Environment Protection Authority v Peters
[2006] NSWLEC 465
•19/07/2006
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Mark Peters [2006] NSWLEC 465 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
Mark PetersFILE NUMBER(S): 50033 of 2005 CORAM: Jagot J KEY ISSUES: Prosecution :- Ex parte - company furnishing information false or misleading in a material respect - liability of director of company for furnishing information false or misleading in a material respect - approved labels for pesticides - information comprising certificates of pesticide applications LEGISLATION CITED: Agricultural and Veterinary Chemicals (New South Wales) Act 1994
Criminal Procedure Act 1986 s 250(a)
Interpretation Act 1987 s 21
Land and Environment Court Act 1979
Pesticides Act 1999 s 4(1), s 15
Protection of the Environment Operations Act 1997 s 169, s 186, s 193, s 211(2)CASES CITED: Bentley v BGP Properties Pty Limited [2006] NSWLEC 34;
Cassell v The Queen (2000) 201 CLR 189;
Environment Protection Authority v Hargraves [2002] NSWLEC 113;
Environment Protection Authority v Iron Gates Pty Limited [1998] NSWLEC 123;
EPA v Emerald Peat Pty Limited (In Liq) [1999] NSWLEC 147;
Hamilton v Whitehead (1988) 166 CLR 121;
R v Cassell (1998) 45 NSWLR 325;
Tesco Supermarkets Limited v Nattrass [1972] AC 153DATES OF HEARING: 17/07/2006, 18/07/2006, 19/07/2006 EX TEMPORE JUDGMENT DATE: 07/19/2006 LEGAL REPRESENTATIVES: PROSECUTOR
Mr T Howard
SOLICITORS
Department of Environment & ConservationDEFENDANT
No appearance
SOLICITORS
N/A
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
19 July 2006
50033 of 2005
ENVIRONMENT PROTECTION AUTHORITY
ProsecutorJUDGMENTMARK PETERS
Defendant
Jagot J:
Introduction
1 The defendant, Mark Peters, is charged with an offence against s 211(2) of the Protection of the Environment Operations Act 1997 (the “POEO Act”), by operation of s 169 of that Act.
2 Section 211(2) provided that:
(2) A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence.
3 Section 169 provided that:
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.
4 The particular offence with which the defendant is charged is that:
…the defendant, Mark Peters of 25 The Esplanade Drummoyne, in the State of New South Wales, on or about 31st January 2005 as a director of Mandiar Pty Limited (ACN 092 426 045), …committed an offence against section 211(2) of the Protection of the Environment Operations Act 1997 (the “Act”) by reason of section 169(1) of the Act, in that in purported compliance with a requirement made under Chapter 7 of the Act Mandiar Pty Limited furnished records knowing they were false in a material respect.
5 Section 21 of the Interpretation Act 1987 defined “person” as follows at the relevant time:
person includes an individual, a corporation and a body corporate or politic.
6 This matter proceeded to hearing on 18 July 2006 in the absence of the defendant pursuant to s 250(a) of the Criminal Procedure Act 1986. Before so proceeding I provided reasons for so doing. I incorporate those reasons (which are annexed) as part of these reasons.
Evidence
The s 193 notices
7 On 7 November 2004, an authorised officer of the Environment Protection Authority (the “EPA”) served a notice under s 193 of the POEO Act on Mandiar Pty Limited. Section 193(1) provided that:
(1) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer.
8 Section 193 is in Ch 7 of the POEO Act. Section 186 (also in Ch 7) provided at the relevant time that:
…This Chapter extends to the exercise of powers in connection with the following legislation:
…
(b1) Pesticides Act 1999 and the regulations under that Act,
Accordingly, a reference in this Chapter to this Act or the regulations includes a reference to each of those Acts or regulations.
9 The s 193 notice served on Mandiar Pty Limited recorded in Recital B that:
The EPA is investigating the unlawful application of a termiticide (containing the active constituent Chlorpyrifos) through the pest control internal cavity wall reticulation systems installed in dwellings constructed by L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast), hereafter referred to as Beechwood Homes, at the following locations.
Locations were then set out.
10 In its operative part, the s 193 notice required Mandiar Pty Limited to produce records of pesticides applied by corporations including Mandiar Pty Limited trading as AAA Brookes Pest Control through pest control internal cavity wall reticulation systems included in dwellings constructed by Beechwood Homes or other companies during the period 1 April 2002 to 1 January 2004.
11 Mr Brian Curtin, a Regional Operations Officer employed by the EPA, and an authorised officer thereof, has given evidence in these proceedings to the effect that on 1 February 2005, following the grant of an extension of time to Mandiar Pty Limited to comply with the s 193 notice, he received from solicitors for Mandiar Pty Limited a box containing copies of approximately 700 termite treatment or installation certificates.
12 Mr Curtin has also given evidence relating to another s 193 notice served on L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast). The date of that s 193 notice is not apparent on its face, but the notice required documents to be produced by 23 July 2004. The documents required to be produced by L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast) included documents which recorded pesticides applied by AAA Brookes Pest Control through pest control internal cavity wall reticulation systems installed in dwellings constructed by Beechwood Homes during the period 1 June 2001 to 6 July 2004. Mr Curtin, on 3 February 2005, also received from Beechwood Homes a bundle of termite installation certificates for certain properties where he had undertaken sampling. The sampling he had conducted was of various homes which had had termite protection works carried out to them by AAA Brookes Pest Control.
13 An historical company search shows Mark Arthur Peters as the sole director of Mandiar Pty Limited, appointed 1 November 2001. Other searches show that Mark Arthur Peters was also the sole director of Pest One Pest Control Products Pty Limited from 25 September 1997, and Jalenia Pty Limited from 25 June 1998.
14 Section 15 of the Pesticides Act 1999 at the relevant time provided that:Pesticides
(1) A person must not use a registered pesticide in contravention of any instruction on an approved label for the pesticide unless the person:
(a) is authorised to do so by a permit, and
(b) complies with the permit.
Maximum penalty:
• $120,000 in the case of a corporation, or
• $60,000 in the case of an individual.
15 Under s 4(1) of the Pesticides Act 1999, an approved label in relation to a pesticide meant any label approved under Part 2 of the Agvet Code for or in respect of the pesticide. “Agvet Code” was defined to mean the provisions applying because of s 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994. A “registered pesticide” was defined to mean a pesticide registered under Part 2 of the Agvet Code. Under s 5, “pesticide” was defined at the relevant time as follows:
(1) In this Act, pesticide means:
(a) an agricultural chemical product within the meaning of the Agvet Code, or
(b) a veterinary chemical product (within the meaning of the Agvet Code) that is represented as being suitable for, or is manufactured, supplied or used for, the external control of ectoparasites of animals.16 Mr Thompson is a pesticides inspector employed by the Department of Environment and Conservation. He holds a degree in Agricultural Science and a Diploma of Applied Science and has worked for the past 20 years in the regulation of pesticides. Mr Thompson has sworn an affidavit in these proceedings. In that affidavit, insofar as presently relevant, Mr Thompson explained (and annexed relevant documents with respect to) the following matters:
David Thompson
(a) Chlorpyrifos is an insecticide registered as a poison and is toxic (being an organophosphate compound).
