Environment Protection Authority v Brazel

[2002] NSWLEC 7

Reported Decision: 119 LGERA 72

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Brazel [2002] NSWLEC 7

PARTIES:

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Donald William Brazel

FILE NUMBER(S):

50018 of 2001

CORAM:

Talbot J

KEY ISSUES:

Prosecution :- proof of causal link between placing matter and pollution not essential - defence of honest and reasonable mistake - offence as particularised not proved - opportunity to consider reasons

LEGISLATION CITED:

Evidence Act 1995 s 184
Land and Environment Court Act 1979 s 43
Protection of the Environment Operations Act 1997 s 120, s 120(1)

CASES CITED:

Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497;
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125;
Environment Protection Authority v Anning (1998) 100 LGERA 354;
Environmental Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226;
John L. Proprietary Limited v Attorney-General for the State of New South Wales (1987) 163 CLR 508;
Mathews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court of NSW, 6 November 1986, unreported);
Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419;
R v Cassell (Court of Criminal Appeal, NSW, 24 July 1996, unreported);
R v Duff (1924) 41 WN (NSW) 23;
R v Wampfler (1987) 11 NSWLR 541;
Shoalhaven City Council v State Police Control Commission (1997) 52 A Crim R 291;
Stanton v Abernathy and Another (1990) 19 NSWLR 656 ;
State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721

DATES OF HEARING:

29/11/2001; 30/11/2001; 13/12/2001

DATE OF JUDGMENT:

02/05/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr D.J. Jordan (Barrister)
SOLICITORS:
Environment Protection Authority

DEFENDANT:
Mr P.G. Maiden (Barrister)
SOLICITORS:
Robson & Oliver

JUDGMENT:

IN THE LAND AND Matter No. 50018 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 5 February 2002

Environment Protection Authority
Prosecutor

v
Donald William Brazel

Defendant

REASONS FOR JUDGMENT


1. The defendant, Donald William Brazel (“Mr Brazel”), has entered a plea of not guilty in answer to the charge that between 21 February 2000 and 24 February 2000, at or near Toormina, he committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“the PEO Act”) in that he did pollute waters.

2. The offence relates to events that occurred on 22 February 2000.

3. Having regard to the way in which the defendant has framed his defence it is convenient to set out the particulars contained in the summons as follows:-

a) Pollution/Pollutants:

_ Liquid (the “Pesticide”) applied to premises at 13 Cavanba Road, Toormina (the “Premises”), which contained the chemicals bifenthrin and ethyl – chlorpyrifos.
b) Waters:

_ A tributary of Middle Creek;
and/or
_ Downstream thereof (the “Waters”)
c) Pollution of waters:


_ Placing in or on or otherwise introducing the Pesticide into or onto the Waters; and/or

_ Placing the Pesticide in or about holes in a concrete slab at the Premises where it did or was likely to:

- fall and/or descend and/or wash into the gutter located on Wollongba Place, near the Premises (the “Gutter”); and/or

- fall and/or descend and/or wash into a culvert, being the culvert drain into which the Gutter flows on Wollongba Place, downstream of the Premises (the “Culvert”); and/or
- fall and/or descend and/or wash into underground drain pipes, being drain pipes connected to the Culvert (the “Pipes”); and/or
- fall and/or descend and/or wash into the Waters into which the Pipes discharge; and/or

_ Omitting to prevent the placement or introduction of matter (being the Pesticide) into or onto the Waters; and/or

_ Omitting to prevent the Pesticide being placed in the Gutter, being a position from where it was likely to fall and/or descend and/or wash into the Culvert and the Pipes and the Waters.
4. The defendant has made admissions in accordance with s 184 of the Evidence Act 1995. They may be relevantly summarised as follows:-`


(1) The defendant, in partnership with his wife, conducts the business of a pest exterminator under the business name of Brazel’s Pest Control at Coffs Harbour;

(2) His son, Gary Lee Brazel, is employed as an Assistant Manager and Robert Earl Rixon is employed as a Pest Control Operator; and

(3) The two above-mentioned employed persons hold a pest controllers licence. The business is registered under the Occupational Health and Safety (Pest Control) Regulation 1988 to open or carry on the business of using pesticides for the destruction or control of pests.


