the workplace. The objects of the Act make that clear. As well, ss15, 16, 17, 18, 19 and 20, when considered together, represent a comprehensive penal liability scheme potentially applicable to employers and employees, persons in control of workplaces and manufacturers designed to secure the health, safety and welfare of persons at work. Section 50(1) reinforces management's particular responsibility in that role where a corporation contravenes any provision of the Act or the regulations. That approach, it seems to me, recognises the well established principle as expressed by Lord Reid in Tesco Supermarkets Ltd v Nattross [1972] 2 All ER 127 at 131: I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention to be negligent and he has hands to carry out his intentions. A corporation has none of these; it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. 846 The basis on which liability can be avoided under s50(1) go directly to those actions of an individual director or manager of the corporation in relation to his or her ability to influence the conduct of the corporation relevant to the breach by the corporation. 847 By way of assistance and persuasion as to the proper construction of the phrase, counsel for the respective parties took me to a number of diverse authorities predominantly centred around the companies legislation of the Commonwealth and the States. 848 In Commissioner for Corporate Affairs v Bracht [1989] VR 821 Ormiston J made an order nisi absolute and remitted the matter to the Magistrate's Court concerning an information alleging Mr Bracht, who was insolvent, was concerned in or took part in the management of a company without leave as required by s227 of the Companies (Victoria) Code. Section 227 of the Code provides: A person who is an insolvent under administration shall not be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of, a corporation without the leave of the Court. 849 As is clear, the provisions of s227 are designed to prohibit an insolvent's participation in the management of a corporation and in that sense, as was stated by Ormiston J at 827: What is reasonably apparent … is that, as a whole, s227 and its predecessors have been viewed as primarily protective rather than penal and its purpose has been described as designed 'to protect the public from imprudent actions … which could cause the public to suffer financial loss. 850 The concept of 'management' was considered in some detail by Ormiston J in Bracht. At p830 he stated: There must be an element of decision-making, which affects the corporate enterprise as a whole, but those responsible need not form part of the board, nor even need they be executives directly communicating with the board. Nevertheless, in the ordinary course of affairs, it is only in a large company that persons outside this latter category, so far removed from the power of control exercised by the directors, may be engaged in the 'management' of a company. In a small company like the present the actions of those directly answerable to the directors may amount to 'management', for, even if those people are also engaged in routine activities of a kind not normally associated with management, it is sufficient if powers and functions are delegated to those persons which are likely in their performance to have a significant effect on the business and financial standing of a company. As it is a protective section, protective at least of the creditors and shareholders, then it must have been designed to prevent the participation in management of those who might put the solvency or the probity of the corporation's administration at risk. Persons not given any significant discretion or advisory role in decision-making could not therefore be intended as an object of the prohibition. It may be difficult to draw the line in particular cases, but in my opinion the concept of 'management' for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs. (emphasis added) And further at pp 830 - 831: Thus, although the decisions of a branch manager, subject to predetermined restrictions, may not be comprehended, there are those involved in large, discrete parts of a corporation's business, who, although not participating in the central administration of that corporation, nevertheless are involved in its management to the extent that their policies and decisions have a significant bearing on its business and its overall financial health. One has only to look at the published annual reports of public companies to realise that the results of one or more 'divisions' of a company can affect in large measure its general performance, albeit that in many cases those divisions will be in law represented by separate subsidiary or related companies. 851 Ormiston J summarised his views thus: In the present section I would see the prohibition as covering a wide range of activities relating to the management of a corporation, each requiring an involvement of some kind in the decision-making processes of that corporation. That involvement must be more than passing, and certainly not of a kind where merely clerical or administrative acts are performed. It requires activities involving some responsibility, but not necessarily of an ultimate kind whereby control is exercised. Advice given to management, participation in its decision-making processes, and execution of its decisions going beyond the mere carrying out of directions as an employee, would suffice. If the respondent had been left to negotiate terms with bankers or providers of credit, although those terms had to be confirmed, there would have been sufficient participation, but not if those acts involved only communication or were merely casual. The negotiation of matters of financial importance, such as the rent of its principal premises, may well lead to an inference that a person is concerned in the management of a company, but not if that involved merely communication of instructions on a single occasion. A combination of these activities may likewise lead to the relevant inference, so long as the defendant is given some measure of responsibility or some area of discretion, or so long as his opinion is given some weight in the decision-making processes of management. Beyond this it is difficult to go, for circumstances and procedures may vary widely from company to company. 852 The meaning of management was also considered by Bleby J of the South Australian Supreme Court in Griggs v Australian Securities Commission (1999) 75 SASR 307. In that matter, his Honour was considering an appeal following a plea of guilty in the Magistrate's Court to two counts of managing a corporation while insolvent under s229(1) of the Corporations Law (SA). Ultimately, his Honour was required to consider whether the facts as found during the relevant period did not constitute managing the company as contemplated by s91A(2) of the Corporations Law (SA) which provides relevantly: 91A(2): A person manages a … corporation if the person, … is a director or promoter of, or is in any way (whether directly or indirectly) concerned in or takes part in the management of, the corporation. 853 In considering the proper scope of s91A(2), Bleby J said at para [38]: For the purposes of the definition in s91A(2) of the Corporations Law the appellant was not a director or promoter of Pernil. The question is whether he was in any way directly or indirectly concerned in or took part in the management of the corporation. Those are words of very wide import. When speaking of the phrase 'be concerned in' the Court of Appeal in R v Campbell (1984) 78 Cr App R 95 said at 100-101: [T]he wording is so widely cast that … it is intended to insulate persons … from taking part in the management of company affairs generally …It would be difficult to imagine a more comprehensive phraseology. It is designed to make it impossible for persons to be part of the management and central direction of company affairs. However, the prohibition is on a person taking part in the management of a company and not in the business of the company. This point was made by Ormiston J when speaking of the then s227(1) of the Companies (Victoria) Code , which was in similar terms to s97A(2), in Commissioner for Corporate Affairs v Bracht [1989] VR 821 at 828. The section is not intended to preclude a bankrupt person from earning a living in the employment of a company. 854 His Honour also noted that when the expression 'directly or indirectly' is added to the phrase 'be concerned in' it 'widens the net considerably.' 855 It must be noted that the decisions in Bracht, Griggs and Campbell all dealt with considerations of a person being concerned in the management of a corporation from the point of view of considering conduct that would be prohibited within the context of that phrase and within the particular statutory regime which, amongst other matters, was designed 'to protect the public from imprudent actions … which could cause the public to suffer financial loss.' 856 As earlier stated, s50(1) of the Act is part of the complementary statutory scheme designed to cast a wide net of obligations over diverse parties designed to secure the health, safety and welfare of persons at work. Accordingly, in construing the phrase 'concerned in the management of the corporation' the Court should take into account the purposes of the statute and construe such a phrase with its full import directed to securing the objects of the Act. 857 The word 'concerned' as expressed in s50(1) denotes an involvement or participation. When the word becomes part of the phrase 'concerned in management,' the use of the preposition 'in' relates that involvement or participation on an inclusionary basis with the term 'management of the corporation.' On any view, the concept of being 'concerned in the management of the corporation' connotes an involvement or participation at diverse levels. As always, it is necessary to consider the facts and circumstances of the situation at hand when measured against objective principles. 858 Counsel for the personal defendants submitted that the reliance by the prosecution on the ratio in Bracht and Griggs in construing the phrase 'concerned in the management of the corporation' as it appears in s50(1) of the Act was misguided. This was, it was said, because the statutory provisions under which those words were considered in both Bracht and Griggs are to be found in the context of words denoting a much wider scope to the words 'concerned in the management of a corporation.' In Bracht, s227(1) of the Companies (Victoria) Code provides: A person who is an insolvent under administration shall not be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of a corporation without the leave of the Court. (emphasis added) 859 As well, in Griggs s91A(2) of the Corporations Law (SA) provides: A person who is an insolvent under administration shall not be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of a corporation without the leave of the Court. (emphasis added) 860 No such qualifying words such as those emphasised in Bracht and Griggs (and by implication in Campbell) appear in s50(1) of the Act. I accept the general import of the defendant's submissions that the context in which the phrase 'concerned in the management of a corporation' appears in the statutory schemes underpinning Bracht and Griggs do have the tendency to widen the scope of the phrase when taken together with the preceding provisions. That tendency, as I characterise it, does not mean that I should disregard those decisions as being of no assistance in the issue before me. Rather, to the extent that those decisions are relied upon, I should be mindful of that aspect of the statutory provisions in Bracht and Griggs when coming to a final conclusion on the issue before me. 861 On behalf of the personal defendants, it was submitted that the proper approach to the construction of 'concerned in the management of the corporation' could be ascertained by reference to those decisions where that phrase appears uninfluenced by the words of wider import as evident in Bracht and Griggs. Reference to those cases to which I was taken is again decisions made against the background of specific statutory schemes. 862 In Cullen v Corporate Affairs Commission (NSW) (1989) 7 ACLC 121, Young J considered the provisions of s562A(3) of the Companies Code (NSW) wherein the Corporate Affairs Commission had determined that Mr Cullen should not be permitted to be involved in the management of a corporation. Mr Cullen appealed against that determination. 863 In his judgment, Young J considered Bracht as well as a number of Canadian provincial appeal decisions. In summary on this point, Young J concluded at 126: From all this one can say that one looks to see somebody making decisions as to the direction of the corporation though one does not necessarily look for someone who is making decisions at the highest level, nor is it necessarily so that the manager's decisions will not be subject to obtaining the approval of some higher officer. However, even though a person may be described as a manager, if that person is merely carrying out the policy of the corporation in charge of a branch or division of the business and not making decisions as to its direction than probably that person is not taking a management role in the corporation. 