(b) Chlorpyrifos is commonly used for termite prevention and management.
(c) Chlorpyrifos is a pesticide under the Pesticides Act 1999.
(d) All approved labels for Chlorpyrifos products since 2001 have been subject to an approved label for the pesticide that stated, “not to be used in cavity walls, unless directly treating a termite nest”.
(f) In June 2003, a new product was registered, “Pest One Biflenthrin Termiticide and Insecticide”, which was permitted by its approved label to be used within reticulation systems within cavity walls. The active ingredient in this product was the synthetic pyrethroid chemical Biflenthrin.(e) Approved labels for a product known as “Pest One Termiticide and Insecticide” existed in 1999 and thereafter. The active ingredient in this product was Chlorpyrifos. All such approved labels contained the statement, “not to be used in cavity walls, unless directly treating a termite nest”.
(g) Another product known as, “Biflex Termiticide” was registered in 1997. The approved label for Biflex Termiticide allowed it to be used through reticulation system around structures and service penetrations but not within a cavity wall system.
(i) The active ingredient in Biflex Termiticide is Biflenthrin, a registered pesticide.(h) In October 1999 another approved label for Biflex Termiticide was issued which for the first time allowed the use of this pesticide for cavity wall installation through approved reticulation systems.
17 Two affidavits of Ms Jordan were read, being affidavits sworn on 28 July 2005 and 5 July 2006. Relevantly, Ms Jordan deposed to the following matters:
Michelle Joy Jordan
(a) She was employed by AAA Brookes Pest Control in an administrative capacity between 1995 and 22 March 2005, being the office manager from mid-2002.
(b) The last business address of AAA Brookes Pest Control is Suite 1-6, 74 Moore Street Liverpool. I note that this matches the current principal place of business recorded for Mandiar Pty Limited as shown on the historical company search.
(c) The owner of AAA Brookes Pest Control was Mr Mark Peters, the defendant. She received instructions about her employment from the defendant.
(d) AAA Brookes Pest Control was involved in pest control and had a number of technicians working for it. One system used by AAA Brookes Pest Control was a termite barrier treatment system known as the, “CAVTECT Jet Pest System”. The system is constructed within new homes inside the walls and then is charged with a termiticide to act as a termite barrier.
(e) AAA Brookes Pest Control used the CAVTECT Jet Pest System from around 2000.
(f) Part of Ms Jordan’s responsibilities included preparation of termite installation certificates which were provided by AAA Brookes Pest Control to builders and home owners.
(g) The termite installation certificate would be completed for each new home where AAA Brookes Pest Control provided termite protection. A certificate was completed in three stages. Stage 1 was Part A treatment. That is, at the time the slab was constructed, red stop collars would be installed as a physical barrier where pipes penetrated through the slab. Stage 2 or Part B treatment was the installation of the various hoses and nozzles of the CAVTECT Jet Pest System that occurred at the beginning of the construction of the wall cavities within a layer of sand placed within that cavity. Stage 3 was the charging of the CAVTECT Jet Pest System. That meant the pumping of pesticide through the hoses after the construction of the walls has been completed.
(h) Ms Jordan’s standard practice for completing termite installation certificates was to fill in each certificate for each treatment stage. An original certificate was on top and three self-carbonating copies were beneath. As each stage was completed the copies would be sent to the builder (relevantly, Beechwood Homes) and the original retained by AAA Brookes Pest Control. Ms Jordan would sketch the layout of the house on the termite installation certificate in the space provided by referring to the ground floor plan that Beechwood Homes provided to AAA Brookes Pest Control with its purchase order at the time of the first phase of the treatment. Ms Jordan would also, at that time, mark with an X within the sketch plan the penetrations of the slab that required the red collar treatment.
(i) In or about 2000, Biflex cost about $800 per 20 litre drum whereas what Ms Jordan described as the Pest One Chlorpyrifos product cost about $175 per 20 litre drum.
(j) Ms Jordan was informed by one of the technicians used by AAA Brookes Pest Control that the EPA had made inquiries of him in 2002. Mr Peters, the defendant, instructed Ms Jordan to arrange for the technicians to change the stickers they had placed on meter boxes of premises where they had injected Chlorpyrifos to say Biflex and where possible to inject Biflex into the CAVTECT Jet Pest System in these homes.
(l) In November 2004, the defendant, Mr Peters, and a Mr Bentley (identified by Ms Jordan as the financial officer of AAA Brookes Pest Control) showed Ms Jordan a letter from the EPA. The letter sought copies of termite installation certificates relating to Beechwood Homes. The defendant and Ms Jordan had a conversation in words to the following effect and I quote:(k) Until this time, when completing termite installation certificates, Ms Jordan only ever wrote the word “Chlorpyrifos” as the termiticide used for Beechwood Homes buildings. Ms Jordan said Pest One supplied this product. After October 2002, the defendant instructed Ms Jordan to inform the technicians of AAA Brookes Pest Control to use Biflex and not Chlorpyrifos in internal systems.
Mark Peters ... said something to the effect of “Have a look at this letter”. He then gave me a letter. I recall reading a letter from the EPA. I said words to the effect of “Well what do you want us to do?” He said words to the effect of, “Well we’ve got to get all the paperwork for Beechwood Homes and Domain Homes. Go through them. If it doesn’t have all the information on it, fill it in. Fill in ‘Biflex’ or ‘Biflenthrin’ as the chemical used and fill in the volume of emulsion and concentration of emulsion”.
