MAGISTRATES COURT OF QUEENSLAND

CITATION: Harrison v Kilby & Anor [2018] QMC 6

PARTIES: PAUL KEVIN HARRISON

(Complainant)

v

JACOB JOHN ROBERT KILBY

(Defendant)

and

SAXON ENERGY SERVICES AUSTRALIA PTY LTD

ACN 137 534 993

(Co-Defendant)

FILE NO/S: MAG-00146814/14(0)

MAG-00146844/14(6)

DIVISION: Industrial Magistrates Court

PROCEEDING: Complaint and Summons

ORIGINATING

COURT:

Taroom Industrial Magistrates Court

DELIVERED ON: 18 April 2018 (on the papers)

DELIVERED AT: Brisbane

HEARING DATE: 11, 12, 16, 17, 20, 23 October 2017 and 8 December 2017

MAGISTRATE: Magistrate Hay

ORDER: 1. I find the defendants guilty.

2. The matters are to be relisted for sentence on a

date suitable to the parties.

CATCHWORDS: INDUSTRIAL LAW – WORKPLACE HEALTH AND

SAFETY - PROSECUTION

- Whether an act was ‘reckless’ – Whether the element of

‘recklessness’ requires ‘conscious disregard of risk’ at the

time of the offence – Whether ‘recklessness’ requires

‘conscious disregard’ of the risk at the time of the offence.

- Whether offences under Chapter 9 of the Petroleum and

Gas (Production and Safety) Act 2004 are limited to

individuals – If so, whether the legislature intended a

corporation to be incapable of committing an offence

2

under s. 704 of the Petroleum and Gas (Production and

Safety) Act 2004 despite s. 840 of that same Act. – If not,

whether the co-accused has established a defence under s.

840(3)(a) of the Petroleum and Gas (Production and

Safety) Act 2004.

CASES: Aubrey v R (2017) 343 ALR 538

Banditt v The Queen (2005) 224 CLR 262

R v G [2003] All ER 765

R v IL unreported, [2016] NSWCCA 51

Towle v R (2009) 54 MVR 543

COUNSEL: J Hunter QC with P Morreau for the Complainant

T Glynn QC with A Scott for the Defendants

SOLICITORS: Gilshenan & Luton Legal Practice for the Complainant

Norton Rose Fulbright Australia for the Defendants

[1] The defendant, Mr Kilby, was a driller on a drill rig. He caused the death of his fellow

workmate, Gareth Leo Dodunski, by activating hydraulic equipment known as an iron-

roughneck ST-80 (the ‘act’). He is charged with recklessly doing the act in contravention

of s. 704 of the Petroleum and Gas (Production and Safety) Act 2004 (‘PGPS Act’). It

is alleged in the complaint that the act, recklessly performed:

1. was an act that might have adversely affected the safety of a person at the plant,

in particular, Mr Dodunski; and

2. caused Mr Dodunski’s death.1

[2] The co-defendant, Saxon Energy Services Australia Pty Ltd ACN 137 534 993, is

charged with the same offence under s. 704 of the PGPS Act on the basis that pursuant

to s. 840 of the PGPS Act:

1. the alleged offence under s. 704 of the PGPS Act is an offence for which it is

required to prove Mr Kilby’s state of mind, about particular conduct, namely the

act alleged to have been recklessly performed;

2. Mr Kilby’s conduct was within the scope of the co-defendant’s actual or apparent

authority; and

3. Mr Kilby had the state of mind.

[3] There is no dispute about how this tragic event occurred. There is no dispute that Mr Kilby’s activation of the ST-80 was the act that caused the death of his workmate, who

was crushed by the machine. There is no dispute that Mr Kilby was ‘a person at an

operating plant’. There is no dispute that activation of the ST-80 was an act ‘that might

adversely affect the safety of anyone at the plant’ in particular Mr Dodunski.2 The prosecution does not contend that the act was wilful.

1 Complaint filed 23 June 2014 at Taroom Magistrates Court 2 Section 704 of the PGPS Act

3

[4] It is not disputed that, at the time of the incident, only the driller sitting in the

demountable building, known as the doghouse (in this case Mr Kilby), could activate the

ST-80. It is also not disputed that, at the time of the incident:

1. to prevent the ST-80 from being operated the emergency stop button (E-stop) on

the ST-80 had to be activated;

2. only a person working outside the doghouse could activate the E-stop because it

was located on the ST-80 out on the drill floor;

3. to activate the E-stop a person had to walk out onto the drill floor and into the

crush zone of the ST-80.3

[5] It is not disputed that when Mr Kilby activated the ST-80:

1. Mr Dodunski and a co-worker, Mr Mullings, had been working on the drill floor;

2. Mr Dodunski was within the crush zone of the ST-80;

3. The E-stop had not been activated;

4. Mr Kilby had an unobstructed view of the drill floor and would have been able

to see Mr Dodunski and his co-worker on the drill floor, had he looked;4

5. Mr Kilby took no action to ameliorate the risk to anyone at the plant before

activating the ST-80 i.e.:

(a) He did not look to see if the drill floor was clear of people, including the

men who had been working in the area;

(b) He did not check the computer HMI screen in front of him to ascertain whether the ST-80 emergency stop button (E-stop) had been activated by

anyone on the drill floor;5

(c) He did not communicate his intention to activate the ST-80:6

(i) over the intercom microphone;

(ii) by making visual contact with anyone on the drill floor and

exchanging hand gestures.

6. Mr Kilby failed in his attempts to stop the ST-80 when he realised Mr Dodunski

was in its path;7

7. Mr Dodunski was crushed and killed by the ST-80.

[6] The issues for this Court to determine are:

1. whether Mr Kilby’s activation of the ST-80 was an act done ‘recklessly’;8

2. whether the co-defendant, as a corporation:

(a) can be found guilty for an offence founded in Mr Kilby’s act;9 and if so

(b) has established a defence under s. s. 840(3)(a) of the PGPS Act. 10

3 Transcript MULLINGS XXN p. 1-77 lines 17 to 22. See also Exhibit 111, Plaintiff’s closing submissions at

[101] 4 Although note evidence of Mr Croyson (WHS officer) Transcript at p 1-82 re South Australian ST-80 view via

CCTV; See also Transcript HARTWIG XN p. 2-16 lines 43 – 47 “We had exclusion zones, which was between

the drillers’ cabin dog house and between the ST-80, so as to provide a clear path for sight… by the driller.” 5 Exhibit 69 and paragraph 34 herein 6 Transcript MULLINGS XN p. 1-67 and DIXON XN p. 5-14 lines 29 - 43 7 Exhibit 69 “…should have been hitting retract which is the other side of the screen… if you are quick enough

you can hit retract…” 8 Exhibit 1, Prosecution’s opening submissions at [11]. The term ‘recklessly’ is not defined in the PGPS Act. 9 Exhibit 112, Defendant’s closing submissions at [76] – [110] 10 Exhibit 112, Defendant’s closing submissions at [111] – [176]

4

Chronology

[7] On or about 14 September 2012 Mr Kilby and another11 were tasked to review a Job Safety Analysis for the ‘make connections’ work activity. It was prepared under the

supervision of Messrs Rod Bennett/ Paul Beswick. ‘JSA No. ATS320-JSA-B2’12 It relevantly provided that:

