Ashton Valley Fresh Pty Ltd v Dolan
[2021] SASC 44
•3 May 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
ASHTON VALLEY FRESH PTY LTD v DOLAN
[2021] SASC 44
Judgment of the Honourable Justice Lovell
3 May 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE
ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION - OFFENCES - DEFENCES
ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION - OFFENCES - LIABILITY - LIABILITY FOR ACTS OF OTHERS
ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION - OFFENCES - LIABILITY - OFFENCES OF STRICT LIABILITY
In August 2014, Environmental Protection Agency officers identified a pollutant in Deep Creek emanating from a natural drainage line that ran off the appellant's property. The appellant operated a fruit juicing plant on the property, which included use of a wastewater treatment plant. The appellant was charged with two counts of contravening mandatory provisions of an environmental protection policy, contrary to the Environmental Protection Act 1993 (SA) ('the Act'). Count 1 related to a breach of an obligation not to cause environmental harm (clause 12 of the policy); Count 2 related to a breach of an obligation to maintain certain water quality criteria (clause 13 of the policy). The appellant pleaded not guilty to both counts. At trial, the appellant raised a general defence pursuant to s 124 of the Act, namely that it had taken all reasonable and practicable measures to prevent a contravention of the Act. The appellant submitted that a tap attached to the wastewater treatment plant, later identified as the source of the pollutant discharge, was opened by an employee of the appellant not acting within the scope of his employment. The Trial Judge was not satisfied that the defence was made out; the appellant was convicted on both counts.
The appellant appeals both convictions. The appellant contends that the verdicts were unreasonable or not supported by the evidence, that the Trial Judge erred in interpretation of cl 13 of the Policy and consequently erred in finding Count 2 was established, and erred in holding that the s 124 defence was not made out.
Held, dismissing the appeal:
1. The Trial Judge was correct in the interpretation of cl 13 of the Policy;
2. The Trial Judge was correct in finding that the appellant had not proved the defence under s 124 of the Act on the balance of probabilities;
3. No error has been demonstrated in the approach of the Trial Judge.
Environment Protection Act 1993 (SA) ss 4, 27, 30, 34, 124, 127; Environment Protection (Water Quality) Policy 2003 cls 12, 13; Environment, Resources and Development Court Act 1993 (SA) s 30; Magistrates Court Act 1991 (SA) s 42, referred to.
ASIC v Macks (No 4) [2020] SASC 209; Briginshaw v Briginshaw (1938) 60 CLR 336; Canadian Pacific Railway Co v Lockhart [1942] AC 591; Deaton Pty Ltd v Flew (1949) 79 CLR 370; DL v The Queen (2018) 266 CLR 1; Dolan v Ashton Valley Fresh Pty Ltd (ACN 129 405 410) [2020] SAERDC 15; Dyers v The Queen (2002) 210 CLR 285; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Maxcon Constructions Pty Ltd v Vadasz (2017) 127 SASR 193; R v A2 (2019) 373 ALR 214; [2019] HCA 35; R v Cornish (2006) 96 SASR 207; Resourceco Pty Ltd v Harvey (2007) 96 SASR 495; Slivak v Lurgh (Australia) Pty Ltd (2001) 205 CLR 304; Taylor v Hayes (1990) 53 SASR 282; Tiger Nominees v SPCC (1992) 25 NSWLR 715; Weissensteiner v The Queen (1993) 178 CLR 217, considered.
ASHTON VALLEY FRESH PTY LTD v DOLAN
[2021] SASC 44
Criminal – Appeal to a Single Judge
LOVELL J:
Overview
Following the discovery of a pollutant flowing from the land of Ashton Valley Fresh Pty Ltd (“the appellant”) into a waterway, the appellant was charged with two counts of contravening mandatory provisions of an environmental protection policy, contrary to s 34(2) of the Environmental Protection Act 1993 (SA) (“the Act”). The appellant pleaded not guilty to both charges. After a trial lasting eight days in the Environment, Resources and Development Court (“ERD Court”), Durrant DCJ convicted the appellant on both counts. The appellant appeals both convictions.
Background
Deep Creek flows through a valley near Ashton, a small township located in the Adelaide Hills. A natural drainage line enters Deep Creek from a hillside on the land occupied by the appellant. At the relevant time, the land at 376A and 376B Lobethal Road, Ashton was owned by Mr Antonio (“Tony”) Ceravolo and Mrs Sandra Ceravolo (“the Property”). Two companies conducted business on the Property. R Ceravolo & Co Pty Ltd, trading as Ceravolo Orchards, conducted a business growing and packaging fruit for sale. The appellant operated a fruit juice processing plant, which began operation in about 2007.
At about 1pm on 29 August 2014, Mr Goonan, the principal scientific officer of water quality employed by the Environment Protection Agency (“EPA”), was inspecting Deep Creek with a colleague Mr Packer. Mr Goonan inspected both upstream and downstream of a natural drainage line entering Deep Creek. Mr Goonan observed at that inspection that Deep Creek was “flowing clear”. Mr Goonan decided to take samples of the water and returned to the car to obtain appropriate sampling bottles. On their return to Deep Creek, at about 1.50pm, Mr Goonan observed changes to the water of Deep Creek. He noticed a discharge emanating from the drainage line. Upstream from the junction of Deep Creek and the drainage line Mr Goonan observed that Deep Creek remained clear. From the drainage line Mr Goonan observed, and noted, a “turbid, green-brown opaque discharge” that had a “strong organic odour”. He collected a number of water samples from Deep Creek. Later investigations established that the discharge came from the Property. Subsequent laboratory testing of the collected samples established that the discharge had affected the water quality of Deep Creek. The respondent laid charges against the appellant alleging breaches of the Environment Protection (Water Quality) Policy 2003 (“the Policy”).
At trial, the appellant accepted that the pollutant discharge came from the Property. Accordingly, much of the background evidence was not in dispute. The evidence established that a wastewater treatment plant (“the WWTP”) was built on the property to process and treat raw wastewater created as part of the apple juicing process. The system involved pumping raw wastewater from the fruit juice processing plant (“the juicing plant”) through a PVC pipe to the WWTP. The system also processed water from the packing shed. The WWPT was located close to, but uphill from, the juicing plant. The pipe that carried the wastewater to the WWTP ran from the juicing plant, under a road way, and up the side of, and into the WWTP. Self-evidently the raw wastewater had to be pumped to the WWTP. A tap, about which there was much evidence, was affixed to this pipe on the outside of the WWTP. The tap, when the pumping of the raw wastewater to the WWTP occurred, was meant to be in a position allowing the raw wastewater to enter the WWTP. The tap could be turned such that the flow to the WWTP was stopped. If the tap was in that position, and the pumping continued, raw wastewater would flow through to the tap, and be diverted from entering the WWTP and into an open drain on the outside of the WWTP. If the pump remained on and the tap open, the discharge, as occurred here, would eventually run into Deep Creek.
The evidence established that the tap was generally left in the position to allow the raw wastewater to flow from the juicing plant to the WWTP. I will, for the ease of reference, refer to that position as “closed”. However, the evidence also established that the tap could be operated to divert the raw wastewater away from the WWTP (I will refer to that as the “open” position) for three defined purposes. First, to assist in identifying the location of a blockage stopping raw wastewater entering the WWTP. Secondly, to sample the raw wastewater for testing. Thirdly, to pump raw wastewater into a tanker to be taken off-site if for some reason the WWTP was not functioning. There was little evidence as to the frequency of these operations but it appears these operations were infrequent. Indeed, it is likely the third option had not been used.
There was no standard operating procedure or work instruction or other document in existence for any of those purposes. The tap could be easily opened and was not locked, boxed, tagged or alarmed. There was no signage on or around the tap to notify persons that the pipe contained raw wastewater and was not to be opened without authorisation.
The evidence established that on 29 August 2014, pollutant in the form of wastewater was discharged from the open tap into Deep Creek. The tap was likely to have been open for a number of hours during which raw wastewater flowed into the stormwater drainage, then into the natural drainage line on the Property before finally discharging into Deep Creek. The evidence at the trial eventually focussed on who turned the tap to the position that the raw wastewater was diverted away from the WWTP and the reason(s) why that may have occurred.
The appellant’s position at trial was that an employee, Mr Vincenzo Pollifrone (“Vincenzo”) opened the tap and discharged the raw wastewater. The appellant submitted that Vincenzo was not acting within the scope of his employment when he turned on the tap and was on a “frolic of his own”.
The charges
The appellant faced two charges arising from the discharge into Deep Creek. Both charges alleged contraventions of mandatory provisions of the Policy contrary to s 34(2) of the Act. The first count related to a breach of cl 12 (obligation not to cause environmental harm) of the Policy. The second count related to a breach of cl 13 (maintaining water quality criteria) of the Policy. Apart from a legal argument in relation to Count 2, the appellant at trial conceded that the respondent had proved the necessary elements of the offence. The real question at trial, and on appeal, was whether the appellant had proved the defence available pursuant to s 124 of the Act.
Ashton Valley Fresh business
At the relevant time, Tony was the managing director of the appellant. Ms Joyce Ceravolo was the business development manager and Mr Joseph Ceravolo was the operations manager. The business had at least three other employees. As at 2014, Tony, who had been involved in the operations for many years, was in the process of allowing his children, Joseph and Joyce, to become more involved in the running and management of the companies. However, Tony continued to oversee and have the final say in the operations of the appellant.