864 In considering the facts in the matter before him, Young J upheld the determination of the Corporate Affairs Commission prohibiting Mr Cullen from being involved in the management of a corporation for a period of five years. 865 Burchett J of the Federal Court also had cause to consider the phrase 'took part in the management of the corporation' in Holpitt Pty Ltd v Swaab and ors (1992) 105 ALR 421 at 421. In that matter, his Honour was considering the meaning and application of s556 of the Companies (NSW) Code and in particular the phrase 'any person who is a director of the company or who took part in the management of the company.' It should be noted that s556 imposes a penal liability on the above category of persons where a company incurs a debt in the circumstances provided in s556. 866 In his considerations as to those category of persons who could be said to be caught up by the provisions of s556, Burchett J stated at 423: Section 556 is a section which imposes criminal liability, including imprisonment. It would be quite inappropriate to give to the statement of an ingredient of such an offence, 'any person who was a director of the company, or took part in the management of the company,' some loose meaning ignoring that context. Particularly is this so when the rationale must be that the person whom the section singles out is an offender because of the significance of his role in the company which incurred the debt. If his role is a junior one, giving him no real influence on the decision, or if his role is that of an outside professional, who might advise, but would certainly not be taking the decision, there is no reason to think that the language of the section should be stretched to include him. The only direct guidance, apart from these considerations arising out of the subject matter of the section, is the use of the word 'director.' An application of the maxim noscitur a sociis would suggest that the other persons embraced by the section are persons whose management role may be likened to that of a director. 867 Accordingly, Burchett J concluded in relation to Bracht at 424: I do not think that a case as Commissioner for Corporate Affairs (Vic) v Bracht (1988) 14 ACLR 728 can determine the meaning of s556. That case was concerned with a provision excluding a bankrupt from being 'concerned in …the management' of a company. It is obvious that such a provision must be given a fairly wide scope if those affected by the way in which companies are managed are to be given the protection the provision is designed to give them. But a similarly wide understanding of s556 would simply have the effect of rendering persons, who had no control of decisions which were taken, liable personally to meet the debts of an insolvent company - to the benefit of its creditors, no doubt, but without there being any particular reason why the person concerned should have to meet those debts. 868 It should be noted that in Holpitt v Swaab, Burchett J placed reliance upon the Articles of Association of the relevant company. As he said: Mr Swaab placed particular reliance, as regards the possible effect of his having been secretary of the company, upon the decision of Needham J in Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 5 ACLC 1027 at 1030 where, even in the case of a secretary in a rather special position, his Honour rejected a submission that the secretary had authority outside 'the administrative side of the company's affairs.' Needham J referred to the decision of the Court of Appeal in Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711, which he held 'does not take the authority of the secretary into the management of the company, the decisions associated with the activities of directors of normal companies.' His Honour's comment seems to be applicable here, where the articles expressly provide for management by the directors. 869 Reference to the two cases referred to reveals that on the basis of the facts in Club Flotilla, the company secretary did not have the authority to give instructions to commence legal proceedings on behalf of the company. Under the Articles of Association, this power was vested in the Committee. 870 In Panorama Developments, the English Court of Appeal held that a company secretary had ostensible authority to incur hire car debts on behalf of the company in that 'The hiring is part of his administrative functions': See Salmon LJ at 717. 871 It is apparent that Burchett J construed persons 'who took part in the management' of a corporation as denoting that expression as being limited to persons whose management role in a company may be likened to that of a director. This view was accepted by Hodgson J in Standard Chartered Bank of Australia v Antico (No's 1 and 2) (1995) 38 NSWLR 290 at 323 as follows: On the question whether Pioneer took part in the management of Giant, I accept the view of Burchett J in Holpitt v Swaab (1992) 33 FCR 474 that this expression is limited to persons whose management role in the company may be likened to that of a director. This view was accepted in Taylor v Darke (1992) 10 ACLC 1516 at 1522; and also in Re New World Alliance Pty Ltd; Sycotex Pty Ltd v Baseler (1994) 51 FCR 425 at 442, where Gummow J added that this meant that the person must have some decision-making role in the company. 872 Also in 1995, Bryson J considered the construction of s556 of the Companies (NSW) Code with reference to 'took part in management of the corporation' in Omnicon Video Pty Ltd v Kookaburra Productions Pty Ltd (Receiver and Manager Appointed) and ors: No. 1024 of 1991, 13 November 1995 (unreported). In approaching that issue, his Honour said at 11-12: Statutory provisions which extend for various purposes the range of persons who are treated as if they were directors by reference to their taking part in management are common in contemporary companies legislation. In their nature they operate by extending the relatively clear concept of a director, which can be established by identifying the holders of that office from records which companies are obliged by law to keep, to persons identified by less definite criteria. Notwithstanding the similarity of concept, care should be used in proceeding from judicial decisions on such provisions to decisions on other and similar provisions and on other sets of facts; the provisions differ in their purposes and also in their detailed expression, and their application must always be affected by the instant facts. 873 Bryson J also considered the review of the expression 'being concerned in a company's management' as undertaken by Ormiston J in Bracht and Young J in Cullen. On that issue and its relevance to s556, his Honour stated at pp12-13: I must respectfully say that I have found the reviews of case law by Ormiston J and Young J illuminating, but their Honours did not deal with s556, nor did any of the decisions which they reviewed. In my view s556 refers to a concept closely similar to that identified by the Court of Appeal in Reg v Campbell , not to managing specific aspects of the company's activities, but to central management of the affairs of the company, being matters usually undertaken by the directors. The language used in subs556(1) is rather general, and the indications which lead me to this view are these. There is obviously intended to be a close analogy between the position of a person on whom liability is fixed and a director, and the respects in which they are analogous must have some relation to the subject matter dealt with by the subsection and to the capacity of that person to influence whether or not the company incurs debts which it will not be able to pay. The overall purpose of the subsection and of the involvement of the person who took part in the management of the company point towards management at the highest level, influence over whether debts are incurred and over ability to pay and to a corresponding restriction on the very wide range of conduct to which, within the literal meaning of words, taking part in management can refer. I also see some significance in the words 'of the company' as the subject matter of management; it is not the company's business, or any aspect of the business which is referred to but the company itself. While I am conscious of the difficulties pointed out by Ormiston J and also conscious that I am not offering a comprehensive restatement of the words of the statute, I am of the view that what is indicated is taking part in the central management of the affairs of the company, which I distinguish from management of particular activities of a company's trading affairs or of its administrative affairs. A wide range of activities could be conceived of as taking part in the management of a company. The range of matters which could be considered as management is wide, and so is the range of connexions between a person and a process which could be considered as taking part in it. So too is the range of matters which in fact are commonly attended to by directors, and by persons employed as managers. In my opinion it is necessary to approach the application of these provisions to facts with the nature and apparent purpose of the provision in mind, and to keep in view that s556 is concerned with imposing liability for debts incurred by the company, imposes personal liability on persons who take part in management, and also creates an offence, which may be punished by imprisonment. The management referred to is in my opinion a core of activities and responsibilities in the higher direction and control of the affairs of the company, of kinds which can be or usually are attended to by directors. 874 In Standard Chartered, Hodgson J was considering a number of aspects of s556(1) and (2) of the Companies (Queensland) Code which is in similar terms to that considered by Burchett J in Holpitt and Bryson J in Omnicon. On the proper approach to the construction of s556, his Honour said at 313-314: I accept that s556 should not be given an unduly wide construction, as it is a criminal provision; and I accept that it should not be given a construction which creates an unfairness … In my view the appropriate approach is to construe the language of the section, according to the natural meaning of its words, but with due appreciation of the practical implications. 875 I would agree with his Honour's observations as to the correct approach to adopt in construing the phrase 'concerned in the management of the corporation' in s50(1) of the OH&S Act. I would add only the rider that I would take that approach also mindful of the objects of the legislation of which s50(1) is a part. 876 Of more direct relevance, perhaps, on the construction of 'concerned in management of the corporation' in the context of occupational health and safety legislation, are two interlocutory rulings arising from prosecutions brought under the Victorian Health and Safety Act 1985. Both decisions suffer from the defect in that they are not conclusive determinations but interlocutory rulings in a jury trial. Both, however, were concerned as to whether, on the evidence, it could be said that the personal defendant in each matter was 'a person concerned in the management of the body corporate' as provided in s52 of the Victorian Health and Safety Act. That section relevantly provides: (c) Where an offence against this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any wilful neglect on the part of, an officer of the body corporate or person purporting to act as such an officer, that officer or person is also guilty of that offence and liable to the penalty for that offence. (2) (d) In sub-section (1) 'officer' in relation to a body corporate means - (a) (b) (e) a person concerned in the management of the body corporate. 877 On 16 August 2000, in R v Pasta Master Pty Ltd and Conway, Judge Holt of the Victorian County Court ruled that there was sufficient evidence to go before the jury on the issue of whether the accused was 'concerned in the management' of Pasta Master within the meaning of s52(3)(c) of the Act. 878 On reviewing the evidence, Judge Holt stated at 564-565: Evidence from various witnesses including Messrs Wallis and Conder, the principal outside contractors who were retained to perform maintenance and repairs in the factory, and members of the company's production staff clearly demonstrates, in my view, that as far as the company was concerned, the accused controlled or managed the factory. True it is that the accused did not have carte blanche in the performance of his duties but nevertheless, it was obviously the intention of Mr Douglass that the accused would have significant duties and responsibilities so far as production at the factory was concerned. And given the core function of the factory in the fortunes of the company, it seems to me that one is drawn to the conclusion that as factory manager, to paraphrase Justice Ormiston in Bracht , the accused would be involved in making decisions relating to the business affairs of the company, affecting a substantial part of the company, to the extent that the consequences of the making of those decisions would have had a significant bearing on the financial standing of the company or the conduct of its affairs. 