5. Gladys Jackson is the owner of premises at 13 Cavanba Road situated at the corner of Wollongba Place and Cavanba Road, Toormina (“the premises”).

6. Mrs Jackson’s son, William Jackson, is a plumber who specialises in the areas of earthworks and drainage. On 27 January 2000 Mr and Mrs Jackson met with Gary Brazel to discuss treatment for an infestation of termites at the premises.

7. A contract in a standard printed form was signed whereby Brazel’s Pest Control agreed to “powdertreat active termites in the interior sub-floor and garage. Leave for 4 weeks and re-inspect”.

8. It was agreed between Gary Brazel and Mr Jackson that Mr Jackson would drill holes in a concrete slab, patio and concrete path. The purpose of the holes is to allow the injection of chemical. In this case the chemical used was bifenthrin which is commonly known as biflex. It is a termicide. Mr Jackson agreed to drill the holes in order to save expense for his mother. Mr Jackson and an assistant, independently of the defendant or the defendant’s employees, drilled approximately 220 to 230 holes each 16 millimetres in diameter, 300 millimetres apart and set 100 millimetres out from the brick garage wall and an external wall. For that purpose he used a pneumatic hammer drill.

9. Mr Jackson explained his understanding of the likely presence of drains on his mother’s property as follows:-


Agricultural drains are drains designed to remove any sub-surface water flow from an area of land. They are commonly used to prevent water seeping into a house from adjacent sloping land.

Agricultural drains differ from stormwater drains in that the pipe used is not closed but rather has many holes around the circumference so that excess water in the soil drains into the pipe. I considered, by reason of my experience as a plumber and my understanding of the manner in which agricultural drains are typically constructed, that agricultural drains would run along the outer wall of the Northern and Western side of the garage. From there, I consider that they would join with the pipes carrying stormwater to the outlet (the “Outlet”) in the gutter at the front of the premises. In my experience, it is quite common for agricultural drains to be constructed so that they are connected to the same outlet as stormwater drains.

I also consider that it is possible, although less likely, that an alternative method of drainage was used to prevent water seeping into the Premises, involving the use of what is known as an “aggregate drain”. An aggregate drain is essentially a trench filled with loose gravel or crushed rocks (sometimes referred to as “aggregate”). It does not involve the use of a pipe. The water simply drains through the gravel or rock. I consider that it is less likely that that method was used. If that method had been used, I would expect there to be a raised concrete sump at the point at which any such aggregate drain joined to the pipes carrying stormwater to the Outlet. That sump would have been necessary, in my opinion, to collect the water discharged from any such aggregate drain. No such raised concrete sump can be seen at the Premises.

In my experience, agricultural and stormwater drains generally service only one house. It is, however, possible that such drains could be constructed so as to service more than one house (depending upon the slope of the ground and the direction in which the water is to be drained).


10. Relying on his general experience as a plumber and work he had carried out previously at the rear of the property, Mr Jackson concluded that there was no shared or connected drainage line that collected stormwater or sub-surface water from his mothers house and the house at the rear of the premises. He explained the precautions he took as follows:-


When Haine and I drilled the holes on 19 February 2000, I took the following precautions:

_ I ensured that neither Haine nor I were drilling over any areas where I considered it likely that storm water or agricultural drainage lines would run;

_ When drilling along the walls of the House, I ensured that Haine and I maintained a distance of approximately 100 millimetres from those walls (it is my understanding that storm water lines are required, under a building code, to be in excess of two feet from such walls); and
_ I ensured that Haine and I were careful to stop drilling as soon as the drill went through the concrete.
11. In a record of interview with an officer employed by the prosecutor, Mr Rixon explained that he was instructed to carry out white ant treatment at the premises on 22 February 2000. He recorded the pattern or process in relation to the treatment of the area under the concrete slab as follows:-