Joyce was responsible for training and educating employees of the appellant. She developed and implemented a formal training program for new employees and existing staff. One of the documents provided in the training program was the Standard Operating Procedure (“SOP”) manual for the WWTP. That document did not refer to, or make mention of, the particular tap in question.
At the relevant time, Vincenzo was an employee of the appellant and his duties included operating the WWTP. He had been certified by Joyce as competent to operate the WWTP and assessed as “very competent” in his understanding of the SOP. He received “on the job” training in the operation of the WWTP from Joseph and Tony. Vincenzo had been running the WWTP for a month or two prior to 29 August 2014. It is likely that Joseph and Tony contributed to operating the WWTP with Vincenzo.
The discovery of the discharge
As mentioned earlier, Mr Goonan of the EPA happened to be at Deep Creek on 29 August 2014 and noticed the discharge. He sampled the discharge in the natural drainage line and in Deep Creek by collecting water samples from five sites. Site 1 was at the lower reach of the drainage line before it entered Deep Creek. Site 2 was within the waters of Deep Creek about 50 meters upstream from the drainage line and Site 3 was within the waters of Deep Creek about 100 meters downstream from the drainage line. He also collected samples from a large wastewater dam and a small dam, both located on the Property.
The following water quality criteria in the Policy were applicable to Deep Creek:
·biochemical oxygen demand (five-day test) 10 mg/L
·phosphorus (total as phosphorus) 0.5 mg/L
·total organic carbon 15 mg/L
·pH (Ph units) between 6.5–9.
The samples taken on 29 August 2014 from Site 1 and Site 3 were shown by laboratory analysis to exceed the relevant water quality criteria, as noted above, for biochemical oxygen demand (5-day test), phosphorus (total as phosphorus), and total organic carbon. These samples were also shown to have pH levels below the minimum level of 6.5 pH. These facts made up the particulars of Count 2 on the information. The samples taken from Site 1 and 3 also had elevated levels of turbidity and sediment compared with the samples taken by Site 2. The results of these samples constituted the particulars in relation to Count 1 on the information.
The samples taken from Site 2 were shown by laboratory analysis to not exceed the water quality criteria and to have pH levels within the relevant range set by the Policy.
There is, on appeal, no challenge to the test results.
The prosecution case
Mr Goonan gave evidence of his observations at Deep Creek on 29 August 2014, his method of sampling the waters of Deep Creek and its surrounds, and his interpretation of the subsequent results as they related to the two charges. On appeal there is no challenge to his evidence.
Mr Shillabeer, the Investigation Officer of the EPA, gave evidence of having attended at Deep Creek about 2pm on 29 August 2014, after having been contacted by Mr Packer. On walking the banks of Deep Creek he noticed a strong smell of apples and fermented fruit. He took a number of photographs and he also took some video footage of the creek area; these were tendered at trial.
At around 3.50 pm on 29 August 2014, Mr Shillabeer, in the company of other employees of the respondent, attended the appellant’s premises. They met Tony and advised him that they were there to investigate some run-off into the creek below the Property. Mr Shillabeer explained to Tony that they wanted to determine the “origin” of the run-off. An investigation at the Property eventually revealed a drain heading to the area of the creek previously observed by Mr Goonan. The terrain and vegetation made it difficult to locate but eventually Mr Shillabeer located a stormwater pipe. At this time, the water observed discharging from the pipe was relatively clear. It was accepted at trial that this was the pipe from which the raw wastewater had earlier discharged into Deep Creek.
It was also accepted at trial, from the testing of samples of water Mr Goonan took from the dam on the Property, that the dam was not the source of the raw wastewater that discharged into Deep Creek on 29 August 2014.
While the entry point to Deep Creek was located, the origin of the discharge was not discovered on 29 August 2014.
On 18 September 2014, Mr Shillabeer attended the property for the purpose of trying to establish the source of the discharge. Tony told Mr Shillabeer that the discharge could only have come from the WWTP; he had positively excluded all other possibilities. He told Mr Shillabeer that he believed the drum filter had overflowed.
The EPA further attended on 24 October 2014 and interviewed Tony. The interview was video recorded. The recording and a transcript (aide memoire) were tendered. It was not until a few months before trial that the tap was identified as the source of the discharge.
Principles on appeal
The appeal is brought pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (SA). Section 30(4) of that Act states:
A party to any criminal proceedings before the Court may appeal against any judgment given in those proceedings in the same way, and to the same extent, as an appeal may be instituted against a judgment given in a criminal action under the Magistrates Court Act 1991.
The right of appeal in criminal proceedings before the ERD Court is equated to an appeal in a criminal proceeding under the Magistrates Court Act 1991 (SA); the appeal is therefore governed by s 42 of that Act. Such an appeal ordinarily lies to a single judge of the Supreme Court.[1]
[1] Magistrates Court Act 1991 (SA) s 42(2)(b); Resourceco Pty Ltd v Harvey (2007) 96 SASR 495 at [34]–[35] (Debelle J).
The appeal is therefore by way of rehearing but with power to receive further evidence. The appellate court must conduct a real review of the evidence and the judicial officer’s findings and reasons. On issues involving the assessment of the truthfulness, credibility and reliability of a witness, the appellate court must make due allowance for the advantage held by the judicial officer in seeing and hearing the witnesses. However, the appellate courts are not excused from the tasks of weighing conflicting evidence and drawing their own inferences and conclusions. The fact that a judicial officer may have reached their conclusion by an acceptance of a witness’s evidence does not prevent the appellate court carrying out its statutory function. If the appellate court concludes that the judgment is wrong it must overrule it.[2]
[2] Fox v Percy (2003) 214 CLR 118; Taylor v Hayes (1990) 53 SASR 282.
Grounds of appeal
The appellant agitates four grounds of appeal, namely:
1.That the verdicts were unreasonable or not supported by the evidence;
2.The Trial Judge made an error of law in holding at [79] that cl 13 of the Policy did not require measurement by an approved sampling method, and therefore erred in holding that Count 2 could be established without proof of an approved sampling method;
3.The Trial Judge erred in holding that the general defence under s 124 of the Act had not been proved by the appellant in that he was not satisfied at [128] that Vincenzo (referred to as V in the reasons) had opened the tap;
4.The Trial Judge erred, when considering the alternative scenario (that Vincenzo had intentionally opened the tap without authority), in holding that the general defence under s 124 of the Act had not been proved by the appellant in that he was not satisfied at [148] that the appellant took all reasonable and practicable measures to prevent the contraventions.
Alternative contention
The respondent has filed a Notice of Alternative Contention. The respondent agrees with the decision of the Trial Judge, but submits that the general defence was also not proven for each count on the basis that it had not been proven on the balance of probabilities that Vincenzo opened the tap intentionally and without the appellant’s authorisation because:
1.The deliberate lies told by Tony to the EPA officers on 18 September 2014 and 24 October 2014 about the source of the discharge on 29 August 2014;
2.Prior to the discharge on 29 August 2014, the appellant had also avoided operating the WWTP by pumping untreated wastewater in the spill retention basin directly into the large dam;
3.The appellant had financial motive for the discharge, to avoid expenses incurred by running the WWTP.
On appeal, the respondent abandoned the first contention.
There is considerable overlap of Grounds 1, 3 and 4. Ground 2 stands separately from the other grounds. It is convenient to deal first with Ground 2. I will then deal with Grounds 3 and 4 and finally Ground 1.
Ground 2
Ground 2 involves the interpretation of cl 13 of the Policy. Clause 13 relevantly states:
13 – Obligation not to contravene water quality criteria (Schedule 2)
(1)A person must not, by discharging or depositing a pollutant into any waters, cause any of the water quality criteria applicable (see Schedule 2) to those waters—
(a) to be exceeded or, if already exceeded (whether through natural causes, the discharge or deposit of a pollutant or a combination of both), further exceeded; or
(b) in the case of a minimum level specified in Schedule 2 in relation to a characteristic of water—to be decreased or, if already decreased (whether through natural causes, the discharge or deposit of a pollutant or a combination of both), further decreased.
Mandatory provision: Category B offence.
(2)In this clause—
exceeded or decreased means exceeded or decreased as measured by a method approved by the Authority.
(emphasis added)
In essence, the appellant submitted that the Policy required the respondent to prove that the EPA had an approved method for both sampling (that is collecting the sample) and testing (that is analysing) samples. The Trial Judge found, as submitted by the respondent, that an approved method was only required for testing samples.
Appellant’s submissions
The appellant focussed on the wording of cl 13(2). It submitted that the expression “measured by a method approved by the authority”, in context, means a method of collecting a sample as well as a method of analysing the sample. The appellant contended that for something to be measured, and measured accurately, it must be collected properly. In other words, while the analysis of any sample was extremely important, the collection of the sample was also an important part of the process. That is, the expression “measurement” includes both collection and analysis. Standardised sampling processes, the appellant contended, are part of a reliable testing process.
It was common ground that the EPA did not have an approved method for collection of a sample. The failure to have in place an approved sampling method meant that a mandatory provision of cl 13 had not been complied with and this, it was submitted, was fatal to the finding of guilt on Count 2.
Respondent’s submissions
The respondent submitted that the only method required to be approved by the EPA was a method for the analysis of the concentration or level of a pollutant in a sample; the respondent did not have to prove an approved method for the collection of a sample.