879 While it is not clear from his Honour's ruling, the strong inference is that the business conducted by Pasta Master was centred around the one factory site which Mr Conway, as the manager, controlled and managed. His Honour also described the factory as being the 'core function … in the fortunes of the company.' In short, it does not appear that the defendant corporation was a large one consisting of multiple operational sites or divisions and Mr Conway controlled the 'core function' of the corporation. 880 In R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Henry Bailey, Judge Stott of the Victorian County Court, on 31 October 1991 ruled, inter alia: (i) in the absence of evidence it cannot be categorically stated that a city engineer cannot be the embodiment or controlling mind of the municipal corporation; (ii) in the absence of evidence it cannot be categorically stated that a city engineer cannot be prosecuted under the Occupational Health and Safety Act ; and (iii) it cannot be said , as a matter of law, that the city engineer was not an officer within the meaning of s52 of the Occupational Health and Safety Act. 881 Two things should be noted about his Honour's rulings in City of Dandenong and Bailey. The first is that Judge Stott, on more than more occasion, stressed the need for all the evidence to be considered before coming to a final conclusion. As he stated in his ruling at p17: Prematurity also affects the effectiveness of the submission that the city engineer was incapable of becoming the embodiment of the corporation. Save that by s158(1) of the Local Government Act an engineer for the municipality is appointed by the council 'to assist in the execution of this Act,' the scope of the engineer's authority, powers and functions is not set out in the Act. Just what authority, powers, functions and responsibilities were vested in the engineer by the council or corporation must await the evidence. Indeed the importance of the evidence as to those matters is referred to in all the cases cited, for example, Tesco at pages 170, 173, I.C.R. Haulage page 559, R v H.M. Coroner for East Kent at page 16, R v Andrews-Weatherfoil at page 124 and Hamilton v Whitehead at pages 127-8, and H.L Bolton (Engineering) Co. Ltd v T.J. Graham &Sons Ltd (1956) 3 All ER 624 at 630. 882 Secondly, in considering s52 of the Victorian Act, Judge Stott noted that the relevant sub-section for consideration was s52(3)(c), that being whether Mr Bailey, as the city engineer, was a person concerned in the management of the body corporate. His Honour also noted at p32 that: There are a number of sections in the Local Government Act which recognise that in certain areas the municipal engineer or a proper officer may act as the council. See also in relation to an officer of a municipal corporation acting in the name of the corporation: Morris v Wellington City and anor (1969) NZLR 1038. 883 It is clear that in considering the authorities to which I have referred, the approach that has been adopted has been one reflective of the overall purpose and objects of the legislation being considered together with the act or omission the legislation was designed to address. 884 Accordingly, having regard to all of the above, I believe the proper approach to be taken in construing the phrase 'concerned in the management of the corporation' as stated in s50(1) of the Act should be: (i) the phrase should be construed in accordance with the normal rules of statutory interpretation which includes consideration of the context in which the expression appears together with the objects of the Act. (ii) as it is a provision that attracts a criminal sanction, it should not be given a construction which creates an unfairness. (iii) prior decisions as to like or similar provisions in diverse companies legislation as to the construction of the phrase 'concerned in the management of the corporation' are of assistance to me as guidance only, but that is all. (iv) reference must be had to the facts and circumstances of the matter before me in order to ultimately determine the issue. In doing so, there will be factors indicative of a defendant being concerned in the management of the corporation that, when taken together, will be conclusive as to that issue. 885 What would appear to be a common and understandable factor in all the authorities to which I was taken was the person's decision making powers and/or authority going directly to the management of the corporation. That decision making role or authority on behalf of the corporation may involve advice given to management encompassing a participation in its decision making processes and the execution of those decisions going beyond the mere carrying out of directions as an employee. That decision making role or authority and the responsibilities inherent in them must be such as to affect the corporation as a whole or a substantial part of the corporation. In saying that, it does not mean that the person must be at the highest levels of management. The structure and size of the corporation is relevant as is the role of the person within the corporation relevant to his/her decision making powers on behalf of the corporation. Critically, in relation to s50(1), the person's decision making powers must be such as to directly influence the corporation in relation to the act or omission that constituted the offence of the corporation. That much, I believe, is self evident given the nature of the defences available in s50(1)(a) and (b). In other words, the determination of a person concerned in the management of the corporation in s50(1) must be a person who was in a position to influence, by advice or decision making, the conduct of the corporation in relation to its contravention or whose decision making powers within the corporation comprehends activities the consequences of which have a significant bearing on the conduct of the corporation relevant to its contravention. 886 In relation to any reliance placed on a person's statutory functions under the CMRA as evidence of a person being concerned in the management of the corporation, in my view, there must be more. An employee's statutory function and responsibilities under the CMRA go, in the first instance, to that persons responsibilities in relation to the safe operation of the mine. There must be more than participation in activities relevant to the responsibilities and work undertaken at the mine that takes that person into a position of decision-making and authority within the corporation relevant to its contravention. In the matters before me, and the prosecution contends no differently, there are two corporations to consider. On behalf of the prosecution, it was submitted that the personal defendants were concerned in the management of both corporations regardless of who their employer was at the relevant time. In making that submission it was stated that the facts that support such a finding are different. 887 In relation to the personal defendants, their employer at all relevant times was as follows: (i) Mr Richard Porteous was employed at all relevant times by OPL. (ii) Mr Jonathan Romcke was employed at all relevant times by OPL. (iii) Mr Mark Robinson was employed at all relevant times by OPL. (iv) Mr Michael Alston was employed at all relevant times by OPL. (v) Mr Phillip Pritchard was employed at all relevant times by OPL. (vi) Mr Michael Coffey was employed at all relevant times by NWCC. That finding is based on an ATO Group Certificate for the year ending 30 June 1997 indicating his employer as the NWCC. There are also Termination Pay Retrenchment documents tendered by the prosecution in relation to Mr Coffey dated 18 August 1998 on the letterhead of OPL and identifying OPL as the employer at that time . (emphasis added) In the absence of any other evidence and in relation to the period concerning the charges alleged in relation to Mr Coffey, I am satisfied Mr Coffey was employed by NWCC. (vii) Mr Christopher Nicholls was employed at all relevant times by NWCC. That finding is based on an ATO Group Certificate for the year ending 30 June 1997 indicating his employer as the NWCC. Like Mr Coffey, there were also Termination Pay Retrenchment documents tendered by the prosecution, also dated August 1998, identifying OPL as the employer at that time. (emphasis added) For the same reason as advanced in relation to Mr Coffey above, I am satisfied that Mr Nicholls was employed by NWCC. (viii) Mr Terence Shacklady was employed at all relevant times by NWCC. That finding is based on an ATO Group Certificate for the year ending 30 June 1997. There are no documents linking Mr Shacklady to OPL as far as employment is concerned. 888 In my earlier considerations in this judgment I came to the conclusion that the Gretley mine was an undertaking of NWCC and OPL. I also concluded that OPL was more than a labour hire company vis-à-vis NWCC and that the activities of OPL were significant and were inextricably integrated with those of the NWCC as far as mining operations at Gretley were concerned. 889 While I have come to that view in relation to NWCC and OPL in relation to mining activities at Gretley, it does not, without more, mean that the personal defendants were concerned in the management of the respective corporations as contemplated in s50(1) of the Act. 890 Further, it also cannot be said, without more, that appointment to a statutory mine management position under the CMRA is conclusive evidence of that person being concerned in the management of the corporation that owns or operates the mine. That fact will be significant but if such an appointment was conclusive evidence of anything, it is evidence of that person being concerned in the management of the mine in which they are appointed and of being responsible for the safe management of the work being undertaken at the mine. 891 Even considering NWCC as a stand alone corporation, the evidence before me would strongly suggest that NWCC as a corporation had a management structure that went beyond the Gretley mine. There is evidence which I have already detailed earlier in this judgment that points to NWCC as a corporation having a management structure and role in relation to Gretley, Ellalong and Pelton mines within the OPL Group. There is no evidence before me as to the corporate structure of NWCC and how, in management terms, it operated as a corporate entity in relation to its overarching corporate undertaking with respect to those mines. There is a definite hint of such a structure by reference to Mr Kevin Price as the Chief Surveyor for NWCC and Mr Gow as the General Manager of NWCC. Mr Price was called by the prosecution but no evidence was elicited from him as to where his position sat vis-a-vis the management of the Gretley mine and no substantive evidence was elicited from him as to how his position related to that of the Gretley Mine Surveyor as far as the management of the corporation that was NWCC, let alone OPL. 892 In short, it is not possible, in my view, to assert that I could be satisfied beyond reasonable doubt that NWCC was in effect a one mine corporation such that being concerned in the management of Gretley ipso facto became being concerned in the management of NWCC. It is more likely, in my view, that evidence of being concerned in the management of OPL vis-a-vis Gretley is evidence of being concerned in the management of the two corporations with respect to Gretley. 893 At the outset that I have no difficulty in coming to the conclusion that the Mine Managers at Gretley were concerned in the management of the corporations. There is, to start with, the statutory responsibilities cast upon a Mine Manager by the provisions of the CMRA and its accompanying Regulations: see, for example and in particular, s37(1) of the CMRA. That section encompasses, for the Mine Manager, the widest possible charge and control of the mine, all persons employed in it and all operations of the mine. The specific provisions of s37(2) do not limit the generality of the encompassing provisions of s37(1). There are other statutory provisions reinforcing the central role of the Mine Manager in relation to the overall responsibility of mining activities in a mine. Again, by way of example, clause 7 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 provides that the Mine Surveyor shall have control of the surveying and survey drafting staff for the mine subject to the instructions of the manager of the mine. See also, Part 2: Pillars and Roadways and Part 3, Prevention of Inrushes of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 which again details the responsibilities of the Mine Manager in relation to those matters. 