1. To address the hazard of poor communications, the driller was responsible for:

(a) ensuring that all communications with work required is communicated

clearly;

(b) the review of any associated hazards, alerts, applicable Work Instructions

(WI) or Job Safety Analysis (JSA). 13

2. To address the crush zone hazards, such as setting slips, both the floorman and the driller were responsible for the ST-80 E-stop being engaged every time work

was to be completed inside the crush zone. 14

[8] On 23 December 2012 Mr Kilby started his driller induction under the supervision of Mr

Richard Ochey, who was Mr Kilby’s ‘on the job coach’.15

[9] On 22 February 2013 a TAFE assessment pack in certificate II drilling was issued to Mr

Dodunski.16

[10] On 1 March 2013 Mr Mullings started employment with the co-defendant, Saxon.17

[11] On or about 21 March 2013 Saxon issued an updated JSA re the work activity of ‘tripping

in/out of hole – air drilling’ (JSA No. ATS320-JSA-L2). It relevantly provided that for crush zone hazards, such as pulling slips and setting slips, both the floorman and the

driller were responsible for the ST-80 E-stop being engaged. Prior to pulling slips

the ST-80 E-stop function was to be tested by the driller on the console.18 [my

emphasis]

[12] On 4 April 2013 a TAFE assessment pack in certificate II drilling was issued to Mr

Mullings.19

[13] On 28 April 2013:

1. two workers were injured on a Saxon rig in South Australia, one sustaining a

crush injury.20 The incident occurred because the E-stop on an ST-80 had not

been activated by the men working in the crush zone of the machine and the ST- 80 was accidently activated by a person in the dog house (the ‘South Australian

incident’);

2. Mr Kilby (as assistant driller), Mr Dodunski (as floorhand) and Mr Mullings (as

day leasehand) attended an Incident/Accident Review Health, Safety and

11 Ashley Jenner 12 Exhibit 96 13 Exhibit 96, item no. 1 14 Exhibit 96, item nos. 2, 7 and 9 15 Exhibit 10 Statement of R N Bennett, Annexure ‘RB-2’ 16 Exhibit 48, page 1 line 20, column I 17 Exhibit 48, page 1 line 24, column E 18 Exhibit 96A, page 3 19 Exhibit 48, page 1 line 24, column I. References to ‘PMS’ in the exhibit relate to Preventative Maintenance

System/s 20 Caught between the ST-80 and the Manual Tong resulting in a fractured arm and bruised back/buttocks.

5

Environment (HSE) meeting21 held at 1.30pm to discuss the South Australian

incident with Mr Sam Lloyd and others. The topics raised included:

(a) time out for safety;

(b) tong use pinch between ST-80 and stump;

(c) “always isolate the ST-80 when not in use”; and (d) that the Job Safety Analysis (JSA) would be adjusted.

3. Mr Sam Lloyd sent an email at 1.48pm concerning the ‘TOFS’ meeting22 just

held regarding the South Australian incident in which he noted:

“Actions for us also include to review current JSA’s for task and amend, written

on driller’s window to ensure E stop is engaged.

Some food for thought could be a double action required on Omron tools screen?

One button having to be held at all times and then another to initiate cycle if

‘held’ button is released the ST80 stop immediately in situ, instead of completing

its function cycle. [sic] This would eliminate the accidental hitting of cycle button to initiate, and if it is initiated then release of button to stop ST80 cycle will prevent ST80 from coming

forward.”23

[14] On 29 April 2013 Mr Kilby attended a combined Pre-task and Incident/Accident review

meeting24 at which one of the topics discussed was a review of the South Australian incident. Mr Kilby was the assistant driller on that shift.

[15] On 30 April 2013 Saxon issued a Health and Safety Alert Bulletin25 pertaining to the

South Australia incident noting that it occurred when “the incorrect button was pushed

(ST-80) and the ST-80 was accidentally commanded to travel to well centre…”. Both the

failure to isolate the ST-80 by using the E-Stop and the pressing of the wrong button on

the HMI screen in the dog house were identified as the causes of that accident. One of

the recommendations following the South Australian incident was that all crew members

were to be “briefed on this alert at Safety Sunday for the following 8 weeks.” The re-

enactment picture on the alert stated “E-stop not activated”.

[16] On 1 May 2013:

1. a TAFE assessment pack in certificates II and III drilling was issued to Mr

Kilby.26

2. Mr Dodunski (as floorhand) attended:

(a) an 11.30am weekly safety HSE meeting27 at which the topic of good

communication was discussed. The recommendations/corrective actions

from that meeting referenced the ST-80 safety alert.

(b) a 6pm pre-task HSE meeting28 at which the topic of isolating the ST-80

if rig tongs were needed was discussed. The recommendations/corrective

21 Exhibit 27. This meeting the same as the ‘TOFS’ meeting referred to Mr Lloyd’s email set out in

subparagraph 3 below. 22 ‘Time out for safety’: See Exhibit 27 re records of Time Out For Safety meeting and paragraph [12](2) herein 23 Exhibit 61 24 Exhibit 62 25 Exhibit 26 and 42 26 Exhibit 48, page 1 line 8, columns I & J. See also Exhibit 57 emails dated 20 – 22 May 2013 re Mr Kilby

having been assessed on Cert II theory and yet to be assessed on Cert III theory and Certs II/III practical. See

also Exhibit 111, Plaintiff’s closing submissions at [90] 27 Exhibit 88 28 Exhibit 87

6

actions from that meeting included “lessons learned from ST-80 safety

alert”.

[17] On 2 May 2013 Mr Mullings (as leasehand) attended a pre-tour HSE meeting29 at which

the topics of safety alerts and an ST-80 issue were discussed. Good communication was

one of the recommendations/corrective actions from that meeting.

[18] On 8 May 2013 Mr Kilby received his driller induction under the supervision of Mr

Richard Ochey, who was the ‘on the job coach’. The induction included: 1. performing task risk assessments;30

2. operation of the driller console; 31

3. demonstrating the driller’s role during a ‘typical round trip’; 32

4. Saxon’s process of training and assessment of rig personnel, including a

probationary review; 33

5. the driller’s role in people management. 34

[19] On 10 May 2013 Saxon issued a work instruction entitled ‘Breaking out drill pipe

POOH’ in which Steps 3 and 4 dealt with engaging and disengaging the ST-80 and Step 7 concerned pulling slips. All three steps required the driller to have clear vision. The

work instruction also specified that a pre-job safety meeting had to be held and recorded,

including a pre-start meeting concerning the ST-80.35 [my emphasis]

[20] On 11 May 2013 Mr Mullings (as leasehand) attended a pre-task HSE meeting36

concerning the topic of ‘tripping in hole’. The following 4 recommendations/corrective

actions came out of that meeting:

1. Use E-stop on ST-80 when pulling slips;

2. Personal Protection Equipment (PPE);

3. Crush points;

4. Good communication between the driller and floor hand.

[21] On 13 May 2013 Mr Mullings (as leasehand) attended a weekly safety HSE meeting37 at

which the topics of exclusion zones and the ST-80 safety alert were discussed.