The respondent relied upon cl 7 of the policy which states, inter alia, that the principal object of the policy is to protect or enhance water quality. More specifically, the respondent pointed to the water quality objectives in cl 10 which seek to ensure the protected environmental values of waters are safeguard. The phrase “water quality criteria” is defined specifically in the Policy as meaning:[3]
in relation to protecting a particular protected environmental value, means the maximum concentrations of certain substances permitted by this policy to be in water, or the minimum or maximum levels permitted for certain characteristics of water;
[3] Clause 3.
The respondent submitted the phrase “measured by a method approved by the authority” should not be read in isolation. The respondent submitted that cl 13(2) needed to be read in its entirety and also in conjunction with cl 13(1).
The respondent submitted that cl 13(2) when read in context of the obligation created by cl 13(1) demonstrates that what is being measured is the water quality by a comparison of the sample as against the criteria in Schedule 2. The results of an analytical test, conducted by a method approved by the EPA, are compared against the criteria set out in Schedule 2. It is only the concentration or level of particular items set out in Schedule 2 that have to be ascertained by a “method approved by the Authority”. If there is a variance from the criteria in Schedule 2, as determined by the analysis, an offence may have been committed. Collecting, while a necessary antecedent step to testing, does not have to be “measured”.
Discussion
The task of construing a statute commences with consideration of the words of the provision itself and their context. The process must begin with consideration of the text but as the intended meaning of the words can never be acontextual the process must include the context. Context includes surrounding statutory provisions, that is what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief that the statute is intended to remedy. However, the text of the provision is important for it contains the words being construed, and a very general purpose may not detract from the meaning of those words. Much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.[4]
[4] R v A2 (2019) 373 ALR 214; [2019] HCA 35 at [32]–[34] (Kiefel CJ and Keane J), [163] (Edelman J).
A statutory offence provision is to be construed by reference to the ordinary rules of construction. Only an ambiguity that exists after the application of the ordinary rules of construction is one which is to be resolved in favour of an accused. The old rule that statutes creating offences be strictly construed has lost importance.[5] The proper question to ask in statutory interpretation is always “does the intended meaning of the words used by Parliament extend to these circumstances”?[6]
[5] R v A2 (2019) 373 ALR 214; [2019] HCA 35 at [52] (Kiefel CJ and Keane J), [163] (Edelman J).
[6] R v A2 (2019) 373 ALR 214; [2019] HCA 35 at [165] (Edelman J).
In my view, the context and text of cl 13 are plain. It is an offence to discharge a pollutant into waters that has an effect of increasing or decreasing certain water quality criteria as set out in Schedule 2. The water quality objectives, as set out in cl 10 of the Policy, are to ensure protection of the environmental values of the waters. Clause 13 prohibits contravention of the water quality criteria. Water quality criteria, as defined in the Policy, refers to the maximum concentration of certain substances or the minimum or maximum levels permitted for certain characteristics of water.
“Measured” is defined in the Macquarie Dictionary as:
the act or process of ascertaining the extent, dimensions, quantity etc of something, especially by comparison with a standard.
The purpose of cl 13 is to “measure” a sample taken and to compare it with the standards found in Schedule 2. It is whether certain characteristics contained with the waters sampled are exceeded or decreased that is to be determined and a charge laid. The focus of the clause is on the analysis, not the collection, of the sample.
Read in context, cl 13(2) is referring to, and only referring to, a method of analysis, not collection, approved by the EPA. In my view, the intended meaning of the words used by Parliament does not extend to the collection of a sample. I reject the appellant’s submissions.
No harm is caused by this interpretation. It is trite to say that the collection of the sample may affect the quality of the subsequent analysis. It is open to a defendant to challenge the method of collection of the sample, as indeed was done in this case. If a sample is collected in a manner that would affect its subsequent analysis, the result would be rendered unreliable. However, no approved method of sampling is required by the Policy.
In my view, the Trial Judge correctly interpreted cl 13(2) of the Policy. Consequently, the Trial Judge did not err in holding that Count 2 could be established without proof of an approved sampling method.
I dismiss Ground 2.
Ground 3
The principles of statutory interpretation, referred to earlier, are also applicable to the assessment of Ground 3.
Section 27(1) of the Act authorises the making of environment protection policies “in accordance with this Division for any purpose directed towards securing the objects of this Act”. In particular, under s 27(2)(c) such a policy may set out requirements, standards, goals and guidelines. Pursuant to s 27(2)(d) such a policy can specify that certain requirements or standards (“mandatory provisions”) are to be enforceable under Division 2.
The objects of the Act are specified in s 10 and include requirements:
(b) to ensure that all reasonable and practicable measures are taken to protect, restore and enhance the quality of the environment having regard to the principles of ecologically sustainable development; and–
(i) to prevent, reduce, minimise and, where practicable, eliminate harm to the environment—
…
A person who contravenes a mandatory provision of a policy commits an offence under s 34 of the Act. Section 34 divides offences into breaches with accompanying mens rea (s 34(1)), and breaches where no proof of mens rea is required; that is they are strict liability offences (s 34(2)). The appellant in this matter is charged with two counts, pursuant to s 34(2) of breaching two different mandatory provisions of the Policy. Count 1 alleges a breach of cl 12 (obligation not to cause environmental harm) and Count 2 alleges a breach of cl 13 (water quality criteria). Hence, both charges are strict liability offences.
The appellant is a body corporate. Section 124 of the Act, which provides a general defence, is available to a body corporate. Section 124 relevantly states:
124—General defence
(1)It will be a defence in any criminal proceedings, or in any proceedings for the payment of an amount as a civil penalty, in respect of an alleged contravention of this Act, including—
(a) proceedings against a body corporate or a natural person where conduct or a state of mind is imputed to the body or person under this Part; and
(b) proceedings against an officer of a body corporate under this Part,
if it is proved that the alleged contravention did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature.
(2)…
(3)Where a body corporate or other employer seeks to establish the defence provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof—
(a) that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and
(b) that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this Act and with all such systems and procedures within all relevant areas of the workforce.
Section 124 provides a defence to “any criminal proceedings … in respect of an alleged contravention of this Act”. It is expressed in wide terms and covers both mens rea offences and strict liability offences. That is, it is available in response to charges laid pursuant to s 34 of the Act. That the defence applies to both types of offences is consistent with the objects of the Act mentioned earlier.
The burden of proof in relation to the defence lies with the defendant on the balance of probabilities. For the defence to be successful, a defendant must prove that the alleged contravention did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature. The phrase “reasonable and practicable measures” is also consistent with the objects of the Act mentioned earlier.
Section 4 of the Act provides:
Responsibility for pollution
For the purposes of this Act, the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited will be taken to have polluted the environment with the pollutant (but without affecting the liability of any other person in respect of the escape, discharge, emission or depositing the pollutant).
Thus, if a pollutant escapes or is discharged from a place, the occupier will be taken to have polluted the environment. However, it must be remembered that not all occupiers of a place are involved in commercial operations nor are they necessarily employers. For example, an occupier may invite a contractor onto the place to perform work and that party may be an employer. An occupier may seek to establish that he or she took “all reasonable and practicable measures” by using an apparently competent contractor. Other arrangements may be made by an occupier; it is unnecessary for me to canvass all possibilities.
In circumstances where an occupier is an employer or an employer is working on the place, s 124(3) may be invoked. This sub-section, dealing with employers attempting to satisfy the defence that they took all reasonable and practicable measures, requires the employer to establish more than having in place proper workplace systems and procedures designed to prevent a contravention of the Act. They must also satisfy the requirements of s 124(3)(a) and s 124(3)(b). It is clear however that the defendant, whether they are an employer or not, must satisfy s 124(1) namely that they took “all reasonable and practicable measures”. Even if an employer establishes all of the requirements of s 124(3) it is still a question of fact as to whether those matters establish that the person charged took “all reasonable and practicable measures” in the circumstances. Whether the appellant established that it took “all reasonable and practicable measures” in this case is discussed in further detail later in these reasons when I consider Ground 4.
Ground 3 arguments
As mentioned earlier, the appellant’s position at trial and on appeal was that Vincenzo turned on the tap and discharged the raw wastewater. The appellant submitted that when Vincenzo turned on the tap he was not acting within the scope of his employment and was on a “frolic of his own”. Further, the appellant submitted that it had taken all reasonable and practicable measures to prevent a contravention of the Act, namely its training and operational processes and procedures (relevant to Ground 4). The appellant contended that in such circumstances it had proved on the balance of probabilities the defence available to it pursuant to s 124 of the Act.
The Trial Judge was not satisfied on the evidence that Vincenzo opened the tap on a “frolic of his own”. Accordingly, the Trial Judge found that the appellant had not proved the s 124 defence. The appellant contended that the Trial Judge erred in holding that it had not proved the general defence under s 124.
This ground of appeal raises two issues. First, the relationship between s 124 and s 127 of the Act. Secondly, the factual basis for the Trial Judge’s finding that he was not satisfied that Vincenzo opened the tap on a “frolic of his own”. The second issue requires consideration of the evidence, and the number of competing inferences that might be drawn from them; I discuss these later in my reasons.
I note that many of the issues covered in Ground 3 are also relevant to Ground 1.
The relationship between s 124 and s 127
The appellant submitted that the charges were “status” offences. I reject that submission but that does not make any practical difference to my interpretation of s 127 and its relationship with s 124.