894 Part 3 Division 4 of the CMRA makes specific provision for the Mine Manager to delegate his powers and functions by a specific instrument of delegation. Once so delegated, s56(10) of the CMRA states: (10) A function, the exercise of which has been delegated by the manager of a mine under this section, shall, while the delegation remains unrevoked: (a) be deemed not to be the function of the manager, and (b) be deemed to be the function of the delegate, for the purposes of this Act. 895 In my view, it is clear that the overall structure of the CMRA and its Regulations envisages a mine management structure that pivots around the Mine Manager. That pivotal role embraces overall responsibility for a wide range of functions, many of which go directly to the issue of safety. The power to delegate functions and with it responsibility cannot be done in any ad hoc manner. The CMRA provides for a formal procedure in order to ensure, it would seem to me, that the function so delegated is clearly delineated and the person to whom the function is delegated is aware and formally accepts the duty and responsibilities of the function so delegated. That such an approach was envisaged by the legislature can be found in the Minister's Second Reading Speech when introducing the Bill on 11 March 1982 as follows: For this reason the drafting of the proposed legislation proceeded on the basis that it should, consistent with safety, give the manager a wide discretion to determine the responsibility to be borne by each member of his management structure having regard to his needs and the resources available to him. It was considered that the best method of achieving this aim would be to cast on the manager the majority of managerial-type duties and responsibilities, that is, those duties and responsibilities that involve the provision of financial or material resources or the allocation of personnel, and to authorize him to delegate the vast majority of those duties to other persons. Once a manager has delegated a duty in the manner provided for in the bill to another person, the duty ceases to be the manager's duty and becomes that person's duty. (emphasis added) 896 In the matters before me, there was no instrument of delegation executed by either Mr Romcke or Mr Porteous to any other mine official in relation to their duties and functions under the CMRA while they were statutory Mine Managers at Gretley. 897 In addition to the above, the most significant factor establishing Mr Romcke and Mr Porteous as 'persons concerned in the management of the corporations' is their respective appointments as General Mine Manager at Gretley in addition to their position of Statutory Mine Manager. The position of General Mine Manager had a wider role than that of Statutory Mine Manager, as Mr Pala explained in evidence thus: Q. And the distinction, if any, between statutory Mine Manager and General Mine Manager at South Bulga, can you explain those two terms; namely, Statutory Mine Manager and General Mine Manager? A. Statutory Mine Manager is the position that's prescribed under the Coal Mines Regulation Act ; the General Mine Manager is a corporate title that is intended to encompass a broader range of duties - more duties associated with the total management of the business, not just the statutory function. Q. The corporate title of whom, when you had that title at South Bulga? A. The corporate title of General Mine Manager. Q. Yes. Who owned the company who ran the mine at that time, to your knowledge? A. Bulga Coal Management. Q. And who owned Bulga Coal Management, to your knowledge? A. It was owned by Oakbridge and - 90 per cent by Oakbridge and 10 per cent by Nippon Steel. And further: Q. Do you remember you explained how, as General Mine Manager, you had other functions above and beyond those of a Statutory Mine Manager? A. Yes. Q. Did you have those extra functions that you have already described when you were the Statutory Mine Manager at Gretley from August 1991 to June 1993? A. Yes. Sorry, I had them during the period that I was the Statutory Mine Manager, not whilst I was a Deputy Mine Manager. So I guess during the period that I was Statutory Mine Manager I had those functions, yes. Q. At Gretley? A. At Gretley. 898 In addition to Mr Pala, who was General Mine Manager and Statutory Mine Manager at Gretley from 1991 to 1993, Mr Porteous and Mr Romcke both held General Mine Manager positions at Gretley, and in the case of Mr Romcke, he went on to hold both positions at Clarence after he left Gretley. 899 As General Mine Managers at Gretley, Mr Romcke and Mr Porteous both participated in the General Mine Manager's meetings held on a quarterly basis under the Cyprus/OPL management structure. Those General Mine Manager's meetings set the direction and policy of the mines operating within the corporate matrix of Cyprus/OPL. I have set out those matters in some detail earlier in this judgment. 900 Within that corporate matrix, the clear indication is that NWCC (as well as other corporate entities such as Coalex and Bulga JV) operated the mines within the Cyprus/OPL group in NSW, specifically and more directly, as the OPL Board Minutes would indicate, under the active control and direction of OPL. 901 At the General Mine Manager's meetings, Mr Romcke and Mr Porteous presented detailed reports in relation to Gretley going to all of those matters pertinent to the management of the mine and the respective corporations. That is, anticipated and actual yield performance of the mine, marketing strategies, proposed future developments in the mine, financial projections, industrial relations and human resource matters impacting on the corporation as a whole (e.g. enterprise bargaining strategies and industrial stoppages) and the implementation of occupational health and safety audits, injury reports and lost time due to injury affecting production. 902 Further, as General Mine Managers at Gretley, Mr Romcke and Mr Porteous had responsibility for implementing and overseeing decisions taken at the corporate level back at the mine in relation to such matters, particularly safety, the conduct of safety audits and the review of such audits. As well, the OPL corporate safety meetings attended by the General Mine Managers, set detailed worksite safety policies at OPL mines, including Gretley. 903 For all of the above reasons, I am satisfied that, in their respective positions as General Mine Manager at Gretley as well as the position of Statutory Mine Manager at Gretley, such positions held concurrently, Mr Romcke and Mr Porteous were persons concerned in the management of the corporations NWCC and OPL and were involved in decision making relevant to the contraventions of those corporations in the proceedings before me. 904 In relation to Mr Romcke, the prosecution have also relied upon his participation in the General Mine Manager's meetings and his participation in matters such as safety audits arising from those meetings after he left Gretley, as evidence of his being a person concerned in the management of both corporations - they being NWCC and OPL. I am not persuaded that is an approach that can be relied upon. To start with, if that proposition is correct, then everybody who participated in those General Mine Manager's meetings was concerned in the management of the corporations that I have to be concerned about, they being NWCC and OPL. Such a proposition is, I believe, extending the corporate relationship as between OPL and NWCC much further than could be sensibly accommodated. More significantly however, is that once Mr Romcke left his position at Gretley, he went as General Mine Manager and Statutory Mine Manager to the Clarence Mine. Clarence is another mine in the OPL Group, but if the scant evidence before me is any guide, Clarence Mine was operated under the corporate entity Coalex Pty Ltd. Again, on the limited evidence before me, Coalex was another wholly owned subsidiary of OPL for some time during the charge period. It may well be, I put it no higher than that, that the Clarence Mine was operated with the same inextricable integration as between Coalex and OPL as I have found existed in relation to NWCC and OPL at Gretley. On the evidence before me, I simply cannot know to the requisite standard. 905 What I do know is that I do not rely on Mr Romcke's participation in the General Mine Manager's meetings after he left Gretley as evidence in support of him being a person concerned in the management of the corporations before me. To the extent that he was both General Mine Manager and Statutory Mine Manager at Gretley during a part of the charge period I do rely upon in coming to the view that I do, that at a relevant period in the development of the Gretley mine, Mr Romcke was involved in the management of the corporations NWCC and OPL. As well, it was his signature that accompanied the initial application, under s138 of the Act, to the DMR in September 1994 where mention is made of the Borehole Seam workings being 'full of water' and, it was asserted, do not pose a 'danger to Gretley workings'. Likewise, Mr Porteous' signature appears on the Gretley mine plan with that of Mr Murray's in the variation application submitted to the DMR in August 1995. 906 The role of Mr Romcke and Mr Porteous in appending their signatures, and thereby their authority, to those particular mine plans is significant. This is particularly so, in my view, because of what I have referred to as the primary failure that is the catalyst of the offences before me - the failure of the corporate defendants to properly research the location and extent of the Young Wallsend Colliery old workings. As well, specific reference to the responsibilities of the Mine Manager on behalf of the corporations under s37(2) of the CMRA and Part 3, Prevention of Inrushes of the Methods and Systems of Working Underground Mines Regulation 1984 reinforces the all encompassing obligations of the Mine Manager particularly in relation to safety matters. 907 In summary, in their positions of General Mine Manager and Statutory Mine Manager at Gretley for successive periods covering the planning, research and assessment charges, Mr Romcke and Mr Porteous had a practical connection between them and the acts or omissions making up the offences involving the corporations. 908 In relation to Mr Romcke and my conclusion that his role in the contraventions is limited to the time in which he occupied the position of General Mine Manager and Statutory Mine Manager at Gretley. It could not be said that he had any practical connection or involvement in the corporations contravention as particularised in particular (e) of the planning, reasearch and assessment charges. Mr Romcke was not employed at Gretley in August 1995. 909 In relation to Mr Porteous, as the prosecution have rightly conceded, he could not be said to have any practical connection or involvement in the corporation's contraventions as particularised in particulars (c) and (d) of the planning, research and assessment charges. Mr Porteous did not become Mine Manager at Gretley until 28 October 1994. 910 In relation to those personal defendants employed as Under Managers or Under Managers in charge, I am not persuaded, on the evidence before me, they were persons concerned in the management of the corporations. They all held positions in the management hierarchy of the Gretley mine. As well, they all held statutory appointments pursuant to the provisions of the CMRA as Under Managers. 911 In relation to Under Managers and Under Managers in Charge, s41 of the CMRA relevantly provides: (1) An under-manager in charge, or an under-manager, of an underground mine may have jurisdiction in respect of the whole of the mine or the under-manager's jurisdiction may be limited to an underground part of the mine. (2) Each under-manager in charge, and each under-manager, of an underground mine shall enforce the observance, by all persons employed in: (a) where the whole of the mine is under the under-manager's jurisdiction—the mine, or (b) where the whole of the mine is not under the under-manager's jurisdiction—the part of the mine which is under the under-manager's jurisdiction, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder in working the mine or that part of the mine, as the case may be. 912 Mr Alston was appointed Under Manager in charge in September 1995. Mr Pritchard was appointed Night Shift Under Manager in December 1995. Mr Coffey was Under Manager on the Day Shift during the relevant period. Mr Nicholls was the Under Manager on the Afternoon Shift during the relevant period. Mr Shacklady occupied a position of Under Manager at Gretley, having been appointed in August 1996. He had previously been employed as a District Inspector with the DMR. 913 In submitting that all of the above-named persons appointed as Under Managers in charge or Under Managers on a shift basis at Gretley as being persons concerned in the management of the corporations, the prosecution relies by way of summary on the following activities in which all or some of the above-named participated: · The co-signing of the relevant Deputies reports at the conclusion of each shift. · Visiting and inspecting 50/51 panel in the course of their duties and, in relation to Mr Alston, accompanying Mr Van Dijk, the DMR Inspector, with Mr Porteous, the Mine Manager, on a routine inspection of 50/51 panel on 4 November 1996. · Identifying Mr Alston specifically as Production Manager at Gretley. · Attendance at or receipt of the minutes of the weekly planning meetings at Gretley. · Were Under Managers in Charge of shifts when Mr Bernard made a verbal report in relation to water in 50/51 panel and when Mr McLean lodged his Deputy report commenting on water in 50/51 panel. 