Environment Protection Authority v Hargraves

[2002] NSWLEC 113

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Hargraves [2002] NSWLEC 113
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: Yolanda Hargraves
FILE NUMBER(S):	50120 of 2001 and 50121 of of 2001
CORAM:	Lloyd J
KEY ISSUES:	Prosecution :- false or misleading information - materiality - knowledge of
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 193, s 203 and s 211(2) Waste Minimisation and Management Act 1995 Pt 5
CASES CITED:	Environment Protection Authority v Taylor, NSWLEC, Stein J, 10 March 1995, unreported; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Cassell (1998) 45 NSWLR 325; R v Traino (1987) 45 SASR 473; The Queen v Davies (1974) 7 SASR 375
DATES OF HEARING:	27/05/2002, 28/05/2002, 29/05/2002 and 30/05/2002
DATE OF JUDGMENT:	07/11/2002
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr D A Buchanan SC SOLICITORS: Stephen Garrett DEFENDANT: Mr C M Harris (barrister) SOLICITORS: Matthewsfolbigg

JUDGMENT:

32

IN THE LAND AND Matter Nos.: 50120 - 21 of 2001

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 11 July 2002

Environment Protection Authority

Prosecutor

v

Yolanda Hargraves

Defendant

REASONS FOR JUDGMENT

1. The defendant, Ms Yolanda Hargraves, is charged with two offences against s 211(2) of the Protection of the Environment Operations Act 1997 (“the PEO Act”). The section states:

A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter [Ch 7], knowing that it is false or misleading in a material respect is guilty of an offence.

2. The defendant is charged with furnishing information in purported compliance with a requirement under Ch 7 knowing that it is false in a material respect.

Background facts

3. It is convenient to set out firstly those facts which are not disputed and which give rise to the charges.

4. The defendant, together with her husband, Mr N G Hargraves, is a director and shareholder of a company called Pyonex Pty Ltd (“Pyonex”). The company operates a landfill site near Oberon called variously the Balfour Quarry tip or the Mozart Lane landfill. The company takes waste, which is mainly demolition waste at the landfill site. It does not hold a licence for such a waste facility under Pt 5 of the Waste Minimisation and Management Act 1995 (“the WM&M Act”). Such a licence is only required when the amount of waste received exceeds 20,000 tonnes in any consecutive period of twelve months.

5. Pyonex was operating the landfill site in accordance with a deed of licence to deposit fill between it and the owner of the land, Oberon Council (“the council”). Under the deed Pyonex was to fill the landfill site with waste for a period of three years commencing 11 March 1998; to deposit waste that was inert waste; to pay a licence fee to the council of $5 per tonne of waste deposited; and to comply with all relevant laws including but not limited to those relating to the environment. Also under the deed, the council assumed responsibility to pay any environmental levy that might be incurred under the WM&M Act and to seek and obtain any licence needed from the Environment Protection Authority (“the EPA”).

6. Clause 15.1 of the deed of licence states:

Until permitted by law and where applicable the site is licensed by the NSW Environment Protection Authority as a controlled waste facility the Licensee shall not be entitled to deposit more than twenty thousand (20,000) tonnes of inert waste or approved material into the site during each consecutive period of twelve (12) months from the date hereof.

7. Under the deed Pyonex was required to keep proper records of the movements of all trucks and the tonnages of waste deposited at the landfill site and make available those records to the council. In this respect, cl 21.1 of the deed of licence states:

The Licensee shall provide to the Licensor no later than the seventh day of each calendar month throughout the term of this Licence the following information in respect of each delivery in order to facilitate the calculation of the Licence fees payable hereunder
(a) a validated weighbridge docket issued from a weighbridge approved by the New South Wales Department of Fair Trading;
(b) the registration number of the vehicle;
(c) the time and date of entry to the site.

8. Subsequent to the execution of the deed of licence, the council advised Pyonex that as part of a State Government’s approved pilot study on regional waste disposal, the Minister has given a written undertaking that “no environmental levy will be charged for the two year period of the pilot project which therefore allows you to deposit more than 20,000 tonnes per annum without the need for the payment of the levy”.

9. Nevertheless, if more than 20,000 tonnes of waste were to be deposited in any consecutive period of twelve months, then a licence as a controlled waste facility under the WM&M Act will have to be required from the prosecutor.

10. The principal business of Pyonex was to transport gravel from the Oberon quarry to various destinations, which were mainly within the Sydney metropolitan area. The Oberon quarry was operated by Oberon Quarries Pty Ltd. Mr Hargraves is a director of both companies, Pyonex as well as Oberon Quarries Pty Ltd. According to the evidence of the defendant, Pyonex had employed six truck drivers and engaged about fifteen or sixteen subcontractors. When material was transported to the Sydney metropolitan area the trucks would return with a load of waste to the Balfour Quarry tip. It is thus apparent from its agreement with the council, that Pyonex derived an income from fees charged to various waste generators in the Sydney metropolitan area for removing their waste and depositing it at the Balfour Quarry tip. The “downside” of the agreement for Pyonex was the payment to the council of a licence fee of $5 per tonne of waste deposited at the Balfour Quarry tip.

11. According to the evidence of Mr Hargraves, who, as I have said, is a director and also the general manager of Pyonex, there was a verbal agreement between him and the operators of Pyonex’s four sources of waste material. One of these sources was a waste transfer station at Camellia in the Sydney metropolitan area that was operated by either Get Fast Waste Bin Pty Ltd (“Get Fast”) or Grow Fast Recycling Pty Ltd. The Camellia facility received mostly building and demolition waste and mostly from its own bins, that is, Get Fast waste bins.

12. Mr R J Bechara, director of Get Fast, entered into the agreement with Mr Hargraves that Pyonex would take waste from its Camellia transfer station to Oberon. The payment made by Get Fast to Pyonex was not based upon an amount of waste per tonne, but on a flat rate per truck load, regardless of the weight. Between April 1998 and April 1999 Pyonex took 991 truck loads of waste from Get Fast. Mr Bechara never provided Pyonex with a weight figure for any of the loads. Get Fast had no weighbridge. Because Get Fast was paying Pyonex on a per load basis, Mr Bechara ensured that the trucks were fully loaded. According to Mr Bechara, much of the truck load waste was very heavy, typically containing a lot of fines, concrete and the like. Based on his years of experience in the industry Mr Bechara conservatively estimated that each truck load was about eighteen to twenty tonnes.

13. Pyonex generated dockets for each truck load of waste delivered to the Balfour Quarry tip, presumably because of the need to comply with cl 21.1 of the deed of licence granted by the council (noted in par [7] above). The dockets each bore a stamp (reading “Oberon Quarries Weighbridge”), show a date, the registration number of the truck, the name of the carter (for example “Balmana”), the materials (“demolition”) and the gross weight, tare weight and net weight of each delivery. There was a weighbridge at Oberon quarry. As I understand it, the gross weight is the weight of a truck (or truck and trailer) together with its load. The tare weight is the weight of a truck (or truck and trailer) when it is not carrying any load. The net weight is the gross weight less the tare weight and is thus the weight of the load.

14. One of the subcontractors engaged by Pyonex was a transport company called Balmana Earthmoving and Transport Pty Ltd (“Balmana”). The drivers employed by Balmana to carry waste from the Get Fast Waste transfer station at Camellia to the Balfour Quarry tip did not generally weigh their truck loads. They did not have to do so, because Get Fast was paying Pyonex a flat rate per load rather than a rate per tonne. On some occasions these loads were recorded at the Roads and Traffic Authority’s (“RTA”) weighbridge at Mount Boyce, on the route from Sydney to Oberon. The weights recorded on such occasions did not accord with the dockets generated by Pyonex for the same delivery. The weights recorded on the equivalent Pyonex’s dockets were considerably less than those recorded by Balmana’s drivers.

15. On 8 September 1999 Mr R J Harrison, an officer of the prosecutor, served a notice under s 193 of the PEO Act on Pyonex requiring it to produce records showing the amount of waste received at the Balfour Quarry tip. This resulted in a large number of dockets being delivered by Pyonex to the prosecutor. After speaking to the employees of Balmana and to a number of drivers employed or engaged by that company and examining its records, Mr Harrison required Mr Hargraves to answer questions pursuant to s 203 of the Act. As a result of the information supplied by Mr Hargraves during the interview, Mr Harrison became aware that the dockets showing the weights of waste loads delivered to the Balfour Quarry tip were not prepared by Mr Hargraves but his wife, the defendant. Mr Harrison then required the defendant to answer questions pursuant to s 203(1) of the PEO Act.

