McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255

McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255

The prosecution did not prove beyond reasonable doubt that the defendant failed to comply with its health and safety duty by omission of reasonably practicable steps as particularised or that any failure exposed the blast crew to a risk of death or serious injury. The shotfirers knowingly breached clear procedures, did not rely on Appendix L, and the defendant had in place effective systems, training, and supervision. No common practice of firing shots from within the PEZ was proven, and none of the pleaded steps would have altered the risk on the facts. The defendant is found not guilty.

Parties
Prosecutor: McColm (NSW Department of Planning and Environment); Defendant: Moolarben Coal Operations Pty Ltd
Jurisdiction
Australia
Judgment Date
13 July 2023
Procedural Posture
Criminal / Principal Judgment
Outcome
Defendant found not guilty; charge dismissed.
Legal Topics
Duty of Persons Undertaking Business, Duty of Employers, Risk of Death or Serious Injury, Safe Systems of Work, Training and Supervision
Criminal Law Work Health and Safety Duty of Persons Undertaking Business Duty of Employers Risk of Death or Serious Injury Safe Systems of Work Training and Supervision

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Parties

McColm (NSW Department of Planning and Environment)

Prosecutor

Moolarben Coal Operations Pty Ltd

Defendant

Procedural Posture

Criminal / Principal Judgment

Legal Issues

  1. 1 Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in the Summons?
  2. 2 Did the defendant's breach of duty expose the Blast Crew to a risk of death or serious injury?

Ratio Decidendi

The prosecution did not prove beyond reasonable doubt that the defendant failed to comply with its health and safety duty by omission of reasonably practicable steps as particularised or that any failure exposed the blast crew to a risk of death or serious injury. The shotfirers knowingly breached clear procedures, did not rely on Appendix L, and the defendant had in place effective systems, training, and supervision. No common practice of firing shots from within the PEZ was proven, and none of the pleaded steps would have altered the risk on the facts. The defendant is found not guilty.

Court Disposition

Defendant found not guilty; charge dismissed.

Orders

  • Second Amended Summons dismissed.
  • Prosecutor to pay defendant's costs as agreed or assessed pursuant to s257G Criminal Procedure Act 1986.