[22] On 23 May 2013:

1. Mr Kilby completed his rig 185 driller induction, with logbook38 and was

promoted to driller.39

2. Mr Mullings completed his rig 185 leasehand induction. 40

29 Exhibit 28 30 Exhibit 10 Statement of R N Bennett, Annexure ‘RB-2’, Task no. 1. See also Exhibit 66 and Transcript

BESWICK XN pp. 4-21 to 4-23 31 Exhibit 10 Statement of R N Bennett, Annexure ‘RB-2’, Task nos. 10, 11 and 15. See also Exhibit 66 32 Exhibit 10 Statement of R N Bennett, Annexure ‘RB-2’, Task no. 23 33 Exhibit 10 Statement of R N Bennett, Annexure ‘RB-2’, Task nos. 69 and 72 34 Exhibit 10 Statement of R N Bennett, Annexure ‘RB-2’, Task no. 70 35 Exhibit 83 36 Exhibit 29 37 Exhibit 30 38 Exhibit 54 39 Exhibit 65 40 Exhibit 54

7

[23] On 26 May 2013 Mr Kilby (as driller), Mr Dodunski (as floorhand) and Mr Mullings (as

leasehand) attended a weekly safety HSE meeting41 concerning safety alert bulletins at which the following topics were discussed:

1. Safety Sunday;

2. Santos pushing the use of lockout and tag out;

3. Incident flashes.

The recommendations/corrective actions from that meeting included:

4. ‘Kn of use Alert’;

5. Manual handling/PPE use;

6. ST-80 E-stop.

[24] On 29 May 2013 Mr Kilby (as driller), Mr Dodunski (as floorhand) and Mr Mullings (as

leasehand) attended a pre-task HSE meeting42 at which the following topics were discussed:

1. good co-ordination between roughneck, skate operator and driller; and

2. tripping back into hole after flow testing.

The recommendations/corrective actions from that meeting included:

3. PPE at all times;

4. Follow driller’s instructions;

5. E-stop of ST-80 to be in for rig tong use.

[25] Between 28 May 2013 and 31 May 2013 Mr Kilby, as ‘on the job coach’, took Mr

Dodunski through the Floorhand Induction Task List,43 which relevantly included:

1. The electrical lockout system as it applies to the floorman;44

2. Why it is important not to obstruct the driller’s view of the drill floor; 45

3. Where it is, and is not, safe to stand during routine operations on the drill floor,

and why; 46

4. Typical pinch points on the drill floor and how to avoid accidents associated with them; 47

5. Precautions to be taken around moving machinery; 48

6. Completing a ‘typical round trip’ using an ST-80. 49

[my emphasis]

[26] On 4 June 2013 Mr Dodunski completed his rig 185 floorhand induction.50

[27] On 21 June 2013 Mr Kilby signed a Saxon document entitled Pre SPUD Inspection

Checklist.51

[28] On 23 June 2013:

41 Exhibit 32 42 Exhibit 31 43 Exhibit 84 44 Exhibit 84, task no. 6 45 Exhibit 84, task no. 14 46 Exhibit 84, task no. 15 47 Exhibit 84, task no. 17 48 Exhibit 84, task no. 18 49 Exhibit 84, task no. 37 50 Exhibit 54 51 Exhibit 76

8

1. at 12.38pm Mr Kilby (as driller), Mr Dodunski (as floorhand) and Mr Mullings

(as leasehand) attended a pre-task HSE meeting52 to discuss the topics of:

(a) tripping out of hole;

(b) two people pulling slips; and

(c) keep an eye on your mate.

The recommendations/corrective actions from that meeting were:

(d) PPE at all times;

(e) Review JSA.

2. at approximately 3.15pm the fatal incident occurred.53 Mr Kilby and the rig

superintendent, Aaron Marshall,54 were in the doghouse at the time and Mr Dodunski and Mr Mullings were on the drill floor;

3. at 6.45pm Mr Kilby was interviewed by, and signed the notes of, Sgt Mitchell.

[29] On 24 June 2013 at 3.09pm Mr Kilby was interviewed by Mr Bartels and Mr Barron, in

their capacity as investigation officers appointed under the PGPS Act.55 Mr Lloyd was also present at Mr Kilby’s interview in his capacity as rig safety training co-ordinator of rig 185 for Saxon.

[30] On 13 November 2013 Saxon’s 2013 annual safety report was approved. At section 3.0 of the report a significant rig hazard for personnel entrapped and entangled was noted. The eighth and final control identified for that hazard was engineering safeguards

including audible and visual alarms, guarding and interlocks.56

Summary of the evidence concerning Mr Kilby’s state of mind at the time he activated

the ST-80

[31] Evidence of Sergeant Mitchell who attended at the scene on the day of the incident: He gave evidence that he obtained an unsworn statement from Mr Kilby on the day of the incident, which was contemporaneously written into his police notebook and signed by

Mr Kilby.57 The contents of the notebook were not challenged in cross examination. In evidence Sergeant Mitchell observed that “…everyone I spoke to was emotionally

distressed.” 58 Mr Kilby relevantly told the officer:

“I commenced work at 12 midday at the rig site. My role is the driller. I am responsible

for the drill and crew. I work the controls of the drill as per the program set by Santos.

At about half past three just after smoko we were pulling out the string and just got the

drill collar. I set slips and Gareth and Dan went in to fit the dog collar, they went in on

their own accord. I was speaking with Aaron who was trying to find the day lease hand.

I then feel like I have fucked up and gone into auto pilot and hit the button for the ST-

80 to come out and break the connection. As soon as I hit it, I saw the boys there. I was

trying to stop it, but you can’t stop it once you have started it. The boys should have

52 Exhibit 20 53 Exhibit 64 54 Mr Marshall was not called to give evidence, nor is his name listed in exhibits 20, 64 or 80 nor mentioned in

the evidence of Mr Mullings, either in evidence in chief or cross examination. However see Transcript DIXON

XN p. 5-10 line 45, who confirms that Mr Marshall was in the doghouse talking to Mr Kilby just prior to the

incident. 55 Exhibit 69 56 Exhibit 71. See also Transcript MULLINGS XN pp. 1-75 line 42 to 1-76 line 2 and BESWICK XN pp. 4-29 to 4-30 57 Transcript MITCHELL XN pp. 2-27 to 2-30. See also Exhibit 43. 58 Transcript MITCHELL XN p. 2-30 at line 20.

9

hit the emergency stop as soon as they went in which would not allow the ST-80 to be operated…

I then gave this statement to police at 18.45” [my emphasis]

[32] Evidence of Mr Ian Bartels, a senior inspector of the Queensland Petroleum and Gas Inspectorate. Mr Bartels have evidence that he, together with his colleague, Mr John

Barron, interviewed Mr Kilby the day after the incident at 3.09pm.59 During that unsworn interview Mr Kilby stated:

“I was rung from the rig manager’s office looking for the day lease hand so I tried calling

him on the intercom and hoped that he would have heard it and gone to the office.