The issue that arises is whether s 127, which involves the imputation of the conduct or state of mind of an employee to the employer, is relevant to the operation of the general defence under s 124 of the Act. The appellant submitted that s 127 has no role to play when assessing the defence under s 124; the Trial Judge rejected that submission.
Section 127 relevantly provides:
127—Imputation of conduct or state of mind of officer, employee etc
(1)For the purposes of proceedings for an offence against this Act or proceedings for the payment of an amount as a civil penalty in respect of an alleged contravention of this Act—
(a)the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate;
…
(emphasis added)
The section is expressed in wide terms. It applies for the purposes of “proceedings” for an offence against this Act. As discussed earlier, the defence under s 124(1) applies to both mens rea offences and strict liability offences. That is, even where the prosecutor has to establish the particular mens rea of a defendant (s 34(1)), and does so, the s 124(1) defence is still available. The same must apply to a strict liability offence. There is no warrant for reading a restriction into this section such that it only applies to offences involving mens rea. The section applies generally to proceedings including strict liability offences.
Therefore, if an employee of a company acts within the scope of his or her actual, usual or ostensible authority the conduct and state of mind of the employee is imputed to the body corporate. This is simply a recognition of the general law of vicarious liability.
In my view, the fact that an employee may have acted within the scope of his or her actual, usual or ostensible authority does not mean the defence under s 124(1) is rendered nugatory simply because the body corporate will be fixed with an intentional act of the employee. That is, an employer will be fixed with knowledge of an act committed by an employee acting within the scope of their duties. When s 127 operates to fix a body corporate with the act of an employee, it may be very difficult for a defendant to make out the defence, but it is not precluded from attempting to do so. Obviously, it will depend on the facts.
This interpretation is consistent with the objects of the Act. A contravention of a mandatory provision is not absolute. The defence contemplates that not all measures, which may have prevented pollution occurring, must be taken. This is consistent with s 10(b) of the Act which states that it is an object of the Act “that all reasonable and practicable measures are taken to protect, restore and enhance the quality of the environment having regard to the principles of ecologically sustainable development”. The measures which must be taken are all those which are reasonable and practicable.
The Trial Judge found that the operation of s 127 was relevant to the s 124(1) defence. The Trial Judge also found that s 124(3) operates where an employer is seeking to prove the defence under s 124(1). In my view, he was correct in his finding.
Factual findings
The Trial Judge was required to resolve two factual issues. First, was it Vincenzo who committed the act of turning on the tap? Secondly, if he did, was he on a “frolic of his own” at that time or was he was acting within the scope of his authority?
Having discussed the evidence, the Trial Judge found:[7]
The whole of the evidence does not allow an inference to be drawn that V opened the tap and did so intentionally and without authorisation. The general defence, in that respect, rises no higher than a suspicion; ‘[t]he suspicion was [V] had done something to release the wastewater, and he was dealt with accordingly’.
AVF has not satisfied me that V opened the tap and that V did so intentionally and without authorisation. The defence, as premised by AVF on such a finding, has not been proved.
[7] Dolan v Ashton Valley Fresh Pty Ltd (ACN 129 405 410) [2021] SAERDC 15 at [127] (emphasis in original) (“Reasons”).
It is not entirely clear whether this is a finding that Vincenzo did not turn the tap on at all, or alternatively that he may have turned it on but that the appellant failed to prove that he did so without authorisation. Without authorisation, in this context, means that Vincenzo was on a “frolic of his own”. With authorisation means Vincenzo turned it on at someone else’s direction. Alternatively, he may have, when turning the tap on, performed an act, not specifically authorised, but still within the scope of his employment.
On appeal, the appellant attacked this finding of the Trial Judge. The appellant submitted the evidence was sufficient for the Trial Judge to be satisfied on the balance of probabilities that Vincenzo did in fact turn on the tap while acting on a “frolic of his own”. Consequently, the appellant submitted that the Trial Judge should have found that Vincenzo was acting outside the scope of his employment, and any reasonable and practicable measures it had taken would not have prevented the contravention charged. Thus, it was submitted that ultimately the Trial Judge erred in finding the s 124 defence was not proved.
Burden of proof
It is important to note that the Trial Judge did not find that there was no evidence supporting the inferences the appellant sought to establish. Clearly, by his findings, the Trial Judge accepted there was some, but in his view insufficient, evidence supporting the appellant’s submission. That is an important distinction as the appellant accepted that it bore the onus of proof to establish the defence on the balance of probabilities.
In considering the assessment of evidence in the context of the civil onus of proof Dixon J stated in the well-known case of Briginshaw v Briginshaw:[8]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
(emphasis added)
[8] (1938) 60 CLR 336 at 362.
The essence of this oft cited passage is the requirement that in determining whether evidence adduced proves a fact to the civil standard, the trier of fact should consider the significance and consequences of the finding of fact that they are urged to make in determining whether they are persuaded of the existence of that fact to that standard. While Briginshaw is often referred to in the context of a civil case involving allegations of a criminal nature, it is of course relevant to all fact finding in civil cases.
As Hinton J (with whom I agreed) observed in Maxcon Constructions Pty Ltd v Vadasz:[9]
This reflects the reality that persuasion of the existence of a fact to a particular standard requires “actual persuasion of its occurrence or existence before it can be found” and that such state of mind is not one “attained or established independently of the nature and consequences of the fact or facts to be proved”. The requirement that proof be clear, cogent or strict – expressions taken from the authorities applying the Briginshaw considerations – is an expression of the quality of the evidence necessary to move a mind to a state of actual persuasion of a fact where the finding of fact is one to which serious consequences attach. Accepting this, the Briginshaw considerations amount, in effect, to directions to be given in a civil trial to the trier of fact as to matters relevant to the weighing of evidence adduced in support of a proposition to be proved to the civil standard. So understood the content of the directions will vary depending upon the nature of the issue in dispute.
[9] (2017) 127 SASR 193 at [251].
The task confronting the Trial Judge in assessing the evidence was whether he could feel an “actual persuasion” that Vincenzo, an employee of the appellant company, acted on a frolic of his own and turned on the tap. In assessing the evidence, the Trial Judge was required to have regard to what was a serious allegation against Vincenzo. That is, without authorisation, and for no obvious reason, or none that could be determined, Vincenzo discharged a large quantity of raw wastewater into the open drain of his employer. Such an act, if proved against him, may have led to his dismissal.
The evidence
The prosecution called witnesses to establish what they observed on 29 August 2014 and conversations they had with Tony on that day and subsequently. In addition, the prosecution tendered photographs, plans and various documents. The appellant called evidence from Joseph and Joyce in addition to tendering various documents including the SOP for the WWTP. Vincenzo was not called by either party to give evidence. Tony was not called by the appellant.
There was no direct evidence at trial as to who turned the tap on or for what reason. The appellant relied upon inferences to be drawn from the whole of the evidence. In particular, the appellant relied on the following matters to establish that Vincenzo opened the tap and was unauthorised in doing so:
·on 1 September 2014, that is two days after the incident, Vincenzo was removed from operating the WWTP;
·Vincenzo was being retrained in other areas;
·Vincenzo’s employment was terminated because of a work incident occurring on 29 November 2014;
·following the discharge on 29 August 2014, the appellant changed the methodology by which solids were removed from the WWTP and bunded an area on the other side of the shed from the tap at significant expense. That is, the appellant had taken corrective action to address what it believed to the site of the discharge an action inconsistent with a knowing and intentional act of the appellant;
·the appellant would have taken steps to remove the evidence of the discharge under the tap before the EPA attended on 18 September 2014 if it had authorised or otherwise known of the deliberate turning on of the tap;
·the advantageous uses the appellant could make of treated water for irrigation;
·the lack of motive for the appellant, or its employees, to turn the tap on in all of the circumstances.
The appellant contended that the Trial Judge erred in making various findings and further only considered some but not all of these matters. While it is correct that the Trial Judge did not deal with all of the arguments put forward by the appellant, a fair reading of his reasons demonstrate that he dealt with the most significant arguments, although he did not resolve them all. Although a trial judge should deal with the substantial issues and arguments, it is not necessary for a trial judge to resolve every issue that arises during the course of a trial.[10]
[10] DL v The Queen (2018) 266 CLR 1 at [130]–[131].
The undisputed evidence was that the tap, from which the wastewater flowed, must have been open for at least some hours for the wastewater to have flowed towards, and then into, Deep Creek. Further the pump must have continued to operate for that same period of time. When the EPA employees arrived at the appellant’s property on 29 August 2014 the pump was not operating; self-evidently someone had both turned it on and, eventually, off. Not only was the pump turned off, the tap must also, at some time, have been turned back to the closed position allowing the wastewater to flow, if pumped, back into the WWTP. It was also undisputed that the tap from which the wastewater flowed was situated on the outside of the WWTP tank (a metre or two up the side of the tank) and therefore the flow, under pressure from the pump, would have been visible to anyone in the vicinity of the WWTP tank and tap. No doubt it would have been accompanied by some noise of gushing water. The photographic evidence established that water discharged from the tap would have flowed downhill towards and into an open drain. The drain was open for a few metres before the discharge entered a pipe which disappeared under the road way. These are all matters that the Trial Judge had to consider when determining the likelihood or unlikelihood of Vincenzo acted on a “frolic of his own”.