16. On 19 October 2000, Mr Harrison (accompanied by another officer of the prosecutor, Mr M J Clyne) conducted the interview with the defendant in accordance with s 203(1) of the Act. It is the answers given by the defendant in reply to the questions asked of her during the course of the interview that are the subject of these charges.

Balmana

17. The evidence of Balmana’s employees and its drivers, which I will now describe, was undisputed. None of these witnesses were cross-examined. I thus accept their evidence without question.

18. Ms K A Sandry is the office manager of Balmana Earthmoving and Transport Pty Ltd at Kelso, near Bathurst. She states that she was aware that in 1999 Balmana was carting rubbish from Sydney to Oberon for a company called Pyonex Pty Ltd. She further states that it was the procedure at Balmana for the drivers to write a Balmana docket for every load they carted and attach it to their time sheets. The procedure was to check the dockets off the time sheets to make sure that they had a docket for every load. The dockets were then processed for invoicing. The details from the dockets were entered into a database on the computer from which an invoice was generated. The invoice together with a copy of the driver’s docket was sent to the customer (Pyonex). Importantly, she states that because the invoices were paid at a flat rate per load there was no need to record a weight or a weight price.

19. Mr T Caldwell is employed by Balmana in the position of transport manager. His duties include organising work, hiring and firing operators and drivers, allocation of trucks and general managerial duties. He states that Balmana carted blue metal from Oberon quarry to Sydney, as well as loads of rubbish or waste for Pyonex from Sydney back to Oberon. The waste was mainly from Get Fast at Camellia. He also states that Balmana was paid a flat rate for each load. He also states:

Yolanda [the defendant] did ask if we could weigh the loads. I told her we would where it was practicable. I don’t recall her giving me any instructions that the weight needed to be conveyed to her or the Pyonex office. I have no recollection of telling the drivers at Balmana to telephone the weights of the loads to Yolanda Hargraves or anyone else. To my recollection I did not telephone any weights through to Yolanda Hargraves or anyone else at Pyonex. It’s possible that I may have related a weight to someone from Pyonex over the phone if they rang. However, in respect of the loads of rubbish that we were carting for Pyonex from Sydney to Mozat Lane weight wasn’t a priority for us as Balmana was being paid per load and not per tonne. …

20. Mr Caldwell also states:

Because we were getting paid by the load the weight was never a big issue to us and often the drivers would not get weighed. A lot of the dockets don’t have the weights on them because they [sic] only place they got weighed was going through Mount Boyce so if Mount Boyce was closed or they were waved through they wouldn’t know what the weights were.
…
The loads that do show a weight is a case of the driver going over the weighbridge at Mount Boyce getting his gross weight deducting his tare weight and getting his nett [sic] weight. Most of the time we didn’t worry about weights because they weren’t an issue. We didn’t need them because we were being paid on a per load basis and after we had done it for awhile we new [sic] that we weren’t going to be illegal the blokes just went down to Sydney loaded and got home as quick as they could.
The weights, which are indicated on those dockets, are pretty typical of what we were carrying back from Get Fast Waste about 16, 17 to 20 tonne and the other places for that matter. There are a couple there for 25 tonne and 23 tonne. …

21. Mr K E Gunning is employed by Balmana as a truck driver. From January 1999 he drove two trucks, the registration numbers of which are PEM 122 and TTG 731. He states that he mainly picked up rubbish or waste from Get Fast waste transfer station at Grand Avenue, Camellia. He carried back the waste to the Mozart Lane landfill at Oberon run by Pyonex. He further states:

When I picked up the loads from Get Fast waste at Camelia I never weighed the loads. I was never asked to weigh them. We put as much on as we could so long as we could cover it with the sand cover. …
When carting rubbish from Sydney to Oberon I would drive past the RTA [Road and Traffic Authority] weighing station at Mount Boyce. On some occasions I would be waved in by the RTA and required to go across the weighbridge to see if I was not over loaded. …
Balmana required me to fill out a docket for the trips that I made. For the loads of rubbish that I carted to Mozart lane, Oberon. I would make the docket out to Pyonex. I was told that was the company for whom we were carting the rubbish. I believe it was Terry Caldwell who told me that. Those Balmana dockets would normally show no weight recorded for my loads from Get Fast to Mozart lane Oberon. That is because I didn’t normally get weighed. Normally and particularly from Get Fast Waste at Camelia, I would just pick up the load and take it straight to Oberon and dump it. I never went to Oberon Quarries to weigh any of the loads of rubbish. We had no need to weigh them.
The only time that I did weigh a load was if I was waved in at RTA weighbridge at Mount Boyce.

22. Mr Gunning identified a large number of dockets with an individual reference number on them. The dockets state the registration number of the truck he was driving (“PEM 122”), the date, the product (“rubbish”), where the product was picked up from (“Camellia”) and where it was taken to (“Oberon”). He recognised the handwriting on the dockets to be his. He states, in relation to the dockets: “There is no weight recorded on any of them because I did not get weighed.”

23. Mr Gunning also identified a number of dockets produced by Pyonex, each of which is numbered and has the words “Oberon Weighbridge Quarries” stamped on them. The individual reference numbers of these dockets are 343055 (dated 17 February 1999), 34084 (dated 19 February 1999), 343103 (dated 23 February 1999), 343145 (dated 26 February 1999), 243152 (dated 27 February 1999) 34577 (dated 2 March 1999), 343580 (dated 3 March 1999), 34382 (dated 5 March 1999), 343585 (dated 8 March 1999), 343599 (dated 12 March 1999), 5566251 (dated 13 March 1999), 556253 (dated 15 March 1999), 556260 (dated 17 March 1999), 556277 (dated 23 March 1999), 556280 (dated 23 March 1999), 556285 (dated 24 March 1999), 556287 (dated 25 March 1999), 556290 (dated 26 March 1999), 556301 (dated 29 March 1999), 556305 (dated 30 March 1999), 556315 (dated 31 March 1999), 556318 (dated 1 April 1999). The dockets have written on them the registration number of the truck Mr Gunning was driving in 1999, PEM 122. All those dockets also have written on them the gross, tare and net weights. Mr Gunning stated that any of the weights of the loads comprised in those dockets are not weights recorded by him.

24. In relation to the Pyonex’s dockets described in the preceding paragraph, the particular docket numbered 343055 dated 17 February 1999 shows a net weight of “11.70” tonnes written on it. There is a corresponding Balmana docket for that particular journey which is numbered 54533. Mr Gunning recognised the handwriting on it to be his. He has written a net weight of “18.00” tonnes on it. As to this Mr Gunning states:

This would probably have been the first load of rubbish that I carted from Get Fast to Mozart lane. I believe that I got the weight when I went over the weigh bridge at Mount Boyce. I recall getting weighed at Mount Boyce on other occasions but I didn’t record the weight. I believe that I didn’t record weights after this first one because I was told that it wasn’t necessary. I can’t remember who told me that.
In respect of Oberon docket 34[3]055 [I] did not telephone Yolanda Hargraves or anyone else and state that the net weight was 11.70. In any case, if I had of I would have stated that the net weight was 18 tonne as is indicated on the Balmana docket 54533 (Annexure A). In fact I did not telephone anyone to indicate any weight at all. It was not required of me.

25. In relation to the rest of the Pyonex dockets shown to him (and which show the registration number of the truck driven by him, PEM 122) Mr Gunning states: “I never phoned in the weights to anyone either at Pyonex Pty Ltd or Balmana.”

26. Mr Gunning further states:

I have never rang a weight of rubbish through to Pyonex. I have never telephoned and given a weight to Yolanda Hargraves or anyone else, including anyone from Balmana. I was never asked to.
…
Whenever I got to Mozart lane, Oberon to unload the rubbish, the gate was normally open. There was normally someone there the whole time. I sometimes went there after hours if I was running late. If that was the case I would ask one of the Pyonex drivers to leave the gate open. I was never required to fill out any paper work by Pyonex. I was never required to give anyone from Pyonex or anyone at the Mozart lane site any information about what I was dumping. They would not have known what amount I was tipping there.