Continued doing what we’re doing. We just… finished pulling the heavy weights which

don’t require a dog collar, just break them out straight away. Then got to the first drill

collar, I’ve set slips, in this time Aaron, the superintendent, has come up to enquire as

to where the day lease was. I briefly stopped doing what I was doing, said I’d called

him on the intercom, don’t know where he is. Gone back to the job and gone straight

into break out without realising that the boys had already gone in there to put the dog

collar on. And as soon as I’ve realised I’ve trying [sic] to hit stop but there is no stop

button… should have been hitting retract which is on the other side of the screen. And in

this time I’m trying to shout but they can’t hear me ‘cause I’m in the doghouse and that

is when the ST-80 collected Gareth and killed him…

…

… depending what you do, you press break or make and it will do the same thing, it will

come out to hole centre. And then you go position confirm, saying that you are where

you want to be. But once you hit make or break, that’s it, it comes out…

… in this case I hit break because… the intention was to break the joint.

… if you are quick enough you can hit retract, which in that moment in time I wasn’t

thinking retract, I was thinking off and there’s an off button right next to break and I’m

hitting it with no effect. And… our policy is we’re supposed to have the emergency stop

on whenever the boy are in there and Gareth was the best at doing that… And this one

time he didn’t put it on.

…

… I just finished talking to Aaron and I’ve gone straight to what my next step is which

is to break out the joint and then as soon as I’ve touched it I’ve realised the boys have…

gone in there without looking at me for confirmation…” [my emphasis]

[33] When asked during the interview by Mr Bartels what the normal process would be Mr

Kilby stated “Well once they’re finished… inside there then it’s all clear for me to do it

so they pull the button off and then I’m able to activate it.” Mr Bartels then asked Mr

Kilby “Okay so you never push the button first waiting for him to pull it off?” to which

Mr Kilby responded “No. Well it, they push it from out there, I’m inside the doghouse.”

59 Exhibit 69

10

[34] When asked during the interview by Mr Bartels whether there was any visual indication

on his screen as to whether the E-stop had been pushed Mr Kilby stated “Yeah there’s a,

it will come up say, well it’d be like in red at the top, it’s like a little thing saying E stop.”

[35] When asked during the interview by Mr Bartels whether it was normal for Mr Dodunski

to stay between the ST-80 and the drill string (i.e. in the crush zone) as opposed to

standing to the side Mr Kilby stated “No that’s fairly normal for him to be where he

was.”

[36] Evidence of Mr McMillan West, a crew leasehand at the time:60 Mr West spoke with Mr Kilby on the evening of the incident. Mr Kilby told him “I wasn’t looking at what I was

doing. I was talking to someone inside the dog house and activated the [ST-80] without looking what was in front of it. I then turned back around and saw what was about to

happen to Gary and stood up and just started screaming at the glass.”61 Mr West’s

evidence was not challenged under cross examination.

[37] Evidence of Mr Ashley Jenner, a motor hand on the rig at the time: Mr Jenner gave evidence that he spoke with Mr Kilby the day after the incident and that Mr Kilby told

him that he was distracted by Aaron Marshall and was devastated.62 Mr Jenner’s evidence was not challenged under cross examination.

[38] Evidence of Mr Samuel Lloyd who at the time of the incident was employed by Saxon as the rig safety and training coordinator for rig 185 (RSTC) and had been in that position

for 10 or 11 months.63 Mr Lloyd gave evidence that he was at the meeting on 23 May 2013 (at which Mr Kilby was also present) and that he recalled that use of the ST-80 E-

stop was reinforced.64 He also gave evidence that he was present, and took notes, when

Mr Kilby was interviewed by Sgt Mitchell on the day of the incident.65 Mr Lloyd also gave evidence that he was present at the interview conducted the following day by PGPS Act investigators, Messrs Bartels and Barron.

[39] Evidence of Mr Daniel Mullings, the leasehand working on the drill floor with Mr

Dodunski at the time of the incident: He gave evidence that “I grabbed Gareth’s right

arm and tried to pull him out of the way. But it had already caught him… it pulled him

in. I stood up straight pretty much straight away and… looked over into the dog house

at Jake and Jarrod, They were both trying to stop the ST-80 and try to get it out. [sic]…

“… they were both pressing the screens trying to, well, activate the ST-80 to back to –

to its home.”66

[40] Mr Mullings’ evidence was not challenged under cross examination. Mr Mullings gave

no evidence about the presence of Mr Marshall in the doghouse or what, if anything, Mr

Kilby said about the incident. I conclude that Mr Mullings’ evidence was,

60 and good friend of Mr Dodunski (Went to school together) 61 Transcript WEST XN p. 1-96 lines 1 - 16 62 Transcript JENNER XN p. 2-12 lines 14 - 15 63 Transcript LLOYD XN p. 3-26 lines 4 - 15 64 Transcript LLOYD XN p. 3-68 lines 22 – 27. See also Exhibit 32 65 Exhibit 63 66 Transcript MULLINGS XN p 1-73 lines 9 - 33

11

understandably, impacted by memory loss resulting from the trauma he experienced

when he witnessed the incident.67

[41] Evidence of Mr Jarrod Dixon, who was the derrickhand on rig 185 and inside the

doghouse with Mr Kilby and Mr Marshall at the time of incident: Mr Dixon gave evidence that at the time of the incident he was inside the doghouse with Messrs Kilby

and Marshall, 68 who were having a conversation. At the time of the trial he could not

recall what was said, nor could not recall what length of the time elapsed between the conversation and the incident. He could not say whether Mr Kilby had physically turned

to speak to Mr Marshall. 69 He gave evidence that the “next heavyweight was set in slips,

and the dog collar was about to be put on. I didn’t see that, because my focus was here.”

(i.e. to his right. The drill floor was to his left).

[42] He gave evidence that he heard Mr Kilby swear and then turned his head to see the ST- 80 two or three feet away from Mr Dodunski, who had his back to the machine. He could hear Mr Kilby yelling out, but could not recall whether Mr Kilby was using the intercom

microphone.70 His evidence was not challenged under cross examination. Under cross examination he agreed that Mr Kilby was a person who knew what he was doing and focused on the job at hand. Relevantly when asked whether Mr Kilby had turned away to answer a question from Mr Marshall, he stated “I can’t say he turned away. I don’t

know … I was concentrating on my own shit.” 71

[43] Evidence of Professor Dux concerning the impact the interruption upon Mr Kilby’s

performance of the task: the effect of the Professor’s evidence was that Mr Kilby’s conversation with Mr Marshall was an interruption that caused Mr Kilby “to disengage

from a task… which then lead to a sequencing error.” Relevantly the professor identified

the task as being the safe operation of the ST-80 in a time-efficient manner.72

[44] He concluded that Mr Kilby was required to be cognisant of the risk posed by ST-80 at

the time he did the act. 73 He opined that Mr Kilby “(h)ad a particular sequence of tasks to safely operate the ST-80. At a critical point of that sequence … he was interrupted in this thought processes by Mr Marshall… he turned back and made a sequencing error.

He activated the ST-80 without first checking if it was safe to do so.”74

[45] Professor Dux conceded that this expert opinion was based on instructions provided to

him by Mr Kilby’s solicitors. He did not have a statement from Mr Kilby, nor did he feel

it was necessary for him to meet with Mr Kilby to discuss the matter prior to forming his

opinion and preparing a report on the matter.75 Under cross examination, Professor Dux was relevantly asked, and answered, the following questions:

67 Transcript MULLINGS XN p. 1-73 lines 17 to 21. My conclusion is based upon my observation of Mr

Mullings, including his non-verbal presentation of a person in distress, whilst giving the evidence reflected at p.

