Chokr v Liverpool City Council - [2008] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION: Chokr v Liverpool City Council [2008] NSWLEC 58

PARTIES: APPELLANT
Ali Hassan Chokr
RESPONDENT
Liverpool City Council

FILE NUMBER(S): 60011 of 2007

CORAM: Pain J

KEY ISSUES: Appeal :- appeals against conviction in Local Court - environmental offences - illegal transport of waste to public park - circumstantial evidence - whether necessary to prove every intermediate fact beyond reasonable doubt in order to find guilt - appeals upheld

LEGISLATION CITED: Crimes (Appeal and Review) Act 2000 s 31, s 33, s 37, s 38, s 64
Protection of the Environment Operations Act 1997 s 143

CASES CITED: Browne v Dunn (1893) 6 R 67
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
Denning v Department of Environment and Conservation (2007) 153 LGERA 200
R v Birks (1990) 19 NSWLR 677
R v Byczko (No 2) (1977) 17 SASR 460
R v Shepherd (1990) 170 CLR 573

DATES OF HEARING: 26 November 2007

DATE OF JUDGMENT:
18 February 2008

LEGAL REPRESENTATIVES:
APPELLANT
Mr T Howard
RESPONDENT
Mr M Wright
SOLICITOR
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

18 February 2008

60011 of 2007 Chokr v Liverpool City Council
JUDGMENT

1 Her Honour: In these Class 6 proceedings the Appellant is appealing against his conviction in the Local Court on 13 March 2007 for twelve offences of illegally dumping waste in Craik Park, Austral, between 5 and 16 June 2006 in breach of s 143 of the Protection of the Environment Operations Act 1997 (the POEO Act). Each offence related to one pile of waste of approximately 10m3 found by the Prosecutor’s officers in Craik Park. The waste was described variously as bricks, soil, concrete and timber together with, in every pile, mixed building waste. The charges were that on twelve occasions he was “a person who transports waste to a place that cannot lawfully be used as a waste facility for that waste”.

Time for appeal

2 Under s 31 of the Crimes (Appeal and Review) Act 2001 (the Appeal Act) there is an absolute right to appeal within 28 days and, under s 33, a right to appeal thereafter up to three months from the decision of the magistrate. The Notice of Appeal was lodged within the three month limit and forwarded incorrectly to the District Court registry. In Denning v Department of Environment and Conservation (2007) 153 LGERA 200 Preston J at [44] – [45] held that filing in the District Court was sufficient to meet the three month time limit for the lodging of an appeal in the Land and Environment Court of New South Wales and I adopt that finding in this matter. Leave to appeal was not opposed by the Council. I granted leave to appeal in the circumstances that the Appellant is not a native English speaker, requiring an interpreter during the hearing, he is of limited means, there was no substantial delay in lodging the appeal and the appeal lodged is against his conviction on the basis that he considers he is not guilty.

Appeal on sentence not available

3 The Appellant’s counsel also submitted that this appeal was against the severity of the sentence imposed in the event the appeal against conviction was not upheld. The Notice of Appeal refers only to an appeal against conviction because only B “I am appealing the above conviction/order BECAUSE I AM NOT GUILTY” is identified as the ground of appeal. The Notice of Appeal is unambiguous and cannot be now amended to include an appeal against severity as the three month absolute time limit in s 33 of the Appeal Act for such an appeal has expired; see Denning also at [48] – [53]. In light of these circumstances the only basis advanced was that s 64 of the Appeal Act could apply to enable an appeal against severity in the absence of reliance on the Notice of Appeal. That section states:

If an appeal or application for leave to appeal has been duly made in respect of one conviction or sentence (the "primary conviction or sentence"), an appeal court may hear and determine an appeal or application for leave to appeal in respect of any other conviction or sentence made or imposed on the same day, and in respect of the same person, as the primary conviction or sentence, and may do so even though an appeal or application for leave to appeal has not been duly made in respect of the other conviction or sentence.

4 The Appellant’s counsel argued that the magistrate’s sentencing order was a separate sentence to the decision to convict and therefore s 64 applies. It states that if an appeal has been lodged a separate conviction or sentence can also be considered on the same day in the absence of a separate Notice of Appeal in relation to that separate conviction or order. I do not consider that s 64 can apply to an appeal on sentence filed out of time in relation to a conviction for which an appeal on conviction has been filed in time. I do not consider the appeal on sentence for the same conviction is a separate conviction or sentence to which s 64 is directed. For s 64 to operate a different conviction/sentence from that already appealed against is the prerequisite to the section operating. Accordingly this appeal is only in relation to conviction as stated in the Notice of Appeal.

Appeal on conviction

5 As provided for by s 37 of the Appeal Act this appeal is a rehearing based on the transcript of evidence from the Local Court and on the evidence before the Local Court. No application to rely on fresh evidence was made pursuant to s 38 of the Appeal Act.

6 The file from the Local Court contained an incomplete exhibit list and an incomplete set of exhibits. The parties tendered a bundle of copies of the exhibits handed up before the Local Court, which became exhibit A. The documents in exhibit A are as follows:

(a) exhibit 1 – Sydney Water receipt with partial address 134 Dora Street found at Craik Park in waste pile no 3;

(b) exhibit 2 – Section 193 POEO Act Notice to Hurstville Council (dated 28 June 2006) for documents about 134 Dora Street Hurstville/ DA for 134 Dora Street Hurstville for demolition of old house and construction of new house, Waste Minimisation and Management Plan signed by Mr Ibrahim;

(c) exhibit 3 – Notice of Commencement of Building for 134 Dora Street Hurstville naming Mr Dandan as builder dated 30 May 2006;

(d) exhibit 4 – Photographs 1-20 taken by Mr Kearney, Council officer, of waste piles at Craik Park (page 1, 16 June 2006; pages 2-3, 19 June 2006); site map indicating dumped waste piles (p 4); close up photographs of waste including paper fragments in exhibit 1 and 12 (p 5, 20 June 2006; p 6 29 June 2006); photographs of 134 Dora Street Hurstville building site (pp 7-8, 28 June 2006); photographs of Craik Park (pp 9-20, 7 July 2006); further photographs of tipper trucks (pp 21-22).

(e) exhibit 5 – Box containing material found at 134 Dora Street (misplaced and not before me);

(f) exhibit 6 – Business name extract for Elite Excavation & Tipper Hire conducted by Ayman El Gammal;

(g) exhibit 7 – Section 193 POEO Notice requiring information sent to Elite Excavation & Tipping Hire seeking tipping receipts for waste from 134 Dora Street Hurstville between 1 June to 7 July 2006, inter alia;

(h) exhibit 8 – Weighbridge document from Concrete Recyclers Pty Ltd, Moorebank Tip, for vehicle AE14UM on 13 June 2006 for 20 tonnes of bricks for customer H & A Civil;

(i) exhibit 9 – Concrete Recyclers Pty Ltd Moorebank Tip activity report - three deposits of 20 tonnes of brick by vehicle AE14UM on 13 June (twice) (dockets 111604, 111641) and 14 June 2006 (docket 11682);

(j) exhibit 10 – Section 193 POEO Act Notice requiring information about vehicle AE14UM sent to Enviroguard Pty Ltd Erskine Park Waste facility/docket list of Enviroguard Pty Ltd for 19 June 2006 for 21.38 tonne deposit of inert waste for customer Environmental Investigations;

(k) exhibit 11 – Section 193 POEO Act Notice requiring information about vehicle AE14UM between 1 June 2006 and 7 July 2006/vehicle report from Kurnell Land Fill Company for 2 June 2006 for 28.90 tonne deposited by that vehicle for customer Melham Civil Pty Ltd;

(l) exhibit 12 – Velocity Visa account with partial address 134 Dora Street found at Craik Park in waste pile no 2;

(m) exhibit 13 - material found at Craik Park - invoice Veolia environmental services for asbestos sampling of material dated 3 November 2006;

(n) exhibit 14 – record of interview by Mr Kearney of Mr Ibrahim ;

(o) exhibit 15 – Redback Demolition Excavation Tipper Hire invoice for asbestos removal dated 25 May 2006;

(p) exhibit 16 – Weighbridge document from Concrete Recyclers Pty Ltd, Moorebank Tip, for vehicle AE14UM on 13 June 2006 for 20 tonnes of bricks for customer H & A Civil (included in activity report in exhibit 9). (I note the transcript of the Local Court proceedings refers to a tip receipt from “Affordable Recycling Bins” being tendered as exhibit 16 in the Local Court);

(q) exhibit 17 – record of two interviews by Mr Kearney of Mr Taleb on 19 July 2006 and 16 August 2006

7 The transcript discloses that the Prosecutor relied on the oral evidence of Mr Kearney, Council officer, Mr Ibrahim, owner of and builder at 134 Dora Street, Hurstville and Mr Taleb, demolition/excavation contractor. Mr Kunning who saw a red and white tipper truck near Craik Park on 11 June 2007, also gave brief evidence. Mr Chokr, the Appellant, also gave oral evidence, Mr El Gammal, the co-accused, whose business Elite Tipping Hire was engaged to remove building waste from 134 Dora Street by Mr Ibrahim, did not give evidence.

8 A summary of the proceedings before the Local Court based on the transcript of the proceedings is necessary.

Day 1 (15 November 2006)

Mr Kearney

9 Mr Kearney, a ranger employed by the Prosecutor, gave oral evidence that he received an anonymous complaint on 15 June 2006 that waste had been dumped at Craik Park, Austral. He went to Craik Park on 16 June 2006 and saw twelve piles of building site waste. The piles consisted of bricks and soil, one pile was mainly concrete, and another two piles of timber with other building waste mixed in. He returned to the site on 19 June 2006 and found a letter from Sydney Water with a partial address, 134 Dora Street (admitted as exhibit 1). Mr Kearney took photographs on 16 June 2006 (exhibit 4). After searching the UBD for street references only two Dora Streets had number 134 in them, one being in Hurstville. He went to 134 Dora Street Hurstville in the afternoon on 19 June 2006 and saw demolition work.