27. Mr G L Alchin was working as a truck driver for Balmana in early 1999. He was driving a truck and dog tipper which had the registration number OKA 211. Whilst working for Balmana in early 1999, he was carting blue metal from Oberon quarry and taking back loads of rubbish from Sydney to the Mozart Lane landfill in Oberon. He was advised by Mr Caldwell at Balmana before he left as to whether he should bring back a load of rubbish. He would pick up the rubbish from Get Fast in Grand Avenue, Camellia. The loads he took from there mainly consisted of building demolition materials. After he picked up the loads of rubbish, he had them weighed at a weighbridge near Get Fast in order to satisfy himself that he was not over the legal limit. He states that he was never asked to weigh the loads for any other purpose. He states that Balmana required him to fill out a docket for the trips that he made. He did this for each load of rubbish that he carted to the Mozart Lane landfill in Oberon. Whenever he wrote out the docket he would write down the weight that was registered at the weighbridge in Camellia. He identified a number of dockets bearing the name “Balmana Earthmoving and Transport Pty Ltd” which show the registration number of the truck he was driving, OKA 211, as well as the date, the product (“rubbish”), where the product was picked up from (“Camellia”) and where the product was taken to (“Oberon”). He states that those dockets relate to the rubbish he was carting from Get Fast, Camellia to Mozart Lane landfill, Oberon. He made the dockets to “Oberon Quarries” but someone else crossed out “Oberon Quarries” and instead wrote “Pyonex” on them. He does not know why. Apart from that, the rest of the handwriting on the dockets is his. He is not familiar with a company called Pyonex. As far as he knows he was carting the waste for Oberon Quarries Pty Ltd, the company from which he picked up the blue metal in the morning.

28. Mr Alchin was shown a docket, being one of the dockets produced by Poynex which had a reference number 556324. The docket also has a registration number of the truck he was driving, OKA 211, as well as the gross, tare and net weights. The docket is dated 6 April 1999. It has a net weight written on it of “9.76” tonnes. Mr Alchin states that he has never seen this docket before. But it appears to correspond with Balmana’s docket 55454 for a load that he transported from Get Fast to Oberon.

29. Mr Alchin states:

You can’t do two trips in a day. The details on the Balmana docket are accurate for that trip. I do not know where the details came from that are recorded on the Oberon docket 556324. I did not telephone that weight 9.76 through to Pyonex, Yolanda Hargraves or anyone else. I have never heard of Pyonex and I don’t know anyone caled [sic] Yollanda [sic] Hargraves. I have never spoken to her. I was never asked to telephone a weight through. In any case, if I was to have phone a weight through, I would have phoned through the net weight of 25 tonne that I recorded on the Balmana docket….
I cant recall the tare weight of OKA-211 but I have written 17.50 tonne on the Balmana dockets so I am confident that is what it was, including trailer. The tare weight is the weight of the truck and trailer when it’s not carrying a load. The gross weight is the weight of the truck and trailer together with its load. To get the net weight of the truck, that is the weight of the load, you subtract the tare weight from the gross weight.
You can see from the weights that I wrote onto the Balmana dockets that the loads of rubbish that I was carting from Get Fast to Mozart lane weighed upwards of 17 tonne. The maximum allowed on that truck was 25 tonne.
When carting rubbish from Sydney to Oberon I would drive past the RTA weighing station at Mount Boyce. Most of the time I was waved through.
Whenever I got to Mozart lane, Oberon to unload the rubbish, the gate was sometimes open and sometimes closed. I [sic] depends if one of the other drivers from Balmana had been there before me. There was a key hidden in one of the posts and I just let myself in. There was normally no one there. I think twice I saw someone there on the dozer, whom I think was the fellow who owned it. I didn’t speak to anyone at Mozart lane. I’d just tip the load and leave. …

30. I have examined each of the dockets that are identified by Mr Alchin as having been completed by him. Each docket shows that the tare weight of the truck was 17.50 tonnes. This is in contrast with the tare weight of 16.00 tonnes recorded on the docket produced by Pyonex with number 556324 described above.

31. Mr M S Wollaston was employed by Balmana as a truck driver for a period of two years up to 14 November 1999. His direct supervisor was Mr T Caldwell, the transport manager of Balmana. During that period he mainly drove a truck and dog tipper with registration number OKA 211. He also drove another truck with registration number SVA 303 which is a semi-tipper and, occasionally, truck with registration number PMR 614.

32. In his evidence, Mr Wollaston states that during his employment with Balmana he was basically carrying blue metal from Oberon to Sydney. For the return trips from Sydney to Oberon he was required to pick up rubbish and take it to the Mozart Lane landfill at Oberon. The only place he ever picked up rubbish from was Get Fast, a waste transfer station at Camellia. He further states that he was never required to weigh the loads of rubbish that he picked up from Get Fast. Once loaded he would drive directly to the Mozart Lane landfill where he would dump the load. Mr Wollaston states:

There was no need to get the load weighed as I believe Balmana was being charged per load not per tonne. I was never told to weigh the loads of rubbish. No one from Balmana or Pyonex ever told me to weigh the loads of rubbish. …
At no time did I ever ring the Pyonex office to let them know the weight of the rubbish that I was carting to Mozart Lane, Oberon. I was never asked to do this. There was no reason to do this. I have never telephoned a weight through to Yolanda Hargraves or anyone else. …
In respect of the loads of rubbish that I conveyed from Get Fast to Oberon I sometimes weighed it at the Mount Boyce RTA weigh station, if I was waved in to have my weight checked and to make sure that my truck was not overloaded.
Lots of time I wouldn’t get weighed because they would either wave me through the weigh station or it would be closed.

33. Mr Wollaston states that Balmana required its drivers to fill out a docket for whatever work they did. He was shown some of the Balmana’s dockets relating to the trucks with registration numbers OKA 211 and SVA 303, which dockets he acknowledged as having been filled out by him. He says that the dockets indicate the truck that he was driving on the dates shown. The dockets also all bear the name “Balmana Earthmoving and Transport Pty Ltd” upon them. They show the date, the registration number of the truck, the product (“rubbish”), the place from which the load was taken (“Camellia”) and the place to which the load was taken (“Oberon”). No weights are shown on any of those dockets. Mr Wollaston further states:

The only place I ever took the rubbish to was Mozart Lane at Oberon. Most of the time that I went to Mozart Lane to unload there was no one there. I knew where the key to the gate was so I just unlock the gate go down and unload.
Occasionally Neil Hargraves would be there or the Pyonex drivers, big John or someone, but most of the time there was no one. I would just go in and unload myself. There was a key left there and if there was no one about you could just let yourself in.

34. Mr Wollaston was shown a number of the dockets produced by Pyonex, upon all of which was the stamp bearing the words “Oberon Quarries Weighbridge”. The dockets shown to Mr Wollaston relate to the truck with registration number SVA 303, which is the registration number of the truck he was driving on the dates shown on the respective dockets. The Pyonex’s dockets are numbered 343596 (dated 12 March 1999), 556252 (dated 15 March 1999), 556282 (dated 23 March 1999) and 556294 (dated 26 March 1999). Each docket contains the gross weight of the load. Mr Wollaston says in regard to these dockets:

I have never seen these dockets before…
At no stage did I telephone Yolanda Hargraves or anyone else at Pyonex Pty Ltd to provide the weights as shown on the dockets. I did not supply this information to Pyonex Pty Ltd to anyone else, as I was not required to as we were being charges by the truck load.
In any event the weights on those dockets don’t make any sense. The gross written on them is wrong. The gross weight of the truck and load would weigh a lot more than is written on those dockets. The tare weight written on the dockets is 16.60 on every docket which is impossible because my fuel tank was always varying. The net weights shown on the dockets are not correct either. They are less than the weights of the rubbish I was carrying on the dates shown on the dockets. This was because as Pyonex Pty Ltd was charging us by the truck load, we tried to put in as much rubbish as we could in each load without going over the legal limit. …

35. Elsewhere in his evidence Mr Wollaston states:

On average the loads would weigh about 18 to 19 tonne net weight. That would be a typical load that I would carry out of there.

36. The net weights shown on the Pyonex’s dockets range from 7.70 to 11.50 tonnes.

37. Mr R L Stephen was employed by Balmana as a truck driver. In 1999 he was mainly driving a semi-tipper with registration number OBD 832. He states that in early part of 1999 he was carting blue metal from Oberon quarry and taking back loads of rubbish from Sydney to the Mozart Lane landfill at Oberon. He understood that he was carting that rubbish for a company called Pyonex. The rubbish was picked up mostly from Get Fast in Grand Avenue, Camellia. When he first started picking up the loads from Get Fast at Camellia he never weighed the loads. He says that he was never asked to weigh them. When carting rubbish from Sydney to Oberon he would drive past the weighing station at Mount Boyce and most of the time he was given the “arrow out” because he was “light”.