“If the installation certificate has Chlorpyrifos written on it then that needs to be changed to state Biflex or Biflenthrin and include the emulsion amount of it as well”.Mark then said words to the effect of:
“We need this done within the next couple of weeks, but only give half of the ones that you copy to Michael and hold back on the rest”.Mark went on to said words to the effect of:
(n) Ms Jordan estimated that of about 700 certificates she copied to give to the EPA, about 300 or 400 had been amended or re-written. The other 300 or so already had “Biflex” written on them next to “termiticide applied” because that product was being used as well (after October 2002) and entered on the certificates. Ms Jordan identified six certificates tendered in evidence which she had completely re-written and that, in so doing, she had replaced the word “Chlorpyrifos” written next to “termiticide applied” with the word “Biflex”. Ms Jordan said she knew that she had re-written these certificates altogether as they were in her writing and had no sketch of the house in the space provided - which she had not included in the re-written certificates (as opposed to her practice for certificates generally) because she did not have time to do so with respect to the re-written certificates. These six certificates all show the word “Biflex” next to the prompt, “termiticide applied”. Ms Jordan identified another certificate which she had re-written in its entirety under instructions from the defendant. This certificate (for a property at Ashtonfield) had originally had the word “Chlorpyrifos” written next to “termiticide applied”. In the re-written certificate, Ms Jordan inserted the word “Biflex” next to “termiticide applied". This certificate is also in evidence and shows “Biflex” next to “termiticide applied". Ms Jordan identified another certificate where the majority was in her handwriting for a property at Erina. This certificate is in evidence and shows “Biflex” next to “termiticide applied". Ms Jordan also said she completely re-wrote four other certificates in which she identified next to “termiticide applied" that Biflex had been used as their termite treatment.(m) Ms Jordan spoke to Cheryl Pike, another employee. They divided the termite installation certificates between them on an alternate month basis. Wherever Ms Jordan found a certificate without anything next to the prompt “termiticide applied”, she wrote the word “Biflex”. If the certificate had the word, “Chlorpyrifos” written next to “termiticide applied”, Ms Jordan would either white that word out with liquid paper or rewrite the whole certificate. When this exercise was finished she informed the defendant. The new certificates were copied and bundled up and the defendant then instructed Ms Jordan to give them to Mr Bentley so he could post them to the EPA. Ms Jordan did so.
18 Ms Jordan also deposed to the following:
(a) Until October 2002 the only pesticide used by technicians of AAA Brookes Pest Control was Chlorpyrifos. Technicians ordered from AAA Brookes Pest Control Chlorpyrifos, not Biflex.
(b) The business AAA Brookes Pest Control, at this time, regularly purchased Chlorpyrifos from Pest One and did not purchase Biflex. When the change was made so that AAA Brookes Pest Control purchased Biflex, Ms Jordan made changes to the computer system for that purpose.
(c) It took Ms Jordan and Ms Pike about two weeks to change the certificates.
(e) When Ms Jordan changed certificates in this process she made up the volume of emulsion used. The defendant told her to, “make between 3.3 and 3.9 and time it by the linear metres on the ground floor plan” which Ms Jordan did. She did not know why the figures 3.3 and 3.9 were used. If there was no ground floor plan available, Ms Jordan said she would just make up the volume based on what she knew about the general size of Beechwood Homes.(d) When they were altering certificates, AAA Brookes Pest Control received a huge bundle of certificates from Beechwood Homes. Ms Jordan used the certificates received from Beechwood Homes to cross-check the certificates she and Ms Pike were altering to ensure that all certificates had been altered if required. Once the job was complete, Ms Jordan gave the bundle of Beechwood Homes certificates to the defendant. After all certificates had been altered, Ms Jordan says that the original certificates were thrown out. The certificates that Ms Jordan and Ms Pike had checked including those altered and re-written by them, were then copied. A set of these copy documents was then sent back to Beechwood Homes.
Cheryl Pike19 An affidavit of Ms Pike was read in the proceedings, being an affidavit sworn 24 August 2005. AAA Brookes Pest Control employed Ms Pike from 1997 to January 2000 and from mid-2002 to 10 June 2005. A group certificate tendered in evidence shows that Ms Pike recommenced work for Danalene Pty Limited on 17 June 2002. Ms Pike said that whilst she worked at AAA Brookes Pest Control Danalene Pty Limited mainly paid her, although she recalled at one stage she was being paid by Pest One Pest Control Pty Limited. Ms Pike’s duties were administrative. She worked at what she called, “head office” which she identified as Suite 1-5, 74 Moore Street Liverpool. Ms Pike’s duties included dealings with termite installation certificates. Ms Pike said that Ms Jordan had informed her in November 2004 that they were to change details on some of those certificates. Ms Jordan gave Ms Pike a bundle of certificates, purchase orders and invoices containing (on Ms Pike’s estimate) a couple of hundred certificates. Ms Jordan instructed Ms Pike that where any certificate had no entry next to “termiticide applied", she should write “Biflex”. If there was nothing next to “concentration of emulsion”, she should write “0.5”. If there was nothing next to “volume of emulsion”, she should pick a number out between 150 and 200 and write that number in. If any certificate had “Chlorpyrifos” entered next to “termiticide applied", she should completely re-write the certificate and write “Biflex” there instead. Ms Pike did not know why she was doing this task. She did the task and handed the certificates and any new copies that she had made back to Ms Jordan.
20 Ms Pike reviewed certificates shown her by the prosecutor. She identified 187 certificates in her handwriting that she had amended or re-written. Ms Pike said that these 187 documents do not resemble the certificates which Ms Pike ordinarily created in the course of her duties for AAA Brookes Pest Control. For ordinary certificates, she would draw in a sketch plan from the purchase order of the ground floor of the house and she would normally cross reference the purchase order to the certificate by writing the purchase order reference on the bottom of the certificate. On the certificates Ms Pike re-wrote, “there is no sketch plan or purchase order reference”.
21 Ms Pike identified a certificate for a property at Erina where her handwriting appears in certain parts including against “termiticide applied" where the word “Biflex” is written. Ms Pike said the word “Chlorpyrifos” appeared on the original certificate and that she used white out to cover that word up and wrote “Biflex” there instead. Ms Pike has identified another certificate for a property at Tumbi Umbi which she had re-written. In the re-written version Ms Pike entered the word “Biflex” next to “termiticide applied".
Owen Fox
22 Mr Fox owns the property at 25 Ford Avenue, Medowie. He and his wife occupied the property in December 2002. A CAVTECT internal termite reticulation system was installed. Mr Fox says he received a certificate saying that the system had been charged on 28 October 2002. That certificate says nothing next to “termiticide applied”. Mr Fox has observed that a sticker on his electrical box says “Biflex” was applied on 2 December 2002, but that he is not aware of any re-charge of the system since he and his wife moved into the property in December 2002.
23 All of the certificates sent by Mandiar Pty Limited in response to the s 193 notice are in evidence. I describe below examples of what is shown by the certificates. It is possible to compare some of the certificates produced by Mandiar Pty Limited in response to the s 193 with some certificates made available by L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast). In particular:Various certificates
(a) L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast) produced a certificate for a property at Erina where the owner’s name and address are given. That certificate identified the date of application as 6 September 2002 and identified the responsible technician, the responsible technician’s licence number and said “Chlorpyrifos” next to “termiticide applied", and next to “concentration of emulsion” the figure “99” or “9.9”. Mandiar Pty Limited produced a certificate for the same property at Erina under the s 193 notice. The owner’s name and address on the certificate are the same, as is the name and licence number of the responsible technician and the date of application. However, the certificate produced by Mandiar Pty Limited says “Biflex” next to “termiticide applied", the figure “0.5” next to “concentration of emulsion” and the figure “204” next to “volume of emulsion”. In addition, the certificate produced by Mandiar Pty Limited under the s 193 notice shows an additional date of 15 August 2002 next to “cavity reticulation system” on the certificate. This certificate is one where Ms Pike said the word “Chlorpyrifos” appeared on the original certificate and that she used white out to cover that word up and wrote “Biflex” there instead.