10 Subsequently Mr Kearney contacted Hurstville Council about whether there was a development application for 134 Dora Street and was informed that there was. A notice pursuant to s 193 of the POEO Act requiring information to be provided was sent to Hurstville Council asking for copies of documents about the development application at 134 Dora Street, Hurstville. In response Hurstville Council sent, inter alia, the current development application and development consent, and the waste management plan for the site (exhibit 2). The waste management plan refers to building waste from the site being taken to Kurnell Land Fill Company and Enviroguard waste depot at Erskine Park.

11 Sometime after Mr Kearney made his observations at Craik Park, he organised surveillance to be conducted by Council officers at Craik Park from 2.30/3.30am to 6am but nothing further was detected.

12 Mr Kearney, along with Council officer Ms Bugden, went to 134 Dora Street, Hurstville on the afternoon of 19 June 2006 and saw a white Volvo tipper truck on the building site. He noted the registration number of the vehicle as AE14UM. A trailer was attached to the vehicle. The tipper truck was loaded with soil and left the site about three minutes after he arrived at the site. The house had been demolished and there was soil and mixed demolition waste on the site. Mr Kearney took photographs of a sign on the fence showing the name Crystal Constructions and a builder’s licence number.

13 Mr Kearney arranged for a check of the truck registration number. Ms Bugden contacted Council officer Mr Miller and requested an RTA check to be done on the Volvo tipper truck.

14 Crystal Constructions’ owner, Mr Ibrahim, was contacted by Mr Kearney. He said he was the owner of and the builder at 134 Dora Street. He said “Adam” (Mr El Gammal) was in charge of the excavation and demolition.

15 Mr Kearney returned to 134 Dora Street on approximately 6 July and took soil samples with Hurstville Council officer Mr Ainsworth. A number of samples were taken from the 134 Dora Street site (that is the only reference to these in the evidence).

16 A box of building material from 134 Dora Street was collected which included a sample of house brick painted white on one side, light green colour with pale sandy mortar colour, broken piece of house roof tile brown on one side and red in the centre (exhibit 5). This exhibit is misplaced and not before me.

17 Mr Kearney returned to Craik Park and made further observations of the piles of waste. In each twelve piles of waste he found a similar type of colour and shape of house brick with white paint and pale green paint underneath and a sand coloured mortar. Photographs on pp 9 – 20 of exhibit 4 showed these coloured bricks. On each page is a photograph of a brick found in that particular pile and also the piece of broken roof tile identified in each pile. Mr Kearney was asked to mark with a pen the brick and piece of roof tile that is similar to that which was sampled from the building site. He did this on p 9 of the photographs (which depicts photographs of pile 1) as an example.

18 On 12 July 2006 Mr Kearney asked Mr Ibrahim about the removal of asbestos from the site. Mr Ibrahim told him that Mr Dandan, building contractor, was contracted to remove asbestos from the site by Mr Ibrahim. Mr Ibrahim said this was done before 1 June 2006 before Mr El Gammal started to work on excavation and demolition. Mr Ibrahim said to him that excavation and demolition started on site about 1 June 2006 but was then delayed for about two weeks due to rain. Mr Ibrahim was asked if he knew where the waste material from the site was disposed of and he said no. Mr Ibrahim denied dumping rubbish. Mr Ibrahim gave him the mobile telephone number of “Adam”. Mr Kearney rang Adam (Mr El Gammal) and asked him if he did the excavation/demolition work for the building site at 134 Dora Street Hurstville. He said the waste was taken to Tempe and Enfield. Mr Kearney was given leave by the magistrate to read from this point the record of the conversation with Mr El Gammal which was to the effect that Mr El Gammal started taking loads from the site about 12 June 2006. He took mainly the floor and some topsoil until Mr Taleb was hired. After Mr Taleb was hired the excavation was started. Only soil was left after the others came onto the site. The name of Mr El Gammal’s company is Elite Excavation & Tipper Hire.

19 Adam (Mr El Gammal) agreed to an interview with Mr Kearney on 9 July 2006 outside the Council’s administration building. Mr Kearney took notes and cautioned Mr El Gammal as required under the POEO Act before certain questions were put to him. He did not sign the record of interview. Mr Kearney’s notebook containing the interview was sought to be tendered. The tender was refused by the magistrate.

20 A business name search for Elite Excavation & Tipper Hire was tendered which identifies the owner of that name as Ayam El Gammal, also known as Adam El Gammal, the co-accused (exhibit 6).

21 Following that interview, Mr Kearney issued a s 193 Notice to Mr El- Gammal on 9 July 2006 (exhibit 7). In response a (single page) tipping receipt and a multiple page validation certificate for the type of waste at 134 Dora Street was received by Mr Kearney. This was not tendered as an exhibit, and is not before the Court. Other documents sought in the Notice were not provided. In a subsequent conversation with Mr El Gammal he told Mr Kearney that Mr Chokr was the driver of the truck during the demolition phase on the building site. Mr El Gammal was also directed, in another s 193 POEO Notice, to supply details of the driver and vehicles used on the site.

22 Mr Kearney spoke to Mr Chokr on 13 July 2006 and asked him if he was the driver of a tipper truck that did some work at 134 Dora Street for Adam and he confirmed that he was. Mr Kearney asked him where he took the waste and he said Enfield and Chipping Norton. He was asked if he had receipts and he said that Adam (Mr El Gammal) had receipts for Enfield and he had the receipts for Chipping Norton. Mr Kearney also arranged to meet Mr Chokr at the Council’s offices and Mr Chokr gave him a single page copy of a tipping receipt from Concrete Recyclers Group Moorebank. A copy of this document was shown to Mr Kearney, who identified it as the same receipt. The receipt referred to the company H&A Civil as attending to receive the receipt. Mr Kearney stated that he had found out that Mr Taleb was the owner of H&A Civil and managed the Volvo truck AE14UM. This receipt was tendered (exhibit 8). Mr Chokr said there should be three receipts like this from Concrete Recyclers and three receipts from Enfield (TS p 44).

23 Mr Kearney stated that the facilities at Moorebank and Chipping Norton are the one facility where two companies are operating. One of the companies is Concrete Recyclers Group Pty Ltd. Mr Kearney issued a s 193 POEO Notice to Concrete Recyclers Group Pty Ltd requiring information on vehicle AE14UM between 1 June and 30 June 2006. The three page document supplied became exhibit 9.

24 The Prosecutor said that evidence would be lead of a certain amount of material taken away in the Volvo tipper truck driven by Mr Chokr and that a lesser amount was lawfully dumped.

25 A s 193 POEO Notice was issued by Mr Kearney to Enviroguard Pty Ltd Enfield seeking information about waste deposited by vehicle AE14UM. No response was received.

26 Mr Kearney also had a conversation with Mr Taleb who said he managed the truck AE14UM for a friend. He said he had hired the excavator to Mr El Gammal and the truck AE14UM was driven by Mr Chokr.

Day 2 (12 March 2007)

27 Mr Kearney was recalled and the photographic evidence tendered as exhibit 4. Mr Kearney gave evidence about two photographs in the bundle of photographs tendered as exhibit 4, numbers 18-20. These showed the Volvo truck and trailer that Mr Chokr was driving at 134 Dora Street Hurstville, with registration AE14UM. The s 193 POEO Notices issued to two companies and their responses were tendered (exhibit 10 Enviroguard Pty Ltd, exhibit 11, Kurnell Land Fill Company). Recorded interviews with Mr Taleb and Mr Ibrahim were marked for identification and subsequently tendered as evidence. Mr Kearney interviewed Mr Ibrahim, the owner of 134 Dora Street, on 12 July 2006 (exhibit 14). He interviewed Mr Taleb on 19 July and 16 August 2006 (exhibit 17).

28 The Sydney Water account (exhibit 1) was found on the first inspection by Mr Kearney. The Velocity credit card account application (exhibit 12) was found on a different day to the Sydney Water account by Mr Kearney on a second inspection. The site of the waste at Craik Park had remained in the same condition between the two inspections.

29 Mr Chokr asked Mr Kearney on a voir dire held to determine if the Velocity account should be admitted into evidence how these could have survived the demolition process. Usually paper would be destroyed. Mr Kearney stated it was not in original condition when found. The document was allowed to be tendered as exhibit 12.

30 Mr Kearney stated that he co-ordinated the clean up of the site at Craik Park and required contractors to dispose of the waste. It was tested for asbestos by Collex Services. He then engaged the Sydney Soil Laboratory to classify the waste for removal. Small levels of asbestos were found in the “first three piles”, classified as building waste material containing asbestos. Veolia Environmental Services was contracted to remove the waste from the park. The invoice for this service by Veolia was tendered (exhibit 13).

Cross-examination of Mr Kearney by Mr Chokr

31 Mr Kearney was cross-examined by Mr Chokr. He asked how it was possible that the documents were found in the waste in Craik Park intact as it had been loaded on trucks and it had rained. Mr Kearney said they were in poor condition and wet when found. Mr Chokr also asked why Mr Kearney did not follow the truck AE14UM when he first saw it at 134 Dora Street on 19 June 2006. Mr Kearney said he did not follow it the first time because he had come to inspect the building site.

32 Mr Chokr also asked Mr Kearney about the bricks in waste piles 1 and 2 at Craik Park shown in the photographs on pages 9 and 10 of exhibit 4, saying these were a different colour to the one taken from the site. Mr Kearney said he took the photographs because they looked similar. He said the only explanation for the difference was that there were different levels of light when the photographs were taken.

33 Mr Chokr told Mr Kearney he provided him with four receipts from recyclers and three receipts from Enfield. Mr Kearney said he had one receipt from Enfield with three different dates. He also had one other receipt received from Mr Chokr.

34 Mr Chokr asked him how many trucks were working on the job. Mr Kearney told him that Mr Ibrahim had said only Mr Chokr’s tipper truck and Mr El Gammal’s smaller truck during the demolition phase, and during the excavation phase there were about six trucks. Mr Chokr said there were six trucks for the demolition phase also and said he would bring forward the truck drivers to prove it.