38. Mr Stephen states that Balmana required him to fill out a docket for the trips that he made. He did this for each load of rubbish that he carted to the Mozart Lane landfill in Oberon. He would make the docket out to Pyonex. He was told that was the company for whom he was carting the rubbish. Mr Stephen was shown a number of dockets of Balmana. All of the dockets shown to him had an individual reference number. They contained in handwriting the registration number of the truck he was driving (“ODB 832”), the date, the product (“rubbish”), where the product was picked up from (“Camellia”) and the place to where the product was taken (“Oberon + 36K”). He recognised the writing on the dockets to be his handwriting. Mr Stephen then states:

Some of those Balmana dockets have a weight recorded on them and some don’t. The reason for this is that at some point I was told I had to get an average of 15 tonne, so I started checking the weights. If I checked the weight I would write it down on the docket. I was checking the weight at a blue metal yard in Grand avenue Camelia, just up from Get Fast. They had a weigh bridge. I would record the weight that I had on board and write the details on the Balmana docket. I was not asked to weigh the loads [.] I just did it for my own knowledge. I didn’t telephone that weight through to anyone.

39. Mr Stephen was shown a number of dockets produced by Pyonex all of which have the words “Oberon Quarries Weighbridge” stamped on them. All of these dockets also have an individual reference number, the registration number of the truck he was driving in 1999 (“ODB 832”), as well as the gross, tare and net weights. The reference numbers on the dockets shown to Mr Stephens are 343317 (dated 19 January 1999), 343059 (dated 17 February 1999), 343082 (dated 19 February 1999), 343144 (dated 26 February 1999), 343151 (dated 27 February 1999), 343576 (dated 2 March 1999) 343579 (dated 3 March 1999), 343584 (dated 8 March 1999), 556279 (dated 23 March 1999), 556325 (dated 6 April 1999) 556336 (dated 10 April 1999), 556358 (dated 16 April 1999), 556365 (dated 19 April 1999), 556367 (dated 20 April 1999), 556370 (dated 21 April 1999) and 556373 (dated 22 April 1999).

40. The dockets shown to Mr Stephen, dating from 6 April 1999 to 22 April 1999, had weights recorded on them which were different from that recorded on the corresponding Balmana’s dockets. As to this Mr Stephen states:

As stated I didn’t initially weigh the loads of rubbish that I took from Get Fast to Mozart lane but then after I while, around April, I started weighing them to satisfy myself what the weight was. In relation to the ‘Oberon Dockets’ … I do not know where the weights recorded on those dockets come from. I have never seen those dockets before. I did not telephone those weights through to Pyonex, Yolanda Hargraves or anyone else. I was never asked to telephone a weight through. I was never asked to weigh a load.
In relation to the Oberon dockets [Pyonex dockets bearing the stamp “Oberon Quarries Weighbridge” ] … the dockets from the 6 April 1999 onwards have a weight recorded that is different to the corresponding Balmana docket…. I recorded the weights on the corresponding Balmana docket when I got weighed at Camelia. The weight recorded by me on the Balmana dockets … is the accurate weight. At no time did I telephone anyone with this weight. The weights recorded on the Oberon dockets … are not correct.
…
I have never rang a weight of rubbish through to Pyonex. I have never telephoned and given a weight to Yolanda Hargraves or anyone else, including anyone form Balmana. I was never asked to. My only requirement was to fill out the docket.
…
Whenever I got to Mozart lane, Oberon to unload the rubbish, the gate was normally locked, depending on the time I got back from Sydney. There was a key hidden in one of the posts and I just let myself in. There was normally no one there. A bloke came around sometimes with a loader to push the rubbish down. Pyonex never saw the loads. The only way they would know what I was tipping there would be from what Get fast told them or Balmana told them.

41. An examination of the dockets described above shows that the weights recorded by Mr Stephen on each of the Balmana’s dockets were invariably greater than that recorded on the equivalent Pyonex’s docket.

Mr E I Crasti

42. Mr E I Crasti is employed by Oberon Quarries Pty Ltd as the quarry manager of the Oberon quarry. He was called to give evidence on behalf of the defendant. He described the procedure by which Balmana’s drivers would take the product from the quarry to Sydney and the loads of rubbish back to the Balfour Quarry tip. He said: “I would ask them if they knew what gross weight they had on their truck of rubbish that went out to the tip yes”. He also said: “We would at times make out dockets for the weights that those drivers would tell me. Other times we would just jot it down on paper and fax that through to the Pyonex office.” When asked why he did this, he said: “Well my understanding was to keep record of the amount of material that went into the tip”. He then gave the following evidence:

Q. And when you passed the information to the Pyonex office who would you speak to down there?
A. Well different people, at times I’d speak to Yolanda Hargraves or I would speak to the other girl in the office which was Robyn, or I would speak to Neil Hargraves, depending on who answered the phone at the time.

43. Mr Crasti also gave the following evidence:

Q. If you obtained that information from a driver did the driver consult a weight bridge docket before answering your question?
A. No.

44. Mr Crasti conceded that the only way a driver could obtain such information was by going over a weighbridge. He further gave the following evidence:

A. They’ve all been over Mount Boyce and they don’t receive the weighbridge docket when you go over Mount Boyce.
Q. The only drivers that would get a docket from Mount Boyce, of course, are those that are pulled over when the weigh station there was operating isn’t that right?
A. No that’s incorrect.
Q. It operates 365 days a year, does it?
A. I couldn’t tell you that.
Q. Well it doesn’t I put to you?
A. Well that’s what I just said I couldn’t tell you that.

45. Mr Crasti said that normally he would not weigh the trucks carrying rubbish back to the Balfour Quarry tip and he had only ever done so half a dozen times. He conceded that normally he would not have the opportunity to weigh the truck loads of rubbish. He would ask the drivers if they had been out to the tip. In this respect he gave the following evidence:

A. I would ask them if they – if they’d been out to the tip, if they took the rubbish out to the tip and they would tell me yes or no. And then I’d say do you know how much you had on and when they went over Mount Boyce if it was open which 99 per cent of the time it was, they would give me yes to that 25 gross tons on and then I’d deduct the tare weight off that and write it down.

46. Mr Crasti said that the drivers never consulted or appeared to consult a weighbridge docket when they gave him the answer and neither did he ask them to consult or look at a docket. He said that he had never seen an RTA weighbridge station in operation. He also gave the following evidence:

Q. So you say do you that information as to the weights of the loads that Balmana trucks in the period January to June 1999 had taken of waste at the Balfour quarry tip, existed 99 per cent of the time?
A. Yes.

47. Mr Crasti was shown the Pyonex’s dockets produced to the prosecutor upon which was stamped the words “Oberon Quarries Weighbridge”, which I have previously described, and upon which appeared the gross, tare and net weights of specified trucks on particular dates. He did not recognise them and had never seen those type of dockets before.

48. I find Mr Crasti’s evidence to be quite implausible. I simply cannot believe him. I simply cannot accept him as a witness of truth. His motive for not telling the truth may arise from the fact, as he himself acknowledged, that Mr Hargraves has authority over him, that Mr Hargraves can have an influence over whether he continues to have his job and that Mr Hargraves is a person who can have influence over the conditions under which he works.

49. The evidence of Mr Crasti is completely contrary to that of the Balmana’s witnesses’ evidence which I have set out in pars [17] to [41] above. The evidence of Balmana’s witnesses is, as I have said, undisputed and is both compelling and conclusive. Not only were Balmana’s drivers not asked to weigh their loads, it was only rarely that their loads were required to be weighed at the RTA weighing station at Mount Boyce. Even when their loads were weighed at the station, the weights markedly differed from those recorded on the Pyonex’s dockets generated by the defendant.

50. In particular, the statement by Mr Crasti that Balmana’s drivers told him the weights of their loads that they took to Oberon 99 per cent of time cannot be believed. There are also inconsistencies that are within Mr Crasti’s evidence. For example, he said that he would fax the weights through to the Pyonex’s office. Later he said that he would use the telephone to pass the information through to the Pyonex’s office nominating the persons with whom he spoke.

51. In short, I reject the evidence of Mr Crasti as being both unreliable and completely implausible.

Mrs R A Wood

52. Mrs R A Wood was called to give evidence on behalf of the defendant. She is employed by Pyonex as assistant accountant. She works at the office of Pyonex, which is at the home of Mr & Mrs Hargraves at No. 315 Commercial Road, Vineyard. She said that during 1998 and 1999 it was part of her duties to complete the dockets for the deliveries of waste material to the Balfour Quarry tip. She said that the information she wrote on the dockets came from four sources: truck drivers who rang it through to her over the telephone, paperwork of Oberon Quarries Pty Ltd that came down from the quarry, sometimes the transport company, and “Mr Hargraves would occasionally come back from Oberon and he would have a list of net weights and trucks that went into Oberon tip.” She stated that most of the time Mrs Hargraves took the telephone calls, but sometimes she (that is, Mrs Wood) did. Mrs Wood identified a photocopy of one document showing weights that had been faxed to her by someone called “Margaret” at Balmana.