It must be remembered that the Trial Judge was faced with competing inferences. It was open, as urged by the appellant, to find that Vincenzo turned the tap on and did so on a “frolic of his own”. However, it was also open to find that if Vincenzo turned the tap on, he was acting within the scope of his authority albeit using an improper method. Further it was open to find that Vincenzo turned the tap on and did so on the instructions of either Tony or Joseph, or that Vincenzo did not open the tap but Tony did. I now turn to consider the evidence and findings of the Trial Judge when answering these questions of fact and considering these alternative inferences.
Did Vincenzo open the tap “on a frolic of his own”?
As noted in the bullet points above, the appellant contended that circumstantial evidence could be used to infer that Vincenzo turned the tap on, and did so on a “frolic of his own”.
Vincenzo’s removal from the WWTP and allocation to other areas
There was conflicting evidence about whether Vincenzo was removed from operating the WWTP on 1 September 2014 or at a later date. On this topic, the appellant relied on the evidence of Joyce and to an extent Joseph.
Joyce, who began working for the appellant in 2013, gave evidence about the training undertaken by Vincenzo after he joined the company on 4 February 2014. The evidence established that Vincenzo embraced his training as his employment record shows he achieved either a 4 or 5 out of a possible score of 5 on every task of “operator training” he undertook. That included a score of 5 out of 5 in relation to the SOP for the WWTP. Two weeks before his employment was terminated he achieved a score of 5 out of 5 for training in “Glass Breakage Procedure”. No records were produced that suggested his work up to 29 August 2014 was anything other than satisfactory.
Joyce gave evidence about completing an Issue Resolution Form for the incident regarding the raw wastewater being discharged.[11] Joyce said she complied it on 1 September 2014; it was updated from time to time. She spoke to Vincenzo on 1 September 2014 and recorded that he “was not forthcoming with information and was unsure as to what had happened”. Joyce’s notes record Vincenzo, in effect, denying any wrong doing. She was unable to recall any further details of the conversation.
[11] Exhibit D19.
Joyce also recalled a meeting on 1 September 2014 between her, Joseph and Tony about the discharge. Joyce recalled that Tony said “I think Vinny’s done something”. She was unable to recall anything else about the meeting. Joseph, who gave evidence before Joyce, did not mention this meeting.
There was an objection to the evidence of Joyce on what Tony said at the meeting. Tony had a suspicion that Vincenzo had “done something”. Tony did not give evidence. Consequently, Joyce’s evidence about Tony’s statement was admitted, not for the truth of it as it is clearly hearsay, but to establish that as a result of it being said, the appellant, in particular Joyce, took a particular action.
The Issue Resolution Form records that Vincenzo was removed from responsibility of operating the WWTP from 1 September 2014 with the proviso that he could be re-trained and allowed back “into the job at a later date if he can prove competency”. No further investigations were undertaken into the cause of the discharge despite the fact that no actual cause had been identified.
Other evidence was inconsistent with the information contained in the Issue Resolution Form.
Joyce stated that on 1 October 2014 an employee, Scott Morgan, was being trained in operating the WWTP as Vincenzo was removed from his responsibilities and they had to train someone else. On the same date, 1 October 2014, Vincenzo was trained in the Traceability System Procedure as “he was going to be removed from his responsibilities in the WWTP” and he needed to pick up other responsibilities. That is, approximately a month after the incident, Vinceno was being retrained to perform duties in another area.
Tony, when spoken to by Mr Shillabeer on 24 October 2014, stated that:
I’ve been teaching Vinnie [Vincenzo] and its only been in the last few months that he’s been learning it. It’s not a, its not a simple process to learn, it takes a little bit of time to understand how to work it. So I’ve been up there virtually, you know, probably in the last few weeks, quite a lot with him and I think he’s got a good understanding of it now, but there are times when I always, you know, we’ve got to set up the, if he has any problem at all he always rings me first before he does something that he’s not sure about.
This contemporaneous statement by Tony is, to an extent at least, inconsistent with the evidence of Joyce. It is also not entirely consistent with Joseph’s understanding of Vincenzo’s role in the WWTP. Joseph considered that immediately after 29 August 2014 he and his father had taken over from Vincenzo. Certainly, by 24 October 2014, Tony said he had been training him for “the last few months” and that he, Vincenzo, had a “good understanding”. The Trial Judge referred to another part of Tony’s statement made on 24 October 2014 that Vincenzo would be looking after the WWTP “more and more” and that he would be the “main boy”. It was open to the Trial Judge to accept Tony’s contemporaneous statements over the recollection of Joyce and Joseph given some six years after the incident.
The evidence did not support the appellant’s submission that Vincenzo was removed from having anything to do with the operation of the WWTP on 1 September 2014. As the Trial Judge found, at best for the appellant, from 1 September 2014 Vincenzo no longer had responsibility for the WWTP.
While Vincenzo was being trained in other areas, his training in operating the WWTP evidently continued. His continued training and Tony’s endorsement of him are inconsistent with the suggestion that Vincenzo was a bad employee or that he was removed from having anything to do with the WWTP as submitted by the appellant.
The evidence is suggestive of the appellant changing Vincenzo’s responsibilities because of the discharge. What is less clear is the actual reason for doing so. Vincenzo had told Joyce he was unsure what had happened. Joyce acted on a statement from Tony on 1 September 2014. What Tony is alleged to have said to Joyce was not admitted for its truth. The evidence was not admissible to establish that Tony held that belief. There was, in fact, no evidence that Tony held that belief. But this evidence can be used to establish the reason for Joyce acting as she did in having Vincenzo’s responsibilities changed. That said, the coincidence in the timing of the discharge to the change in responsibility would allow the inference that the two events were connected in any event.
However, as submitted by the appellant, the treatment of Vincenzo after the 29 August 2014 is evidence that the Trial Judge could use in assessing the likelihood or unlikelihood of Vincenzo being instructed by a member of staff to discharge the raw wastewater from the tap. It was evidence the Trial Judge could also use in assessing the likelihood or unlikelihood that either Joyce or Joseph turned on the tap. The weight that could be given to the evidence was a matter for the Trial Judge.
The Trial Judge found that the evidence did not support the proposition that Vincenzo was removed from anything to do with the operation of the WWTP. To the contrary, the evidence established that Vincenzo remained working with Tony on the operation of the WWTP and in effect was either being trained or retrained. There has been no error demonstrated in the Trial Judge’s approach.
Termination of Vincenzo’s employment
Turning to the issue of the termination of Vincenzo’s employment, the appellant relied on evidence given by Joyce. It was common ground that on 29 November 2014, that is 3 months after the discharge was detected, Vincenzo’s employment was terminated.
Vincenzo was operating a forklift in the cool room when he caused damage to the appellant’s property with the forklift. He did not report the event. Joyce stated that it was a “mutual” decision for Vincenzo to leave his employment although his employment record state that his employment was “terminated”. The appellant submitted the Trial Judge should infer that, because of the November 2014 incident, Vincenzo was the “sort of person who would do something as foolhardy and damaging as discharging untreated wastewater”.
The Trial Judge found, contrary to the appellant’s submissions, that up until his employment was terminated, Vincenzo was a trusted and competent employee. The Trial Judge relied upon, as he was entitled to do, comments made by Tony in his record of interview to support his finding. The statements of Tony to Mr Shillabeer support the fact that the appellant still regarded Vincenzo as a good employee. There is nothing in the records produced by the appellant that suggests that Vincenzo was anything other than a good employee. The evidence did not support the proposition put by the appellant. Joyce gave no detailed evidence about the “mutual decision” that was reached. Whether Vincenzo’s employment was terminated simply because of the November incident was not explored in evidence.
A finding that Vincenzo was a good and trusted employee as at the date of his termination, 29 November 2014, stands in stark contrast to the submission that Vincenzo, on 29 August 2014, acted on a “frolic of his own” in opening the tap. The Trial Judge found that, as the incident leading to Vincenzo’s termination of employment occurred 3 months after the discharge from the WWTP and related to a different activity and in a different area of the plant, he would give little weight to it. That finding did not stand in isolation. It was open for the Trial Judge to infer that Vincenzo was a good and trusted employee even after the discharge and therefore give little weight to the circumstances surrounding the termination of his employment. No error in this approach has been demonstrated.
Corrective action, no concealment of the tap, and further investigation by EPA
On 18 September 2014, officers of the EPA attended the premises and conducted further investigations which included taking photographs and making observations of signs of erosion under the tap. A question arose on appeal as to whether anyone from the appellant would have expected someone from the EPA to revisit the premises. The appellant sought to tender further documents as fresh evidence on the topic, namely a letter from the EPA notifying the appellant that they would be revisiting to conduct further investigations. I do not need to resolve those issues. Irrespective of the documents now sought to be adduced, the fact that the EPA had attended on 29 August 2014, and no cause for the discharge had been determined, meant that a return visit was almost certain. While it could be said the visit on 18 September 2014 was unannounced, a visit at some time was likely, and the appellant would have appreciated that.
The fact that no one from the appellant had sought to disguise or cover up the eroded area under the tap in anticipation of the EPA’s further visit was evidence the Trial Judge could use to determine the likelihood or unlikelihood that anyone from the appellant had been involved in the discharge of the wastewater. The evidence in relation to the bunding and the appellant not removing the evidence of discharge from under the tap were points consistent with the appellant’s defence.
However, given the evidence, Tony’s denial of the tap being the source of the discharge was curious. The appellant submitted that Tony’s denial was evidence that could be used to infer he could not conceive of it being the source. However, there are other inferences available including, as the respondent submitted, an attempt to divert attention away from the source. Further, the tasks undertaken by the appellant after the incident were equally consistent with Tony seeking to divert officers of the EPA from determining the actual source of the discharge.