Cross-examination of Mr Kearney by Mr El Gammal

35 Mr El Gammal also cross-examined Mr Kearney. He asked him whether he (Mr El Gammal) was the owner of the tipper truck or was he seen at Craik Park, Austral. Mr Kearney said no. Further Mr Kearney did not agree that old bricks from old houses were all the same but maintained that the bricks at 134 Dora Street had distinctive features on them. Mr Kearney agreed there was one existing pile of illegal waste at Craik Park before the piles the subject of these offences appeared. When asked if it was possible for so many piles to be deposited in two days Mr Kearney said yes as it was removed within two days. Over the period of time that the waste appeared there approximately two loads appeared every three days. The waste appeared over more than four days during the period which Mr El Gammal said was the period of demolition.

36 Mr El Gammal queried the presence of asbestos in the waste at Craik Park, saying there was no asbestos on site when the demolition started. Mr Kearney stated that the waste management plan (part of the documentation provided by Hurstville Council, exhibit 2) indicated the presence of asbestos at 134 Dora Street, and for this reason he organised to have the waste tested. In reply to this, Mr El Gammal commented that a “special company” had arrived prior to demolition and removed all of the asbestos. Mr Kearney could not comment on this other than to say he had not inspected the site to ensure the asbestos had been removed.

37 Mr Kearney did not agree that Mr Taleb said it was his responsibility to make sure the truck is going to the right place. Further when Mr Kearney tried to follow the truck AE14UM one day it ran a red light and he was unable to follow it. He was also not aware that anyone had planted the document fragments in the piles of waste.

Mr Ibrahim’s evidence

38 Mr Ibrahim was interviewed by Mr Kearney on 12 July 2006 and the transcript of that interview was admitted into evidence (exhibit 14). He gave evidence that he was the owner and builder at 134 Dora Street. Mr Dandan removed the asbestos from the site. Because he was busy, Mr El Gammal was engaged to do the demolition. The same person who removed asbestos from 134 Dora Street (Mr Dandan) also did it at another building site in Chatswood where Mr Ibrahim was in charge. He estimated the demolition took not less than two weeks.

39 In his oral evidence, Mr Ibrahim said he asked Adam (Mr El Gammal) where he was going to “tip it”, but he did not instruct him to take it anywhere in particular. The following exchange appears at page 80:50 of the transcript:

Q: I understand… you said some things were to be kept to be reused and you said the remaining house and topsoil to take to the tip, I don’t care where so did you specifically instruct them to take it anywhere?

A: No not me, I don’t, he said I’m going to tip it in, but he gave me a receipt for, I don’t know what its called, Affordable Recycle bins on 22 June 2006 he took three loads, no two loads mixed demolition on 7 June and on 9, same month, one load mixed demolition and next day on the 10 June 2006 two loads of bricks, he gave me this, he said “I tip them there”. You can have it if you want.

Q: And those dates on which that material, that that document says the material was taken in those were the dates was when the demolition was occurring?

A: Yes.

Q: You’re indicating in your interview that there was a demolition, you used a small truck and a bin white truck, were there any other trucks that you saw on site at any time?

A: The first time only single truck, white truck took the trees, two loads I think, the trees, one tree a big one and I think the next day, the third day we get another trailer and same truck, truck and trailer together, the same truck

Q: Okay and you also said that you at about 7 July you hired three extra trucks?

A: Yes.

40 In the record of interview (exhibit 14), Mr Ibrahim stated that Mr El Gammal started work on about 5 or 7 June. Furthermore, he stated that “Adam started work on the site, after two days he took the trees, 2 loads in the small truck and second in the big white truck. Then approximately 1-3 loads per day average over 10 days and approximately 2 weeks.” Mr Ibrahim then said “on approximately 2 July, I hired extra 3 trucks total loads for excavation was 13 loads approximately. For the demolition only total approximately 6-7 loads from the big white truck including trailer.” He also stated that more waste left the site than was in the waste management plan.

41 Mr Ibrahim said in the record of interview (exhibit 14) that he was “100 per cent” sure that the bricks depicted in the photographs in exhibit 4 were from 134 Dora Street. In his oral evidence he was asked to choose photographs in exhibit 4 which depicted bricks which were the same as the ones at 134 Dora Street and to mark these. He selected the photographs on pages 10 and 11 (pile 3), and 18 (pile 10) while he stated he was unsure of the photograph on page 12. When he was asked the general question of whether he was sure of the photographs of the bricks he believed were similar, he answered “maybe”. He was also shown the box of material from 134 Dora Street in exhibit 5 and asked if that was the same or similar to the bricks at 134 Dora Street, to which he could not provide a precise answer. The following exchange occurred at page 84:18 of the transcript:

Q: The court officer is just showing you exhibit 5, which is a box containing a couple of bricks and some tile samples?
A: Anyway, the tiles you can’t tell.

Q: Well I won’t ask you about the tiles?
A: But the bricks, this one is painted but not cement render under it.

Q: You say that’s the same or similar to what was at your property that first brick--

A: I told you, I told you I still remember one metre above the ground, one metre cement rendered and painted and all the rest normal bricks, black and red, but here is paint but not cement rendered, no cement under it, you know what I mean.

42 Mr Ibrahim was also asked if he knew how many loads of demolition material were removed from 134 Dora Street such as bricks, tiles and wood. He did not know exactly but considered it was a lot because the house was a big double brick structure with lots of timber and tiles. He estimated over 15 truck loads. He also identified in the last photographs in exhibit 4 the white truck AE14UM driven by Mr Chokr which collected the waste from 134 Dora Street. He was not sure he gave the waste management plan prepared by Mr Dandan to Mr El Gammal.

Cross-examination of Mr Ibrahim by Mr El Gammal

43 In cross-examination by Mr El Gammal Mr Ibrahim was asked if there was asbestos on site when the demolition commenced. Mr Ibrahim said that another company had been paid to remove one and half tonnes of asbestos. Mr El Gammal asked if he had given him tip receipts for the job. He said that he had been given one receipt for Affordable Recyclers (tendered as exhibit 16 according to the transcript of the Local Court proceedings but not in exhibit A, see my earlier note about exhibit 16 in par 6). He was asked if it was possible to tell apart bricks from different old houses once these were demolished. Mr Ibrahim said on the outside of the bricks it was not possible to tell them apart but the inside could have different cement rendering and different paint. As the old bricks were using lime on the inside that is easy to clean straight away. He agreed he had never seen Mr El Gammal driving the big white truck with the tipper only Mr Chokr.

Cross-examination of Mr Ibrahim by Mr Chokr

44 Mr Chokr asked in cross-examination about the photographs of bricks on page 2 of exhibit 4. The questions of Mr Chokr and the responses from Mr Ibrahim in the transcript (82:25 – 90:47) are as follows. These are difficult to understand:

Q: In the photos here on page 2, there’s nothing in the paint that show’s that there’s colour and on those piles on page 2 there’s no colouring?

A: On the page 2.

Q: On page 2, in all these photos in all the piles shows no signs of colour, they’re all bland?

A: On the bricks you mean.

Q: On the bricks?

A: Yeah on the left side on top, first one on your left there is a white colour. I think that one if you get that bricks look maybe there’s cement rendering on it. It’s still there I don’t know, yeah.

McElroy: What photo’s that sorry?

Her Honour: I think he’s referring to pile 1 on page 2.

Accused Chokr:

Q: When we were carrying the bricks or a lot of them, didn’t you see me I was cleaning out the wood planks from the bricks?

A: I can’t remember mate, I can’t remember.

Q: I don’t know mate?

A: Anyway the bricks and the timber was mixed together mate, they mixed everything together mate.

Q: Because there was some woods in there, some planks and you were there and the machine driver was there and he was there and I just… (not transcribable)… with the worker to take off or extract the wood from the bricks as well?

A: I saw him sometimes on the top of the truck clearing something but I can’t notice what he’s doing on top.

…

Q: We cleaned everything from the wood planks and it shows in the photos there’s wood planks in all of those photos. And the bricks are black they’re not brown and they’re not painted as well here and the photo shows they’re not painted at all, the bricks are not painted. And they don’t have cement rendering as well?

A: What’s your question? What’s your question, I don’t know.

…

Her Honour

Q: Do you agree or disagree, he’s saying to you in these photos the bricks are brown not black?

Accused Chokr: They’re not painted yeah.

Witness: Do you want me to explain to you as a builder every day on the site and I know everything. I told you I have only one metre, painted with cement rendering. All the rest outside skin of the bricks all the same red and black, inside have cement rendering with lime. When you drop it on the floor the lime go off of the bricks so all the bricks all the same from inside.

Accused Chokr:

Q: The painting stays it sticks doesn’t it?

A: Hey.

Q: The paint sticks--

A: Oh yes the paint sticks yes it is very hard to clean anyway.

Q: But none of those photos shows any signs of painting. Have a look at the photographs are there any signs of paint on them?

A: Where on the top or on the bottom.

Q: All of them on page 2?

A: On the bottom there’s no bricks only soil.

Q: All of the photos on page 2.

Her Honour: Only on page 2 is he allowed to look.

Witness: That’s page 2 on the top bricks, on the bottom are all soil.

Her Honour: Sorry one person can speak at one please. The witness can answer please?

Witness: The top one.

Accused Chokr

Q: Yeah the top photographs?

A: What’s your question.

Q: Can you see any paint like with the brown colour in those photos or the white colour, the white painting, there’s not the white painting on those piles?

A: Yeah I can see it, I look at it. Anyone can look at that photo, say a couple of bricks with the paint, with white bricks, it’s easy you can see it, we are not blind yeah there is some bricks. But I don’t know what is it, it’s white.

Q: But this is not on brick.

Interpreter: Mr Chokr is pointing at picture or photo number one and he saying that this one is not brick the white thing?

Witness: I’m going to say something if I can. On the first one on your left, that one on top, that brick this one, I can tell this one has cement render on it, this one.

Her Honour: He’s indicating with his finger the larger bit of white in that top left photo.

Witness: But that bricks he’s showing me, there’s no cement rendering on it, I don’t know, it maybe similar but no cement rendering but I can tell from this photo because it’s bulky, if you can get it much better.”

45 Mr Ibrahim was asked if he saw Mr Chokr cleaning up wooden planks from the bricks but Mr Ibrahim could not remember. Mr Chokr also asked whether the photographs on pages 2 and 3 of exhibit 4 showed painted brick. Mr Ibrahim said he saw one painted brick but one brick shown him by Mr Chokr did not have cement rendering on it. He was also asked if Mr Chokr carried cement from 134 Dora Street and he said he did not know exactly what went in every truck as he was not always at the site. The rubbish to be removed from the site consisted of concrete, bricks, timber and roof tiles.