Well, all the – the holes have to be drilled at 300 millimetres, all right? To go through the concrete. And like you said, you know, it has to get underneath the concrete so the termites stop coming up. All right, you have to inject three litres of chemical down each hole, all right? That is what the standards say. As I have – as I said, I’ve I just turned up to the job and I’ve just – I’ve checked out everything. I’ve gone and put my screwdriver down the holes to see if everything was through all right, because sometimes think that they are through concrete but they’re not. They’ve only got – they have hit reo and they have brought it back up and think that they are through. All right, I’ve gone and I’ve checked those, everything seemed fine, everything was okay…



12. After mixing the chemical to the appropriate dilution Mr Rixon injected three litres of liquid into each hole drilled in the garage floor. He inspected the street gutter from time to time to check whether there was any escape of chemical to the street.

13. At approximately 3:30pm Mr Brazel visited the premises and alerted Mr Rixon to the presence of chemical in the street gutter outside.

14. No conclusive explanation has been provided that would enable the Court to understand the actual means by which the chemical reached the stormwater pipe which discharges to the street. Nevertheless, it is proved beyond reasonable doubt that the chemical injected into the drilled holes by Mr Rixon found its way to the street gutter.

15. In a subsequent test, dye-coloured liquid poured into several holes in the garage slab ran to the street gutter through the stormwater pipe.

16. Residents noticed a strong chemical odour and observed a white milky substance in the gutter shortly after midday on 22 February 2000. One of the residents telephoned the Coffs Harbour City Council (“the council”) and made a complaint. Following the complaint at approximately 3:30pm, Karen Lesley Carter, an Environmental Health Officer employed by the council, attended the premises. She observed a garden hose attached to a tap in the front garden of the premises lying in the gutter running along the north side of Wollongba Place. The hose was running. She requested that the hose be turned off. Ms Carter observed white liquid discharging from a storm water pipe outlet, which opened into the gutter at a point near the driveway of the premises. She observed an opening in the gutter leading to a stormwater sump which was connected by a tunnel running under Wollongba Place to a drainage channel. This, in turn, she said, ran into an upper tributary of a creek she identified as Chinaman’s Creek. She did not at that stage observe any evidence of pesticide in the drainage channel. The sump was wet.

17. Brett Christopher Carlyle, a Trainee Environmental Health Officer employed by the council, accompanied Ms Carter. When he arrived outside the premises he observed an absorbent sock placed in the stormwater line from the house to the gutter. He also observed the hose running along the street gutter in Wollongba Place. Even though the sock was placed in the stormwater line, “the milky white liquid was visibly dripping from the stormwater line in front of 13 Cavanba Street into the street gutter on Wollongba Place” . Mr Carlyle says he then directed Mr Rixon to turn the hose off. He then placed two absorbent mats and an absorbent sock near the stormwater sump. Mr Carlyle observed that there was a milky white substance in the water leading from the culvert towards the creek at a time just after Mr Brazel left the site to pick up some sand from Coffs Harbour. Ms Carter observed the milky substance at the same location at approximately the same time.

18. When Mr Brazel returned with the sand it was used to line parts of the road gutter adjacent to three stormwater outlets where Mr Carlyle says he observed the emission of white liquid. No other witness mentioned a discharge from a stormwater outlet other than the outlet leading from the subject premises. It is not claimed by the prosecutor that there is any prospect the chemical was emitted from other premises. It is clearly accepted that the chemical, which discharged to the street, had its source at the holes in the garage floor concrete slab. Sand was also used to construct a bund across the drainage channel below the stormwater sump about two metres from the culvert outlet, for the purpose of preventing chemical entering the creek.

19. The sand in the gutter was supplemented and another bund was formed after approximately five litres of pesticide was released from the stormwater pipe.

20. Mr Carlyle directed Mr Jackson to flush water through the house downpipes. This liquid was absorbed by the sand in the gutter. Mr Carlyle did not observe any liquid go past the sand bund in the street.

21. At approximately 5:50pm, Mr Carlyle observed that the chemical had been contained in the drainage channel behind the sand bund.