1-73 of the transcript 68 Aaron Marshall, the rig superintendent. 69 Transcript p. 5-18 line 9 to 5- 20 line 8 70 Transcript pp. 5-10 to 5-11 71 Transcript pp. 5-19 line 39 to 5- 20 line 8 72 Transcript DUX XXN at p. 6-28 lines 23 – 28. See also p. 6-29 lines 1 - 5 73 Transcript DUX XXN at p. 6-29 lines 4 - 11 74 Transcript DUX XN at p.6-22 lines 7 -15 75 The report is not in evidence before me.

12

“And the distraction here was an inquiry by a supervisor as to the whereabouts of

another employee?--- Yes.

And that – that response to the inquiry by Mr Kilby was to briefly stop what he was doing

to say: ‘I called him on the intercom. I don’t know where he is?’--- Yes.”76

Evidence concerning the level of compliance with ST-80 E-stop safety measures

[46] Evidence of Mr Graham Hartwig, a mechanic on the rig at the time: He gave evidence

that he observed daily non-compliance with E-Stop procedure. He walked past the ST-

80 area on a daily basis, most mornings. He stated that because there were drillers

working 24 hours a day, they could be drilling while he was up there at the rig.77 He stated that he had walked past on several occasions and seen people in the exclusion zone

between the ST-80 and drill pipe without the E-stop depressed.

“…they were doing that quite regularly…

How frequently did you see this non-compliance with the procedure with respect to the

use of the E-stop? --- I guess nearly daily.

Who were the others that you would speak to about it? --- Rig manager and RSTC.”78

[47] Mr Hartwig did not give specific evidence about the identity of the people he saw not

complying with the ST-80 E-stop safety procedure.

[48] Evidence of Mr Ashley Jenner, a motor hand on the rig at the time. Mr Jenner gave evidence that there were set procedures concerning when the ST-80 E-stop was to be

activated, namely “Whenever the slips were being set and the dog collar was being put

on drill collars.” He gave evidence that it was done “if it was remembered to be done. If not, it wasn’t.” He recalled regularly seeing rig managers, tool pushers and drillers

speaking to people about the failure to use the E-stop. He gave evidence that these conversations were happening “Because people were being complacent towards it.” He

gave evidence that people were quite vigilant about it after the South Australian incident, but “It slowly, you know, fell by the wayside again”. He gave evidence that he saw people

forgetting to use the E-stop again.79

[49] Evidence of Mr Daniel Mullings, the leasehand working on the drill floor with Mr Dodunski at the time of the incident: Mr Mullings gave evidence that the procedure between himself and Gareth concerning activation of the E-stop was that whoever was

inside the derrick (in the crush zone)80 would activate the E-stop on the ST-80. It was not activated every time the ST-80 returned to its home position. It was only activated when

they had to enter the derrick, “which was most of the time, depending on the activity.”81

76 Transcript PROF DUX XXN p6-23 lines 20 - 26 77 Transcript HARTWIG XXN p. 2-25 78 Transcript HARTWIG XN pp. 2-16 line 42 to 2-17 line 46 79 Transcript JENNER XN pp. 2-5 line 11 to 2-7 line 9 80 Transcript MULLINGS XXN p. 1-77 lines 10 - 24 81 Transcript MULLINGS XN p. 1-72 lines 31 - 47

13

[50] Evidence of Mr Jarrod Dixon, who was the derrickhand inside the doghouse with Mr

Kilby and Mr Marshall at the time of accident: Mr Dixon gave evidence that prior to the

incident on 23 June 2013 there was a practice of communication between the people on the drill floor and the driller in the doghouse concerning the operation of the ST-80. He

said “Yep. There was positive communication, like, body language and you would see the person on the E-stop or engaging the E-stop and giving the thumbs up. Yep… It was

99 percent of the time”82

[51] Mr Dixon gave evidence that he seen or heard people on the drill floor being spoken to

about the use of the ST-80 E-stop:

“All right. Well, have you ever seen or heard anyone speaking to people working on the

rig floor about the use of the E-stop?---Yes.

On how many occasions?---Several

And who are you talking about?---Direct managers, tool pushers.

And what sort of things were being said?---‘What the fuck? What are you going in there

for’, you know, ‘push the bloody E-stop.’ You know, just a – physical reminder of what

we needed to do.

All right. Now, did the driller have any means of communication with workers on the

rig floor?---Yes he had a microphone.

All right. And did you ever hear a driller speaking to people on the rig floor about---?

All the time.

---use of the E-Stop?---All the time.

And again, what sort of things were being said?--- ‘Fuckin’ E-Stop’.

…was that a complaint about the E-Stop not being used or being used?---Not being

used.83

[52] When asked in evidence in chief whether he could recall Mr Kilby saying anything

regarding non-use of the E-stop he said:

“All the time… Yes. ‘E-stop, boys’ you know, because I would be doing my thing. I would be concentrating on my area and yep… Sometimes that was forgotten to be released too.

That – that stops the rhythm of the boys, you known, working…get a good rhythm going

of doing what we do, tripping in and out of the hole, and it breaks the rhythm. So that

sort of, like, pisses you off when you see that.”84

[53] When asked about the extent to which Mr Dodunski would observe practices like pushing the E-stop he said “He was the man, yeah… He was a good foreman. He knew

his job well and he was trying to do everything properly.”85

82 NB: under cross examination it was put to him that he’d said 95% of the time, which he accepted. He also

accepted it was possible it was pushed the other 5% of the time. – p. 5-18 lines 1 - 7 83 Transcript DIXON XN p. 5-9 lines 20 - 42 84 Transcript DIXON XN p. 5.10 lines 1 - 11 85 Transcript DIXON XN p. 5-14 line 35 to 5-15 line 5

14

What is meant by ‘recklessly’ under s. 704 of the PGPS Act?

[54] The word ‘recklessly’ is not defined in the PGPS Act. The concept of recklessness has

been the subject of extensive consideration by courts, often in the context of offences

involving an intention to cause harm, e.g. murder or grievous bodily harm. Some of the

court decisions pertaining to the use of the word involve a statutory framework that

includes a definition of the word. It is important to observe that the offence before this

court does not include an element of intention to cause or do harm to either person or

property.