914 The prosecution also points to certain statutory provisions within the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 as an indication of the high level and essential duties of an Under Manager in a mine. The prosecution specifically highlights the following provisions: (a) Any official of a mine to whom is reported any matter concerning the safety of the mine or the persons employed therein shall forthwith to the extent of the official's jurisdiction, take such action as may be necessary in the interest of the safety of the mine and the persons employed therein. And to the extent that the matter is not within the official's jurisdiction, make a report of the matter (including details of any action the official has taken) to a senior official (cl 9). (b) Every under-manager at a mine shall, to the extent of the under-manager's jurisdiction, personally or by delegate give all necessary instructions to the deputies and workers in respect of their work (cl 36). (c) An undermanager of a mine shall to the extent of the undermanager's jurisdiction ensure that the provisions of clause 9 of the Coal Mines Regulation (Methods and Systems of working – Underground Mines) Regulation 1984 are observed (cl 37). In other words, each of the Undermanagers had a duty to drill ahead by constantly keep at a sufficient distance in advance of the workings, not less than 10 metres, at least one bore hole near the centre of the workings and sufficient flank bore holes on each side of the workings. (d) An undermanager at a mine shall from time to time examine every part of the mine to which the undermanager's jurisdiction extends and which is required to be ventilated. If upon any such examination, any danger is found in a place the undermanager shall suspend ordinary working of that place until such time as the danger is removed (cl 58(1)(b)). 915 While that may be so, it could equally be argued, adopting that approach, Mine Deputies are persons concerned in the management of the corporations. The statutory responsibilities of a Mine Deputy under Part 6 of the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 are no less essential and of a sufficiently high level within the overall context and hierarchy of mine management. 916 The provisions of the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation that the prosecution has identified do place requirements relevant to mine safety on an Under Manager circumscribed by the words 'to the extent of the under-managers jurisdiction' (described as the officials jurisdiction in clause 9). The Under Managers Mr Coffey, Mr Pritchard, Mr Shacklady and Mr Nicholls were all shift Under Managers. Mr Alston was appointed Under Manager in charge in September 1995 and one of the management structures to which I was referred identifies him as Production Manager. Part 5 of the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation does not distinguish specifically as between an Under Manager and an Under Manager in charge except to make reference in a number of clauses to Under Manager in charge at a mine as distinct from 'of a mine' and again circumscribed always by the words 'to the extent of the under managers in charge jurisdiction'. 917 I have no evidence before me except the standard provisions of the CMRA and Regulations to know with any certainty what was the extent of the jurisdiction of the respective undermanagers at Gretley - in charge or otherwise. I do know that no specific role or responsibility in relation to Gretley was delegated to any of the Under Managers by the Mine Manager as provided for in Part 3, Division 4 of the CMRA. 918 As I have earlier stated, there is no doubt that the CMRA and relevant Regulations impose specific responsibilities upon Under Managers relevant to the safe management of a mine. But that does not, in my view, elevate people in those positions to persons being concerned in the management of the corporation(s) that own and operate the mine. That is particularly the case in relation to Gretley where the evidence that there is points to NWCC having a management structure and role beyond Gretley to other operating mines. Further, as I have determined, OPL and NWCC were, as corporate identities, inextricably integrated in the day to day running of Gretley. Accordingly, I must be satisfied beyond reasonable doubt that the Under Managers at Gretley were concerned in the management of both corporations. On the evidence before me, I cannot be so satisfied. This is so particularly given the conclusion that I have come to earlier in this judgment that OPL was very much the major controlling entity of the two corporations that, between them, were involved in managing the mining activities at Gretley. 919 As Under Managers, none of the personal defendants attended any of the General Mine Manager's Meetings conducted under the Cyprus/OPL structure. There is no evidence they participated in any of the strategic or decision making forums of the two corporations, including the OPL corporate safety meetings. 920 It is not possible to know with certainty, with the possible exception of Mr Coffey, which of the Under Managers attended the Weekly Planning Schedule meetings at the Gretley mine as distinct from those to whom a copy of the Minutes were distributed. The ultimate decision making power of those Minutes is unclear except that, as s37 of the CMRA makes clear, the Mine Manager has full charge and control of all persons and all operations at the mine - which means, on one view, ultimate decision making authority. It is not clear what advice, if any, any of the Under Managers may or may not have given in relation to any decision making on behalf of the corporations relevant to the contraventions of the corporation. 921 The matters discussed at those meetings were described by Mr Pala as follows: A. General operational matters, including things like safety performance, review of safety incidents that may have occurred, follow-up actions that may have been required, implementation of particular safety initiatives, review of production performance for the previous week, what the expectations were for the following week, review of maintenance, maintenance planning, major projects, a review of things like corporate plant performance, any quality issues out of the corporate plant, what the expectations were for the coming week, review of any general surface issues, subsidence issues, refuge disposal-type issues, environmental issues that may have occurred, review of any cost data, particularly if it was the end of month. Those types of issues, generally, that, you know, you might expect that sort of process. 922 In further elaboration in cross examination, Mr Pala identified that the meetings of senior or site management people also discussed: (a) Audits that were planned. (b) Risk assessments that were planned to be undertaken during the week or at least risks were evaluated in an informal sense. (c) The production plan where various units were located. (d) Safe planning for likely problems in the coming week. 923 As I understand the evidence before me, the weekly planning schedule meetings involved a cross section of management personnel at Gretley, many of who are not before me as personal defendants alleged as being persons concerned in the management of the corporations. Reference to the Minutes arising following the Weekly Planning Schedule meetings discloses, on a page by page basis, a combination of small sections of the overall Gretley mine plan relevant to where work was being undertaken on the particular week in question accompanied by a boxed list at the bottom of each page listing the work to be done with specific provision for an indication to be made between N/S (night shift), D/S (Day Shift) and A/S (afternoon shift). At the bottom of some of the pages there is a Distribution List with names entered. What is not clear is whether the names entered on the Distribution List corresponds exactly with those persons who attended the Weekly Planning Schedule meetings. Ms Murray indicated that apart from the Manager and the day shift Under Managers, a number of Engineers also attended the Weekly Planning Schedule meetings. 924 The person who compiled the Minutes for the Weekly Planning meetings during the relevant period was Ms Frances Murray who was employed as a Clerk at the Gretley Colliery. Ms Murray did not attend the meetings. As she said in her statement in evidence before me: [8] The planning meeting usually takes place in the boardroom at the far eastern end of the main office building on a Tuesday morning at about 8.00 am till about 11.00 am. The people who usually attend these meetings are: the Manager, Engineers, Production Manager, Dayshift Undermanager and the Mine Surveyor. I do not attend these meetings. [9] At the completion of the meeting I am given the minutes of the meeting and these minutes form the current weeks planning schedule. These minutes are in the form of the previous weekly planning schedule which has been altered to include new notations in respect of the work to be carried out in the particular areas of the mine. [10] There is no regular person who hands me the minutes to be typed however I believe that on the majority of occasions the minutes were given to me by Mr Mike Coffey. 925 For ease of understanding as to the nature of the Minutes ultimately produced, a copy of the page from the Minutes relevant to 50/51 panel for the weeks 24 September 1996 to 1 October 1996 and 1 October 1996 to 8 October 1996 are included in this judgment as Annexure G. 926 As explained by Ms Murray in cross examination, the depiction of the section of the mine plan on each of the pages was done as a 'cut and paste job' from copies of mine and/or section plans made available to her. 927 A perusal of the Weekly Planning Schedule Minutes is not, in my view, evidence that points to those persons who attended those meetings as being persons concerned in the management of the corporations OPL and NWCC. What those Minutes tell me, once the format is explained, is that on a week ahead basis, meetings were held to schedule work to be undertaken at various areas of the Gretley mine. 928 On the evidence of Mr Pala, when he was Mine Manager at Gretley, 'things like safety performance, review of safety incidents that may have occurred' were discussed at these weekly planning meetings. It is fair to assume, I believe, that such discussion as there was and to the extent that there was, may well have continued when Mr Romcke and Mr Porteous were Mine Managers at Gretley. But that does not allow the prosecution to assert that such discussions, without more, were of such a dimension and decision making impact such that those persons participating in those discussions are being concerned in the management of the relevant corporations. It certainly demonstrates an ongoing participation by those persons in the day to day running of the Gretley mine. 929 Likewise, the co-signing of the Deputy Reports on a shift by shift basis or inspecting a particular section of the mine during a shift is not evidence of anything other than the Under Manager concerned undertaking his responsibilities in relation to the day to day operations of the Gretley mine. 930 The prosecution also rely on a management structure outline in the Budget Presentation for Gretley prepared in September 1996 indicating where the personal defendants stood in the hierarchy of the mine as in some way indicating where those natural person defendants stood in the hierarchy of the corporations. Such an approach suggests that the prosecution view the hierarchy of the Gretley mine management as akin to the management hierarchy of the corporations. That approach, in my view, is unsustainable. 931 In the first instance, a structural outline purporting to show the management structure at Gretley is something of a moveable feast, it seems to me. For example, in the very same document relied upon by the prosecution as establishing the corporate structure for Gretley (exhibit P57 p44) there is, on the page immediately preceding it, another purported management structure for Gretley where there is no position for Production Manager but there is position for Human Resources Manager responsible for a Safety/Training Officer (exhibit P57 p43). As well, in exhibit P60 at p79, there is yet another variation titled Organisational Structure - Gretley that is different again. The one position that is consistent in all three is that of General Mine Manager. A copy of all three structures are incorporated as Annexure F of this judgment. 