22. The sand in the drainage channel and the liquid behind it was subsequently removed and taken from the site in a Brazel’s Pest Control truck. After this was done Kevin Doornan, an acting Water Co-ordinator employed by the council, was directed to, and did, flush water through a fire hose directed into the gutter near the stormwater sump. He turned on the hose as fast as the hose could operate without it “jumping everywhere” . He understood that the purpose of putting “this water into the stormwater sump was to flush it out and dilute the water in the waterway” . He did not use the fire hose to wash out the road gutter. Ms Carter said she directed Mr Doornan to turn on the fire hose. She agreed it was applied with force down the gutter and the water travelled through the pit, across where the sand barrier had been and into the creek.

23. At the close of the case for the prosecution, Mr Maiden made a no case to answer submission on the basis that the prosecutor had not established the essential elements of the offence, namely:-


(1) what caused the discharge; or

(2) that Gary Brazel or Mr Rixon was to blame for the occurrence, either by negligence, misadventure or incompetence.


24. The submission was dismissed because the Court did not accept that the strict liability offence involves the element of mens rea in the accepted sense ( R v Wampfler (1987) 11 NSWLR 541 at 546). The prosecutor does not have an obligation to prove that the defendant had knowledge of the possible consequences of the acts. There is sufficient evidence to show that the act of the defendant, through his employees, was directly related to the discharge into the street.

25. The defendant has given evidence and told the Court he came to the site at approximately 3:30pm on 22 February 2000. He noticed white liquid slowly discharging to the gutter from the stormwater outlet. He placed absorbent material in the holes. He did not observe any of the liquid in the drainage channel below the sump. There was no flow in the channel. He observed an earthen barrier which constituted a dam about 30 metres upstream from the creek and two metres from the sump outlet at the end of the culvert. He estimated the barrier was about 30 centimetres high.

26. Mr Brazel did not notice liquid flowing from more than one outlet to the street.

27. Mr Brazel started the garden hose, observed by Ms Carter and Mr Carlyle, as he was concerned that children returning from school might come into contact with the chemical. He described the effect of the fire hose as “a terrific volume” , “a flood of water” and “a wall of water” that went through the earth barrier and washed through to the creek.

28. Although following a detailed investigation involving the insertion of a camera into the stormwater pipe Mr Brazel now knows that an agricultural pipe fed the chemical into the stormwater drain, he is still unable to explain how the termicide reached the agricultural pipe.

29. The wall of the garage is constructed of double brick over conventional footings about two feet into the ground. In Mr Brazel’s opinion, in the absence of any reasonable explanation, nothing could have been done by Gary Brazel or Mr Rixon to avoid the occurrence. They were involved in a standard procedure that has been carried out by Mr Brazel’s firm many times before. Mr Jackson is a competent and reliable plumber who has worked with Mr Brazel on other occasions. Such a thing has not occurred before throughout the defendant’s thirty years of experience.

30. Mr Brazel says that he did not observe any chemical beyond the earth or sand barrier in the drainage channel until the fire hose was used to wash down the gutter.

31. At that time the volume and pressure of water caused a flow to the creek.

32. Gary Brazel also confirmed the containment of liquid by the earthen barrier or bank. Despite doubt expressed by Ms Carter about the presence of the bank, Mr Carlyle made reference to it.

33. The Court finds that Ms Carter’s recollection of some details of the event was not as reliable as the other witnesses. For example, she was the only one who claimed that it had rained on 22 February 2000.

34. The Court is prepared to accept that the liquid did not go beyond the point about two metres from the culvert on the other side of the road and did not reach the creek until Mr Doornan turned on the fire hose under the direction of Ms Carter.

The defence

35. Mr Maiden, who appears for the defendant, claims that the prosecutor has not proved its case in two material respects, which are as follows:-


(1) The prosecutor has not established the causal link between the placing of the chemical and the discharge through the stormwater system into the street; and

(2) The prosecutor has not discharged the onus to prove that the chemical was placed where it was “likely” to fall, descend, be washed, be blown or percolate into any waters.


36. The defendant submits that the prosecutor must show how the chemical was transported from the position where it was placed under the slab to where it entered the stormwater pipe through an agricultural pipe. Conjecture is not sufficient to establish this aspect of the defence.