53. In cross-examination, Mrs Wood could not remember the percentage of information she received from each of the four different sources that she identified. She said that she got the information from the transport company either over the telephone or at the end month from their accounts. She acknowledged, however, when shown a copy of a monthly invoice sent by Balmana to Pyonex, that no weights are shown thereon. She then said:

The net tons came from the drivers. …
Q. Or the Oberon Quarries?
A. Yes.
Q. Via paperwork?
A. Yes
Q. Or Mr Hargraves via paperwork?
A. Correct.

54. Mrs Wood conceded that when required to answer questions on this subject by Mr Harrison on 9 October 2000, she identified only one source of information of vehicle load weights to him, namely the drivers. She would record the information on one of the Pyonex’s dockets. She said that the system of recording the weights on the Pyonex’s dockets and sending them off to Oberon council was developed by Mr and Mrs Hargraves. She further acknowledged that Mr and Mrs Hargraves gave her instructions as to what to do:

A. Yeah, they’re my bosses, so I follow what they do, what they say.

55. Mrs Wood identified the particular Pyonex’s dockets which are the subject of the present charges as being written in the handwriting of the defendant.

56. I find the evidence of Mrs Wood to be implausible. She asserted without qualification that Balmana’s monthly accounts were a source of information as to the weights of loads until she was shown a copy of one of Balmana’s monthly invoices for the relevant period which contains no reference to the vehicle load weights.

57. Neither can I accept Mrs Wood’s assertion that the vehicle load weights came via the paperwork from Oberon Quarries Pty Ltd. Oberon Quarries Pty Ltd simply did not have that information available and I have referred to the evidence of Mr Crasti on this point, whose evidence is also implausible for the reasons I have stated.

58. Neither could Mrs Wood have obtained the information from the drivers of the trucks as she asserts. I have set out the uncontradicted evidence of the drivers. They simply did not telephone the weights of their loads through to Pyonex or to anyone else. In short, the evidence of Mrs Wood is contradicted by the compelling and conclusive evidence to the contrary. I am unable to accept Mrs Wood’s evidence as reliable.

Mr N G Hargraves

59. Mr N G Hargraves is the husband of the defendant and a director and general manager of Pyonex. He is also a director of Oberon Quarries Pty Ltd, the other directors being his mother, his two sisters, Mr J Friend and Mrs M Friend. Oberon Quarries Pty Ltd operates a quarry at Oberon. Pyonex is a transport company. Mr Hargraves said that he had instructed his transport operators that every load had to be weighed. He gave the following evidence:

They were all instructed to weigh the loads.
Q. And then to do what with the information?
A. Phone it through.
Q. To where.
A. Or if we – if they didn’t phone it through we’d weigh them at the quarry at Oberon, or I’d take particulars, I was at the tip three or four days a week, driving a bulldozer. I’d take delivery of them, ask them how much weight they had on, write it down.
…
Q. What would you do with the information after that?
A. Give it to my – take it to home to my wife. Sometimes I’d only recorded the amount of trucks, just depends if I got to speak to the driver or not.
Q. Had you given any instruction to Mr Crasti about weights of loads being taken to the tip?
A. Yeah well he weighed them. There was occasions the trucks would come in there and he’d weigh them and he’d write the tickets out and ring the loads through. And I’d weigh them myself. When I was at the quarry, see I’d go to and from the tip site to the quarry, if I was working there I’d write them out myself. …

60. I make the following observations about this evidence. It is completely contrary to the undisputed evidence of Balmana’s witnesses which I have described. None of the drivers were instructed by Mr Hargraves or anyone else at Pyonex to weigh the loads. This is consistent with the fact that Pyonex was paying Balmana for each load rather than for each tonne of load. None of the Balmana’s drivers when delivering loads to the Balfour Quarry tip were asked by Mr Hargraves or anyone else at Pyonex what were the weights of their loads. None of Balmana’s drivers had their loads of rubbish weighed at the weighbridge at Oberon Quarries Pty Ltd by Mr Crasti or by anyone else. This is consistent with the fact that they were carrying loads of rubbish back to the tip and had no reason to go to the weighbridge at Oberon Quarries Pty Ltd, nor to any other weighbridge. The position may have been different in the case of other transport operators who were being paid at a rate per tonne of load, but the facts described by Mr Hargraves simply did not apply to Balmana or its drivers.

61. In cross-examination Mr Hargraves conceded that he knew there was a 20,000 tonne threshold above which a landfill site was required to be licensed. He said that he kept a record of the weights of waste put into the Balfour Quarry tip for the council. This was because he was required to keep records under the deed of licence, the council wanted the records and he was required to pay the council money according to the number of tonnes that went in. He set up a system whereby dockets were created to be given to the council. The dockets had a stamp on them with the words “Oberon Quarries Weighbridge”. The dockets were generated “in the office”. Mr Hargraves conceded that “the office” is not Oberon Quarries Pty Ltd or anywhere near it. He conceded that he discussed with his wife, the defendant, how the docket system should operate.

62. Mr Hargraves also gave the following evidence:

Q. Did you ever discuss with her what she should do so far as running this docket system was concerned if she didn’t have information about how much the loads did weigh?
A. No.
Q. Did she ever discuss that with you?

A. No.

63. Mr Hargraves denied that the Pyonex’s dockets were designed to deceive Oberon council so as to make it believe that it was receiving validated weighbridge dockets. He did not, however, tell the council that the dockets it was getting which were marked “Oberon Quarries Weighbridge” were for the trucks that had not been over weighbridge of Oberon Quarries Pty Ltd.

64. Mr Hargraves had also been required to answer questions pursuant to s 203(1) of the PEO Act. That interview took place on 21 June 2000. In that interview Mr Hargraves identified a twofold purpose for recording the weights:

Well, for one, so that the council can be paid its remittance and to make sure that we do keep within the threshold.
Q. 107. And what’s the threshold?
A. 20,000 tonnes.

65. In the same interview Mr Hargraves said that the only time a weight was recorded on the docket was when a truck was weighed on a weighbridge and the amount was telephoned through to his office, or, if the driver weighed the loads at a weighbridge and was given a docket (questions and answers Nos. 152-153, 241-243). Mr Hargraves made no mention in the interview that he obtained weights from drivers at the Balfour Quarry tip. To that extent there is an inconsistency between what he said in the interview and what he told the Court in his evidence. Mr Hargraves was unable to explain the difference between those Balmana’s dockets on which weights were recorded and the different weights recorded on the equivalent Pyonex’s dockets. He was also unable to explain how a weight was shown on the Pyonex’s docket when the driver of that particular delivery has said that he has not weighed the load at all. I find Mr Hargraves’s evidence was, on the whole, unconvincing and unreliable.

The defendant

66. I turn firstly, to the interview in which the authorised officer of the prosecutor, Mr Harrison, required the defendant to answer questions pursuant to s 203(1) of the PEO Act. It is the answers given by the defendant in the interview which give rise to the present charges under s 211(2) of the Act of knowingly giving false or misleading information in a material respect.

67. Mr C M Harris, appearing for the defendant, objected to the tender of the transcript of the interview in evidence on the ground that the circumstances which must exist before the authorised officer, Mr Harrison, could require the defendant to answer questions were not established. For reasons I gave in my ruling on its admissibility, the transcript of the interview was admitted into evidence.

68. The interview took place at the office of Matthewsfolbigg, the defendant’s solicitors, at Parramatta on 19 October 2000. The persons present at the interview were the defendant, her solicitor Mr T Doust, Mr Harrison and Mr Clyne. Mr Harrison asked questions in the interview which was recorded on an audiocassette and subsequently transcribed.

69. The defendant said in answer to the questions that she was one of the two directors of Pyonex, which is a haulage company; the business operates from No. 351 Commercial Road, Vineyard; Mrs R Wood works in the office and, occasionally, so does her husband; and her role was of “an allocator”, which involves allocating trucks to the jobs and sometimes contractors to the jobs.

70. The defendant was then asked questions about the dockets that were provided by Pyonex to the prosecutor. Since it is the answers to those questions that are alleged to be knowingly false or misleading in a material respect, I set them out below. After stating that the dockets provided to the prosecutor relate to the waste that was taken to the Mozart Lane landfill in Oberon, the following questions were asked and the answers given.