Mr Taleb’s evidence

46 Mr Taleb, demolition and excavation contractor, gave evidence that he was the manager of the vehicle AE14UM. The records of his interview with Mr Kearney on 19 July and 16 August 2006 were tendered (exhibit 17). He was asked to identify the truck in the last two photographs in exhibit 4, which he did as the Volvo tipper truck which he managed and had under his full control. He employed Mr Chokr as a casual driver and allowed him to use the truck. Mr Chokr was the only person who could drive the truck and only he had the key between 1 June and 14 July 2006.

47 In his record of interview (exhibit 17), Mr Taleb stated that he told Mr Chokr to go to “Melham Civil”, another construction job at Randwick, around 20-23 June 2006. When asked “[w]hat other jobs did you send Ali [Mr Chokr] to during this time 1 June to 18 July 2006”, Mr Taleb stated that he sent Mr Chokr to Melham Civil at Randwick and Bahame Civil in Gladesville. In response to the question whether he knew where the rubbish from 134 Dora Street was being taken, Mr Taleb’s response was “Adam asked me where the best place would be to take the rubbish, I told him Kurnell, concrete recycle in Moorebank”.

Mr Kunning’s evidence

48 Mr Kunning gave evidence that he saw a red and white tipper truck at Craik Park about midday on 11 June 2006. It was similar to the truck shown in the last two photographs in exhibit 4. He did not see anybody near the truck. That concluded the Prosecutor’s evidence.

Mr Chokr’s evidence

49 Mr Chokr gave evidence that there were many trucks on the job at 134 Dora Street. His evidence (at page 102 of the transcript) was that there are three different colours of bricks in the photographs on page 2 of exhibit 4. If it was all from the same job then it would have been the same colour. He stated that he had receipts for all the jobs done and he had submitted these to the Court. It was not part of his job to pay tip fees. No one saw him at Craik Park using the tipper truck. He visited that area with his children to play. He did not carry any concrete but this is shown in the photographs of waste piles 7 to 10 on page 3 of exhibit 4. He stated that he carried the rubbish in pile 12 and he had a receipt for depositing this at Enfield (which is exhibit 8). The other receipts were in exhibits 15 and 16 and there were one or two more.

50 In cross-examination by the Prosecutor Mr Chokr said he removed about three or four loads of bricks in the truck and trailer. He removed three loads of mixed rubbish in the truck and trailer. The rubbish did not contain bricks. The truck and trailer carried about 40 tonnes to Concrete Recyclers and can carry up to 42 tonnes. He agreed with the Prosecutor that the receipt for asbestos material delivered on 22 May 2006 from Sita Australia Pty Ltd (exhibit 14 in exhibit A before the Court) did not assist him as that concerned asbestos material and he did not remove any from 134 Dora Street. Mr El Gammal told him to take the material to Enfield and he got a receipt when he did so. The receipt showed 7 June 2006, two loads of mixed demolition and 10 June 2006, one load of mixed demolition, 10 June 2006, two loads of brick a total of five loads. Two loads which were very clean went to Concrete Recyclers on 16 June 2006.

51 Four other trucks were working at the site at the time of demolition as well as excavation in addition to the small truck driven by Mr El Gammal. Demolition and excavation took place at the same time. The four people driving the trucks included “Yousef”, “Mohammed”, a person employed by Mohammed, and a labourer.

52 Mr El Gammal either gave him cheques to pay when he deposited some of the material at Affordable Recyclers in Enfield or it was paid into an account by Mr El Gammal. The same occurred at Concrete Recyclers. He did not take more than six or seven loads from 134 Dora Street. Each load was not 40 tonnes because the weight of the truck had to be deducted also. He did not know the exact weight of the truck.

53 He visited the Austral area frequently in the truck with his children as he knew many people in the area. Craik Park is the only park in that area. He denied dumping waste at Craik Park to avoid the tip fees. He was not responsible for paying tip fees.

Day 3 (13 March 2007)

Prosecutor’s submissions in Local Court

54 The Prosecutor submitted that Mr El Gammal contracted with Mr Ibrahim to dispose of the waste from 134 Dora Street lawfully at a tip. Mr El Gammal was the owner of the waste from the time he commenced the demolition and excavation. He engaged Mr Chokr to help him carry out the work. It appears from the evidence that Mr El Gammal himself removed the trees and the greenery in his smaller truck and then Mr Chokr removed bricks, mixed waste and timber in the large white tipper truck AE14UM shown in exhibit 4. Mr Ibrahim’s evidence is that Mr El Gammal commenced working at 134 Dora Street about 5 or 7 June 2006. He stated that there were one to three loads per day over ten days which provides an indication of the number of loads from the site. The possible range for the number of loads removed is from ten loads up to thirty loads, after Mr El Gammal removed the trees in his small truck. The next stage was the removal of soil after the demolition was completed.

55 While Mr Chokr’s oral evidence was that there were four trucks at the site with him that is inconsistent with the evidence of Mr Ibrahim that additional trucks did not arrive until 12 July 2006, after the demolition phase was completed. Mr Ibrahim’s evidence should be preferred. Mr Chokr simply states there were other trucks and gives some names of drivers but that is the only evidence he has given. He has not called evidence from those other people working on the site to substantiate his own evidence.

56 If Mr Chokr’s evidence that some of the material dumped must have been taken by other trucks is accepted that is not consistent with Mr Ibrahim’s evidence that the other trucks he employed took only soil as that is not the material dumped in Craik Park. Mr Kearney’s evidence and the photographs show that the dumped material in Craik Park is mixed building material and soil.

57 Based on Mr Ibrahim’s evidence in his statement, when asked the total number of loads of material taken from the site he stated there were 15. Six or seven loads were taken by the big white truck and trailer and extra trucks were hired for the excavation period after demolition. If Mr Ibrahim’s evidence is accepted then between ten and thirty loads were taken from the site. There is no evidence that Mr El Gammal removed building material from the site so that Mr Chokr removed most if not all the material from the site. He can account for only lawfully disposing of six loads of waste with the receipts provided and much more than this was removed from the site.

58 The case against Mr El Gammal is that he is ultimately responsible for the disposal of the waste as he was the owner of the waste once he took it from Mr Ibrahim regardless of who dumped it.

59 The two documents found in two piles of dumped material at Craik Park link that material with 134 Dora Street (exhibits 1, 12) and the inference should be drawn that they were mixed in with demolition material which came from 134 Dora Street. It is not implausible that the documents survived intact to some extent in the demolition waste. They are only partial documents and were wet when found.

60 Further Mr Ibrahim, in his record of interview with Mr Kearney, when shown the photographs in exhibit 4 and asked whether he thought the bricks depicted therein came from his building site, answered “yes 100 percent”. His oral evidence, however, when asked the same questions about the bricks, was a little inconsistent. He did make an issue about the rendering, saying how he recognised a similarity between that depicted in the photographs and what he had at his house. Mr Ibrahim’s evidence combined with Mr Kearney’s in relation to exhibit 5 suggests a consistency between the material found at Craik Park and that sourced from the site.

61 The invoice of services provided by Veolia for removal of asbestos material (exhibit 13) was relied on as showing the amount of waste in the twelve piles in Craik Park as 131.9 tonnes and the cost of removal, $18,044.11.

62 Mr Chokr has not accounted for all the loads of waste that must have been taken from the site.

63 Reliance was also placed on the waste management plan lodged with the development application at Hurstville Council (exhibit 2). That showed 12m3 being taken offsite in the demolition phase and identified substantially more material in the construction phase. It was relied on as identifying where the waste was intended to be taken, namely Kurnell Land Fill company and Enviroguard Waste Depot at Erskine Park. The receipts in evidence in exhibit 10 are for Enviroguard, which the Volvo truck with registration AE14UM visited on one occasion and deposited inert waste of 21.38 tonnes. It was deposited for the customer Environmental Investigations suggesting the material was not from 134 Dora Street. The receipts from Kurnell Landfill (exhibit 11) show that one load was deposited in the same truck for a client, Melham Civil Pty Ltd, suggesting that was for a different job also. The only two places nominated in the waste management plan as receiving waste did not appear to receive any waste from 134 Dora Street.

64 Mr Kunning’s evidence is only that he saw a truck similar to AE14UM near Craik Park but Mr Chokr has stated that he goes to that park with his children in any event.

65 Mr El Gammal did not give evidence. He became the owner of the waste and he was required to ensure it was disposed of lawfully as the person subcontracted to do so. No waste went from this site to the two nominated sites in the waste management plan. The Prosecutor relies on circumstantial evidence to make its case against him.

Mr Chokr’s submissions

66 Mr Chokr stated that he has submitted receipts for all the jobs he has undertaken for this project. The piles have three different colours of bricks as can be seen from the photographs (exhibit 4). The material was sorted at the site to remove wood. Mr Ibrahim’s evidence was unclear whether the material came from the site. The loads from the site were painted but it is not clear that the waste in the piles at Craik Park had painted material in them. It is unlikely any document could survive the rain and demolition process intact so that it is possible that these were planted on the piles by someone. The tiles from the roof are a different colour to those in the piles. He also said he could bring more receipts but was told it was too late to do so.

Grounds of appeal

67 The Appellant identifies two grounds of appeal.

A. Insufficient proof of offences (first ground)

68 The substantial ground of appeal is that the evidence does not prove and is incapable of proving that the Appellant committed any of the twelve offences of which he was convicted. The convictions should be set aside and acquittals entered on all charges. The elements of the offence found by the magistrate to have been proved are that the Appellant was:

69 According to the Appellant that required proof that each of the twelve piles of waste in Craik Park contained material from a development site at 134 Dora Street Hurstville and that the Appellant was the driver of a Volvo double-bogey tip truck involved in the transportation and disposal of demolition waste from 134 Dora Street and the Appellant had transported each of the twelve piles of waste from 134 Dora Street to Craik Park and deposited it there.