37. Mr Maiden also raises a defence of honest and reasonable mistake on the part of the defendant, his employees or even Mr Jackson as it has not been shown that any of those persons could have realistically anticipated that the chemical would escape or even been aware of a possibility this could occur.

38. The third leg of the defendant’s defence is that the prosecutor has not proved the charge as particularised in the summons, namely that the waters which were allegedly polluted is the tributary of Middle Creek and downstream thereof.

Whether the prosecutor has proved the charge

39. Mr Maiden claims that the evidence does not show the pesticide was placed in or otherwise introduced into the tributary of Middle Creek as a consequence of any action on the part of the defendant or his employees. He submits the reason the chemical reached the tributary, if it did, is because Ms Carter negligently directed Mr Doornan to turn on the fire hose and flush the gutter with water under high pressure. Furthermore, there is no evidence of a discharge beyond the earth bank or sand barrier approximately two metres from the culvert outlet until such time as water was flushed through the sump by the means of the fire hose. Mr Maiden goes further and asserts that there is no evidence of any chemical passing out of the sump below the gutter until the council became involved.

40. In opening, Mr Jordan, who appears for the prosecutor, indicated that the prosecutor relies on the extended definition of “water pollution” . Accordingly, if it is established that the pesticide did not travel beyond the gutter the prosecutor will rely on the provisions of s 43 of the Land and Environment Court Act 1979 (“the Court Act”) on the basis that the extended definition is incorporated in the primary definition of “water pollution” ( Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419 and Environmental Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226). Mr Jordan has not explained fully how he proposes the Court should apply s 43.

41. Section 43 of the Court Act provides as follows:-

No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.



42. The authorities draw a distinction between a failure to specify the essential legal elements of an offence and a failure to specify essential factual particulars. A provision such as s 43 of the Court Act can operate in respect of the latter ( John L. Proprietary Limited v Attorney-General for the State of New South Wales (1987) 163 CLR 508 at 529 – 530; Stanton v Abernathy and Another (1990) 19 NSWLR 656 at 667; R v Cassell (Court of Criminal Appeal, NSW, 24 July 1996, unreported) and R v Duff (1924) 41 WN (NSW) 23). See also observations regarding the operation of s 43 in Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 132 – 133.

43. In the Court’s opinion the extended definition of “water pollution” or “pollution of waters” found in the dictionary to the PEO Act does not result in a separate offence (see Shoalhaven City Council v State Police Control Commission (1997) 52 A Crim R 291). The Court proposes to proceed on the basis that the reference to “pollute” and “polluted” in s 120 can be identified with the formal statutory dictionary definition of “water pollution” or “pollution of waters” .

44. Nevertheless, Mr Jordan has reiterated that the prosecutor alleges there was an offence which commenced by the placement of the pesticide in the holes in the cement and was thereafter completed when the pesticide was transmitted through the soil to the stormwater pipes into the gutter, along the gutter to the culvert, through the culvert pipes and out of the pipes to what he described as a tributary to the creek.

45. The Court is not satisfied on the evidence that the prosecutor has proved beyond reasonable doubt that the chemical matter comprised in the pesticide placed in the holes drilled in the concrete fell, descended, was washed, blown or percolated to a tributary of Middle Creek or downstream of those waters as a consequence of the defendant’s direct, or vicarious, action.

46. The particulars of the pollution of waters refer to the actual or likely falling, descending or washing into the gutter, the culvert or underground drain pipes. Those structures are not included in the particularisation of “waters” in the summons.

47. Although there is evidence that the chemical eventually found its way into a creek, the Court is satisfied this occurred as a consequence of the instruction given by the council officer to flush the system with water from the fire hose.

48. Moreover and notwithstanding the adoption of the term by several witnesses, there is no evidence that persuades the Court the area immediately below the culvert outlet was a tributary of Middle Creek.

49. Mr Carlyle referred to “a small tributary leading from the stormwater pipe to a creek called Chinaman’s Creek” . Richard Cumming, a Senior Regional Operations Officer employed by the prosecutor, refers to Middle Creek and a tributary of the creek which originated at the foot of stormwater pipes running underneath Wollongba Place.