932 The purpose of highlighting the diversity of the above schematic outlines of diverse management structures at Gretley is that, without a fleshing out of what they mean as to the nature and extent of the person's management and decision making responsibilities by substantive factual evidence, it is not possible to rely on them as definitive evidence of any person's precise role in the management of the Gretley Colliery (except that of Mine Manager) let alone that of the management of the corporations. To the extent that the prosecution points to Pasta Masta in support of any conclusive decision as to what is meant by being concerned in the management of the corporation, I do not accept it as conclusive evidence of that issue at all. The ultimate decision in that matter was left to a jury. As well, a reading of Judge Holt's interlocutory ruling would suggest that in that matter, on all of the evidence, it demonstrated that Mr Conway 'controlled or managed the factory'. That is simply not the case in the matters before me as far as the Under Managers and Under Managers in charge are concerned in relation to NWCC and OPL. 933 Apart from reference to their statutory functions under the CMRA to which I have already referred, there is no job description or other documentation before the Court that sets out the precise scope of the role of those personal defendants employed as Under Managers or Under Managers in charge. As well, I am mindful that NWCC as a corporate entity did not, on the evidence before me, consist just of the Gretley mine. Outside of the OPL Board Minutes, there is no evidence before me that allows me to be satisfied beyond reasonable doubt that there was not a management structure between the Gretley mine management structure and OPL relevant to NWCC. That there were such personnel and a structure is highly probable given that I heard evidence from Mr Price that he was the Chief Surveyor for NWCC. It is most unlikely, in my view, that Mr Price existed in a management vacuum divorced from decision making relevant to the management of NWCC as a corporation - or that he was the sole management position at that level relevant to NWCC and the mines that it owned and operated, including Gretley. As well, there is evidence that Mr R. N. Gow was identified as the General Manager of NWCC. His signature appears on NWCC letterhead of 10 June 1993 and 26 October 1994 notifying the DMR of the respective appointments of Mr Romcke and Mr Porteous as Manager, Gretley Colliery. I have no evidence as to Mr Gow's role in his position as General Manager of NWCC, his decision making role in relation to NWCC in conjunction with or separate from OPL and his relationship with the Mine Manager at Gretley, let alone the Under Managers, as far as the management of NWCC and OPL at the relevant time. The evidence simply does not allow me to come to a concluded view about such matters and they are relevant, in my view, in being able to be satisfied beyond reasonable doubt as to the role of the Under Managers at Gretley being persons concerned in the management of the corporations. 934 In all the circumstances, I cannot be satisfied beyond reasonable doubt that those personal defendants employed as Under Managers and Under Managers in charge at Gretley were persons concerned in the management of the corporations NWCC and OPL such that they had a decision making role in the act or omission constituting the corporations contraventions particularly the primary failure of the corporations, that being the failure of the corporate defendants to properly research the location and extent of the Young Wallsend Colliery old workings. As well, there is no evidence that would satisfy me that the Under Managers were aware of the presumed old workings of the Young Wallsend Colliery in the Borehole Seam as depicted in RT 523 Sheet 2. Further, I cannot be satisfied on the evidence, what specific individual decision making role each of the personal defendant Under Managers had relevant to the management of the respective corporations such that I could be satisfied beyond reasonable doubt that, each of them, as Under Managers in charge or otherwise had a decision making role that went beyond their statutory responsibilities under the CMRA with respect to the Gretley mine and extended to being concerned in the management of NWCC and OPL relevant to the overall contraventions of the corporations. 935 For all of the above reasons, the charges in relation to Mr Michael Coffey, Mr Phillip Pritchard, Mr Christopher Nicholls and Mr Terence Shacklady are dismissed. 936 In relation to the Mine Surveyor Mr Robinson, I am satisfied that he was, at the relevant period, a person concerned in the management of the corporations. As Mine Surveyor for the period that he was, he had control of the surveying and survey drafting staff for the mine, subject to the instructions of the Mine Manager. As Mine Surveyor, he and his staff prepared mine and mine sections plans as requested and required for diverse activities within the mine and in the preparation for and planning of mining activities at Gretley. For example, when NWCC made its initial s138(1) application to the DMR, an approved copy of the relevant mine plan accompanied the application. In relation to Gretley and 50/51 panel in particular, the mine plan that accompanied the s138(1) application was signed off as approved by Mr Romcke as Mine Manager and Mr Murray as the then Mine Surveyor. In doing so, that mine plan depicted the Young Wallsend old workings as depicted on RT 523 Sheet 3, being presumed workings in the Young Wallsend Seam. As I have already explained, because of the computerised mapping programme utilised at Gretley, those presumed old workings in the Young Wallsend Seam were always depicted in the same survey context. 937 Clause 8 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 sets out the duties of a Mine Surveyor. They have been set out in full earlier in this judgment. For the sake of expediency, the following relevant subclauses are set out at this point. The Mine Surveyor shall: (c) draw the attention of the employees at the mine or mining officials to any neglect or deviation from the centres, or marks, or instructions given, and shall report to the manager of the mine any deviation considered by the mine surveyor to be excessive or outside the deviation limits set out by the manager; .... ... (f) prepare, or supervise the preparation of, all plans, drawings and sections required to be prepared or kept by this Regulation or the Surveying and Drafting Instructions and shall certify the accuracy of all such plans, drawings and sections in writing thereon; (g) where the mine surveyor has any doubt as to the accuracy of any plans, drawings or sections of the mine not prepared by the mine surveyor, or under the supervision of the mine surveyor, which may have an effect upon the working and operation of the mine or the safety of persons at the mine, draw such doubt to the attention of the manager of the mine; 938 There is no doubt that during the period of his tenure as Mine Surveyor relevant to the charge period, Mr Robinson oversaw the staff in the survey office at Gretley. In doing so, he prepared a number of mine plans and section plans relevant to Gretley and 50/51 panel in particular. In particular, prior to the inrush and during the relevant period as Mine Surveyor, he certified as to the accuracy of mine plans produced in relation to the Gretley Colliery that included 50/51 panel and the presumed, but incorrect, depiction of the Young Wallsend Colliery old workings in the Young Wallsend Seam (see exhibits P113 and P115). In producing the mine plans that he did, it can safely be assumed, in my view, that he relied upon the ISG survey coordinates of the presumed old workings of the Young Wallsend Colliery that had been earlier entered into the computerised mapping programmes at Gretley by either Mr Tilden or Mr Murray, Mr Robinson's successors as Mine Surveyor. In so entering those coordinates, reliance was placed on the mine plans issued by the DMR, RT 523 Sheets 2 and 3. As is well established, those mine plans were wrong. 939 Mr Robinson never participated in the General Mine Manager's meetings with Mr Romcke and Mr Porteous. But he did prepare mine plans as part of discussions at such meetings. For example, included in the documentation arising from the General Mine Manager's meeting of 10 and 11 May 1996, there are two mine plans relevant to the Gretley Colliery that had been drawn by Mr Robinson. Both are under the OPL banner and both are dated 27 April 1996. One is titled Gretley Colliery: Mine Workings End April 1996. The other is titled Gretley Colliery: Proposed Workings 1996-1997. Both of those mine plans incorporated the presumed old workings of the Young Wallsend Colliery as depicted in RT 523 Sheet 3. It is reasonable to assume, as the titles of the respective plans suggest, those plans were prepared by Mr Robinson in order to assist Mr Porteous, the then Mine Manager to present his report in relation to Gretley to the General Mine Manager's forum. As earlier stated, that forum had a major role to play in determining future policy, planning and strategic directions for the mines within their corporate structure as well as in safety issues. 940 The mine plans prepared by a Mine Surveyor are not mere drawings. They represent the end result of the drawing together of relevant scientific, technical and geological information that, taken together, are then added to by specific surveying skills and competencies in order to produce the finished mine plan. Those mine plans and reliance on their accuracy are utlilised in support of the decisions taken at the management level of the organisation to depict proposed future mining activity and to depict the extent of current workings and workings that have been abandoned. In relation to ensuring that mining activity in the vicinity of old workings was undertaken safely, the risk of inrush avoided and work proceeded in an environment that was safe and without risk, the survey accuracy of mine plans was absolutely critical in laying that foundation. On a mine section basis, mine plans are relied upon by mine Under Managers and Deputies to chart and guide them as to the proposed direction of mining activity and to the daily progress of production in order that mine management knows the actual metres of progress made in any planned mining activity. 941 Mine survey plans would also be relied upon by a wide variety of persons and/or organisations external to mine management but who would require to be informed and/or advised about proposed underground mining activity. The net result of all of that, in my view, is that the mine plans produced by a Mine Surveyor are relied upon by the relevant corporate and mine management and held out as accurately representing the proposed and current mining activities at a particular mine. They become in effect a decisive factor in decisions taken at corporate level as to the direction and extent of mining operations in a particular area and they are critical to the safe conduct of such operations. For example, if a Mine Surveyor was to advise the Mine Manager in the terms as provided in clause 8(g) of the Survey and Plan Regulations, I have no doubt that advice would have a significant impact on decision making at the corporate level in relation to planned mining activity affecting the corporation as a whole. Clause 8(g) provides: where the Mine Surveyor has any doubt as to the accuracy of any plans, drawings or sections of the mine not prepared by the Mine Surveyor, or under the supervision of the Mine Surveyor, which may have an effect upon the working and operation of the mine or the safety of persons at the mine, draw such doubt to the attention of the manager of the mine; 942 On one view, that responsibility alone may, given the particular facts and circumstances, render the decisions that a Mine Surveyor makes in carrying out his statutory function, the advice he gives to the Mine Manager in relation to the preparation and certification as to the accuracy of mine plans relating to future mining activity, and any caveats he may place on those plans, critical in determining whether to proceed with planned mining activity in a particular location, in a particular direction and in a particular seam. 943 In the matters before me, the primary failure of the corporate defendants pivots around the failure to properly research the location and extent of the Young Wallsend Colliery old workings. That task was critical, lives depended on ensuring it was done accurately and, where any doubt existed, erring on the side of abundant caution. Further, as clause 8(g) of the Survey and Plans Regulations makes abundantly clear, where any doubt exists, the Mine Surveyor 'shall draw such doubt to the attention of the Mine Manager'. 944 Mr Robinson was the Mine Surveyor at Gretley from September 1995 onwards. As detailed earlier in this judgment, his appointment was initially on an intermittent basis while Mr Murray was on leave. From September 1995 until October 1996, Mr Robinson was successively reappointed as Mine Surveyor at Gretley. When Mr Murray died in September 1996, Mr Robinson was appointed as Mine Surveyor on a permanent basis. He was employed at all times by OPL. 945 There can be no suggestion, nor was there, that during his period as Mine Surveyor from September 1995 to October 1996, Mr Robinson's duties and responsibilities were circumscribed in any way by dint of the acting nature of his appointment. For all practical purposes, Mr Robinson was the Mine Surveyor at Gretley from September 1995 onwards. The Gretley mine was part of the corporate structure of NWCC which, as I have earlier stated, had a corporate role in relation to other mines in the OPL group, most notably Ellalong/Pelton. Mr Price was the chief surveyor for NWCC. When he was asked, albeit briefly, as to his line reporting relationship with Mr Robinson, he said: Q. In terms of Mr Robinson, you indicated your understanding was he reported directly to the mine manager and incidentally to you. Could you just explain what you meant by reporting incidentally to you? A. I can't give a terribly short answer on that, I'm afraid. Additional - there was a pool of additional labour. If there are additional labour requirements, I would assist in that regard. Looking at budget issues for equipment and labour. Any lease... ... ... A. Yeah, predominantly labour, equipment issues, sometimes leasing properties, if they intermingle with the operation and my responsibilities. Q. What you just listed in the two answers, whose responsibilities were they? A. Sorry, what ... Q. Who you say did the things like pool of additional labour, looking at budget issues for equipment and labour, leasing properties, whose work are you referring to? A. My work in conjunction with each of the mines. Q. What I was wanting you to explain, is what you mean for Mr Robinson to incidentally be reporting to you? A. Basically on those issues, if he required any assistance in those areas. 