(b) L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast) produced a certificate for a property at Tumbi Umbi where the owner’s name and address are given. That certificate identified the date of application as 9 September 2002, the responsible technician and the responsible technician’s licence number. Next to “termiticide applied" the word “Chlorpyrifos” is written, and next to “concentration of emulsion” the figure “9.9”. Mandiar Pty Limited produced a certificate under the s 193 notice. The owner’s name and address on that certificate are the same as the other certificate, as is the name and licence number of the responsible technician and the date of application being 9 September 2002. However, the certificate produced by Mandiar Pty Limited says “Biflex” next to “termiticide applied", next to “concentration of emulsion” the figure “0.5” appears and next to “volume of emulsion” the figure “189”. Again, this certificate shows an additional date of 8 August 2002 next to “cavity reticulation system” on the certificate. Ms Pike has identified this certificate as one which she had re-written.
(c) L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast) produced a certificate for a property at Toukley where the owner’s name and address are given. That certificate identified the responsible technician, the responsible technician’s licence number and the application date as 27 October 2002. Next to “termiticide applied" it said nothing. Next to “concentration of emulsion” the certificate also said nothing. Mandiar Pty Limited produced a certificate under the s 193 notice which identifies the same property address at Toukley, the owner’s name, the same name and licence number of the responsible technician and the same application date of 27 October 2002. However, next to “termiticide applied" that certificate says “Biflex”. Next to “concentration of emulsion” the figure “0.5” is written and next to “volume of emulsion” the figure “201” appears. Again, the certificate produced by Mandiar Pty Limited shows an additional date of 7 August 2002 next to “cavity reticulation system” on the certificate.
(d) L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast) produced a certificate for a property at Budgewoi which shows the owner’s name and address, identifies the date of application as 27 October 2002, and the responsible technician’s name and licence number. That certificate says nothing next to “termiticide applied" and nothing appears next to “concentration of emulsion”. Mandiar Pty Limited produced a certificate which identifies the same owner’s name and property address, the same name and licence number of the responsible technician. However, the date of application is shown on that certificate as both 1 August 2002 and 27 October 2002 and next to “termiticide applied" the word “Biflex” appears, next to “concentration of emulsion” the figure the figure “0.5” appears, and next to “volume of emulsion” the figure 201 appears.
(e) L.E.D. (North Coast) Pty Limited trading as Beechwood Homes (North Coast) produced a certificate for a property at Ashtonfield where the owner’s name and address are given. That certificate identified the date of application as 7 June 2002, the responsible technician, the responsible technician’s licence number and said “Biflex” next to “termiticide applied", nothing next to “concentration of emulsion” and “169” next to “volume of emulsion”. Mandiar Pty Limited produced a certificate in response to the s 193 notice for a property at Ashtonfield where all details are the same except that the handwriting on the certificate appears different, the name of the owner is differently identified, and next to “concentration of emulsion” the figure “0.5” appears and next to “volume of emulsion” the figure “191” appears.
(g) The certificate held by Mr Fox may be compared with another certificate which refers to the same owners, the same property address, the same technician and same licence number. However, the certificate held by Mr Fox is silent about the "termiticide applied" and refers to a date of application of 28 October 2002. When this is compared to the certificate produced by Mandiar Pty Limited under the s 193 notice, the latter states “Biflex” next to "termiticide applied", states the figure “0.5” next to "concentration of emulsion" and the figure 235 next to “volume of emulsion”.(f) One of the certificates re-written by Ms Pike has an application date of 5 June 2002 when Ms Pike’s group certificate shows that she recommenced employment at AAA Brookes Pest Control on 17 June 2002.
24 Mr Barley is the solicitor for the prosecutor with the carriage of this matter. He gave evidence that he attended court in March 2006 at which time a solicitor, Mr Bryett of Bamford Associates, solicitors, appeared on behalf of the defendant. Mr Bryett entered pleas of guilty on behalf of the defendant in proceedings 50031 of 2005 and 50067 of 2005. The summons in proceedings 50031 of 2005 charges the defendant as follows:
Peter Barley
An order that the defendant, Mark Peters of 25 The Esplanade, Drummoyne, in the State of New South Wales, appear before a Judge of the Court to answer the charge that as a director of Jalenia Pty Limited (ACN 083 124 725), on or about 28 October 2002 the defendant committed an offence against section 15(1) of the Pesticides Act 1999 (the “Act”) by reason of s 112(1) of the Act, in that at or near Medowie in the said State Jalenia Pty Limited used a registered pesticide in contravention of an instruction on an approved label for the pesticide, without being authorised to do so by a permit.
25 The summons in proceedings 50067 of 2005 charges the defendant as follows:
An order that the defendant, Mark Peters of 25 The Esplanade, Drummoyne, in the State of New South Wales, appear before a Judge of the Court to answer the charge that as a director of Jalenia Pty Limited (ACN 083 124 725), on or about 16th March 2002 the defendant committed an offence against section 15(1) of the Pesticides Act 1999 (the “Act”) by reason of s 112(1) of the Act, in that at or near 16 Roskell Road, Callala Beach, Shoalhaven in the said State, Jalenia Pty Limited used a registered pesticide in contravention of an instruction on an approved label for the pesticide, without being authorised to do so by a permit.
26 The particulars to the summons in proceedings 50031 of 2005 identified the location of the property referred to in paragraph 1 of the summons as 25 Ford Avenue, Medowie, which is the same address as the property owned by Mr and Mrs Fox referred to above. The prosecutor submitted that the entry of the guilty pleas in these proceedings were admissions made with authority of the defendant and which supported its submissions about motive which I address below.Sampling
27 Mr Curtin deposes to the fact that he carried out certain sampling of properties. He took a swab of the internal surface of the termite protection line within buildings on the properties and sent the samples for testing. The samples taken included the properties at Medowie and Ashtonfield to which I have referred above. Mr Curtin also took soil samples from the soil below the termite reticulation system within these buildings and sent those soil samples for testing including samples from the properties at Medowie and Ashtonfield.
28 Mr Thompson (who holds qualifications in agricultural science and a Diploma of Applied Science) was requested to consider the results of the sampling carried out by Mr Curtin. Mr Thompson expressed the opinion that the results from the properties at Medowie and Ashtonfield showed that Chlorpyrifos had been used in the reticulation systems. The swab from the Medowie property showed 2300 micrograms per kilogram of Chlorpyrifos and 1.2 micrograms per kilogram of Biflenthrin. The soil sample from the Ashtonfield property showed 57,000 micrograms per kilogram of Chlorpyrifos. Mr Thompson said that, in his opinion, this is the amount that would be expected if Chlorpyrifos had been used within the building as a termite preventative treatment, that is 57 milligrams per kilogram. Mr Thompson concluded that the results could not be the result of cross-contamination but, rather, confirmed that Chlorpyrifos had been used in the reticulation systems as a termite preventative treatment.