[55] The defence submits that the prosecution bears the onus of proving, beyond reasonable doubt, that when Mr Kilby activated the ST-80 (the ‘act’) he did so with foresight that the act “might adversely affect the safety of anyone at the plant.” i.e. at the time of doing the act Mr Kilby foresaw a risk/s to any person and that Mr Kilby consciously

disregarded the risk/s. 86 [my emphasis] The defence submission was developed in a way

that contended that ‘conscious disregard’ was synonymous with subjective foresight of

a possible risk.87 Ultimately it was framed as “the requirement for subjective foresight is

a requirement that there be a conscious disregard of the risk.”88

[56] The prosecution agrees that it must prove that Mr Kilby did the act with foresight that

the act could possibly (not would probably) affect the safety of anyone at the plant.89 The

prosecution rejects the second limb of ‘conscious disregard’ promoted by the defence as an element the prosecution must prove to establish recklessness within the meaning of

that word as it applies to this offence.90

[57] The prosecution concedes that if the defendant didn’t turn his mind to the possibility of

risk before activating the ST-80, his conduct couldn’t be found to be reckless.91 But they submit that, in the present statutory context, the test to be applied to the word ‘recklessly’ has a low threshold and it would be sufficient for the prosecution to prove that at the time of the act Mr Kilby did have an appreciation that what he was doing might possibly affect

somebody’s safety. 92

“We say, consistently with Aubrey, it’s not required that he have a state of indifference or that there be a conscious disregard. All that’s required… is that spark of cognition

that pushing that button might possibly adversely affect somebody’s safety.”93

[58] I accept the prosecution’s submission on this point. I reject the defence contention that recklessness requires not only an awareness of the possibility of risk but the further

mental element of ‘consciously disregarding’ those risks. The defence says “Conscious disregard and indifference are merely different ways of forming a reckless state of

mind.” In effect they argue that ‘conscious disregard’94 is a separate and distinct concept

86 Exhibit 112, Defence closing submissions at [24] and [38]. See also Transcript at pp. 7-9 line 43 to 7-10 line

12. 87 Exhibit 114, Defence reply at [54] – [61] 88 Exhibit 114, Defence reply at [62] 89 Exhibit 1, Prosecution’s opening submissions at [35] – [40] 90 Transcript p. 7-4 lines 11 - 19 91 Transcript p. 7-6 lines 5 - 8 92 Transcript pp. 7-6 line 1 to 7-8 line 29 93 See also Aubrey v R (2017) 343 ALR 538 pp. 551 – 553, including particularly at [43] – [47] 94 A knowing disregard of an appreciated risk: per Lord Bingham in R v G [2003] All ER 765 at 784 [32]. See

also Exhibit 114, Defence reply at [54]

15

or mental state from that of ‘indifference’.95 It is clear that the defence does not contend

that the prosecution must show that Mr Kilby was indifferent to the possible risk.96

[59] The defence’s argument that ‘conscious disregard’ is an element of the offence invites the court to invoke an element of intention to harm, or at least consciously run the risk of harm. This is obviously applicable to offences where intent to harm is a clear element of the offence, such as murder or grievous bodily harm, and there is a preponderance of

cases dealing with the concept of recklessness in that context.97 It is equally applicable to statutory provisions that deal with offences that pertain to ‘reckless disregard’ or

‘reckless indifference’.98 To be reckless in these statutory contexts is to be aware of the possibility of the risk of harm and to consciously decide to run the risk of harm being

done and do the act anyway.99

[60] The offence Mr Kilby confronts involves the mental element of doing an act recklessly,

but it does not involve an element of intentionally risking harm being done to another.

The relevant intended ‘act’ under s. 704 of the PGPS Act is the operation of the ST-80, not an act intended to harm such as murder or grievous bodily harm. I note that the

defence argues that cases, such as Towle v R 100 which involved offences of culpable

driving causing death and negligently causing injury, run contrary to this construction of the word ‘recklessly’ under the PGPS Act. At first blush this argument has some appeal

because, like s. 704 of the PGPS Act, the offences in that matter did not involve an intention to harm or risk harm. However the offences in Towle:

1. are ones of gross criminal negligence involving an objective test of foreseeability

of harm;101

2. are ones where the ‘conscious disregard’ of a known risk was considered by the

court to be an aggravating factor, rather than an element of the offence;102

3. was decided before the High Court’s decision in Aubrey v R.103

[61] The defence further argued that to remove the element of ‘conscious disregard’ from the

offence under s. 704 of the PGPS ACT would, in effect, render the defendant culpable

for a negligent act, rather than a reckless one.104 I don’t agree with that submission. The test for negligence is an objective one based on the foreseeable and probable

consequences of the actions of a reasonable person. Whereas for recklessness, it is a subjective one based on the possible consequences in the mind of the defendant at the

time the act is done.

[62] Accordingly, I find that to do an act recklessly under s. 704 of the PGPS Act means to

do an act, whilst at that time being cognisant of the risks associated with that act, but

95 A deliberate closing of the mind to such a risk: per Lord Bingham in R v G [2003] All ER 765 at 784 [32].

See also Exhibit 114, Defence reply at [54] 96 Exhibit 114, Defence reply at [54] - [55] 97 See for example Aubrey supra. See also Exhibit 112, Defendants’ closing submissions at [24] - [26]. See also

per Lord Bingham in R v G supra at p. 783 paragraph [28] 98 Banditt v The Queen (2005) 224 CLR 262, esp. at [4] - [8]. See also Exhibit 111, Plaintiff’s closing

submissions at [25]. 99 Unreported R v IL [2016] NSWCCA 51 at [81] – [98] re the degree of recklessness required to establish that

an act was done maliciously. See also Aubrey supra. 100 (2009) 54 MVR 543 101 See Maxwell P at p. 558 paragraph [46] 102 See Maxwell P at p. 559 – 560 paragraphs [49] – [52] 103 Supra. 104 Exhibit 112, Defendants’ closing submissions at [27] - [28]

16

without the need to consciously decide to risk harm being done.105 For these reasons I

find that it is not necessary for the prosecution to prove that the defendant consciously

disregarded the risks, merely that he apprehended that there were risks at the time that

he activated the ST-80.

[63] The court can have regard to the circumstances, probabilities and evidence of what the

defendant did and said at the time to determine, beyond reasonable doubt,106 whether he must have thought of the risk. As noted by Lord Bingham in R v G:

“ Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or

must have done”107 [my emphasis]

Did Mr Kilby recklessly activate the ST-80?

[64] On the evidence before me, it is clear that the ST-80 on rig 185 was a danger to any

person in its vicinity.108 For example the risk of it being unintentionally activated by a person in the doghouse, such as the driller, and causing harm to someone on the drill floor, such as a leasehand, had been the subject of specific training and was well known

to Mr Kilby.109 Indeed, he himself had been involved in training at least one other person

about the risks the ST-80 posed.110

[65] Weighing up the evidence before me, I find that, whilst the driller was documented to be one of the people responsible for ensuring the ST-80 E-Stop was activated, in reality this

was left to floor men, such as Mr Dodunski. This was because the driller had no ability to activate the E-Stop on the ST-80 from his position in the doghouse. Further it is clear

that, whilst it became a requirement to isolate the ST-80 by activating the E-stop

whenever it was not in use, 111 this was not done in practice.112 Rather the onus remained on people entering the derrick on the drill floor to communicate non-verbally with the

driller and then enter the ST-80’s crush zone, while the ST-80 was still operable, to

activate the E-stop and isolate the ST-80.113 The inherent, and now too painfully obvious,

flaw with this approach is that it necessitated a person going into the crush zone of the un-isolated ST-80. It also meant that if a floorman had forgotten to isolate the ST-80 he

remained at risk of harm from the ST-80 being operated remotely by the driller. 114

[66] The ongoing, and known,115 risks associated with this method of isolating the ST-80 explain why the procedure around the use of the ST-80 E-stop was being regularly

reinforced in the workplace.116 It also explains Mr Kilby’s statement to the police that