946 There is no evidence as to how Mr Price's position related to the corporate relationship as between NWCC and OPL. 947 Notwithstanding the way in which mine plans were generated within the survey office at Gretley, it is clear that, realistically, no plans would be generated unless the relevant survey coordinates were entered into the programme in the first instance. In relation to the Young Wallsend Colliery, that was done before Mr Robinson arrived. But that fact cannot excuse Mr Robinson from making his own independent verification as to the accuracy of the information relied upon to computer generate relevant mine plans. His responsibilities under the Survey and Plan Regulatiion would require that. That responsibility would extend to verifying the information that formed the basis of the ISG survey coordinates entered into the Mindraft computer programme in relation to the Young Wallsend old workings. The evidence would suggest that, until late October or early November 1996, Mr Robinson did not undertake any independent verification of those coordinates relevant to the Young Wallsend old workings. If he did, then he would have done so by reference to RT 523 Sheets 2 and 3 given my finding that, at the time of the inrush, nobody on behalf of the corporate defendants had perused or obtained a copy of RT 523 Sheet 1. Assuming that he did peruse Sheets 2 and 3 between September 1995 and his phone call to the Mine Subsidence Board in late October/early November 1996, he clearly failed to perceive any of the anomalies and inconsistencies in Sheets 2 and 3 that should have alerted him to revisit and question the accuracy of Sheets 2 and 3 and pursue further information. The evidence has already been recounted in this judgment as to Mr Robinson's querying in early November 1996 of the copy of RT 523 Sheet 3 and that he 'wasn't happy with what was on there' and the background to his making such a remark to Mr Foley and his subsequent phone call to Mr Hartley at the Mine Subsidence Board. 948 Without revisiting that evidence in detail, it is apparent, in my view, that a concern as to RT 523 Sheet 3 relevant to reports of water in 50/51 panel at that time prompted Mr Robinson to ring the Mine Subsidence Board. Further copies of RT 523 Sheets 2 and 3 were sent. Any reliance on those without question would simply have reinforced his reliance on RT 523 Sheets 2 and 3 relevant to the location and extent of the Young Wallsend Colliery. 949 In taking all of the above factors into account, they point to Mr Robinson, as Mine Surveyor, as being a person concerned in the management of the corporations, particularly when those corporations are in the business of underground mining and accurate survey plans and advice are an integral component to ensure that the ultimate corporate decision making is done within the context of the corporations responsiblity to plan such mining activity free of risk to safety. 950 I am satisfied beyond reasonable doubt that, in carrying out his functions as Mine Surveyor, Mr Robinson was a person concerned in the management of the corporation such that he had a practical connection, by way of decision making and advice, between the corporate defendants and the primary failure of the corporate defendants to properly research the location and extent of the Young Wallsend Colliery old workings. 951 Accordingly, I am satisfied that those offences alleged with respect to Mr Robinson have been established. In saying that, it is clear, as the prosecution has conceded, that Mr Robinson had no role to play in relation to particularised failures (c), (d) and (e). Therefore, in finding IRC Matter No's 3230/00; 3231/00; 3232/00 and 3233/00 established, I do so with respect to particularised failures (a), (b), (f), (g), (h) and (i) only. Section 50 defences 952 Section 50(1) affords a defence to those persons deemed to have contravened the same provisions of ss15(1) and 16(1) of the Act as the corporations, if he or she can satisfy the Court that: (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 953 As a defence, the onus rests with the relevant person to establish the provisions of sub-sections (b) or (c) according to the civil standard. That would be what I would call the accepted and settled approach to the operation of s50(1)(b) and (c). 954 In relation to this issue, counsel for the personal defendants submitted, in relation to those defences available under s50(1)(b) and (c), before I was to consider matters pertinent to those defences, then the onus is on the prosecution to negative the defences available to the corporations under s53(a) and (b). In other words, it was submitted, the reverse onus resting with the prosecution pursuant to s53(a) and (b) is a condition precedent to the personal defendants being deemed to have contravened the Act. In making that submission counsel for the defendants relied on two authorities. The first is Cain v Doyle (1946) 72 CLR 409 and the second R v Brian John Buckett (1995) 79 A Crim R 302. 955 In Cain v Doyle, the defendant was the manager of a munitions factory conducted by the Commonwealth Government. He was charged before a magistrate that he, without reasonable cause, terminated the employment of a person contrary to the provisions of s18 of the Re-establishment and Employment Act 1945 and section 5 of the Crimes Act 1914-1941. The person who had been terminated was a former employee at the factory and, upon his return from war service, had been reinstated in accordance with the Re-establishment and Employment Act. By a notice issued in accordance with instructions from the then Department of Munitions and signed by an Industrial Officer on behalf of the defendant, and with his authority, the persons employment was terminated, the reasons stated being the cessation of hostilities and the consequent reduction of the need of the factory products. At the conclusion of the proceedings at first instance, the magistrate dismissed the information on the grounds that, since the Commonwealth could not be convicted of the principal offence under s18, no offence of aiding and abetting under the Crimes Act s5 could be proved to have been committed by the defendant. The prosecution appealed. In the High Court, the appeal was dismissed by majority (Latham CJ, Rich and Dixon JJ) Starke and Williams JJ dissenting. The majority held that s18(1) of the Re-establishment and Employment Act 1945 did not create an offence of which the Commonwealth may be guilty. Accordingly, it was held the defendant could not be convicted of aiding and abetting the Commonwealth on the commission of the offence with which he had been charged. As well, Rich, Starke and Dixon JJ held that the evidence did not show that the defendant had procured the termination of the person's employment or was knowingly concerned therein or party to it. 956 In his judgment, Dixon J addressed what was referred to as the third question raised by the defendant's counsel in relation to the appeal. Ultimately, it was not a question that the Court, by majority, determined. But it is in relation to this third question that counsel for the defendants before me rely upon in support of the contention they have put concerning the condition precedent placed on the prosecution to the deeming provisions of s50 of the OHSA in relation to the personal defendants. At p427, Dixon J stated: The third question raised by the defendant's counsel is whether s18(2) operates to place the burden of proving reasonable cause upon the defendant when he is not the employer and is prosecuted as an accessory under s5 of the Crimes Act . In terms s18(2) applies only to a proceeding for a contravention of sub-s(1). But s5 of the Crimes Act provides that the person who aids, abets, counsels, or procures or is knowingly concerned in or party to the commission of a Federal offence shall be deemed to have committed that offence and shall be punishable accordingly. It is a question of construction whether a consequence of deeming the person bringing himself within s5 to have committed the principal offence is that upon the hearing of a charge against him he should be subject to the same burdens of proof as apply to the principal offender upon a prosecution for the principal offence. It is to be noticed that the language of s5 is not the same as that of the English Accessories and Abettors Act 1861, s1. It appears to me that, until all the elements described by s5 are established, the person charged is not brought within its scope, and, therefore, is not, until the proof is complete, deemed to have committed the principal offence. But to complete the proof it is necessary to show that there was no reasonable cause and perhaps that the defendant knew there was none. On the whole, I do not think that sub-s(2) of s18 can be invoked upon a prosecution under s5 of the Crimes Act . 957 I have to say I cannot construe within that passage nor indeed within the whole of the judgment in Cain v Doyle the proposition to which the counsel for the defendant contends. Ultimately, as Dixon J stated, it is a matter of construction having regard to the provisions of the relevant legislation. Reading of the facts in Cain v Doyle, it seems that the basis on which Mr Doyle was charged was a combination of the provisions of s18 of the Re-establishment and Employment Act 1945 and the 'aiding and abetting' provisions of s5 of the then Crimes Act 1914-1941. Section 18(2) of the Re-establishment and Employment Act 1945 provided that in proceedings for a contravention of the section, the onus of proof of reasonable cause shall be upon the employer. As Latham CJ stated at 417, the prosecution of the defendant, however, was not a prosecution of an employer, and accordingly sub-section (2) of s18 of the Re-establishment and Employment Act 1945 had no relevance. It was that point that, as I read the judgment, Dixon J was alluding to when he said in the penultimate sentence of the above-quoted passage that sub-section (2) of s18 cannot be invoked upon a prosecution under s5 of the Crimes Act. 958 In the matter before me, the personal defendants are not coming before the Courts as aiders and abettors to a principal offender upon a prosecution for a principal offence. The personal defendants are coming before the Court because s50 deems them be a party to the offence because of his or her complicity in it. See Hookham v The Queen (1994) 181 CLR 450 at 459. 959 Counsel for the defendants also relied upon the decision of R v Buckett in support of his contentions on this point. In that matter, Mr Buckett was convicted initially on three counts of being knowingly concerned in the commission by Mr Saxon of the offence of disposing of approximately four million dollars that may reasonably have been suspected of being the proceeds of crime. On appeal Mr Buckett argued a number of points including the validity of the charges as to the interpretation of the statutory provisions upon which the prosecution relied. The offences at first instance had arisen under s82 of the Proceeds of Crime Act 1987 (Cth) in accordance with s5 of the Crimes Act 1914 (Cth). On the inter-relationship as between the principal act upon which the offence arises and s5 of the Crimes Act, Hunt CJ said at p308: Where the Crown relies upon s5 of the Crimes Act to make an accessory responsible for the commission by the principal offender of the offence against a law of the Commonwealth (the principal offence) it must establish by evidence admissible against that accessory that the principal offence was in fact committed by the principal offender. Proof of that fact is fundamental: see Lun and Welsh (1932) 32 SR (NSW) 363 at 364; Walsh v Sainsbury (1925) 36 CLR 464 at 477; Goldie; Ex parte Picklum (1937) 59 CLR 254 at 263, 268; Mallan v Lee (at 205); Giorgianni (at 491, 500; 176, 183); Stokes and Difford (1990) 51 A Crim R 25 at 37. If the principal offender is provided with a defence, and if he would have succeeded in establishing that defence had he been charged, the offence has not been committed . The fact that such offender would have carried the onus of proof in relation to that defence cannot alter that fact. In prosecuting the accessory, the Crown must therefore establish not only the essential ingredients of the offence committed by the principal offender but also that any defence so provided to him would not have been successful. This was indeed the proposition for which the Crown ultimately contended in this appeal: Transcript, 24-25. Reliance was also placed upon Hookham (1994) 181 CLR 450 at 459, 463; 75 A Crim R 588 at 592, 595. (emphasis added) In those cases where the defence so provided to the principal offender requires him to prove a positive fact, the Crown would have to establish that such a defence would not have been successful only where there is some suggestion in the evidence of the existence of that fact. However, where the defence so provided requires the principal offender to prove a negative fact, it would seem that the Crown would have to establish in every case that such a defence would not have been successful. That, of course, is the nature of the defence provided to the principal offender by s82 of the Proceeds of Crime Act , that he had no reasonable grounds for the stated suspicion. Such an obligation upon the Crown in relation to s82 could hardly be regarded as onerous. All that would need to be established is, in effect, that the principal offender did have a reasonable ground for suspecting that the property was derived or realised, directly or indirectly, from some form (any form) of unlawful activity. 