Timothy Andrew Whiley
29 Mr Whiley is a pest management technician. He completed the Certificate of Urban Pest Control Levels 1 and 2 at Epping TAFE in 1983 and has a current WorkCover Pest Management Certificate of Competency. From about 1985 to September 2003 Jalenia Pty Limited trading as AAA Brookes Pest Control employed him. As I have noted, the defendant was the director of Jalenia Pty Limited from 25 June 1998. Mr Whiley was taught how to install the CAVTECT Jet Pest System while at AAA Brookes Pest Control. He says that all the technicians who worked for AAA Brookes Pest Control attended this training. Further, that the defendant attended this training. Mr Whiley says that the defendant instructed the technicians to pump the CAVTECT System with Pest One Termiticide and Insecticide, the active ingredient of which was Chlorpyrifos. Mr Whiley says that after this training he installed hundreds of CAVTECT Jet Pest Systems in homes. One property at which he installed such a system was 16 Roskell Road, Callala Beach. This is the property which is referred to in the summons in proceedings 50067 of 2005. Mr Whiley installed red shields at pipe penetrations through the slab at that property on 4 December 2001. At that time he placed a sticker on the meter box to that effect. On 16 March 2002 he charged the CAVTECT System with Pest One Termiticide and Insecticide. Again, he ticked the box on the sticker on the meter box on that day. Mr Whiley said that the product Pest One Termiticide and Insecticide was supplied to him by AAA Brookes Pest Control. He would get on average five 20 litre drums every fortnight. When he needed this product he will fill in an order form and fax it through to AAA Brookes Pest Control. He did not pay for the product. All of the product was owned by AAA Brookes Pest Control, as was the truck he used and all the equipment on the truck. The drums delivered to Mr Whiley were labelled Pest One Termiticide and Insecticide. The labels had a poison sign on them and listed the active ingredient as Chlorpyrifos. On 5 May 2003 Mr Whiley says that Ms Jordan gave him an instruction. He returned to the property at 16 Roskell Road Callala Beach and charged the CAVTECT Jet Pest System that he had installed in those premises with Biflex and he placed a sticker on the meter box to that effect.
Michael Bentley
30 Mr Bentley was identified by Ms Jordan as the financial officer of AAA Brookes Pest Control. He did not give evidence. The prosecutor tendered in the proceedings an affidavit of a process server setting out the steps taken to attempt to serve Mr Bentley with a subpoena to give evidence, which were unsuccessful.
Elements of Offence
32 With respect to s 211(2), in Environment Protection Authority v Hargraves [2002] NSWLEC 113 Lloyd J held that the prosecutor did not have to prove that the defendant knew she was making statements on material matters, as materiality was for the Court. Lloyd J so concluded on the basis that he was bound by the decision of the New South Wales Court of Criminal Appeal in R v Cassell (1998) 45 NSWLR 325, affirmed on other grounds in Cassell v The Queen (2000) 201 CLR 189, which decision Lloyd J said was not distinguishable. Hence the elements of the offence which the prosecutor was required to prove beyond reasonable doubt were that:31 The defendant is charged in his capacity as a director of Mandiar Pty Limited. Hence, the prosecutor must establish beyond reasonable doubt that Mandiar Pty Limited contravened s 211(2) of the POEO Act and that the defendant was, at the relevant time, a director of Mandiar Pty Limited.
(1) The defendant furnished information.
(2) The information was furnished for the purposes of Chapter 7 of the Protection of the Environment Operations Act 1997.
(3) The information was false or misleading.
(5) The information was false or misleading in material respects.(4) The defendant knew that the information was false or misleading.
33 In Hamilton v Whitehead (1988) 166 CLR 121 at 127 the High Court adopted the statement of Lord Reid in Tesco Supermarkets Limited v Nattrass [1972] AC 153 at 170 that:
I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability .
Findings34 Lord Reid said that identifying the directing mind and will of the company was a question of law, once the facts had been ascertained. I accept the evidence of Ms Jordan, Ms Pike, Mr Whiley, Mr Thompson, Mr Curtin, Mr Barley and Mr Fox as I have summarised above. The following facts satisfy me beyond reasonable doubt that the defendant, Mark Peters, was the relevant directing mind and will of Mandiar Pty Limited:The defendant was the directing mind and will of Mandiar Pty Limited
(1) The defendant was the sole director of Mandiar Pty Limited from 1 November 2001.
(2) Ms Jordan said she received all her instructions in the course of her employment from the defendant.
(3) Ms Jordan said that she reported to the defendant with all issues relating to her work.
(4) The defendant had interviewed Ms Jordan for her second interview, which I infer to be the interview after which she became the office manager at AAA Brookes Pest Control.
(6) The defendant gave instructions to Ms Jordan with respect to the letter sent to Mandiar Pty Limited which I infer to be the s 193 notice.(5) The defendant gave instructions to Mr Whiley to use Pest One Termiticide and Insecticide in the CAVTECT Systems installed by technicians who worked in the AAA Brookes Pest Control business.
35 Hence, leaving aside s 169(4) of the POEO Act 1997 as it appeared in January 2005, I am satisfied beyond reasonable doubt that the defendant was the relevant directing mind and will of Mandiar Pty Limited. I consider that s 169(4) reflected (and in its references to agents of a corporation possibly expanded) the common law position as identified in Tesco Supermarkets Limited v Nattrass . Section 169(4) of the Act thus provides a further basis for the conclusion that I have reached, in addition to the common law, if that basis were necessary.Information
36 The documents provided by Mandiar Pty Limited, through its agent, to Mr Curtin in response to the s 193 notice, were “information” within the meaning of s 211(2). That word, information, takes its ordinary meaning: knowledge communicated or received concerning some fact or circumstance (Macquarie Dictionary revised 3rd edition). Mr Curtin caused the s 193 notice to be served on Mandiar Pty Limited. Mr Curtin was an authorised officer of the Environment Protection Authority as referred to in s 193(1). Mr Curtin received a letter from the solicitors who identified Mandiar Pty Limited as their client. By letter dated 31 January 2005 these solicitors said that their client had provided them with a box containing certificates and had requested that the solicitors forward them. These certificates were information within the meaning of s 211(2).
Furnished by Mandiar Pty Limited
37 I am satisfied beyond reasonable doubt that the information was furnished by Mandiar Pty Limited through its solicitors. These solicitors were the agent of Mandiar Pty Limited for this purpose and, hence, Mandiar Pty Limited furnished the information within the meaning of s 211(2).