105 In the present statutory context an intention to cause harm would make the act wilful under s. 704 of PGPS

Act 106 Because the onus is on the prosecution to prove it, not the defendant to disprove it 107 R v G supra at p. 768 paragraph [39]. See also Defence reply at [70] – [73] 108 Exhibit 111, Plaintiff’s closing submissions at [79] to [84] 109 As set out in the chronology 110 Exhibit 84 111 Came into effect after the South Australian incident. See Exhibit 27 112 See footnotes 79, 80 and 83 herein re evidence of Messrs Jenner, Mullings and Dixon 113 Evidence of Messrs Hartwig, Jenner, Mullings, Dixon and Lloyd 114 Exhibit 111, Prosecution’s closing submissions at [101] 115 As at 23 June 2013 116 See evidence of Messrs Hartwig, Jenner, Mullings, Dixon and Lloyd

17

“The boys should have hit the emergency stop as soon as they went in” and to the PGPS

investigators that he had “gone straight into break out without realising that the boys

had already gone in there… I’ve gone straight into what my next step is which is to break

out the joint… as soon as I’ve touched it I’ve realised the boys have… gone in there

without looking at me for confirmation”.

[67] Based on the evidence of Mr Dixon, I accept that prior to the act of operating the ST-80

Mr Kilby had been interrupted in his duties by the conversation he’d had with the rig

superintendent, Mr Marshall, in the doghouse. However I do not accept that his

conversation with Mr Marshall could reasonably have caused Mr Kilby to fail to

recognise the risks the ST-80 posed when he returned to his tasks and activated the ST-

80. Whilst the conversation was a distraction that could reasonably have caused Mr Kilby

to forget where he was in the sequence of ‘tripping out’ steps, there is no evidence to

suggest that he had already commenced the task of operating the ST-80 when the

conversation occurred.

[68] The weight of the evidence before the court supports a finding, beyond reasonable doubt, that it was after the conversation had been completed and a short, but unspecified period

of time had elapsed, that Mr Kilby brought to his mind that his next step was to break out the pipe requiring him to activate the ST-80. Whether he thought about the need for

the floormen to set a dog collar or not is irrelevant to his consideration of the risks, because Mr Kilby had been trained that whenever the ST-80 was to be operated the driller

was required to mitigate the risks associated with activation of the ST-80 as part of that

task.117 Therefore on the evidence before me, in particular the training Mr Kilby had received and given together with the safety meetings he had attended as recently as only

3 hrs before the incident, I am satisfied beyond reasonable doubt that at that time he operated the ST-80 Mr Kilby apprehended the risks associated with operation of that

equipment.118

[69] There is no suggestion on the evidence before me that Mr Kilby was interrupted in the

task of activating the ST-80. He commenced that task after he completed his conversation with Mr Marshall. Aside from the opinion of Professor Dux, there is

nothing on the evidence to suggest that the task of activating the ST-80 was one that was

time critical.119 Of course I accept that the work was required to be performed in an efficient manner, but there is no evidence before me pertaining to time pressures

associated with the task.

[70] There were things Mr Kilby could have done to ameliorate the risks the ST-80 posed. He had an unobstructed view of the drill floor and would have been able to see Mr Dodunski

and Mr Mullings on the drill floor, had he looked.120 He did not check the computer HMI screen in front of him to ascertain whether the ST-80 E-stop had been

117 i.e. regardless of whether the next step was setting of the dog collar, or any other work requiring people to

enter the derrick on the drill floor 118 Exhibit 112, Defendants’ closing submissions at [43] and [48] to [49] 119 Transcript DUX XXN at p. 6-28 lines 23 – 28. See also p. 6-29 lines 1 - 5 120 Transcript HARTWIG XN p. 2-16 lines 43 – 47 “We had exclusion zones, which was between the drillers’

cabin dog house and between the ST-80, so as to provide a clear path for sight… by the driller.” Bu see also

Transcript VAN CROYSON XN at p. 1-82

18

activated by anyone on the drill floor121 nor did he communicate his intention to operate

the ST-80 either:122

1. over the intercom microphone; or

2. by making visual contact with anyone on the drill floor and exchanging hand

gestures.

[71] It is not disputed that Mr Kilby intended to activate the ST-80.123 There is no sworn

evidence before me as to what was in Mr Kilby’s mind at the time he activated the ST-

80. However the matters set out above and the evidence of the events leading up to the

incident concerning:

1. Mr Kilby’s involvement in reviewing a JSA addressing the crush zone of the ST- 80;124

2. Mr Kilby’s presence at safety meetings held following the South Australian

incident; 125

3. Mr Kilby’s own induction training as a driller; 126

4. Mr Kilby’s work training others about the ST-80;127 and

5. the matters discussed between Mr Kilby, Mr Dodunski and Mr Mullings at the

pre-task meeting only 3 hrs prior to the incident.128

all provide strong circumstantial evidence from which I can, and do, draw the conclusion

that at the time he activated the ST-80 Mr Kilby apprehended the risks activation of the

ST-80 posed to the safety of persons at the plant.

[72] I reject the defendants’ contention that Mr Kilby’s immediate response upon realising that Mr Dodunski was in harm’s way militates against a finding, beyond reasonable doubt, that he was cognisant of the possible risks the ST-80 posed to persons, including

Mr Dodunski, at the time he activated the ST-80.129

[73] I accept that there is nothing on the evidence to suggest that Mr Kilby intentionally put

Mr Dodunski in harm’s way. I accept that there was no ill will between the men. The

evidence before the court is entirely consistent with the proposition that, having activated

the ST-80, Mr Kilby then realised Mr Dodunski was in harm’s way. Indeed, on the

evidence before me, I accept that to be the case. However for the reasons already

expressed herein ‘conscious disregard’ of the risk of harm to Mr Dodunski, or any other

person, is not an element of the offence with which Mr Kilby is charged.

[74] The unsworn statements made by Mr Kilby to the police, the PGPS investigators, Mr

Jenner and Mr West are, of course, hearsay. However, even on those versions130 it is clear that Mr Kilby was aware of the risks the ST-80 posed when it was operated by him. They

also suggest that he relied upon the floormen to ameliorate those risks.131

121 Exhibit 69 and paragraph 34 herein 122 Transcript MULLINGS XN p. 1-67 and DIXON XN p. 5-14 lines 29 - 43 123 Exhibit 111, Prosecution’s closing submissions at [70] and [89] 124 As set out on 14 September 2012 in the chronology 125 As set out on 28 April 2013, 29 April 2013, 26 May 2013 and 29 May 2013 in the chronology 126 As set out on 1 May 2013, 8 May 2013 and 23 May in the chronology 127 As set out between 28 May 2013 and 31 May 2013 128 As set out in the chronology and documented in Exhibit 20 129 Transcript at 7-13 line 44 to 7-15 line 41 130 Which were not challenged under cross-examination 131 See bold emphasis under headings ‘Evidence of Sergeant Mitchell’ and ‘Evidence of Ian Bartels’ herein

19

[75] It is appropriate, at this point, to deal with the evidence of Professor Dux. The Professor’s

evidence is challenged by the prosecution on two basis, namely:

1. His opinion concerns matters that are within the Court’s knowledge and

experience; and

2. He purports to give evidence about legal concepts and, to that extent, swears the

issue.