960 Again, the submissions by counsel for the defendants are misconceived in any application they have to the matter before me. Critical to that comment is the above-mentioned passage and in particular, that which is emphasised. In other words, a reading of Buckett on the facts would strongly point to the fact that the principal offender, Mr Saxon, had never been charged. Again, it should be emphasised, the offences arising under s50 of the Act do not arise by way of accessorial liability but by way of direct complicity in the offences arising against the corporations. 961 Even if the propositions contended for by counsel were correct, the 'condition precedent' relevant to s53(a) and (b) would not arise in the matters before me. As the decisions in Cain v Doyle and Buckett make clear, such a 'condition precedent' as characterised would only arise if it had not been established that in relation to the principal offence 'proof is complete' (Cain v Doyle) or 'that the principal offence was in fact committed by the principal offender' (Buckett). As is apparent, that fundamental condition precedent was not established in either of those cases. In any event, that is not the situation before me. The offences against the corporations have been established and the s50 deeming provisions renders the relevant personal defendants a party to the offences. 962 Accordingly, I do not accept the submissions on behalf of the defendants in relation to the point raised that, as a condition precedent in dealing with s50 in respect of the personal defendants, the onus is on the prosecution to negative the defences available to the corporate defendants under s53(a) and (b) of the Act. 963 Having regard to the provisions of s50(1)(b) and (c) it is for Mr Romcke, Mr Porteous and Mr Robinson to discharge the onus that those sub-sections require. In relation to Mr Porteous and Mr Romcke, there is no evidence before me on which I could be satisfied that they have established, to the requisite standard relevant to their respective roles as General Mine Manager and Statutory Mine Manager at Gretley during the periods covered by the charges, they were not in a position to influence the conduct of the corporations in relation to the contraventions of the corporate defendants under ss15(1) and 16(1) of the Act nor, in the alternative, being in such a position, they used all due diligence to prevent a contravention of the Act by the corporations. More particularly, Mr Romcke and Mr Porteous were directly involved in co-signing relevant copies of the approved plan of the Gretley Colliery with the then Mine Surveyor Mr Murray that supported the applications made to the DMR in 1994 and 1995. Those approved plans depicted the presumed old workings of the Young Wallsend Colliery in the Young Wallsend Seam as depicted in RT 523 Sheet 3. That depiction was wrong. In that respect it could be said that Mr Romcke and Mr Porteous both failed to discharge their statutory responsibilities under s37 of the CMRA and Part 3 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984. As well, I am satisfied that the advice and decision making authority of Mr Romcke and Mr Porteous would have been a decisive factor in decisions taken at the corporate level as to proposed mining activities at Gretley. The only proviso I add to that is that in relation to the planning, research and assessment charges and those particularised failures (c) and (d), Mr Porteous could not have been in the position to influence the conduct of the corporations in relation to those particularised failures as he was not, during that period, the Mine Manager at Gretley. Those particularised failures go directly to the actions of Mr Romcke as Mine Manager at Gretley during the relevant period of the charge. 964 In relation to Mr Robinson, there is no evidence before me that would satisfy me that he has discharged the civil onus that s50(1)(b) and (c) place upon him. I am satisfied that in his position as Mine Surveyor for the Gretley mine, he was in a position to influence the conduct of the corporations in relation to the contraventions of the corporations of ss15(1) and 16(1) of the Act, specifically in relation to the primary failure as to researching the location and extent of the Young Wallsend Colliery old workings. Further, there is no evidence upon which I could be satisfied that, in his position as Mine Surveyor, that Mr Robinson between September 1995 and 13 November 1996 used all due diligence to research the correct location and extent of the Young Wallsend Colliery old workings and so prevent the contraventions by the corporations of ss15(1) and 16(1) of the Act. 965 On behalf of Mr Robinson, it was submitted that he has a further defence to rely upon. That is, the provisions of clause 9 of the Survey and Plan Regulation which reads: Notwithstanding any provision of this Regulation, a mine surveyor shall not be liable for the accuracy of surveys carried out or certified by a former surveyor for the mine or surveys certified as correct by another surveyor. 966 I have already dealt with the provisions of this clause to the extent that it was raised by counsel on behalf of all the defendants as a threshold defence to all of the matters before the Court. I do not propose to repeat my remarks and conclusions at this point and to the extent they are relevant to Mr Robinson alone, I repeat them. 967 At the outset, it is clear that Mr Robinson cannot be held accountable for or involved in particularised failures (c), (d) and (e) in the planning, research and assessment charges. He was not employed at Gretley at the time. 968 Once Mr Robinson was appointed Mine Surveyor in September 1995 he took upon himself the responsibility of Mine Surveyor. That included certifying as to the accuracy of mine plans produced by him or under his direction in the survey office at Gretley. This he did on a number of occasions prior to the inrush. For example, his signature appears as certifying the accuracy of mine plans for Gretley in exhibits 113 and 115 and on the mine plan submitted to the DMR that became the Record Tracing for Gretley covering three month periods from 1 October 1995 to 30 December 1996. In so certifying as to the accuracy of those mine plans, Mr Robinson became liable for their accuracy. 969 Each of the mine plans or mine section plans certified by Mr Robinson prior to the inrush as well as the many mine section plans produced during that period relevant particularly to 50/51 panel all incorporated the Young Wallsend Colliery old workings as depicted in RT 523 Sheet 3, which was wrong. 970 It does seem clear that the ISG coordinates for the Young Wallsend Colliery based on RT 523 Sheets 2 and 3 were initially entered into the computer based mapping programme at Gretley by one of Mr Robinson's predecessors as Mine Surveyor, Mr Tilden or Mr Murray. That fact does not excuse Mr Robinson. Once he became Mine Surveyor at Gretley and took it upon himself to certify the accuracy of mine plans relevant to the Gretley Colliery and 50/51 panel in particular, he took upon himself the liability that certification as to accuracy invites. 971 The mine plans that Mr Robinson certified as accurate were wrong in a significant respect - the identification of the location and extent of the Young Wallsend Colliery old workings. The provisions of Clause 9 of the Survey and Plan Regulation afford him no personal defence to the contraventions that have been found against him. Summation 972 For the reasons outlined, I am satisfied beyond reasonable doubt that the corporate defendants have failed to ensure the health, safety and welfare of their employees (or non-employees, as the case may be) contrary to ss15(1) and 16(1) of the OHSA 1983 with respect to the offences and particularised failures detailed as follows: Type 3: planning, research and assessment charges 973 IRC Matter No's 3200/00 and 3203/00 with respect to NWCC: offences charged pursuant to ss15(1) and 16(1) of the Act. I find the offences proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i) of the charges as pleaded. 974 IRC Matter No's 3206/00 and 3209/00 with respect to OPL: offences charged pursuant to ss15(1) and 16(1) of the Act. I find the offences proved with respect to failures (a), (b), (c), (d), (e), (g), (h) and (i) of the charges as pleaded. Type 2: system of work charges 975 IRC Matter No's 3199/00 and 3202/00 with respect to NWCC: offences charged pursuant to ss15(1) and 16(1) of the Act. I find the offences proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k) of the charges as pleaded. 976 IRC Matter No's 3205/00 and 3208/00 with respect to OPL: offences charged pursuant to ss15(1) and 16(1) of the Act. I find the offences proved with respect to failures (a), (b), (c), (d), (e), (f), (i), (j) and (k) of the charges as pleaded. Type 1: night shift charges 977 IRC Matter No's 3198/00 and 3201/00 with respect to NWCC: offences charged pursuant to ss15(1) and 16(1) of the Act. I find the offences proved with respect to failures (a), (b), (c), (d) and (e) of the charges as pleaded. 978 IRC Matter No's 3204/00 and 3207/00 with respect to OPL: offences charged pursuant to ss15(1) and 16(1) of the Act. I find the offences proved with respect to failures (a), (b), (c), (d) and (e) of the charges as pleaded. Natural person defendants 979 For the reasons I have given, I am satisfied beyond reasonable doubt that the following personal defendants were persons concerned in the management of the respective corporations and, pursuant to the provisions of s50(1) of the Act, they are deemed to have committed the same offences as the corporations, having failed to satisfy the onus placed upon them as provided in s50(1)(a) and (b) of the Act. (i) Richard Myles Porteous with respect to IRC Matter No's 3210/00, 3211/00, 3213/00, 3214/00, 3216/00, 3217/00, 3219/00 and 3220/00: I find the offences proved with respect to the further particulars and failures as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. With respect to IRC Matter No's 3212/00, 3215/00, 3218/00 and 3221/00, I find the offences proved with respect to the further particulars as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded, I find failures (a), (b), (e), (g), (h) and (i) established as against Mr Porteous. That finding accords with Mr Porteous' period of employment as General and Statutory Mine Manager at Gretley. (ii) Jonathan Erik Humphries Romcke with respect to IRC Matter No's 3234/00, 3235/00, 3236/00 and 3237/00: I find the offences proved with respect to the further particulars as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded I find failures (a), (b), (c), (d), (g), (h) and (i) established as against Mr Romcke. That finding accords with Mr Romcke's period of employment as General and Statutory Mine Manager at Gretley. (iii) Mark Robinson with respect to IRC Matter No's 3230/00, 3231/00, 3232/00 and 3233/00. I find the offences proved with respect to the further particulars as determined in the corresponding corporate charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded, I find the failures (a), (b), (f), (g), (h) and (i) established as against Mr Robinson. That finding accords with Mr Robinson's period of employment as Mine Surveyor at Gretley. 980 In relation to the personal defendants: · Phillip John Pritchard · Michael Francis Alston · Michael John Coffey · Christopher Wayne Nicholls · Terence Shacklady 981 I have determined, pursuant to s50(1) of the Act, they were not persons relevantly concerned in the management of the corporations. Accordingly, the following summonses with respect to each of them are dismissed: (i) Phillip John Pritchard: IRC Matter No's 3222/00, 3223/00, 3224/00 and 3225/00. (ii) Michael Francis Alston: IRC Matter No's 3226/00, 3227/00, 3228/00 and 3229/00. (iii) Michael John Coffey: IRC Matter No's 3238/00, 3239/00, 3240/00 and 3241/00. (iv) Christopher Wayne Nicholls: IRC Matter No's 3242/00, 3243/00, 3244/00 and 3245/00. (v) Terence Shacklady: IRC Matter No's 3246/00, 3247/00, 3248/00 and 3249/00. 982 I will hear submissions as to penalty and costs on a date to be fixed. _______________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.