The problem for the appellant is that Tony did not give evidence. The Trial Judge only had his out of court statements which could not be tested. Indeed, contrary to other evidence, Tony initially stated that he did not know what the tap was for.
I turn here to deal with the issue raised by the respondent, namely whether a Jones v Dunkel[12] inference could be drawn against the appellant by its failure to call Tony as a witness. No reason was given for the failure of Tony to give evidence and he was clearly in the appellant’s camp. It is likely that the appellant was content to rely on the out of court statement’s Tony made to the EPA officers.
[12] (1959) 101 CLR 298.
The general rule in criminal cases is that the trier of fact is not entitled to infer that evidence of witnesses, whom the accused did not call, would not have assisted the accused.[13] There is an exception to that if an accused fails to give evidence in his or her own case where an explanation of the facts is uniquely within the knowledge of the accused.[14] That is not the position here.
[13] Dyers v The Queen (2002) 210 CLR 285 (“Dyers”).
[14] Weissensteiner v The Queen (1993) 178 CLR 217.
In R v Cornish,[15] the accused was charged with possessing methylamphetamine for the purpose of sale. Given the quantity of the drug found in the accused’s possession, s 32(3) of the Controlled Substances Act 1984 (SA) operated such that that in the absence of proof to the contrary, the accused was presumed to have the methylamphetamine in his possession for the purpose of sale. There is no doubt that the section placed an onus on the accused to prove on the balance of probabilities that he did not have possession of the methylamphetamine for the purpose of sale. Bleby J, when discussing the reversal of the onus, pondered whether, in a case where there is a reversal of the onus, the remarks of the High Court in Dyers applied.[16] However, Gray J (Anderson J agreeing) stated:[17]
However the reversal of the onus in s 32(3) may be characterised, it is clear that the fact that the defendant may carry an evidentiary or other onus does not affect the circumstances in which a Jones v Dunkel direction may be given in a criminal trial – very exceptional circumstances must be established.
[15] (2006) 96 SASR 207.
[16] R v Cornish (2006) 96 SASR 207 at [10].
[17] R v Cornish (2006) 96 SASR 207 at [10], [38].
This is a criminal prosecution albeit a summary one. It is not a civil penalty case as the prosecution was required to establish the elements of the offence beyond a reasonable doubt. Section 124 casts a legal onus on the appellant. Unlike the onus in Cornish, which was an evidentiary presumption, the appellant was required by evidence to establish the necessary requirements of s 124 for the defence to be successful. In Cornish, the onus, in legal terms, always remained on the prosecution to prove its case beyond a reasonable doubt. That is, if Cornish failed to “prove to the contrary”, s 32(3) provided an evidentiary aid to establish the purpose of possession, namely sale, beyond a reasonable doubt. That is not the case here. Cornish was decided on different legislation and with a different onus. The onus shifts and remains on the appellant to prove the defence on the balance of probabilities. Further, this is a regulatory offence and not an offence involving possible imprisonment as a penalty. That said, given the matter attracts a criminal standard of proof and absent full argument, I consider I should follow the Full Court’s approach in Dyers – that is exceptional circumstances would be required before drawing a Jones v Dunkel inference.[18]
[18] Dyers v The Queen (2002) 210 CLR 285.
Whether a Jones v Dunkel inference was available on the facts of this case raises difficult questions.[19] However, the issue was not fully argued before me and it is not necessary to finally decide the question. The Trial Judge did not apply the principles in Jones v Dunkel. In reaching my decision, it is not necessary for me to do so either.
[19] For a helpful discussion on the applicability of Jones v Dunkel principles in civil cases see ASIC v Macks (No 4) [2020] SASC 209 at [386] ff per Doyle J.
While no adverse inference can be drawn from Tony’s failure to give evidence, other than his out of court statements, the fact remains that there is simply no evidence from the person who could have shed light on some of the issues. The person who had the most to do over the years with the operation of the WWTP, who could talk about irrigation methods and the use of the wastewater in the dam and/or orchard, who spoke to Vincenzo around the time of the attendance of the EPA officers, and who could talk about why various activities were performed or not performed after the discharge did not give evidence. Consequently, the Trial Judge was left to draw inferences from documents and the evidence of Joyce and Joseph and to an extent Tony’s out of court statements.
Further, while the Trial Judge found that he did not have to determine the question whether Tony actually lied to the officers from the EPA, it is clear from the reasons for verdict that he did not accept all of Tony’s statements. No error has been demonstrated in the Trial Judge’s approach in considering the inferences to be drawn from the appellant’s corrective action and non-concealment of the tap upon the EPA’s further investigations.
Further findings of the Trial Judge
The Trial Judge made further findings. The Trial Judge found, correctly, that there was no evidence that Vincenzo had been given any training or instructions in respect of the tap. While Vincenzo was trained and certified to operate the WWTP in accordance with the SOP manual, the SOP manual made no mention of the tap or referred to any use that could be made of the tap. The Trial Judge acknowledged that Vincenzo had been told that if there was a “blockage” he was to contact Tony or Joseph. However, he found there was no clear evidence that Vincenzo even knew of the existence of the tap.
The Trial Judge also found that the internal investigations by the appellant following the discharge did not assist in determining who opened the tap. The Issue Resolution Form did not identify the source of the discharge as the tap nor did it suggest that Vincenzo may have done something wrong. The appellant did not conduct, as the Issue Resolution Form required, any investigation or analysis of the incident.
The only suspicion concerning Vincenzo is the alleged statement by Tony at a meeting with Joyce and Joseph that he suspected that Vincenzo “knew something”. As already noted, neither Joseph nor Tony gave evidence about that meeting or statement and I have already discussed the use that can be made of Tony’s statement. Further, the Trial Judge found that Tony later told an EPA investigator that Vincenzo had heard rushing water on the afternoon of the discharge, not that he, Vincenzo, had done anything wrong. The statements are inconsistent but cannot be used for their truth.
Finally, the Trial Judge considered the question of any motive for Vincenzo to turn on the tap. It was not for the appellant to establish motive, nor the respondent, but it may have been helpful to the appellant if it could. The fact that the appellant could not establish a motive does not mean a motive did not exist. The appellant suggested that Vincenzo “may have been slack” in running the WWTP or he may simply have wanted to go home early on this Friday. The Trial Judge, correctly in my view, categorised the submissions as speculation. There was no evidence led to support those suggestions. The evidence did not, and was not capable of, establishing a motive.
Did Vincenzo turn the tap on within the scope of his employment?
I turn to consider whether, assuming Vincenzo turned the tap on, was he acting within the scope of his employment. The appellant submitted that in simply using the tap in those circumstances he would not have been acting within the scope of his actual, usual or ostensible authority.
The general principle is that an employer is liable for acts actually authorised by them but also for acts which they have not authorised, provided that the acts are so connected with acts which they have authorised that the acts may rightly be regarded as modes – although improper modes – of doing them.[20] There is a distinction between a mode, albeit improper, of doing that which the employee is employed to do and conduct which is outside the scope of an employee’s employment.[21] That is an act which is negligent or improper, performed due to error or ill judgment, may be within the scope of an employee’s employment if done in supposed furtherance of the employer’s interests.[22]
[20] Canadian Pacific Railway Co v Lockhart [1942] AC 591 at 599.
[21] Tiger Nominees v SPCC (1992) 25 NSWLR 715 at 721 (Gleeson CJ).
[22] Deaton Pty Ltd v Flew (1949) 79 CLR 370.
The scope of an employee’s duties is a question of fact to be determined in each case. The precise duties of Vincenzo were not described in evidence but operating the WWTP was not his only task. Exhibit D13, part of Vincenzo’s employment record, describes him as a process worker and operator. This record also suggests that he was trained in a number of areas.
Turning to his operation of the WWTP, it was not disputed that he received training in the operation of the WWTP from Joseph, Joyce and also Tony. That training comprised of using the SOP manual, conducted by Joyce, and “on the job” training with both Joseph and Tony. Vincenzo took a couple of months of training “on the job” before operating the WWTP by himself. Even then, Joseph would check on him once or twice a week.
As discussed earlier, the evidence established that the tap had three uses. First, to assist in identifying the location of a blockage stopping raw wastewater entering the WWTP. Secondly, to sample the wastewater for testing. Thirdly, to pump raw wastewater into a tanker to be taken off-site if for some reason the WWTP was not functioning. The evidence also established that the neither the tap, or its use, was mentioned in the SOP. Further, the evidence did not establish that Vincenzo had been given any instruction in relation to the tap or its potential uses.
The appellant submitted that the tap was not mentioned in the SOP because it was not part of the WWTP system. The Trial Judge rejected that submission and in my view, he was correct to do so. The tap while rarely used was clearly part of the system. It was a tap that had alternate uses, after which it was required to be put back into the position that allowed the raw wastewater to enter the WWTP. The fact that its other uses may have been rare does not mean it was not part of the WWTP system. It clearly was and the issue that arises in this case demonstrates that fact.
Further, it was submitted by the appellant that Vincenzo’s job was to treat the wastewater, not discharge it before being treated. That is, Vincenzo’s job was to pump the water from the juicing plant to the WWTP. Any deviation from that act would be an act not within the scope of his employment. To describe Vincenzo’s duties as being to pump the raw wastewater to the WWTP and then treat it unreasonably limits the scope of Vincenzo’s duties. His duties were a lot wider than that.