[76] There is a third issue that I see associated with the Professor’s evidence and that is that Mr Kilby’s version of events, upon which his opinion has been based, is not in sworn

evidence before me.132

[77] In any event, whilst I accept that the Professor’s field of endeavour is one based in a

genuine area of expertise and neuroscience, I must confess that I derived very little

assistance from it.

[78] Even putting to one side the issue that his opinion is based on unsworn evidence or facts

not proven on the evidence before the court, the effect of the Professor’s evidence was that the conversation was an interruption that caused Mr Kilby “to disengage from a

task… which then lead to a sequencing error.” Relevantly the professor identified the

task as being the safe operation of the ST-80 in a time-efficient manner.133

[79] As noted earlier in this decision, Professor Dux concluded that Mr Kilby was required to

be cognisant of the risk posed by ST-80 at the time he did the act. 134 He opined that Mr Kilby “(h)ad a particular sequence of tasks to safely operate the ST-80. At a critical point of that sequence … he was interrupted in this thought processes by Mr Marshall… he turned back and made a sequencing error. He activated the ST-80 without first checking

if it was safe to do so.”135 The difficulty with this opinion is that the evidence before the court does not support the conclusion that Mr Kilby was interrupted after he commenced the sequence of steps required to undertake the task of operating the ST-80, but rather that he commenced the task of operating the ST-80 after he concluded his conversation

with Mr Marshall.136

[80] For these reasons I am satisfied that the prosecution has proven, beyond reasonable

doubt, all the elements of the offence against Mr Kilby namely that at the time he

activated the ST-80 he was cognisant of the risks it posed to the safety of persons at the

plant and did so anyway. He clearly did not intend to cause harm to anyone, however the

act was recklessly done because, despite at the time being aware of the risks associated

with operating the ST-80, he did the act without doing anything to ameliorate those

known risks.

Is the corporate co-accused guilty by virtue of s. 840 of the PGPS Act?

[81] The defence contend that because the corporate defendant is not ‘a person at an operating plant’ it is not capable of committing an offence under s. 704 of the PGPS Act, and is

therefore not culpable despite s. 840 of the PGPS Act.137

132 See for example Transcript DUX XN at pp. 6-19 lines 30 – 32 and 6-21 to 6-22 133 Transcript DUX XXN at p. 6-28 lines 23 – 28. See also p. 6-29 lines 1 - 5 134 Transcript DUX XXN at p. 6-29 lines 4 - 11 135 Transcript DUX XN at p.6-22 lines 7 -15 136 Transcript DUX XXN at pp. 6-24 line 46 to 6-25 line 26 137 Exhibit 113, Defence closing submissions at Part 2.2 pp. 25 – 33.

20

[82] The defence, in short, argue that when viewed in the context of the statutory framework,

of the PGPS Act, and in particular Chapter 9, it is apparent that the Parliament intended

s. 704 to only apply to a person ‘at’ the plant. The defence does not, however, make any

submissions as to why a corporation is incapable of being ‘at’ a place such as a plant.

Rather they argue that when looked at as whole, the provisions under Chapter 9, are worded to render individuals, not corporations, culpable for the offences set out therein.

I reject that submission. I agree with, and reply upon, the prosecution’s submissions

concerning this issue.138

[83] The unambiguous words of s. 840 of the PGPS Act renders a corporation culpable for the conduct of its representatives where those representatives are required to have a

particular state of mind. Section 704 of the PGPS Act is a perfect example of just such an offence. Therefore whilst offences under Chapter 9 may well be directed at

individuals, there is a clear legislative intent is to make corporations culpable for offences

committed by their representatives, 139 where it is relevant to prove the representative’s state of mind. The only caveat to this is where a corporation can make out a defence

under s. 840(3) of the PGPS Act.

[84] If the legislative intent had been to exclude the offence under s. 704,140 which requires a

person at an operating plant to engage in conduct and have a particular state of mind,

from the scope of s. 840, then it would have been a simple matter to do so by using clear

and unambiguous language in either section.

[85] For these reasons I find that corporations can be culpable for offences under s. 704 of

the PGPS Act by virtue of s. 840 of the PGPS Act.

Has the corporate co-accused established a defence under s. 840(3) of the PGPS Act?

[86] The co-accused raises, by way of submissions, a defence under s. 840(3)(a) of the PGPS

Act, namely that the corporation has proven that it took all reasonable steps to prevent

the conduct.

[87] I find, on balance, having regard to the evidence before me that the steps taken by the co-defendant to prevent the conduct, namely operating the ST-80 when it posed a risk to persons at the operating plant, were not reasonable. I accept and adopt the prosecution’s

submissions on this issue.141

[88] In so concluding I particularly note that in light of the South Australian incident and the

ongoing issues with compliance with the ST-80 E-stop procedure after that incident,142

it was unreasonable to rely on an ST-80 isolation procedure that continued to require a person to walk onto the derrick and into the crush zone of the un-isolated ST-80 to

See also at [88] where it is noted that a corporate defendant cannot be guilty of an offence for which the

prescribed penalty is imprisonment, e.g. industrial manslaughter. This submission is relevant in so far as it is a

basic statement of principle. The offences under Chapter 9 of the PGPS Act, including s. 704, only attract

monetary penalties. The relevant provisions under which the defendants are charged are not subject to

mandatory sentences of imprisonment. 138 Particularly see Exhibit 113, Prosecution’s reply at [1] – [20] 139 Section 840(4): ‘representative’ means - (a) for a corporation – an agent, employee or executive officer of

the corporation 140 Or indeed the offences under Chapter 9 generally 141 Exhibit 113, Prosecutions reply at [21] – [97] 142 Procedures that were the subject of documented HSE meetings up to and including the date of the incident

21

activate the E-stop. As stated earlier in my reasons, this exposed that person to a risk of

serious harm, including death, from the ST-80 being operated remotely by another

person at another location, i.e. the driller in the doghouse, albeit within line of sight. This

was, I find, particularly unreasonable given the:

1. seriousness of the South Australian incident;

2. the circumstances in which the South Australian incident occurred, namely a

driller accidently and remotely operated the ST-80 while people were on the

derrick without the ST-80 E-stop activated;

3. the ongoing obvious and serious nature of the risk the ST-80 posed to persons at

the plant;143 and

4. the suggestions of Mr Sam Lloyd made by email on 28 April 2013.144

[89] For these reasons, I find that the co-accused, Saxon, has not proven that it took

reasonable steps to prevent the contravening conduct of Mr Kilby.

CONCLUSION

[90] I find the defendants guilty of the offence. I will hear submissions on penalty.

143 For the reasons already expressed, namely because the ST-80 was capable of causing serious crush injuries,

including death; and the isolation process continued to require a person to stand in the crush zone, before the

ST-80 had been isolated, to ameliorate the risks it posed. 144 Exhibit 27, in which Mr Lloyd suggested a double action on the driller’s HMI screen so that when the

proposed second screen button was released by the driller the ST-80 would immediately stop. At the time of the

incident and Mr Lloyd’s email, unless ‘retract’ was hit quickly enough, the ST-80 would complete its cycle,

return to its home position and then stop.