70 The co-accused, Mr El Gammal, was also charged and convicted with the same twelve offences under s 143 as the owner of the waste under the POEO Act. He was also charged and convicted with one additional offence. The joint trial was held over three days on 15 November 2006, 12 and 13 March 2007.

71 It is agreed that the evidence is circumstantial. The Appellant argued that the test in R v Shepherd (1990) 170 CLR 573 was not met by the speculative nature of the evidence. The Appellant’s case focussed on three areas in which the evidence was said to be lacking the necessary probative value to discharge the required standard of proof.

(i) Did the evidence establish beyond reasonable doubt that the Appellant deposited the waste at Craik Park?

72 The magistrate took three matters into account in being satisfied beyond reasonable doubt that the material in the piles at Craik Park came from the development site at 134 Dora Street Hurstville

(a) The presence in two piles of fragments of paper showing an address with 134 Dora Street [exhibits 1 & 12] [T139:55 to T141:18]

(b) Evidence as to the similarity between the materials in the pile of rubbish and the material at the building site at 134 Dora Street Hurstville [T141:19 to T142:30]

(a) The fragments of paper

73 There are two fragments of paper which were said to tie the waste dumped at Craik Park with the demolition material at the development site at 134 Dora Street Hurstville. They were tendered as exhibits 1 and 12.

74 Exhibit 1 appears to be some sort of account. One can see that one exhibit 1 there are words: “account for 134 Dora S”. Exhibit 12 is a credit card application which has personal details including a street address: 134 Dora Street and the letter “H” with another letter or part thereof that resembles a “U”.

75 Mr Kearney says he received a complaint on 15 June 2006 [T10] following which he first attended Craik Park on 16 June 2006. According to Mr Kearney, he conducted a more detailed inspection on 19 June [T11] [see also T14:1-10] and this is when he says he found the document which is exhibit 1 [T11: 3-15]

76 The evidence is clearly to the effect that after he found exhibit 1 displaying a Dora Street address, he searched the UBD and ascertained that the only Dora Street in Sydney with numbers going up to 134 was Dora Street Hurstville. [T13:48-57]

77 Mr Kearney says that it was on the afternoon of 19 June 2006 that he first attended the site at Dora Street Hurstville [T16]. In the Prosecutor’s final address in relation to this aspect of the evidence, it is clearly put that it was the discovery of exhibit 1 which lead Kearney to the Dora Street site. [T127:4-16]

78 However, it is a theory which is contradicted by the evidence:

(a) A bundle of documents comprising photographs taken by Mr Kearney with text was tendered as exhibit 4. They are date stamped. [T11: 3-15]

(b) Looking at the photographs on page 2 of exhibit 4 – it is evident that those are photographs taken on 19 June 2006.

(c) It appears from pages 5-6 of exhibit 4 that exhibit 1 was said to have been found in pile no 3 at 12:35pm on 20 June 2006 and exhibit 12 was said to have been found in pile no 2 at 7:30am on 29 June 2006.

79 It is clear that Mr Kearney went to 134 Dora Street on 19 June 2006, before he had found either of the fragments of paper in the piles at Craik Park.

80 It calls into legitimate question why it was that Mr Kearney attended Dora Street before finding the address on exhibit 1 which supposedly took him there. There is no explanation for this on the evidence. Mr Kearney was cross-examined about the possibility that someone could have gone and put the papers in the waste piles. [T76:31-51]. There is a rational hypothesis that those fragments of paper were placed in the piles of waste, and that hypothesis is not excluded by the Prosecutor’s evidence.

81 Even if the Court is satisfied that the evidence constitutes proof that some of the waste came from 134 Dora Street, contrary to the preceding submissions, then, at its highest, the Prosecutor’s case can only establish that waste from 2 out of the twelve piles came from 134 Dora Street.

82 The name “Ms Denison” on the fragment of credit card application which comprises exhibit 12 is another unexplained anomaly in the Prosecutor’s case, given the evidence that Mr Ibrahim was the owner and occupier of the property at 134 Dora Street Hurstville. [T77:23]

(b) The alleged similarity between material in the piles at Craik Park and the materials at 134 Dora Street

83 The notes taken by Mr Kearney of a conversation that he allegedly had with Mr Ibrahim was admitted into evidence [T78]. Although it appears that the defendants acquiesced in this course, it should not have occurred.

84 In any event, in respect of the issue of the similarity between material found in the piles of waste at Craik Park and the demolition waste at 134 Dora Street, the sworn testimony of Mr Ibrahim must be preferred to the notes of an interview. To the extent of any conflict with the oral evidence given under oath, the “evidence” in the form of Mr Kearney’s notes of the interview should be given no weight whatsoever.

85 Mr Ibrahim’s sworn testimony does not support the proposition that waste in the twelve piles at Craik Park comprised demolition waste from the house at 134 Dora Street. That evidence was to the effect that he did not know whether the material at Craik Park constituted bricks and tiles from his house. The use of the word “maybe” by Mr Ibrahim at T83:58 and the dialogue which follows calls into doubt the proposition that the Craik Park demolition waste came from 134 Dora Street. Then, in the face of inappropriate, leading questions from the Prosecutor at T84, Mr Ibrahim declines to accept that the material comes from a common source noting, in particular, the significance of the absence of cement render in the painted bricks. [T84:27-34]

86 In light of this oral evidence, the unsworn statement attributed to Mr Ibrahim by Mr Kearney in his notes of their interview that “Yes I can tell you 100% the bricks are definitely from the site” can properly be afforded no weight. Mr Ibrahim was not taken by the Prosecutor to the conflict nor asked to explain.

(c) The Waste Management Plan [exhibit 3] and the receipts produced by Mr Chokr

87 There was disparity between what was contemplated in the waste management plan (exhibit 2) and the amount of waste which could be accounted for by receipts produced by Mr Chokr. [T142:26 to T143:13]

88 Exhibit 3 was a document authored by Mr Ibrahim in advance of any demolition work being carried out as an expression of intention as to what he proposed to do with it. This was prepared on the assumption that Mr Dandan would be carrying out the works, a contingency which did not become reality.

89 It is clear on the evidence that the contractor who was proposed to do these works did not actually do the job and, when Mr Ibrahim contracted Mr El Gammal to carry out the demolition contract, it was left entirely to Mr El Gammal’s discretion as to where to take the waste for disposal. Thus the fact that, supposedly, demolition waste was not, or might not, have been taken to the Kurnell Land Fill Company and the Enviroguard facility in the amounts anticipated in the Waste Management Plan, has no probative value.

Additional issues

(d) Soil samples taken at 134 Dora Street

90 A significant proportion of the material dumped at Craik Park was soil, as is evident from the photographs [Exhibit 4].

91 Mr Kearney gave evidence that soil samples were taken in a grid pattern on the building site at 134 Dora Street [T19:45:52] one can only infer for the purposes of comparison with the soil found at Craik Park. Inexplicably, there was no evidence adduced in the Prosecutor’s case in respect of the results of these soil samples. One would infer that, had these results disclosed a match or similarity between the soils at 134 Dora Street and the soils found at Craik Park, evidence to that effect would have been adduced. In the absence of any such evidence, one properly infers that the results of soil sampling did not assist the Prosecutor’s case.

92 It is submitted for the Appellant that the evidence fails to prove that any of the waste at Craik Park came from 134 Dora Street Hurstville. At its highest, on the evidence, the Prosecutor established the possibility that two of the twelve piles of waste might have come from that site.

(ii) Did the evidence establish beyond reasonable doubt that Mr Chokr deposited the waste at Craik Park?

93 For the reasons set out as follows, the evidence leaves open the rational possibilities that a person or person other than the Appellant dumped the waste at Craik Park, including:

(a) one or more other truck drivers engaged in the demolition and excavation job at 134 Dora Street at the time that the Appellant was employed on the job; or

(b) Mr Dandan, (Redback Demolition Excavation Tipper Hire) the contractor who took asbestos waste from 134 Dora Street prior to Mr Chokr starting work on that site, or a person employed or contracted by him; or

(a) The presence of other trucks

94 On the evidence, the Court must accept as a rationale hypothesis that, in addition to the truck used by the Appellant, several other trucks were carting away demolition waste from 134 Dora Street.

95 The Appellant repeatedly referred to this throughout the case both during the course of dialogue from the bar table and in evidence in chief. [T9:10-11 and 34-35; T47:12; T52:38; T54:46 to T55:8; T102:11] However the most telling evidence in respect of that issue was evidence given by the Appellant under cross examination by the Prosecutor at trial. [T109:19 to T110:36]. During cross-examination on this issue, the Appellant firmly adhered to the fact that other drivers were involved in the demolition process, including the co-accused, and it was never at any stage put to him by the Prosecutor that this evidence was either untrue or incorrect.

(b) Mr Dandan

96 Mr Dandan of Redback Demolition Excavation Tipper Hire was the contractor initially engaged to carry out the demolition at the site [See Exhibit 3].

97 It appears to be the position that Mr Dandan removed asbestos waste from the site (exhibit 15) and was not engaged to do the major part of the demolition, but there must have been some process of demolition undertaken in order for the asbestos to be removed.

98 Mr Dandan was working simultaneously for Mr Ibrahim on a separate job at Chatswood (see exhibit 15). This is significant because of the potential for the mixing of materials between the two sites.

(c) The presence of asbestos in the waste

99 Significantly, asbestos was found in the waste at Craik Park. [T70:39-46]. This was significant because of the evidence that Mr Dandan was the contractor responsible for the removal of asbestos and that this had occurred before Mr El Gammal was contracted to remove the major part of the demolition. [T25:5-20; T75:46-T76:7]

100 The presence of asbestos in the waste at Craik Park is inconsistent with the waste having been taken there by Mr Chokr and is consistent with it having been taken there by someone else, either Mr Dandan, or someone working for him, or by an unrelated third party.

(iii) Lawful deposition of waste by Mr Chokr
(a) Receipts

101 The Appellant produced to the Prosecutor receipts for loads of waste which he had taken from 134 Dora Street to two waste facilities. Records from Concrete Recyclers [exhibit 9] account for 80 tonnes of waste. The Appellant also produced receipts for loads of waste which he took to the “Affordable Recyclers” waste facility at Enfield. Although these latter receipts were not put into evidence, records of them were identified and put to the Appellant during cross-examination of him by the Prosecutor [T106: 25 to T108].