Q 61. Well, can you just explain to me then how the docket system worked?
A Each driver that took a load was to phone their weight through and then we would record that weight and a docket would be struck for that load.
Q 62. Okay. So would you record the weight that they rang through ---
A Yeah.
Q 63. --- on one of those dockets?
A Correct, yeah.
Q 64. And if that was rang through to your office, would it be recorded on one of those orange and white dockets?
A Basically, yeah, or sometimes if we had run out of books, we would have an Oberon Quarry book there, too. It was just – there was books sort of up there, and there. So if a driver couldn’t get you in our office, for argument’s sake, he could get him there, you know what I mean?
Q 65. So he would ring the weights through to Oberon Quarries, and somebody would record the weight there?
A Well sometimes he would, yeah, but basically it was rung through mostly to our office, you know?
Q 66. Okay. And---
A They were instructed to weigh the loads and ring their weights through, and that is how the dockets then got generated, or recorded.
Q 67. Did you write the details onto the docket there and then when the driver would ring the weight through?
A More or less, yeah. Or on a bit of paper, and then went and sort of – when we had five minutes go and then strike a docket. Do you know what I mean?
Q 68. So it would be recorded that day?
A Well, no. Sometimes if they had had an overnight load, or something, the driver might have rang – because I would be chasing them to see – because they do a lot more concrete work than what they do anything else. I would be looking for a driver and say, “Where are you” or “ring the quarry”, and that would give me an indication what time he was due down. That docket might - he might have put that load on the night before, it might have got struck the next day. Do you know what I mean?
Q 69. I see.
A Because those drivers, as well, work in the concrete plants.
Q 70. And why did you record the weights on the dockets?
A For the council.
Q 71. Okay. Could you just explain that to me?
A Well, council needed to know how many tonnes were going in, and it was to pay their levy.
Q 72. So were the weights on those dockets used for any other purpose, other than calculating the levies that you owed to the council?
A Well, no, not for me, you know? No. It was mainly for the council. And to sort of give Neil an idea of how many tonnes were, you know, going up there on a monthly basis. Do you know what I mean?
MR DOUST : Yes. The reporting requirement under the agreement with the council was for the council to have those records.
A Yes.
MR DOUST: So presumably, they were doing the calculations themselves as well, and doing any reporting requirements that they might have had to have.
MR HARRISON:
Q 73. I see. Well I understand that you had to supply the council with a validated weigh bridge docket. Is that correct?
A Yeah, correct, yeah.
Q 74. And can you tell me how these dockets are validated?
A Because they were all supposed to have, and were told to go through a weigh bridge, record the weight – register the weight and the phone the office through. And that is how we would then generate the docket for the council. And every load had to be weighed so that council knew how many tonnes they were getting. And because of the levy that we had to pay the council.
Q 75. And did they tell you which weigh bridge they had been over?
A. Well, they were told – no, not all the time. They were instructed where – you know, where it was sort of easier for them to weigh at the time. You know, like if it was down in Sydney they would weigh in Sydney. If they were up near the mountains, they would weigh near the mountains. Wherever was sort of easier for the truck to sort of weigh.
Q 76. And I notice from looking at the dockets that there is no indication of a different weigh bridge on any of those dockets. They are all stamped Oberon Quarries weigh bridge.
A Yeah. Well, that doesn’t mean they were all Oberon Quarries weigh bridge, no. They were – the reason they had a tamp is to say that they have been registered, phoned through with the weight, so that the council – we knew, because we have gravel dockets as well and sand dockets and concrete plants that they were definitely Mozart Road loads. That way they had their proper stamp on there. That is – you know what I mean? We generate sand dockets and everything else in our office. So once they were registered and that, they were stamped, we knew they belonged to the council. That was there [sic] docket for the council.
Q 77. Okay. And so all those dockets that were generated, at some point were then handed over to Oberon Council?
A Yeah. Yeah, we then give them to the council.
Q 78. Did you deliver any of those dockets yourself to council?
A No, I didn’t – we posted them, mainly. Or Neil would take them up if he was on his way up, or what – if the dockets were running late, or something like that, we would try and sort of post express them or whatever. Most of the time I would say they were posted. Neil might have taken them up once or twice, I think, you know? If he was on his way up there.
Q 79. Okay, then. If I can just go back to how the truck drivers phoned the weight through. What information was given over the phone by truck drivers?
A Well, how much they had on board.
Q 80. Anything else, though? Like, the dockets contain information like the registration number of the truck ----
A Oh, well we sort of got to know who drove what. Like, you know, this bloke belongs to this company and he belongs to that. They didn’t have to repeat their rego all the time, you know what I mean?
Q 81. Yeah, and it has gross weight, tare weight and net weight.
A Yes. Well, each truck driver was asked their tare weight, and what weight they had on, and each one, sort of, we kept a record of like – oh, not a record, but just a list of who had a tare weight of what. We sort of knew then, this truck might have a tare weight of 15 and – because they all sort of knew their own tare weights, you know?

71. These questions and answers describe the docket system of Pyonex and the reason behind using the system, namely to inform Oberon council how many tonnes of waste material was going into the landfill site and to calculate the levy required under the deed of licence. See, in particular, question and answer No. 73.

72. Some of the answers given by the defendant above are inconsistent with the evidence of the Balmana’s witnesses, particularly question and answer Nos. 66, 67, 74, 79 and 81.

73. The next set of questions which I shall describe relate to the truck with registration plate number PEM 122. It will be recalled that this was the truck driven by Mr K E Gunning, whose evidence I have described in pars [21] to [26] above.

74. It is the answers given by the defendant to this set of questions in particular which give rise to the first charge against the defendant in summons No. 50120 of 2001.

Q 108 Yolanda, I now show you 26 orange and white dockets. These relate to a vehicle PEM-122. And I need to read the reference numbers onto the record. 343055, 084, 103, 145, 152, 599, 577, 580, 582, 585, 556, 251, 253, 260, 277, 280, 285, 287, 290, 301, 305, 315, 318, 321, 339, 368, 317.
A Are they all the same registration?
Q 109. They are all the same registration.
A That’s Balmana.
Q 110. And that’s – Balmana is the carter, or the transporter. Can you have a look at those dockets and tell me if you recognise the handwriting on any of those dockets?
A They look like they’re all mine. Yeah, I’d say they are all mine.
Q 111. You have just told me that you say that is all your handwriting.
A Yeah.
…
Q 117. Okay, that is fine. Once again, I will ask you, did you fill out these dockets on the date that is indicated on the docket?
A Near enough, yeah.
Q 118. And you filled out all the information on the dockets.
A Yes, I did.
Q 119. And there is a net weight that appears on the bottom of each docket.
A Yes.
Q 120. How did you get that net weight?
A From either Balmana’s office or from whoever was driving that truck at that time.
Q 121. And when you say “from either Balmana’s office”, what would that mean?
A Well, sometimes if we couldn’t locate a driver we would sort of try to get his phone number, or maybe the office could help us. Because they don’t have regular drivers in those trucks. They do swap and change drivers.
Q 122. And how would the office help you?
A Well, they would give us his phone number, or whoever, you know, was in that particular truck that day or whatever, you know?
Q 123. So what would you do then?
A We would phone the driver, try and find the driver and ask him where did he load or whatever, if we had a query with the docket, and then ask him for his weight.
Q 124. In respect of these dockets that I’ve just showed you, I have been told by the driver that he had never been weighed and that there was no need to be weighed.
A Well that is very untrue. Every load was specified to be weighed. Now, I instructed them numerous times – I mean, I didn’t repeat myself daily, but they all knew that every load had to be weighed.

75. The answers to these questions are, again, contrary to the evidence of the Balmana’s witnesses. Mr Gunning also gave evidence that he was the driver of the truck PEM 122 on the dates described on the following dockets: 343055, 343084, 343103, 343145, 343252, 343577, 343580, 343582, 343585, 343599, 556252, 556253, 556260, 556277, 556280, 556285, 556287, 556290, 556305, 556315 and 556318. I have already described his evidence above (pars [21] to [26]). I have also described the evidence of Mr T Caldwell (pars [19] to [20] above) and of Ms K A Sandry of Balmana (par [18] above). Their evidence is undisputed. In the light of the compelling and even conclusive evidence to the contrary, I find that in her answers to the question Nos. 120 and 124 the defendant knowingly furnished information that was false in a material respect. I explain in the concluding part of this judgment my reasons for finding that the information was material.