50. Ms Carter provided a hand drawn sketch map of locations relevant to the incident. This map shows the pipes under Wollongba Place discharging to a “drain/creek/channel” leading to a “Creek (upper tributary of Chinaman’s Ck)” .

51. Brian George Hughes, a Regional Operations Officer employed by the prosecutor, relies upon a map of the area prepared by a fellow Regional Operations Officer, Sarah Louise Faulkner. This map shows the area below the stormwater inlet leading to “Middle Creek” . He refers to “the waterway known to me now as a tributary of Middle Creek” . However, Ms Faulkner, after referring to the same map prepared by her, refers only to “the creek … which I now know as Middle Creek” . She observed dead eels and fish downstream of a stormwater inlet that flowed into the Creek.

52. Setting aside the identity of the main creek as Middle Creek or Chinaman’s Creek there appears to be only equivocal support for the attribution of the area immediately below the discharged point from the culvert as a tributary of a larger stream. The Court agrees with the defendant’s contention that on the basis of the evidence as a whole it is, at the least, misleading to describe the area below the stormwater outlet as a formally defined channel let alone a tributary of some other stream. It certainly does not equate to “a river or stream flowing into a larger river” in accordance with the definition of tributary in the Australian Oxford Dictionary or “a stream contributing its flow to a larger stream or other body of water” described in the definition contained in the Macquarie Dictionary.

53. The Court is not satisfied that the pesticide passed beyond the so-called dam wall immediately below the stormwater outlet leading out of the culvert until the council officers intervened by introducing water flow by means of the fire hose.

54. Accordingly, the Court is not satisfied that the prosecutor has proved beyond reasonable doubt that Mr Brazel’s employees caused actual pollution to a tributary of Middle Creek.

55. Even though an offence of placing matter in a position where it is likely to enter waters is by dint of the definition the same offence as the actual pollution of waters, nevertheless the prosecutor has also alleged and relies upon proof of actual pollution. In that latter respect it has failed to prove its case beyond reasonable doubt in so far as it relates to the particularised waters.

56. It is agreed between counsel for the parties that if the Court proposes to find against the prosecutor it be given an opportunity to consider any reasons provided by the Court prior to any final orders being made. Beyond claiming that the case he was instructed to meet is in respect of a charge of actual pollution as particularised in the summons Mr Maiden has not made any formal submission in regard to the application of s 43 of the Court Act in the circumstances of this case. It is appropriate for both parties to be heard on this aspect in the light of the Court’s finding.

Whether the prosecutor has established the causal link between the defendant’s actions and the alleged pollution

57. The prosecutor is required to prove that the relevant conduct of the defendant was the placing of the matter in or on or otherwise introducing it into or onto the water or alternatively it was conduct whereby it was placed in a position where it actually fell, descended, was washed, blown or percolated into waters or was likely to do so (see definitions (c) and (d) of “water pollution” or “pollution of waters” in the dictionary to the PEO Act).

58. To the extent that the defendant was responsible for placing the chemical in the holes drilled for that purpose the prosecutor has proved the fact beyond reasonable doubt. Furthermore, the evidence discloses that the chemical matter contained in the pesticide ultimately flowed through the domestic stormwater system into the street.

59. There is an outstanding issue in respect of the responsibility for the alleged actual pollution and the application of s 43 of the Court Act. There can be no dispute that the chemical contained in the pesticide actually entered the gutter in the street and ultimately found its way through the sump and the culvert under the road.

60. The defence raised by the defendant is that the prosecutor has not established the causal link between the placing of the pesticide and the entry into waters as defined. It has been proved that the matter did reach the gutter. It is alleged, however, that it reached the tributary of Middle Creek. Where actual pollution is alleged it is sufficient to show that the matter was placed in a position from where it did reach the waters subject to proof of an intervening act by a third party or the defence of honest and reasonable mistake.

61. Other than the use of the fire hose by council officers, there is no suggestion that a third party intervened except to the limited extent that Mr Jackson and his assistant drilled the holes in the concrete. The defendant does not claim the holes were drilled otherwise than in accordance with mutual expectations held at the time the matter was discussed between Gary Brazel and Mr Jackson when the contract was signed.