102 It appears that five loads (that is, double loads, given that the Appellant was using a double bogey truck) were taken to Affordable Recyclers: two on 7 June 2006; one on 9 June 2006 and two on 10 June 2006. [T107:1-19]. A further four loads to the Concrete Recyclers facility are accounted for.

103 The evidence that the Appellant was able to account for the lawful deposition of this quantity of waste was significantly probative of the fact that he was not the person who dumped the waste at Craik Park.

(b) Mr Chokr’s actions on 19 June 2006

104 On 19 June 2006, Mr Kearney attended 134 Dora Street for the first time. There he saw Mr Chokr and the Volvo truck. [T16] There is no suggestion or evidence that Mr Chokr was aware that Mr Kearney was watching him. Three minutes after arriving, Mr Kearney saw Mr Chokr leave the site with a full load of waste. [T17:4-7]

105 That waste was not dumped at Craik Park. So much is clear from Mr Kearney’s evidence that, after his first inspection of the site on 16 June 2006, there was no change to the dumped waste at Craik Park. [T52:19-31] [T66:56 to T57:2].

Prosecutor’s submissions on first ground of appeal

106 The Prosecutor submitted that the Appellant was properly convicted of the offences charged and that the appeal should be dismissed.

107 It should be noted that the co-accused, Mr El Gammal, did not appeal his conviction or sentence. The two defendants were charged separately and convicted. There is no jurisdiction in this Court to overturn the conviction entered against Mr El Gammal in the absence of an appeal against him.

108 The Appellant incorrectly submitted that it was necessary for the Prosecutor to negative every reasonable hypothesis consistent with the Appellant’s innocence in relation to every factual matter. That was not the correct application of Shepherd concerning circumstantial evidence. The circumstances taken as a whole must negative any reasonable hypothesis consistent with innocence. The Prosecutor must prove each of the elements of the offence charged beyond reasonable doubt, not every fact relied on in establishing those elements. The question is whether the Prosecutor has proven beyond reasonable doubt that Mr Chokr dumped the waste at Craik Park and there is no reasonable possibility that somebody else did. The Appellant’s central submission that on the whole of the evidence the Prosecutor failed to negative every reasonable hypothesis consistent with the Appellant’s innocence should be rejected.

109 The evidence supports the following findings:

(a) piles of waste were deposited at Craik Park

(b) the waste came from 134 Dora Street Hurstville

(d) the Appellant was the sole driver of that vehicle

(e) the period of demolition coincided with the period of the alleged offences.

110 The Prosecutor argued the following facts were proved beyond reasonable doubt on the evidence before the magistrate.

(i) Twelve piles of waste deposited at Craik Park, Austral

111 Mr Kearney’s inspection showed twelve piles of waste on 16 and 19 June 2006. [T10.45; 11.50]. There is a series of photographs demonstrating this in exhibit 4.

(ii) The waste came from 134 Dora Street

112 The following evidence supports a finding that the dumped waste in Craik Park came from 134 Dora Street.

(a) Paper in two piles of waste show address – condition of receipts as found within rubbish is consistent with recent dumping [T13-14; exhibit 1]

(b) Water bill – see bottom of document [ exhibit 1; T11.46-53]

(d) Velocity visa account for a Ms Dennison [exhibit 12]

(e) Only one Dora Street going up to “134” and this was Dora Street, Hurstville [T13.55-56]

(f) There was a DA for 134 Dora Street and a waste management plan identifying the type of waste [exhibit 2];

(g) Demolition period at 134 Dora Street coincided with the period of dumping (5 -16 June 2006) [Mr Kearney went to the site on 19 June 2006 [T14.45; 16.20-40; Mr Ibrahim’s oral evidence T80.22-33];

(h) Quantities of waste – Evidence from Mr Ibrahim [T78.57-58; 80.55; 81.35-46; 84.35-55]

(i) Mr Ibrahim gave direct oral evidence identifying the waste and by reference to the photographs in exhibit 4 [T83.16; 84.15-55; 87.25-46; 88.35-40; 89.35-50; 90.24-39; see exhibit 2 page 7]

(j) Although exhibit 5 has been misplaced by the Local Court, the magistrate was satisfied materials from 134 Dora Street were similar to the waste at Craik Park [T142.20-25]

(k) The other two piles of waste at Craik Park were older and of a different character [Mr Kearney T11.28-30]

(iii) The vehicle AE14UM was sufficiently identified and the Appellant was the sole driver

113 The following evidence supports a finding that the vehicle AE14UM was driven only by Mr Chokr during the period of the offence.

(a) Mr Kearney observes the vehicle AE14UM at 134 Dora Street on 19 June 2006 [T16.25-51]; [Mr Ibrahim T81.19-22; 85.15-32; 88.12-15; Mr Taleb T93.55-96.11]

(b) Ali Chokr was the only driver [T95.5-17]

(d) Mr Chokr was not working for Mr Taleb at 134 Dora Street. He was working for “Adam” (Mr El Gammal) and Mr Taleb sacked Mr Chokr because he “went behind his back” [exhibit 17 at page 2; T94.50-55]

(e) Mr Chokr was the only one with the key to the vehicle [exhibit 17 page 2]

(f) Mr Kearney gives a plausible reason for not following the Appellant – he was carrying out surveillance of the building site [T52.10-15] and on a second occasion the truck ran a red light and he could not follow [T76.25-28].

(g) A truck similar to AE14UM was seen in vicinity of Craik Park by Mr Kunning in the period of the offence [T96.20-97.10] – nothing more is drawn from this.

(h) There were only two vehicles removing waste in the demolition period [T28.45; 81.19-22; exhibit 14 page 2]

(iv) “Other vehicles?”

114 There is insufficient evidence of other vehicles to warrant a finding that another vehicle dumped the waste.

(a) Mr Ibrahim gave evidence that the only other vehicles engaged in removal of waste from 134 Dora Street were three other trucks engaged directly by him after 2 or 7 July [exhibit 14 page 2; T81.30-50].

(b) The evidence of the involvement of other vehicles is slight and post dates the demolition period [Mr Chokr T109.20-110.30].

(c) Receipts from waste facilities produced in response to s193 Notices concerning vehicle AE 14 UM only account for a small number of trips on limited dates [exhibits 7, 8, 9, 10 and 11];

(d) Mr Kearney says he only ever saw one receipt produced by the Appellant [54.30-45].

(e) Mr El Gammal had the other receipts referred to by Mr Chokr [T104.55 to 105.35]

(v) Presence of asbestos

115 The evidence in relation to the presence of asbestos confirms that:

(a) Evidence of some asbestos in the waste at Craik Park does not mitigate against the inference that Mr Chokr dumped the waste in Craik Park [T79.55; 104.55; exhibit 15]

(b) The waste removed from 134 Dora Street was mixed rubbish [T91.4-6; T103.50 to 104.6]

(c) There may have been some asbestos still at 134 Dora Street during the demolition period [exhibit 7; 38.11-15; 104.56-58; exhibit 15];

Finding

116 This is a rehearing of the appeal on the evidence tendered before the magistrate and on the transcript of the proceedings before the magistrate. It is a redetermination of the matter, not a review of the magistrate’s reasoning in arriving at a finding of guilty or a review of her decisions to admit evidence. The elements of the offence which the Prosecutor had to prove was, firstly, that the illegally dumped waste at Craik Park came from 134 Dora Street, Hurstville during the period charged and secondly, that Mr Chokr transported and deposited that waste in Craik Park during the period of the charge. The evidence against Mr Chokr and his co- accused is circumstantial. The application of the ratio in Shepherd is important as there are competing submissions on how that case should be applied to the facts sought to be proved by the Prosecutor.

117 In the unanimous decision of Shepherd, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ reviewed, in separate judgments, Chamberlain v The Queen [No 2] (1984) 153 CLR 521. Dawson J (Mason CJ, Toohey and Gaudron JJ concurring) held that it was not necessary to establish every intermediate fact beyond reasonable doubt in order to arrive at a finding of guilty in cases resting upon circumstantial evidence. McHugh J held at 592 that:

If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt-not whether any particular fact has been proved beyond reasonable doubt.

118 The approach of the Prosecutor was more closely aligned to that in Shepherd as its counsel submitted it was not necessary to prove every intermediate fact beyond reasonable doubt if the inference of guilt beyond reasonable doubt arose because the elements of the offence were established by the evidence considered cumulatively. By contrast, the Appellant’s arguments were directed to proving that each intermediate fact must be proved beyond reasonable doubt. That approach is not supported by Shepherd.

119 The Appellant has focused on the magistrate’s reasoning and sought to emphasise that several key elements/facts are not proved beyond reasonable doubt. As already stated I am not reviewing that reasoning and will refer to it only briefly to the extent it is necessary to consider how certain evidence was considered in the Local Court. I must make my own findings based on the evidence admitted before the magistrate to the extent it is available to me now and relying on the transcript of the proceedings in the Local Court.

120 I will consider the matters said to be established in the Prosecutor’s submissions in light of the Appellant’s submissions.

(i) Twelve piles of waste at Craik Park

121 The Prosecutor relies on Mr Kearney’s evidence that he inspected the twelve piles of waste at Craik Park on 16 and 19 June 2006 (par 111). There is no direct attack on that evidence by the Appellant.

(ii) Waste from 134 Dora Street, Hurstville

122 The evidence identified by the Prosecutor at par 112 is relied on as establishing that the waste in Craik Park came from 134 Dora Street, Hurstville. The Appellant challenges:

(a) Mr Kearney’s evidence that he attended 134 Dora Street because of finding the two document fragments in exhibit 1,
(b) the evidence relied on concerning the quantities of waste taken from 134 Dora street,
(c) the identification evidence of the similarity of waste between that found in Craik Park and the material removed from 134 Dora Street.

(a) Reliance on paper fragments in exhibit 1

123 The Appellant’s counsel submitted that there were unexplained discrepancies in Mr Kearney’s evidence because the date stamp of the photographs taken by Mr Kearney of the document in exhibit 1 was later than 16 and 19 June 2006, the date he went to Craik Park (par 78). The matters relied on in the Prosecutor’s submissions at par 112(a)-(d) do not address this issue so that while they are not directly contested they do not necessarily prove the Prosecutor’s case. (The matters in par 112(e)-(g) are not disputed in the evidence).