76. The next set of questions and answers which are relevant to the charges against the defendant are as follows:

Q 134 Okay. I now show you another orange and white docket, reference number 556324, dated 6 April 1999. Do you recognise that writing?
A Yeah, mine.
Q 135. And it has a net weight of 9.76 written on it.
A M’mm. Who is the driver – oh, another Balmana.
Q 136. Can you tell me how you would have got that net weight?
A Off whoever carried that load or loaded that truck.
Q 137. Okay. Rather than me ask you that in respect of each of these dockets, are you saying to me that that is your answer in respect of all these dockets, that the weight recorded on there is only – is derived from somebody phoning it through?
A Yeah, or whoever – but I mean, like I said to you, their drivers do swap, so one might have loaded and another one has taken it up. That is why we have had to find the office to find out who was in that truck that particular date, or something like that. If the weights are generated through, someone letting either the office know or the quarry know.

Q 138. Okay. This particular docket6 [sic] that I have just shown you is for registration number OKA-211, and the net weight says 9.76. I have been told that this was weighed at Mount Bois [Boyce] at 25 tonne. Do you care to say anything about that?
A I find that very – like, I got told 9.76, I have written 9.76. There is no way in the world he could have had 25 tonne.

77. The particular docket generated by the defendant, numbered 556324 and dated 6 April 1999 shows the registration number of the truck (“OKA 211”), the carter (“Balmana”), the material (“demolition”), the gross weight (“25.76”), the tare weight (“16.00”) and the net weight (“9.76”). The defendant in her answer to question No. 134 above said that the docket was written in her own handwriting and in her answer to question No. 137 said that she would have known the net weight of the load from whoever carried the load or loaded that truck.

78. I have described (in pars [27] to [30] above) the evidence of Mr G L Alchin who was driving that particular truck. His undisputed evidence is that he did not pass through the information of the weight of 9.76 tonnes to Pyonex, or to Yolanda Hargraves or to anyone else. Mr Alchin said that the only reason he weighed the loads was to satisfy himself that he was not over the legal limit, that Balmana required him to fill out a docket for the trips that he made and whenever he wrote out the docket he would write down the weight that was registered.

79. The particular Balmana’s docket for the trip made by the truck with registration number OKA 211 on 6 April 1999 was tendered in evidence. It shows a net weight of 25 tonnes. Mr Alchin’s evidence was that “in any case, if I was to have provided a weight through, I would have phoned through the net weight of 25 tonne that I recorded on the Balmana docket”. As I have said, Mr Alchin’s evidence is undisputed.

80. I find, therefore, that in answering question Nos. 134 to 136 and question No. 138, in view of the compelling evidence to the contrary, the defendant knowingly furnished information that was false in a material respect.

81. The next relevant set of questions and answers is as follows:

Q 139. I will now show you 16 orange and white dockets for motor vehicle – or truck – SV for Victor A 303. I will read the reference numbers onto the record. 343057, 083, 596, 556, 252, 556 [sic], 282, 294, 322, 331, 361, 387. Can you have a look at those dockets and tell me if you recognise any of the handwriting?
A All mine.
Q 140. That is all yours?
A Yes.
Q 141. Well, I guess there is no point in me asking you the same question again. Can I just say that the net weight that appears on all of these dockets, are you telling me that that was written on there by you?
A Yes.
Q 142. And you got those net weights over the phone?
A Over the phone, or from Oberon Quarries office. If they had been there picking up a load of gravel, they might have told him there, too. He might have struck the docket then, and I have rewritten it, or he has phoned me back through. Yeah, like I said, it went to either Oberon Quarries office or it went to our office. Because our phones are pretty busy with concrete plans. Like, they ring all the time. We could average anything between 40 to 60, 80 phone calls a day. So if they can’t get us, they would speak to (indistinct) or whoever might be up there, you know?

82. The truck with registration number SVA 303, to which these questions relate, was driven at the relevant time by Mr M S Wollaston, whose evidence I have noted above (pars [31] to [36]). The answers to question No. 142 are thus contrary to his evidence, insofar as it is said that the driver, Mr Wollaston, telephoned through the weight to the defendant.

83. The dockets generated by the defendant which were identified in question No. 139 were tendered in evidence. The equivalent dockets generated by Balmana for the same deliveries made by the same truck on the same dates were also tendered in evidence. The latter shows either no weights recorded at all, or where they do show a record of weights those weights are different to and greater than the weights shown on the dockets generated by the defendant. In the light of all of this evidence, which is contrary to the answers given by the defendant, I find that the defendant was simply not telling the truth in her answers. Moreover, she must have known that by her answers she was giving false information, particularly in view of the uncontradicted evidence of Mr Wollaston that at no stage did he telephone Yolanda Hargraves or anyone else at Pyonex.

84. Neither am I able to accept it as truth the defendant’s answer that she may have got the weights from the office of Oberon Quarries Pty Ltd. I have described in relation to the evidence of Mr Crasti why this could not have occurred. The defendant’s answers simply cannot be believed.

85. The next set of questions relate to the vehicle with registration number ODB 832. It is these particular questions and answers which give rise to the second charge against the defendant in summons No. 50121 of 2001.

Q 147 I now show you 16 orange and white dockets, and these relate to the vehicle OD for Delta B for bravo 832. And I will just read the reference number onto the record, 343317, 059, 082, 144, 151, 576, 579, 584, 556, 279, 323, 336, 358, 365, 367, 370, 373. Could you have a look at those dockets and tell me if you recognise the handwriting?
A All mine.
Q 148 And are you telling me that you recorded the net weight on those dockets after a driver rang through advising of the weight?
A Correct.

86. The vehicle with registration number OBD 832 was driven at the relevant time by Mr R L Stephen, whose uncontradicted evidence I have set out above (pars [37] to [41]). The answer given by the defendant to question No. 148 is contrary to the evidence of Mr Stephen. Moreover, the dockets generated by the defendant which are identified in question No. 147 were tendered in evidence. The equivalent dockets generated by Balmana were also tendered in evidence and show the same deliveries by the same truck on the same dates. While some of the Balmana’s dockets do not show a weight, most of them do not. Those that do show a weight, have a weight that is different to and greater than the weight shown on the equivalent docket generated by the defendant. For example, the defendant’s docket 556325 shows a net weight of 8.12 tonnes, whereas the equivalent Balmana’s docket for the same delivery shows a net weight of 22.70 tonnes. Similarly, the defendant’s docket 556336 shows a net weight of 8.95 tonnes whereas the equivalent Balmana’s docket for the same delivery shows a net weight of 23.20 tonnes. The defendant’s docket 556358 shows a net weight of 9.55 tonnes whereas the equivalent Balmana’s docket for the same delivery shows a net weight 21.7 tonnes. The defendant’s docket 556365 shows a net weight of 10.3 tonnes whereas the equivalent Balmana’s docket for the same delivery shows a net weight of 21.2 tonnes. The defendant’s docket 556367 shows a net weight of 9.45 tonnes whereas the equivalent Balmana’s docket for the same delivery shows a net weight 20.10 tonnes. And the defendant’s docket 556370 shows a net weight of 9.00 tonnes whereas the equivalent Balmana’s docket for the same delivery shows a net weight of 19.72 tonnes.

87. In the light of both the evidence of Mr Stephen and the documentary evidence to which I have referred, I am satisfied beyond a reasonable doubt that in giving her answer to question No. 148 the defendant knowingly furnished information that was false in a material respect. The evidence to the contrary of the answer given by the defendant is both compelling and conclusive. I find that no information regarding the weights of loads was telephoned by the driver of the vehicle with the registration number OBD 832 or by Mr Stephen to the defendant or to anyone else at Pyonex. The defendant must have known this when giving her answer.

88. The defendant gave evidence. She said that her husband, Neil, makes all the business decisions. As to the deliveries made to the landfill site, she said: “He did tell me that these loads had to be weighed and recorded and then just sent to council for their purpose”. She further said: “He would hire the contractors and speak to their relatively [sic] bosses or whoever was involved, and he would have stipulated that each and every one of them would have had to either weigh the load and then report it back”. The defendant also gave the following evidence:

Q. Did you receive telephone calls at the office from drivers of trucks?
A. I did receive telephone calls from some drivers, yes, I did

89. The defendant also said that she had two other sources of information that she used for writing out the dockets, namely her husband, who would “jot down” the information when he was at the tip, and Mr E Crasti, the production and quarry manager of Oberon Quarries Pty Ltd. In cross-examination the defendant identified a further source of information, namely Balmana. In the interview conducted by Mr Harrison the defendant did not also mention her husband as a source of information.

90. The defendant said in cross-examination: “I was collecting dockets for council’s purposes only”. She was shown the Balmana’s docket 55456 for a delivery by the truck with the registration number OKA 711 on 6 April 1999 of “rubbish” from Camellia to Oberon and which shows a net weight “25.00” tonnes. She was also shown her own generated docket with number 556324 for the same delivery by the same truck on the same date on which shows a net weight of “9.76” tonnes. In explaining this irregularity, she said in reference to the Balmana’s dockets:

Like I didn’t take reference to their dockets. … I didn’t take reference to Balmana’s dockets because I didn’t receive them on the day that I needed them.