62. The Court is not persuaded by the submission from Mr Maiden that the prosecutor has an onus to prove a causal link between the placing of the chemical in the holes and the actual discharge into the waters as particularised except in so far as it may be incumbent upon it to do so in order to rebut the defence of honest and reasonable mistake or that the pollution was an unrelated event. The fact that the chemical was transported from the concrete slab to the gutter has been proved. The prosecutor does not have the onus to prove every step or link in the process where actual pollution is alleged.

63. However, the Court adopts the accepted meaning of the word “likely” in the present context as being a real or not remote chance or possibility ( Mathews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court of NSW, 6 November 1986, unreported) and Environment Protection Authority v Anning 100 LGERA 354 and the authorities cited at 359). In the absence of a rational explanation and notwithstanding that the chemical actually reached the street gutter, the Court cannot be satisfied beyond reasonable doubt that the matter was placed in a position where it was “likely” to percolate into the drainage system. At best, the evidence suggests a remote possibility. However, this is expressly outside the ambit of the meaning of “likely” . The fact that Mr Rixon checked the stormwater outlet from time to time reflects only his extreme diligence but it does nothing to heighten the likelihood of escape through the drainage system. Even if the concept of omission to prevent the placement of matter is a concept compatible with the definition of water pollution, the above line of reasoning also applies to the particularised allegation of omission to prevent the placing or introduction of the matter into or onto the waters or the gutter.

The defence of honest and reasonable mistake

64. The defendant relies on a lack of realisation or comprehension that there was any prospect of a discharge occurring as a consequence of the methodology adopted for the application of the pesticide. The evidentiary basis for the reliance is summarised as follows:-

(1) The area below each hole was tested for the presence of pipes by inserting a screwdriver before injecting the pesticide;
(2) Reasonable expectation that there would be no agricultural pipe below a concrete floor slab;
(3) Reliance upon the expertise of Mr Jackson who was familiar with the property and the drainage system; and
(4) Inspection by Gary Brazel revealed nothing to arouse concern there would be a discharge.


65. The prosecutor asserts that mere inadvertence, reliance upon assumption or the absence of anticipation on the part of the defendant does not constitute an honest and reasonable mistake. Furthermore, due diligence on the part of a defendant is not a defence to an offence of strict liability. Moreover, there is no evidence of any positive belief on the part of the defendant, or his employees, who did not directly turn their minds to the prospect of any means of escape or the existence of a drain under the slab. In these circumstances Mr Jordan says the prosecutor is not obliged to negate the defence raised because the defendant has not satisfied the evidentiary onus of raising a positive and sufficiently specific belief in a fact which, if true, would make the acts of the defendant or his employees innocent.

66. Mr Jackson states there was no reference to drainage when he agreed with Gary Brazel to carry out the drilling. Gary Brazel agrees this was so because he had assumed that everything would be in order. The defendant was not directly involved until he attended the premises at approximately 3:30pm on the day in question. However, he explained the procedure had been followed many times before without adverse results.

67. In the circumstances no question of a mistake arises in the legal sense. The applicable principle was explained by the then Chief Justice in State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 726 as follows:-

It would be inconsistent with the legislative purpose of the Clean Waters Act to conclude that a defendant would be excused on the basis simply that he or she had no particular reason to apprehend that the operation of the plant and equipment in question would, or might, result in pollution. Indeed, bearing in mind where the onus of proof lies in relation to this issue, it is hardly likely that the legislature intended that the prosecution should have to prove the absence of a belief of that kind.

68. Although the Chief Justice was dealing with the operation of a plant the principle can be applied to the factual situation in this case. Absence of fault or absence of negligence is not recognised as an element of the defence of honest and reasonable mistake of fact nor does the defence extend to include cases of due diligence ( Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 at 510 – 511).

69. The defendant has not made out the defence of honest and reasonable mistake.

Conclusion

70. For the purpose explained in paragraph 56 the Court will refrain from making a final determination until the parties have the opportunity to consider these reasons. The matter will be listed for mention and directions within seven days at 9:30am on a day convenient to the parties.