124 Mr Kearney’s evidence is that he went to 134 Dora Street after seeing the paper fragment exhibit 1 (and possibly exhibit 12) in the pile(s) of waste on 19 June 2006. Mr Kearney attended 134 Dora Street on 19 June 2006. He stated during examination in chief that he found exhibit 1 on 19 June 2006, during his second visit to Craik Park, but during further examination on the second day (page 66:46 of the transcript), he states he found exhibit 1 “during the initial inspection on the piles of waste”. He then goes on to say that he found exhibit 12 at “some other time… during the inspection on a different day” relative to when he found exhibit 1 (page 66:53).

125 The timing and reason for his visit to 134 Dora Street on 19 June is criticised by the Appellant as the photographs in exhibit 4 of the partial Sydney Water account (exhibit 1) are date stamped 20 June 2006, the following day, suggesting that could not have been the reason for his visit. There was no consideration of these discrepancies between Mr Kearney’s oral evidence and the written record on the photographs tendered before the Local Court.

126 The photographs in evidence in exhibit 4 identify when they were taken by written description on the page of photographs and by the date stamp within the photographs. According to the date stamp the photographs of exhibit 1 in a waste pile in exhibit 4 page 5 were taken on 20 June 2006. The date stamp on the photographs of exhibit 12 in exhibit 4 at page 6 indicate they were taken on 29 June 2006.

127 A possible explanation is that the date stamps are incorrect for reasons unknown because at page 8 of exhibit 4, for example, the written description is of a photograph taken on 28 June 2006 whereas the date stamp on the photograph shows “8” only. This suggests a “2” has been omitted. There is simply no evidence on this issue however so that I must accept the evidence of the dates on the photographs in exhibit 4 as they appear.

128 There is therefore a discrepancy in Mr Kearney’s evidence in relation to whether he attended 134 Dora Street on 19 June (oral evidence) or 20 June (date stamp of photograph of exhibit 1). I consider his evidence continues to have probative weight despite this discrepancy, however, given his clear oral evidence that he visited Craik Park on 16 and 19 June 2006 which is confirmed by photographs taken on those dates in exhibit 4 at pp 1-3.

129 Mr Kearney was cross-examined by Mr Chokr about the possibility that someone could have put the papers in the waste piles to suggest the waste came from 134 Dora Street. Mr Kearney considered this was not possible as the paper fragments were partially buried within the piles of waste and were clearly dirty and torn, as can be seen from the fragments of documents in exhibits 1 and 12. Exhibits 1 and 12 are clearly damaged fragments of documents which are consistent with being found in two piles of waste by Mr Kearney.

130 While this issue appeared to be linked in the Appellant’s submissions to whether Mr Kearney went to 134 Dora Street because he found exhibit 1 at Craik Park, it is really unrelated to that evidence. Even if there was no such discrepancy in Mr Kearney’s evidence because of the dates on the photographs, the possibility that a third party placed the waste in Craik Park could be raised given that no witness saw the waste being dumped in Craik Park. Whether this is a reasonable possibility will need to be weighed up in light of all the circumstantial evidence.

131 Further, the fact that the name “Ms Denison” appears on the credit card application in exhibit 12 does not introduce an anomaly in the Prosecutor’s case because the current owner at 134 Dora Street happens to be Mr Ibrahim.

(b) volume of waste material removed from 134 Dora Street (see par 112(f) waste management plan; (h) waste quantities)

132 The amount of waste in the twelve piles in Craik Park is approximately 130 tonnes according to the estimate by the contractors engaged by Mr Kearney to quote on its removal, as identified in exhibit 13. The estimate of material to be removed in the waste plan lodged with Hurstville Council (exhibit 2) is 12m3 during demolition. The places nominated in the waste plan for this material to be taken were Kurnell Land Fill and Enviroguard. Mr Ibrahim cannot recall giving the plan to Mr El Gammal nor did he say to Mr El Gammal where the material from 134 Dora Street should go. Whether those particular facilities were used for the disposal of waste from 134 Dora Street is irrelevant in light of that evidence as there is no proof that Mr El Gammal was required to use these nor was it suggested to him. In Mr Taleb’s written statement he said Mr El Gammal asked him where he should take the material and he told him Kurnell and concrete recyclers. Mr Chokr’s evidence is that he took the waste to Enfield, which I deduce from his other evidence is the Affordable Recyclers facility, and Chipping Norton, which is the Concrete Recyclers facility at Moorebank.

133 The waste plan is expressed in volume of cubic metres. It suggests that for the demolition phase a relatively small amount was intended to be removed. I consider it has little probative value in any event given that it was prepared by a person other than Mr Ibrahim, Mr Dandan, who did not execute it. There is no evidence Mr El Gammal (or Mr Chokr) was aware of it.

134 The evidence that Mr Chokr gave during cross-examination is that he removed about six or seven loads of waste from Dora Street.

135 The receipts tendered in evidence include those from Concrete Recyclers (exhibits 8 and 9, 16) which verify that 60 tonnes of brick were taken to the Moorebank tip by Mr Chokr. (The docket in exhibit 16 has the same number as one of the three dockets referred to in exhibit 9 and I surmise therefore is the same delivery). Another receipt from Affordable Recyclers was referred to in oral evidence during the cross-examination of Mr Chokr but not tendered. According to the oral evidence it shows that five loads were deposited at that facility, being two loads of brick and three of mixed rubbish. The receipt in evidence from Enviroguard (exhibit 10) for inert material of about 21 tonnes was delivered on 19 June 2006 for a customer Environmental Investigations. This is outside the period of the offence and appears not relevant to this case as it does not relate to 134 Dora Street as that is not a company connected to that site.

136 As submitted by the Appellant above (par 101-102), there is evidence to suggest that there was lawful deposition of waste by Mr Chokr on nine occasions according to the evidence tendered and referred to in oral evidence.

137 Mr Ibrahim’s evidence of the number of waste loads removed from 134 Dora Street was that 15 loads of brick were removed although that must be weighed against his evidence that he was not always at the site.

138 Mr Ibrahim’s evidence about the number of loads was summarised by the Prosecutor as giving rise to a range of between 10 and 30 loads of building waste being removed. While imprecise that does suggest that a greater amount of material was removed from 134 Dora Street than is accounted for by the receipts tendered in evidence which relate to 134 Dora Street and the receipt from Affordable Recyclers referred to in oral evidence.

(c) similarity of waste at Craik Park and 134 Dora Street - (see par 112(i) Prosecutor relied on Mr Ibrahim’s evidence; (j) exhibit 5 relied on by magistrate; (k) other piles older)

139 The Appellant’s counsel argued that the evidence does not establish that there was substantial similarity between the piles of waste and the demolished material at 134 Dora Street. One factor relied on by the Prosecutor, which is unchallenged, is that the twelve piles of waste were placed in Craik Park around the same time and coincides with the period of demolition at 134 Dora Street identified by Mr Ibrahim’s evidence.

140 The evidence of Mr Ibrahim and Mr Kearney is relevant to this issue. The record of interview of Mr Ibrahim was tendered before the magistrate and it is not within my role in this appeal to review the admissibility of evidence tendered despite the Appellant’s submissions in this regard. That record of interview says that Mr Ibrahim was 100 per cent certain the bricks dumped at Craik Park came from 134 Dora Street (par 41). In his oral evidence Mr Ibrahim was far less clear stating that bricks in one photograph in exhibit 4 were “maybe” from 134 Dora Street. Mr Chokr argued that it was impossible to tell from the photographs that there was similarity between the material at the two sites as the bricks in the photographs looked quite different.

141 Mr Kearney’s evidence is that there was a similarity and that is why he took the photographs in exhibit 4. His evidence is brief on this issue and made during cross-examination by Mr Chokr about why the photographs of bricks in exhibit 4 did not appear to be similarly coloured.

142 While the magistrate relied on viewing the material taken from 134 Dora Street in exhibit 5 in reaching her decision, I do not have that exhibit before me so I cannot take it into account. The issue therefore depends on how I should weigh up the evidence of Mr Ibrahim in particular. While his brief written statement is to the effect that he was 100 per cent certain that is not confirmed by his oral evidence when he was shown exhibit 5 (see par 41). His oral evidence during cross-examination is equivocal (based on the transcript extract above at par 44) and does not establish that the bricks in some of the waste piles came from 134 Dora Street. While he initially stated some of the bricks (photographs 10, 11 and 18) were from 134 Dora Street his subsequent answers suggest that he was not at all certain. I do not consider that Mr Ibrahim’s evidence has any probative weight on this issue.

(iii) Vehicle AE14 UM was sufficiently identified and Appellant was sole driver

143 The matters identified at par 113(a)-(f) by the Prosecutor are not contested by the Appellant and the evidence confirms that Mr Chokr was the sole driver of AE14UM at 134 Dora Street during the demolition period.

144 The evidence that Mr Kunning saw a truck similar to AE14UM parked in the vicinity of Craik Park does not have any probative value. The Appellant stated that he visited Craik Park with his children on several occasions (par 113(g)).

(iv) Number of vehicles (par 113(h), 114)

145 An evidentiary matter in dispute is whether there were only two vehicles, one driven by Mr Chokr and one driven by Mr El Gammal, removing waste from 134 Dora Street in the demolition period (and therefore during the period of the offence of 5-16 June 2006) as asserted by the Prosecutor. The Prosecutor relied on matters set out in par 114 to argue that there was insufficient evidence of other vehicles to warrant a finding another vehicle dumped the waste. Rather there were only two trucks in the relevant period of the offence. It is Mr Ibrahim’s evidence that there were only two trucks working at 134 Dora Street in the demolition period. He employed additional trucks for the excavation phase from about 2 July 2006 which was largely soil removal.

146 Mr Chokr’s evidence is that there were several other trucks working on removing waste at 134 Dora Street during the demolition period. He asserted this on more than one occasion. He stated that he intended to bring other drivers to court to give evidence but this did not occur. His evidence was not directly challenged in cross-examination by the Prosecutor. The Appellant’s counsel did not specifically rely on the rule in Browne v Dunn (1893) 6 R 67, but I surmise that this is the principle on which he relies in submitting that Mr Ibrahim’s evidence should be disregarded because Mr Chokr’s evidence was not challenged by the Prosecutor.