Part of Vincenzo’s duties required him to keep the treatment of wastewater up to date so that there would not be too much wastewater to process at any given time. A build-up of wastewater could lead to an overflow in the sump of the juicing plant which could then enter the spill retention basin. Thus, Vincenzo had to keep the level of the wastewater to be treated at manageable levels.
Joseph gave evidence about water in the spill retention basin. The purpose of the spill retention basin was to catch water spills from the juicing plant. Joseph agreed that piping from the packing shed deposited water into the right-hand side of the spill retention basin. Joseph confirmed that submersible pump was used to pump water from there straight into the large dam. That meant that water from the packing shed was pumped straight to the dam without going through the WWTP. This was contrary to the approved design of the WWTP. While Joseph could not recall who told him to do so, the inference to be drawn from the evidence is that it had to be Tony who gave that instruction; he was the Managing Director. Thus wastewater, not as polluted as water from the juicing plant, was being diverted from the WWTP and pumped straight into the dam. While it is correct that Joseph stated that only the better quality water from the packing plant was pumped into the dam, the fact that water was diverted from the WWTP remains.
While there was no evidence that Vincenzo was directly involved in pumping packing shed water straight to the large dam, given he was operating the WWTP for some months in 2014, it is inevitable that, at the very least, he would have been aware of the practice, if not actively doing the pumping. The fact that this alternative process as described by Joseph existed suggests the appellant engaged in different practices of dealing with the wastewater.
Assuming for the moment that Vincenzo turned the tap on, and did so for what he perceived to be for the benefit of his employer, was he acting within the scope of his employment? The decision in Tiger Nominees Pty Ltd v SPCC is instructive.[23] A dam had been constructed near a rubbish tip to catch leachate and stormwater run-off. Two employees of Tiger Nominees Pty Ltd were required to keep the water level at 75% of the dam capacity. The orthodox method was to pump the water out. One of the employees was, for personal reasons, in a hurry, so the dam wall was breached by use of bulldozer and thus the level of the dam was lowered. The water that escaped from the dam polluted a nearby creek. The Court held that by breaching the dam wall with a bulldozer the employees engaged in an improper method of doing that which they were employed to do and thus the act was within the scope of their employment.
[23] (1992) 25 NSWLR 715.
Given that packing shed water was pumped direct to the large dam avoiding the WWTP and that Vincenzo was required to keep the wastewater to be treated at a manageable level, the possibility arises that in turning on the tap Vincenzo thought that he could benefit his employer by discharging some of the wastewater before it made the WWTP tank. It would be an unauthorised act, but one within the scope of his employment. Whether Vincenzo considered the untreated water would eventually end up in Deep Creek or not is unknown.
It is against the entire factual background that the Trial Judge had to be persuaded that Vincenzo acted in a manner that was outside his actual, usual or ostensible authority in such a manner, and in doing so, could potentially cause harm to his employer. The Trial Judge was not satisfied Vincenzo acted without authorisation; it was open for him to do so. No error has been demonstrated in the approach of the Trial Judge.
Was Vincenzo directed to open the tap, or did Tony turn the tap on?
The final two inferences available are whether Vincenzo was directed to discharge the wastewater by either Tony or Joseph, or alternatively, Tony himself turned the tap on.
The Trial Judge clearly doubted some of the claims made by Tony during his record of interview. It was open to the Trial Judge to accept parts of the statement and reject other parts. The Trial Judge was also critical of the appellant’s failure to conduct an investigation.
The Trial Judge found that, on the statements made to Mr Shillabeer, Tony did not have a good understanding of the WWTP. In making that finding the Trial Judge relied on Tony speculating that an overflow of the bund (with a capacity of 67,000 litres) may have been responsible. Further, Tony did not accept that the tap may have been a source of the discharge despite evidence of erosion and other evidence of flow beneath the tap being brought to his attention on 24 October 2014 by Mr Shillabeer. The appellant pointed to the fact that the EPA did not identify it as the point of discharge but that is hardly the point. The EPA could not be expected to understand the entire operation of the appellant’s WWTP system at the time. No doubt that is why they were asking the person in charge of the operations.
The appellant bore the onus of proof in establishing the s 124 defence. As discussed earlier, the Trial Judge did not draw any inference against the appellant for their failure to call Tony despite being urged by the respondent to do so. However the absence of Tony from the witness box simply meant there was no evidence at trial from him on a number of matters in issue between the parties. Joseph gave evidence on oath that he did not turn the tap on and the Trial Judge does not appear to have rejected Joseph’s denial. However whether Tony instructed Vincenzo to open the tap or whether he opened the tap himself, were matters not addressed in evidence since Tony did not give evidence. The Trial Judge only had Tony’s out of court statements which, self-evidently, could not be tested.
Further, there was a motive for the appellant to avoid using the WWTP, namely cost. The appellant, through the evidence of Joseph and Joyce, established that, in terms of the appellant’s overall costs, running the WWTP was a small amount – almost negligible. The cost savings were certainly small. However, it was still a cost. The respondent pointed to the packing shed water not being treated as an example of the appellant perhaps not saving much but still embarking on a cost saving exercise.
Conclusion on Ground 3
It was against the background of all of those matters that the Trial Judge had to consider whether the appellant had established that Vincenzo had opened the tap and did so on a “frolic of his own”.
There were competing inferences open in this case. There was evidence from which the appellant could draw support for its defence but there was contrary evidence. The Trial Judge, as discussed, accepted that there was some evidence to support the appellant’s position. However, he specifically rejected some of the major points raised by the appellant to support the inference that Vincenzo opened the tap. It was open for him to do so.
The appellant had to prove that Vincenzo was acting on a frolic of his own and needed to do so on the balance of probabilities. The evidence needed to make the Trial Judge feel an “actual persuasion” of its occurrence or existence before it could be found.
Given the competing inferences as to what may have occurred and why, it was open to the Trial Judge to form the view he did. It was open to the Trial Judge to find that the evidence did not persuade him on the balance of probabilities that Vincenzo turned on the tap while acting on a frolic of his own. No error has been established in the reasoning of the Trial Judge.
Further, the Trial Judge sufficiently exposed his reasoning process. No error has been demonstrated in the approach of the Trial Judge.
I dismiss this ground of appeal.
Ground 4
In the event that he was wrong in his finding and that the evidence did establish that Vincenzo intentionally and without authorisation opened the tap, the Trial Judge went on to consider whether the appellant “took all reasonable and practicable measures to prevent the contraventions”.
I have earlier in these reasons discussed the relationship between s 124 and s 127. Contrary to the way the case was fought before the Trial Judge, I have found the fact that an employee may have acted within the scope of their actual, usual or ostensible authority does not mean the defence under s 124(1) is rendered nugatory simply because the company will be fixed with an intentional act of the employee. If an employee acts within the scope of their duties but does so in an unapproved manner, the defence is still available. The Trial Judge, irrespective of his finding, was in my view required to consider the balance of the s 124 defence. That is did the appellant take “all reasonable and practicable measures to prevent the contraventions” no matter how the discharge occurred.
It was common ground that the appellant bore the onus of proof on the balance of probabilities that it took all reasonable and practicable measures to prevent the contraventions. The phrase “all reasonable and practicable measures” has not been the subject of earlier judicial comment. Clearly it refers to the verb “to prevent”. That is, the reasonable and practicable measures must be designed to prevent the problem, not just minimise the risk. Some assistance as to the meaning of the expression can be taken from Slivak v Lurgh (Australia) Pty Ltd[24] a case involving the expression “reasonably practicable” in the context of the Work Health and Safety Act 2012. The Trial Judge stated:[25]
[24] (2001) 205 CLR 304.
[25] Reasons [130]–[134] (emphasis in original) (citations in original).
A common-sense approach must be taken to the assessment of what is reasonable and practicable. What is reasonable and practicable will vary depending on the circumstances. AVF submitted it had taken all reasonable and practicable measures to prevent the contraventions (as it formulated them). It referred to: the design and construction of the WWTP; the education and training practices of AVF generally; the SOP; the presence of the Ceravolo family at the property available to assist with any problem; the reporting requirements in place; the instruction to V to report issues to the Production Manager or Managing Director; the regular ‘toolbox’ meetings held; and, its CCTV monitoring of the WWTP.
What is a reasonable and practicable measure requires an assessment of whether the time, trouble and expense of the measure is proportionate to the risk involved.[26] If disproportionate, then the measures are not reasonable and practicable. I must make a value judgment in that respect, considering all the facts. Three general propositions of assistance can be derived from the similar phrase contained in the Work Health Safety & Welfare Act 2012 (SA):[27]
·something narrower than physically possible or feasible;
·to be judged based on what was known at the relevant time; and
·as necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[28]
The duty that health and safety legislation imposes, in relation to maintaining the safety of workplaces and employees, does not require an employer or occupier to take every possible step that could be taken. The steps required to be taken are those that are reasonably practicable to achieve the identified end of providing and maintaining a safe work environment. The bare demonstration that a step could have been taken, and that if taken might have had some effect on the safety of the working environment, does not, without more, demonstrate a breach of the duty imposed to take all reasonable and practicable steps.[29]
The assessment of the risk of contravention of the Act in this case, by the discharge of raw wastewater from the tap, therefore, must be a practical one. It requires me to assess the likelihood of environmental harm and give some consideration to the question of foreseeability. In the workplace context, that has required a consideration of whether a reasonable employer or owner would have known or ought to have appreciated or foreseen the risk of injury or harm to health.[30]
The phrase as used within health and safety legislation - ‘so far as is reasonably practicable’ - is different from the phrase contained in the general defence - ‘all reasonable and practicable’. Caution must therefore be exercised in transposing concepts from health and safety legislation to the Act. I do, however, accept the submission of both informant and defendant that the concept of reasonableness and practicability in the health and safety sphere should be given weight in my consideration of s 124 of the Act.