In compliance with the requirement under Chapter 7
38 I am satisfied beyond reasonable doubt that the information was furnished in response to the s 193 notice. This is evidenced by the correspondence from the solicitors for Mandiar Pty Limited which refer to and are headed, “Mandiar Pty Limited trading as AAA Brookes Pest Control notice under s 193(1) of the Protection of the Environment Operations Act 1997”.
39 Section 193 was within Chapter 7 of the POEO Act, as was s 211(2). Hence, the information in the certificates was furnished by Mandiar Pty Limited in purported compliance with the requirement made under Chapter 7 within the meaning of s 211(2), the relevant requirement being the requirement to furnish information and records as set out in the s 193 notice.
40 I am satisfied beyond reasonable doubt that the information furnished by Mandiar Pty Limited in response to the s 193 notice was false and misleading as follows:Information was false or misleading
(a) On Ms Jordan’s estimate about 300 or 400 of the 700 or so certificates had been amended or re-written. I accept that evidence.
(b) Ms Pike identified 187 certificates in her handwriting that she had amended or re-written. I accept that evidence.
(c) Ms Jordan identified that the practice for amending or re-writing the certificates was that where a certificate was silent about the "termiticide applied", the word “Biflex” was to be written. Where a certificate said “Chlorpyrifos” next to "termiticide applied", the certificate was to be amended or re-written to say “Biflex”. Ms Pike says that under Ms Jordan’s instructions she applied this system as well. I accept that evidence.
(d) Ms Jordan said that she also added or re-wrote details into the certificates relating to the volume of emulsion used. She made up the volume of emulsion under the direction of the defendant. Ms Pike said that she made up the concentration and volume of emulsion used under the direction of Ms Jordan. I accept that evidence.
(e) Ms Jordan identified six certificates tendered in evidence which she had completely re-written and that in so doing she had replaced the word “Chlorpyrifos” written next to "termiticide applied" with the word “Biflex”. I accept that evidence.
(f) Ms Jordan identified another certificate which she had re-written in its entirety. This certificate for a property at Ashtonfield had originally had the word “Chlorpyrifos” written next to "termiticide applied". In the re-written certificate Ms Jordan inserted the word “Biflex” next to "termiticide applied". I accept that evidence.
(h) Ms Pike identified another certificate for a property at Tumbi Umbi which she had re-written. In the re-written version Ms Pike entered “Biflex” next to "termiticide applied". I accept that evidence.(g) Ms Pike had identified a certificate for a property at Erina where her handwriting appears in certain parts, including against "termiticide applied" the part where the word “Biflex” is written. Ms Pike said that the word “Chlorpyrifos” appeared on the original certificate and she used white out to cover that word up and then wrote “Biflex” there instead. I accept that evidence.
41 Each of the certificates that I specifically identified above shows that it has been amended or re-written in some way at a time after the certificate was originally created. I accept that the re-writing and amendment of the certificates was systematic. The process of re-writing and amending the certificates took between one week on Ms Pike’s estimate, and two weeks on Ms Jordan’s estimate. I accept that the process took between one and two weeks. I accept the prosecutor’s submissions that all of the certificates amended or re-written, that is 300 or 400 certificates as estimated by Ms Jordan, were false and misleading:
(a) once amended or re-written, the certificates were no longer records of what in fact had been provided to the builder, they were a new record which had not been provided to the builder as a record of what termite protection installation had in fact been implemented. That is, as records themselves, the certificates were false.
(b) many of the certificates were false and misleading as they had been silent about what termiticide had been applied, but had then been amended to say “Biflex”. That is a false record in accordance with my finding at (a) above, but is also substantively false in that I am satisfied beyond reasonable doubt that until October 2002 AAA Brookes Pest Control used Pest One Termiticide and Insecticide to charge CAVTECT Jet Pest Systems and the active ingredient of that product was Chlorpyrifos not Biflex.
(d) many of the certificates were false and misleading because Ms Jordan had made up the volumes of emulsion used and Ms Pike had made up both the volumes and the concentrations of emulsions used. Those figures bore no necessary relationship with the volumes and concentrations of emulsion in fact used in the application of termiticide to the properties.(c) many of the certificates were false and misleading as they had said that Chlorpyrifos was the termiticide applied but the certificates had then been amended or re-written to say that Biflex had been applied, when that was not the fact.
42 The prosecutor accepted that, because the original certificates had been destroyed, it is no longer possible to identify all certificates which had said “Chlorpyrifos” and which were changed to say “Biflex” or which had said nothing about the termiticide used and which had then had the word “Biflex” inserted. Nevertheless, I have identified above a number of specific certificates that Ms Jordan and Ms Pike say they re-wrote or amended. I have accepted Ms Pike’s evidence that she re-wrote or amended 187 certificates. I have accepted Ms Jordan’s estimate that between 300 and 400 certificates were re-written or amended in accordance with the systematic practice which I accept was implemented. I also accept the evidence of Mr Fox, and I accept the evidence of Mr Thompson as to the sampling results, both of which corroborate the evidence of Ms Jordan and Ms Pike.43 I am satisfied beyond reasonable doubt that Mandiar Pty Limited (through the defendant and to the defendant’s knowledge) knew that the certificates that it was furnishing in response to the s 193 notice were false and misleading. I adopt my findings with respect to the defendant being the directing mind and will of Mandiar Pty Limited to support this conclusion. I also accept the prosecutor’s submissions that I should be so satisfied of Mandiar’s knowledge in that:Knowing
(a) the s 193 notice served on Mandiar Pty Limited disclosed the investigation of activities of Mandiar Pty Limited with respect to use of pesticides within cavity wall systems.
(b) the certificates were amended or re-written after receipt of the s 193 notice.
(c) the changes to the certificates were intended to represent that Biflex had been used in cavity wall systems, not Chlorpyrifos. The approved label for Chlorpyrifos products made clear that it could not be used within cavity wall systems.
(d) the defendant, as the directing mind and will of Mandiar Pty Limited, instructed Ms Jordan to alter the certificates so that they represented that Biflex and not Chlorpyrifos had been used within cavity wall systems.
(e) Mandiar Pty Limited and the defendant had a motive for so doing, that is to avoid the potential consequences of having been found through the investigation to have been involved in using Chlorpyrifos within cavity wall systems in breach of s 15 of the Pesticides Act 1999.
(g) Mandiar Pty Limited and the defendant knew that the arbitrary stipulation of the figures inserted in the certificates would be in no necessary relationship with the volumes and concentrations of termiticide in fact applied.(f) Mandiar Pty Limited and the defendant knew that the technicians for AAA Brookes Pest Control in fact used Pest One Termiticide and Insecticide within cavity wall systems at least up until October 2002, that the active ingredient of that product was Chlorpyrifos not Biflenthrin, and that Biflex was not used.