147 Browne v Dunn is not a blanket rule requiring the Prosecutor to challenge all versions of evidence contrary to its case before it can rely on a witness. Each case must be considered on its merits. Gleeson CJ in R v Birks (1990) 19 NSWLR 677 notes at 691 that when applying the rule in Browne v Dunn, in criminal matters in particular, “there are considerations which may indicate the need for caution”. His Honour’s statements are made in the context of an appeal from a jury trial. Bray CJ in R v Byczko (No 2) (1977) 17 SASR 460 states at 466 that when a cross-examiner is faced with incredibilities and inconsistencies in the evidence of an opponent’s witness, the cross-examiner is not bound to examine them in detail before an adverse comment may be made in the final address. The necessity to challenge contrary evidence is arguably less onerous depending on the circumstances when a matter is determined by a single judicial officer, as in the Local Court.

148 I do not consider the lack of challenge by the Prosecutor to Mr Chokr’s evidence of more trucks at 134 Dora Street in the demolition period means any contrary version of the evidence must be disregarded. I accept Mr Ibrahim’s evidence given that he was the person who (as owner and builder) employed people to work at 134 Dora Street. Further, as relied on by the Prosecutor (par 114(c), (d), (e)) there are no receipts in evidence of any other trucks apart from AE14UM taking waste from 134 Dora Street in the demolition period. That statement also applies to Mr El Gammal who also drove a truck to remove waste from 134 Dora Street during the demolition period. What waste Mr El Gammal may have removed is unexplored in the evidence apart from a reference to the removal of trees (par 40).

(v) Presence of asbestos

149 The Appellant argues that the presence of asbestos in the waste dumped in Craik Park means that it is unlikely to have come from 134 Dora Street as asbestos waste was removed from 134 Dora Street by Mr Dandan through his business Redback Demolition. The possibility is raised that Mr Dandan could have dumped the waste. That is not consistent with the timing of Mr Dandan removing the asbestos from 134 Dora Street which was before the period of this offence according to Mr Ibrahim’s evidence (see par 38). The evidence of Mr Ibrahim is that Mr Dandan did that work before Mr El Gammal started on 5 or 7 June 2006. The invoice for removal of asbestos by Redback Demolition was dated 25 May 2006, several days before the period of the offence. The Prosecutor submitted various matters at par 115(a)-(c) suggesting why there may have been some asbestos in the waste dumped in Craik Park.

150 The evidence of the presence of asbestos in the waste in Craik Park is not precise. The invoice from Veolia Environmental Services refers to approximately 130 tonnes of asbestos material. Mr Kearney’s oral evidence was that Collex Services had found asbestos in the “first three piles” they tested (see par 30). The Appellant argues that this is not consistent with Mr Dandan having removed all the asbestos waste from the site. While the prosecutor provides the reasons (par 115) as to why there is asbestos in the waste, such evidence raises a doubt that all the material in Craik Park came from 134 Dora Street.

Conclusion

151 It is necessary to weigh up all this circumstantial evidence in order to determine whether the offences with which Mr Chokr has been charged have been proved beyond reasonable doubt. I must also consider whether the Appellant has raised a reasonable doubt(s) as to Mr Chokr’s guilt because there is a possibility that someone else dumped the waste.

152 In relation to whether the waste in Craik Park came from 134 Dora Street I conclude that the Prosecutor has proved to the necessary standard that two piles of the waste transported to Craik Park were from 134 Dora Street being the piles in which exhibits 1 and 12 were found. I have held at par 128 that the discrepancy in Mr Kearney’s evidence concerning the dates of the photographs of exhibits 1 and 12 does not undermine his evidence about finding the documents in exhibit 1 in particular and relying on its contents to go to 134 Dora Street. While there were clearly twelve piles of waste found in Craik Park which were dumped illegally the evidence linking that waste with 134 Dora Street is weak apart from the presence of the two fragments of paper (exhibits 1 and 12) in two of the waste piles. The evidence of the volume of waste removed from 134 Dora Street is inconclusive (see par 133-138). While it suggests that not all the waste removed from 134 Dora Street has been accounted for in terms of lawful disposal by the receipts tendered or referred to in evidence, the extent to which further waste was removed and disposed of unlawfully is unknown.

153 The evidence concerning the similarity of waste at Craik Park and the building waste at 134 Dora Street is also inconclusive and does not therefore assist the Prosecutor in proving its case (par 139 -143) beyond the two piles in which exhibits 1 and 12 were found.

154 The evidence establishes that Mr Chokr and Mr El Gammal were the drivers of two trucks removing waste material from 134 Dora Street in the demolition period and hence the period of the offence. The vehicle registration AE14UM was the truck driven solely by Mr Chokr in that period. The evidence also establishes that no additional trucks other than that driven by Mr El Gammal and AE14UM driven by Mr Chokr were employed by Mr Ibrahim to remove waste during the demolition period.

155 The Prosecutor has not excluded the reasonable possibility that someone dumped asbestos material at Craik Park which was not from 134 Dora Street, suggesting it was not Mr Chokr or Mr El Gammal (par 151).

156 Further, the Prosecutor’s case has also not negatived the reasonable possibility that Mr El Gammal dumped the two piles of waste identified as coming from 134 Dora Street. The focus of the evidence before the Local Court was on vehicle AE14UM driven by Mr Chokr but the evidence relied on by the Prosecutor is that there were two vehicles driven by Mr El Gammal and Mr Chokr working at 134 Dora Street in the demolition phase. It is therefore important to consider the evidence relied on in the Appellant’s submissions concerning the lawful deposition of waste by Mr Chokr (par 101 – 105).

Evidence of lawful deposition

157 As relied on in the Appellant’s case, the only evidence of lawful deposition of waste from 134 Dora Street is in relation to the actions of Mr Chokr that on nine occasions he deposited waste at Affordable Recyclers (oral evidence) and Concrete Recyclers (exhibits 8, 9 and 16). Further he stated in evidence that he had no responsibility for paying or arranging tip fees, rather Mr El Gammal told him what to do (see par 52, 53).

158 Some of the receipts tendered have no connection to 134 Dora Street (Enviroguard exhibit 10, Kurnell Landfill exhibit 11, Sita Australia exhibit 15). No adverse inference arises from the fact that no waste was deposited at Kurnell landfill (exhibit 11) as I have held that the waste management plan has no probative value. Nor do the other receipts in exhibits 10 and 11 have any relevance to the issues in this case. The evidence of Mr Taleb establishes that Mr Chokr did other work driving AE14UM (see exhibit 10). The Sita Australia receipt is for asbestos material deposited on 22 May 2006 and is not related to Mr Chokr.

159 The Appellant also argued that the fact that Mr Chokr was, unknown to him, observed by Mr Kearney on 19 June 2006 and did not dump waste in Craik Park on that day (no new waste was found in the park after Mr Kearney’s visit on 19 June 2006) gives rise to an inference that he was not dumping waste.

160 While the Prosecutor in submissions to the magistrate stated (at par 57) that there was no evidence that Mr El Gammal removed building material from the site so Mr Chokr must have removed it that issue is unexplored in the evidence. While there is reference in the transcript (par 21) of Mr El Gammal producing a single page tipping receipt in response to the s 193 POEO Notice sent by Mr Kearney, it was not tendered and there is no other reference to it in the evidence. The reasonable possibility is raised that Mr El Gammal placed the waste the subject of the charges in Craik Park and the circumstantial evidence considered as a whole does not exclude that reasonable possibility. The inference arises from the evidence of lawful deposition by Mr Chokr that he did not dump the waste at Craik Park.

161 Accordingly I consider the appeals against the twelve convictions for the transport of waste should be upheld and the twelve convictions of the Appellant in the Local Court should be set aside.

B. Miscarriage of justice (second ground of appeal)

162 While I do not need to decide this second ground of appeal I will consider it briefly for completeness. The second ground of appeal was that due to the failure of the Prosecutor to call material witnesses there was a substantial procedural error so that the conviction should be set aside and the matter remitted for trial. Material witnesses not called include Ms Bugden, a Council officer who attended 134 Dora Street on 19 June 2006 with Mr Kearney, and Mr Fakr, a local resident who lives near Craik Park and was interviewed by Mr Kearney. Ms Williams, another resident who was also interviewed was also not called by the Prosecutor.

163 The Prosecutor submitted that there is no requirement that every single witness must be made available; see the judgment of Hodgson JA (Howie and Price JJ concurring) in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [17]-[21]. Further the statements of the witnesses Ms Williams and Mr Fakr were served on the defendants in accordance with the Prosecutor’s duties specified in the Bar rules. Ms Bugden was present on 19 June 2006 when Mr Kearney was also present and about which day he has given evidence. There is no suggestion that her evidence would have had any probative value.

Finding on ground B

164 I agree with the submissions of the Prosecutor that there has been no miscarriage of justice. This ground of appeal is dismissed.

CITATION:	Chokr v Liverpool City Council [2008] NSWLEC 58
PARTIES:	APPELLANT Ali Hassan Chokr RESPONDENT Liverpool City Council
FILE NUMBER(S):	60011 of 2007
CORAM:	Pain J
KEY ISSUES:	Appeal :- appeals against conviction in Local Court - environmental offences - illegal transport of waste to public park - circumstantial evidence - whether necessary to prove every intermediate fact beyond reasonable doubt in order to find guilt - appeals upheld
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2000 s 31, s 33, s 37, s 38, s 64 Protection of the Environment Operations Act 1997 s 143
CASES CITED:	Browne v Dunn (1893) 6 R 67 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 Denning v Department of Environment and Conservation (2007) 153 LGERA 200 R v Birks (1990) 19 NSWLR 677 R v Byczko (No 2) (1977) 17 SASR 460 R v Shepherd (1990) 170 CLR 573
DATES OF HEARING:	26 November 2007
DATE OF JUDGMENT:	18 February 2008
LEGAL REPRESENTATIVES:	APPELLANT Mr T Howard RESPONDENT Mr M Wright SOLICITOR Marsdens