91. The defendant also said that she regarded the information on the Balmana’s dockets to be irrelevant:

Their dockets was irrelevant, they wrote anything on them. Like I said they’ve got metres written there.

92. I make three observations about this evidence. Firstly, an examination of the Balmana’s dockets discloses that in most of them there is no weight shown, but for the dockets where a weight is shown, it is not expressed in metres and is clearly shown to be in tonnes. Secondly, the Balmana’s witnesses, all of whose evidence I have no reason to doubt, state that on those occasions when their load was weighed they had recorded the correct weight on the Balmana’s docket. Thirdly, in her interview with Mr Harrison the defendant’s answer to question No. 120 noted above was wrong insofar as she stated that she obtained the net weights from Balmana’s office. Further, if the defendant “didn’t take reference” to Balmana’s dockets then she must have been aware of that when she answered question No. 120. In other words, this is another instance where the defendant furnished information knowing that it was false in a material respect.

93. The defendant also gave the following evidence:

Q. And was that once a week, once a fortnight, once a month, once a quarter, once a year?

Q. How did you arrive at the amount in which the cheque was drawn each month?

Q. And if the weights as added up on the dockets for that month came to a high figure you had to pay a high amount to council is that right?

A. No.

94. This evidence shows that the defendant knew that Pyonex had to make payments to Oberon council, for which either the defendant or Mrs R Wood drew the cheques, and that the amount payable depended upon the tonnages shown on the dockets which she generated. The defendant denies, however, that this was a motive for recording low weights of waste taken to the Balfour Quarry tip. The impression I have from closely observing the defendant giving her evidence, not only in relation to this evidence, of which the above is the typical example, but her evidence generally, is that she was being deliberately evasive. It is clear from the whole of the evidence, that the weights which the defendant was writing on the Pyonex’s dockets were either fictitious or were knowingly understated, but more probably the former. Despite her denial, she had a clear motive to deceive Oberon council, she had a clear motive to deceive Mr Harrison in the interview which he conducted and a clear motive to deceive the Court. It is self-evident that in doing what she did, the defendant in fact deceived Oberon council because the weights she recorded were both fictitious and in fact understated. There is equally no doubt that she deceived Mr Harrison (or attempted to deceive him) in answering his questions. The whole tenor of the defendant’s evidence just does not accord with the other evidence which has been adduced and which, as previously noted, is both compelling and conclusive.

Conclusions

95. The offences with which the defendant is charged are that she furnished information in purported compliance with a requirement under Ch 7 of the PEO Act knowing that it was false in a material respect.

96. I have previously held, in ruling on the admissibility of the transcript of the defendant’s interview with Mr Harrison, that pursuant to s 203(1) (within Ch 7) of the PEO Act, Mr Harrison lawfully required the defendant to answer questions in respect of which information was reasonably required for the purposes of that Act.

Information

97. There seems to be no doubt that the defendant’s answers to the questions asked to her by Mr Harrison was “information” within the meaning of s 211(2) of the Act. I did not understand Mr C M Harris, the defendant’s counsel, to argue to the contrary. Information is “knowledge communicated or received concerning some fact and circumstance” (Macquarie Dictionary). In the present case the information furnished by the defendant was contained in the answers to the questions asked by Mr Harrison. The prosecutor particularised the information as being the weight of the loads of waste received at the Mozart Lane landfill, Oberon; the period or periods during which those loads were received; and the regularity of the dockets produced by Pyonex as to the weight of the said loads of waste.

Knowledge

98. Mr Harris made the following submissions, as I understand them:

(a) The offence is one in which the prosecutor must prove mens rea – the first category of offence described in He Kaw Teh v The Queen (1985) 157 CLR 523 (He referred to Environment Protection Authority v Taylor , NSWLEC, Stein J, 10 March 1995, unreported.)
(b) The prosecutor must show: (i) that the defendant knew that the information was false and (ii) that the defendant knew that the information was of “a material respect”.
(c) The defendant did not believe that the record of weights was of any materiality to the prosecutor and its inquiries – the defendant had no belief or understanding that there was a necessity to obtain a licence and the records were created for Oberon council’s purpose, not the prosecutor’s purpose.
(d) Alternatively, the offence is one which falls within the second category of offence described in He Kaw Teh in which there is a defence of honest and reasonable belief of facts and which, if true, would amount to an effective defence. In this respect Mr Harris relies upon the defendant’s belief that the information she was giving was of no materiality.

99. In my opinion, the case of Environment Protection Authority v Taylor, upon which Mr Harris relies, is of no assistance. The defendant in that case was charged with an offence against s 29(4) of the Clean Waters Act 1970 of wilfully delaying an authorised officer in the exercise of his powers in refusing him admission to the piggery which he occupied. A reading of the reasons for the decision in that case discloses, however, that both the prosecutor and the defendant agreed that the offence fell into the first category of offence described in He Kaw Teh and that the prosecutor bears the original obligation to prove mens rea.

100. In my opinion, the charges in the present case are similar to that charge which was considered by the Court of Criminal Appeal in R v Cassell (1998) 45 NSWLR 325. That case concerned s 87 of the Independent Commission Against Corruption Act 1988 which provides:

87. False or misleading evidence
A person who, at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence.

101. The Court of Criminal Appeal (Smart J, Ireland and Dunford JJ concurring) held (at 334) that the Crown does not have to prove that the accused knew that he was making statements on material matters. R v Cassell was affirmed on appeal by the High Court on other grounds, but which do not disturb this finding (Cassell v The Queen (2000) 201 CLR 189).

102. Mr Harris sought to distinguish R v Cassell on grounds that in Cassell’s case the accused person had been sworn, whereas in the present case the information was not given on oath; s 211 does not create an indictable offence, and two of the cases relied upon by the Court of Criminal Appeal (The Queen v Davies (1974) 7 SASR 375 and R v Traino (1987) 45 SASR 473) do not support the conclusion to which the Court of Criminal Appeal came.

103. I accept the proposition that the prosecutor must show that the defendant knew that the information she furnished was false. For the reasons I have given in considering the transcript of the interview and the defendant’s evidence I am satisfied beyond a reasonable doubt that she knew that the information to which each charge refers was false.

104. Notwithstanding the force of Mr Harris’ submissions, I am unable to distinguish the reasoning in R v Cassell from the present case. It is a decision of the Court of Criminal Appeal, which is binding on me. I do not regard the fact that the information given by the defendant in the present case was not on oath as significantly distinguishable. The object of s 211 of the PEO Act is similar to the object of s 87 of the Independent Commission Against Corruption Act. The purpose of both provisions is to obtain information for the purposes of each respective Act. In the present case those purposes included determining whether there has been compliance with, or a contravention of, the PEO Act. The prosecutor does not have to prove that the defendant knew she was making statements on material matters. The question of whether the information is material is one for the Court.

Materiality

105. Mr Harris submits that there is no materiality in the information provided by the defendant because Oberon council had acknowledged that it was the occupier of the Balfour Quarry tip and it would obtain a licence (if necessary) and pay any waste levies (if necessary); and no action has been taken against either Pyonex or Oberon council for failing to obtain a licence.

106. In the present case the investigation was into the lawfulness of operation of the landfill, whether there was a liability to be licensed and whether there was a liability to pay waste levies. This in turn depended upon whether the threshold of 20,000 tonnes of waste deposited into the landfill site had been exceeded. I thus accept the prosecutor’s submission that the information as to the accuracy of the recorded weights of loads being deposited at the landfill site was critical to the investigation. When it became apparent to the prosecutor that the weights of loads of waste recorded on the dockets and which were generated by the defendant were significantly inconsistent with other data relating thereto, the information as to the sources of the weights recorded by the defendant on the dockets became “material” within the meaning of s 211(2) of the PEO Act. The fact that the dockets were prepared for Oberon council does not make the information they contain any less “material”.

107. I am thus satisfied beyond a reasonable doubt that: (a) the defendant furnished information (being answers to questions); (b) the information was furnished in purported compliance with a requirement under Ch 7 of the PEO Act (being a requirement to answer questions pursuant to s 203(1) of the Act); (c) the information was false; (d) the defendant knew that the information was false; and (e) the information was material (being required for the purposes of that Act).

108. I find the offences in each charge proved. I stand the proceedings over to a date that is to be fixed for determination of the penalty and costs.

I hereby certify that the preceding 108 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

Associate

Dated: 11 July 2002