44 For all of these reasons, I am satisfied beyond reasonable doubt that Mandiar Pty Limited knew that the certificates that it was furnishing in response to the s 193 notice were false and misleading.Materiality
45 I am satisfied beyond reasonable doubt that the certificates were false and misleading in material respects and, indeed, that Mandiar Pty Limited knew that the certificates that it was furnishing in response to the s 193 notice were false and misleading in material respects. The representations contained in the certificates about the termiticide applied within the cavity reticulation systems, its concentrations and volumes were one of the primary purposes of the certificates - to provide the builder and others with a record of the termite protection chemicals in fact used, their volume and concentration. The termiticide applied was fundamental to compliance with the Pesticides Act 1999.
46 I am satisfied beyond reasonable doubt that the purpose of re-writing and altering the certificates was to conceal the use which had been made of Chlorpyrifos within cavity wall systems in homes which Mandiar Pty Limited (through the defendant) knew was or was likely to be a contravention of s 15 of the Pesticides Act 1999. As such, the information on the certificates about the termiticide applied was critical to many people including the builder, the home owner and to Mandiar Pty Limited itself as a record of what termiticide had in fact been applied. The information about concentrations and volumes was also important information for the same reasons.
47 Hence, I am satisfied beyond reasonable doubt that Mandiar Pty Limited: - (i) furnished information to an officer, (ii) for the purposes of Chapter 7 of the POEO Act, (iii) which information was false and misleading in material respects, and (iv) which information Mandiar Pty Limited knew was false or misleading in material respects.
48 Accordingly, I am satisfied beyond reasonable doubt that Mandiar Pty Limited contravened a provision of the POEO Act, being s 211(2).
The defendant was a director of Mandiar Pty Limited
49 I am satisfied beyond reasonable doubt that the defendant, Mark Peters, was the director of Mandiar Pty Limited at the time of the provision of the information by Mandiar Pty Limited in response to the s 193 notice, being on or about 31 January 2005 as referred to in para 1 in the summons in these proceedings. As such, by operation of s 169(1) of the POEO Act, the defendant is taken to have contravened the same provision, that is s 211(2), unless the defendant satisfied the court of the matters set out in s 169(1)(a)-(c). As the defendant did not appear at the hearing and I proceeded ex parte for the reasons I have already given, the defendant did not satisfy the court of any of those matters. Further, I note that under s 169(2) the defendant may be proceeded against even though Mandiar Pty Limited was not proceeded against or convicted. It follows that I am satisfied beyond reasonable doubt that the defendant committed an offence against s 211(2) of POEO Act by reason of s 169(1) of that Act.
50 As such I find the offence charged in the summons proved.
52 On obtaining the hearing date, I direct the prosecutor to take the following steps for the purpose of notifying the defendant of these orders:51 I direct the prosecutor to approach the registry today to obtain a date for the sentence hearing in proceedings 50033 of 2005 and for the hearing of the charges in proceedings 50031 of 2005 and 50067 of 2005.
(b) send by facsimile a copy of these orders to Bamford Associates, solicitors with a written request that those solicitors attempt to notify the defendant of these orders and provide him with a copy of these orders.(a) have an officer or process server attend Mr Peters’ last known residential address as notified by Bamford Associates and attempt to serve Mr Peters with these orders and if he is not in attendance to place a copy of these orders at the front door of that address, and
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ANNEXURE: REASONS FOR PROCEEDING EX PARTE
1 This is an application that I proceed to hear and determine proceedings commenced by the Environment Protection Authority as prosecutor against Mark Peters as defendant ex parte.
3 On 10 March 2006, the proceedings were fixed for hearing on 17 and 18 July 2006, at which time the defendant entered a plea of not guilty. When the matter was called yesterday, 17 July 2006, there was no appearance on behalf of the defendant and that is the basis for which the application is made today that I proceed ex parte in reliance on s 250(a) of the Criminal Procedure Act 1986, which relevantly provides that:2 The summons was filed on 4 August 2005, in which the prosecutor claimed an order that the defendant, Mark Peters, of 25 The Esplanade, Drummoyne in the State of New South Wales appear before a Judge of the Court to answer the charge that on or about 31 January 2005 as a director of Mandiar Pty Ltd ACN 092 426 045 the defendant committed an offence against s 211(2) of the Protection of the Environment Operations Act 1997 by reason of s 169(1) of the Act in that in purported compliance with a requirement made under Ch 7 of the Act, Mandiar Pty Ltd furnished records knowing they were false in a material respect.
(a) proceed to hear and determine the matter in the absence of the accused person.If the accused person does not appear on the day and at the time and place set by an order under Div 2 (or on a day to which a hearing has been adjourned), the Court may, if satisfied that the order was served on the accused person:
5 The order is the order referred to in s 246 of the Criminal Procedure Act 1986, subs (1) of which provides that:
4 In other words, I must be satisfied that the order was served on the accused person, in which event if I am so satisfied I have a discretion as to whether or not to proceed to hear and determine this matter in the absence of the defendant, Mr Peters.
A prosecutor may apply for an order that a person alleged in the application to have committed an offence that may be dealt with summarily by the Court must appear at a time and place specified in the order to answer to the offence charged in the order.
6 These provisions apply to these proceedings by operation of s 170(3)(c) of the Criminal Procedure Act 1986 and also by s 41 of the Land and Environment Court Act 1979, which provides that Pt 5 of Ch 4 of the Criminal Procedure Act 1986 applies to proceedings in class 5 of the Court’s jurisdiction.7 The summons filed on 4 August 2005 was accompanied by an order under s 246 to the defendant, Mark Peters, ordering that he appear before a Judge of the Court relevantly at 9.30am on 14 October 2005 to answer the charge in summons.
9 Annexure A to the affidavit of Mr Dykes is a copy of a letter from the Department of Environment and Conservation to Mr Mark Peters at an address, 25 The Esplanade, Drummoyne, New South Wales 2047, enclosing copies of, amongst other things, the summons and order in proceedings 50033 of 2005. That letter has endorsed upon it a note to this effect:8 I have had the benefit of an affidavit of Shane Ernest Dykes, process server, sworn 30 September 2005, which deposes to the fact that on Monday, 19 September 2005, Mr Dykes did attend at the offices of Ebsworth & Ebsworth Lawyers and delivered amongst other things to a person, Meagan Laud, being a female person apparently above the age of sixteen years, a sealed summons class 5 in matter 50033 of 2005 and a sealed order class 5 in matter 50033 of 2005.
I, Meagan Laud, of Ebsworth & Ebsworth, solicitors, hereby accept service of the documents mentioned in the list below on behalf of my client, Mark Peters.
There is then a signature and a date, 19 September 2005.