[26] Environment Protection Authority v Youknow Medical Pty Ltd No. 3 [2010] NSWLEC 198, Marshall v Gotham Co. Limited [1954] AC 360 at [370], Austin Rover Ltd v Inspector of Factories (1990) 1 AC 619 at [625], and Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [322]–[323] per Gaudron J.
[27] Work Health and Safety Act 2012 s 18.
[28] Slivak v Lurgi(Australia) Pty Ltd (2001) 205 CLR 304 at [322]–[323]. See also Dinko Tuna Farmers Pty Ltd v Marcos (2007) 98 SASR 96 at [38] per Gray J.
[29] Vaiad Poultry Pty Ltd v R (2012) 246 CLR 92 at [15].
[30] Laing O’Rourke (PMC) Pty Ltd v Kairwin [2011] WASCA 117; Homes v RE Spence & Co Pty Ltd (1992) 5 VR 119 at [123], [124] per Harper J; Hammersley Iron Pty Ltd v Robinson; Chugg v Pacific Dunlop Limited Hammersley Iron Pty Ltd; Whylie v South Metropolitan College of TAFE; Riley v Devcon Australia Pty Ltd [2008] WASCA 84, (2008) WAR 492; Nash v Resource Pacific Pty Ltd No. 3 [2018] NSWLA 45 at [389] per Walton J.
I agree with the Trial Judge’s approach. The steps required to be taken to prevent harm are all steps that are reasonable and practicable.
Reasonable and practicable measures
At trial, the respondent relied upon two matters which it said were reasonable and practicable measures not taken by the appellant. First, it submitted the appellant could have bunded the area under the tap on the outside of the shed of the WWTP and included in that area a drain which fed, under gravity, any spillage back to the sump in the juicing plant. In evidence, Joseph said he was not aware of any reason why that could not have been done. Secondly, the respondent submitted the appellant could have reversed the short pipe so it ran inside the WWTP shed and therefore any wastewater discharge, if the tap was open, would flow into the existing bund inside the shed. The respondent submitted that other than having to provide a longer hose if pumping out was required, the existing uses of the tap would remain unaffected.
The appellant submitted that the respondent had not led any evidence about what reasonable and practicable measures ought to have been undertaken. In particular, the second measure raised by the respondent was not the subject of any evidence. While the Trial Judge found that the existing uses of the tap could be “easily undertaken if the tap was inside the WWTP” there was, it was submitted, no evidential basis for that finding.
On appeal, the respondent submitted that the other measures mentioned by the Trial Judge at [141] of his reasons should not be considered as the parties had not “joined issue” on those matters. However, the Trial Judge had to deal with the appellant’s submissions.
The appellant attempted to satisfy the Trial Judge that it had proved the defence by demonstrating it had in place proper workplace systems and procedures designed to prevent a contravention of the Act. It was open to the Trial Judge to reject these aspects of the appellant’s submissions. The Trial Judge found:[31]
AVF also submitted that the wastewater WWTP had been designed as an entirely separate and closed system from the stormwater system. That is not correct. The tap, a part of the WWTP system, was installed to point into the stormwater system and when opened, allow its contents to flow to the stormwater system. It was not mentioned in the SOP for the WWTP and nor was it shown on the schematic drawings for the plant. The design and installation of the tap as part of a closed system inside the WWTP, is, I find, a reasonable and practicable measure AVF could have taken to prevent the contraventions.
AVF submitted its training and education and its procedures, managed by Ms Ceravolo and Mr Joseph Ceravolo, were reasonable and practicable measures taken to prevent the contravention. AVF contended that the training and education it provided its employees, particularly V, had been both theoretical and practical and involved proper instruction and supervision. It said the development of that programme had been overseen and approved by an external consultant who had been properly qualified to provide such oversight.
The training program, process documents, supervision and instruction of V by AVF were deficient. Mr Tony Ceravolo was not trained in the SOP; yet he was training V. There was no standard operating procedure for identifying blockages or clearing blockages; either separately or as part of the SOP. There were no work instructions for identifying blockages or for when something in the plant went wrong. There were no work instructions or other documents recording that V (or any other person working in the WWTP) should contact Mr Joseph Ceravolo or Mr Tony Ceravolo in the event of a blockage. The oral instruction to contact Mr Joseph Ceravolo or Mr Tony Ceravolo in the event of a blockage, was unsatisfactory of itself. It is even more unsatisfactory that the oral instruction to an operator of a sophisticated and expensive piece of plant processing raw wastewater was: if there is a problem call the boss.
AVF tendered the training records of V. It contended, based on those records and the modules to which they related and the certificate of competency awarded, that his training had been adequate for the task of operating the wastewater WWTP. In particular, it referred to his training to competency in respect of the SOP. It asserted that the SOP contained a detailed and step by step instruction concerned with the operation of the WWTP. As mentioned earlier, Ms Joyce Ceravolo assessed V as very competent in his understanding of that SOP: a five out of five. The deficiency in the training, instruction and supervision was the lack of regard for or mention of the tap. In any event, Mr Tony Ceravolo did not agree that V was adequately trained. In hindsight, he said his training, at the time of the discharge, was inadequate but that his continued efforts had brought V up to scratch.
Sufficient training of V and Mr Tony Ceravolo (the trainer of V) concerning the use of the tap and that it was not to be opened, is, I find, another reasonable and practicable measure AVF could have taken to prevent the contraventions.
[31] Reasons [143]–[147].
The Trial Judge was in effect dealing with the submission of the appellant that it had in place “proper workplace systems and procedures designed to prevent a contravention”. Clearly, he rejected that submission.
However, it does appear that the Trial Judge went further than simply rejecting the evidence produced by the appellant and found that the lack of “sufficient training” could be used as another “reasonable and practicable measure” that the appellant failed to take. To the extent that his finding went further than simply rejecting the evidence produced by the appellant, I ignore the finding.
The appellant further submitted that the Trial Judge’s conclusions about obvious risk and foreseeability did not take into account that the discharge was intentional. It submitted on appeal that “to speak of the risk being obvious should have entailed an inquiry into whether it was obvious and foreseeable that a renegade employee would have wilfully opened the tap for some hours without any direction to do so”. That submission was based upon the submission dealt with earlier in these reasons that the tap was not part of the WWTP system. As the Trial Judge did, I reject both aspects of these submissions. In my view, as discussed earlier, the tap is clearly part of the WWTP.
Further, as also discussed earlier, even if Vincenzo was a renegade employee who performed a wilful act, that was not the only risk to be taken into account. The appellant submitted that it was not its case that Vincenzo was a renegade employee who was out to hurt the company. While it did make submissions that suggested he may have had that intention, referring at one stage to Vincenzo performing an act of sabotage, the appellant submitted that they did not need to go that far. The appellant formulated its case upon there being no reasonable possibility that Vincenzo honestly but mistakenly, intentionally opened the tap for a number of hours.
Again, that is to adopt a too narrow interpretation of law. It is not a requirement of the law that an employee must “honestly but mistakenly believe” such an act to be a proper procedure. An employee can do an improper act knowing it is improper and still be acting within the scope of their employment as discussed earlier. There was always the possibility of an employee simply misunderstanding their instructions, or indeed ignoring their instructions, acting with what they thought was in the interests of their employer, and then performing a negligent act or improper method. The appellant has in my view relied too heavily on the concept that the intentional act, amounting in effect to sabotage, was the only risk the tap presented. That is a too narrow definition of the risk involved. The tap was outside the tank and it pointed towards an open drain. Any discharge would clearly go into the drain unchecked.
The respondent submitted that the appellant bore the onus of proof on the issue and that the matters it raised were simply a matter of common sense. This is the approach taken by the Trial Judge at paragraph [141] of his reasons.
While the failure to lead evidence about costings and the practicability of performing certain tasks by someone in the respondent’s position may make it easier for an appellant to prove its case, I accept that here there was no need to. Placing the tap inside the WWTP was an obvious and clearly relatively cheap solution to the problem. It was a reasonable and practicable solution that was not undertaken. In relation to the first of the measures raised by the respondent, Joseph acknowledged it could be done. Bunding was in fact done albeit in a different and flatter area after the event. The inference could be drawn that is was within the financial resources of the appellant given the nature and size of its operation.
It was open to the Trial Judge to find that the appellant had not discharged the onus of proof on this aspect of the defence. No error has been shown. I would dismiss this ground of appeal.
Ground 1
I have dealt with the matters raised in relation to this ground when discussing grounds 3 and 4. Indeed, the appellant approached the submissions on this basis. In my view, the appellant has failed to establish this ground. I find that it was open to the Trial Judge to make the findings he did. On my review of the evidence, those findings, including the findings of guilt, were not only open but were correct.
I dismiss Ground 1.
Orders
1.The appeal is dismissed.
2. I will hear the parties on the question of costs.
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