10 It is also relevant to both the availability of the power in s 250(a) and the exercise of my discretion that Ebsworth & Ebsworth, solicitors, filed a notice of appearance on behalf of the defendant in these proceedings on 19 October 2005 and a notice of ceasing to act on 9 November 2005. Subsequent to that Bamford Associates, solicitors, filed a notice of appearance in these proceedings on 21 November 2005, the solicitor on the record being identified as Christopher Garry Bryett.12 On 5 July 2006, Mr Barley delivered in person a letter to Bamford Associates noting that they remained the solicitors on the record and stating that:11 As I have said, there was an appearance in this Court on 10 March 2006 and the Court record shows that Mr Peter Barley, solicitor, appeared on behalf of the prosecutor and a Mr Bryett, solicitor, appeared on behalf of the defendant, at which time a plea of not guilty was entered on behalf of the defendant, and the proceedings were set down for hearing on 17 and 18 July 2006.
Would you please inform your client that if he should fail to appear on 17 July 2006 to answer the charge to which he pleads not guilty the prosecutor will invite the Court to deal with that matter and the other two charges to which he pleads guilty ex parte and will tender this letter as support for that request.
That letter also enclosed further affidavits of a Michelle Jordan and David Thompson. Thereafter, on 13 July 2006 Bamford Associates, solicitors, filed a notice of ceasing to act.
13 When the matter was called yesterday and there was no appearance I made orders and directions in accordance with what has now become exhibit E in these proceedings adjourning the proceedings for hearing this morning, and directing the prosecutor to take certain steps with a view to notifying the defendant of the adjourned hearing date.14 Pursuant to those orders Mr Barley, solicitor, sent a facsimile to Mr Chris Bryett of Bamford Associates attaching a letter making a request that they attempt to contact their former client and inform him of the orders and/or provide him with a copy of the orders and attaching a copy of the orders themselves.
15 Mr Barley gave evidence to the effect that he yesterday at about 2.50pm posted in the yellow letter box at World Square Sydney an Express Post envelope addressed to Mark Peters at PO Box 311, Drummoyne, New South Wales 2047, enclosing a copy of those orders to which I have referred.
16 Mr Barley also gave evidence that the other steps which he took were to provide the orders to another officer of the prosecutor, Mr David Thompson, to deliver to properties being 24 and 25 The Esplanade, Drummoyne, and that when Mr Barley arrived in his office this morning he had a voicemail message from a person whom he identified as Mr Bryett to whom he then spoke. Mr Bryett explained to Mr Barley that Mr Bryett had received the facsimile which Mr Barley had sent, being exhibit B, and that Mr Bryett had informed Mr Barley that he had scanned a copy of the orders I made yesterday and sent them to an email address which Mr Bryett had for Mr Peters.
17 Mr David Thompson is an authorised officer of the Department of Environment and Conservation. He was given copies of the orders by Mr Barley and has given evidence before me that he attempted to deliver copies to both 24 and 25 The Esplanade. At 24 The Esplanade he made contact with a person within the premises, being a female person who informed Mr Thompson that Mr Peters was not there, did not live there and that she did not know where he was. She said she would not accept the documents and that she was just the babysitter and had no contact with Mr Peters. Mr Thompson, however, left the envelope including the orders under the door of the address at 24 The Esplanade. He then went to a separate entrance for what appeared to him to be number 25 The Esplanade, observing that 24 and 25 were not separated by a fence but appeared to be a single large block. He pressed the intercom there, there was no answer and he did not leave a copy of the document at that address but returned with a copy.
18 I have also heard evidence in relation to the application for the matter to proceed ex parte from two of the witnesses in the proceedings, being persons who have sworn affidavits. The first was Ms Cheryl Pike, who was formerly a clerical assistant employed by a company, AAA Brookes, who said that she felt threatened by the defendant and that she had been feeling sick the entire morning about giving evidence and did not wish to face the defendant in court because of her feelings of fear; and Michelle Joy Jordan, another former employee of AAA Brookes, who identified the defendant as her former boss and also identified her feelings of fear of the defendant, and said that her particular difficulty was that her mother had Alzheimer’s and that in order to attend court she had had to arrange for care for her mother. The prosecutor made clear that this was evidence of the emotional state of the witnesses and did not relate to any action or conduct of the defendant in this respect (about which there was no evidence), and the prosecutor made no submission suggesting there was any such evidence.
19 Mr Howard, who appears for the prosecutor, submits that I should be satisfied in terms of s 250(a) that the order was served on the defendant, and that I should exercise my discretion in all of the circumstances to hear and determine this matter in the absence of the defendant.
20 The prosecutor has referred me to two decisions of this Court, both against corporations rather than natural persons, in which the Court has proceeded to hear and determine criminal proceedings, in the absence of the defendant, being EPA v Emerald Peat Pty Limited (In Liq) [1999] NSWLEC 147, in which the company defendant was in liquidation and the liquidator did not propose to defend the charge, as well as Environment Protection Authority v Iron Gates Pty Limited [1998] NSWLEC 123, where the Court concluded that it was satisfied that the defendant was duly served and knew of the arrangements for the hearing and accordingly the Court proceeded to hear and deal with the matter on an ex parte basis.
21 To those two cases, I add the decision in Bentley v BGP Properties Pty Limited [2006] NSWLEC 34, where at [20] - [35] Preston J determined that, as the defendant had not appeared on the day to which the hearing had been adjourned by an order under s 246, the Court can and should proceed to hear and determine proceedings notwithstanding the absence of the defendant.
22 I am satisfied in accordance with s 250(a) that the order under s 246 to which I have referred was served on the defendant. The defendant has not appeared on the day to which the hearing was adjourned within that section.
24 I am thus satisfied for the reasons, in effect, which Mr Howard submitted to me that, in the exercise of my discretion, I should proceed to hear and determine this matter in the absence of the defendant and that it is, in the circumstances which I have identified above, in the interests of justice that I do so. Accordingly, I propose so to proceed in the absence of the defendant.23 Having regard to circumstances to which I have referred including: - (i) the state of mind of two of the witnesses and the difficulties which one of the witnesses has with respect to care for her mother; (ii) the fact that the offence with which the defendant is charged in this matter carries a non-custodial sentence, that is a fine is able to be imposed but not a custodial sentence; (iii) the fact that all efforts have been made by the prosecutor to bring the defendant before the Court and they have proven fruitless; (iv) the fact that the prosecutor has complied with the letter and the spirit of the directions which I made yesterday (and that Mr Thompson did not leave a copy of the orders under the door of 25 The Esplanade, Drummoyne does not speak against any such conclusion), (v) that while a warrant may be issued for the arrest of the defendant (which would involve the deprivation at least to some extent of the defendant’s liberty in order to bring him before the Court), the time at which that may occur is not known and, as I have already observed, the offence with which the defendant is charged does not carry potential for a custodial sentence, I am satisfied that it is in the interests of justice that I should proceed to hear and determine this mater in the absence of the defendant.
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