Environment Protection Authority v Warringah Golf Club

[2003] NSWLEC 140

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Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Warringah Golf Club
FILE NUMBER(S):	50128 of 2001
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- negligent contribution to conditions giving rise to an offence - offence proved
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 116(1), s 116(2), s 120(1), Pt 4.3
CASES CITED:	Ampol Ltd v Environment Protection Authority [1995] NSWCCA, unreported; Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433; Environment Protection Authority v Ampol Ltd (1994) 82 LGERA 247; New South Wales Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 75 LGERA 320; R v O'Neill (1979) 2 NSWLR 582; Seltsam Pty Ltd v McGuiness and Another; James Hardie & Coy Pty Ltd v McGuiness And Another (2000) 49 NSWLR 262; Shepherd v The Queen (1990) 170 CLR 573
DATES OF HEARING:	12/05/2003, 13/05/2003, 14/05/2003, 15/05/2003, 16/05/2003, 19/05/2003, 20/05/2003, 21/05/2003, 23/05/2003
DATE OF JUDGMENT:	06/19/2003
LEGAL REPRESENTATIVES:	PROSECUTOR Mr SJ Rushton SC with Mr TG Howard (Barrister) SOLICITORS Environment Protection Authority DEFENDANT Mr GTW Miller QC with Mr DG Galpin (Barrister) SOLICITORS Gordon Salier Solicitor

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50128 of 2001

Talbot J

19 June 2003

Environment Protection Authority

Prosecutor
v

Warringah Golf Club

Defendant

Judgment

Introduction

1 By order dated 30 November 2001, the defendant was required to appear to answer the charge that on or about 12 February 2001 at North Manly it committed an offence against s 116(2) of the Protection of the Environment Operations Act 1997 (“the PEO Act”) in that being the occupier of land on which a substance was located at the time of escape it negligently in a material respect contributed to the conditions that gave rise to the commission of the offence under s 116(1) of the PEO Act.

2 In matter No. 50131 of 2001 the club is further charged with an offence against s 120(1) of the PEO Act. No plea has been entered in matter No. 50131 of 2001. It is currently adjourned to the date of judgment in this matter.

3 Separate proceedings were commenced pursuant to s 116(1) of the PEO Act against Craig Rue Coggins, the Course Superintendent who was employed by the defendant at the time of the alleged offence. Mr Coggins has pleaded guilty to the offence under s 116(1) of the PEO Act. A hearing on penalty commenced before Cowdroy J on 5 May 2003. Cowdroy J has reserved judgment.

4 Section 116(1) and (2) provide as follows:-

116 Leaks, spillages and other escapes

(1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment:

(a) the person, and

(b) if the person is not the owner of the substance, the owner,
are each guilty of an offence.

(2) If:
(a) the person in possession of the substance at the time of the leak, spill or other escape, or

(b) the owner of any container from which the substance leaked, spilled or escaped, or

(c) the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or

(d) the occupier of the land on which the substance or any such container was located at the time of the leak, spill or other escape,

wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence.

5 It is not disputed that the defendant was, at all material times, the occupier of the Warringah Golf Club (“the club”) and its surrounds pursuant to a lease between the defendant and Warringah Council (“the council”) registered No. U441145, and has management and control of such premises.

6 The summons particularises the substance referred to in the charge as a poisonous substance, namely “Gusathion”, the active ingredient of which is “azinphos-ethyl”.

7 The summons contains particulars of the s 116(1) offence as follows:-

On or about 12 February 2001 at North Manly in the State of New South Wales, Craig Rue Coggins committed an offence against section 116(1) of the Act in that he negligently caused the Substance to escape in a manner that harmed or was likely to harm the environment.

8 The summons contains the following particulars of negligent contribution:-

Permitting the handling of chemicals, including the Substance, upon a concrete slab which was not contained by any bunding (“the Concrete Slab”); and/or in the alternative

Permitting the handling of chemicals, including the Substance, near a stormwater grate (“the Stormwater Grate”) which the Defendant knew or ought to have known was connected by a stormwater pipe to Brookvale Creek; and/or in the alternative

Permitting the handling of chemicals including the Substance near the Stormwater Grate which was not protected by bunding; and/or in the alternative

Failing to provide Craig Rue Coggins and/or any other employee of the Defendant with any or any sufficient instructions that chemicals, including the Substance, were not to be handled in the vicinity of the Concrete Slab and/or the Stormwater Grate; and/or in the alternative

Failing to provide Craig Rue Coggins and/or any other employee of the Defendant with any or any sufficient instructions in relation to the handling of dangerous chemicals, including the Substance; and/or in the alternative

Failing to provide Craig Rue Coggins and/or any other employee of the Defendant with any or any sufficient instructions in relation to chemical spill management procedures; and/or in the alternative

Permitting the carrying out of repairs to equipment, including a John Deere 855 Tractor with a mounted Hardys Spray Unit (“the Spray Unit”) on the Concrete Slab; and/or in the alternative

Permitting the carrying out of repairs to the Spray Unit near the Stormwater Grate; and/or in the alternative

Failing to erect bunding around the Concrete Slab; and/or in the alternative

Failing to erect bunding around the Stormwater Grate; and/or in the alternative

Failing to install washdown bays; and/or in the alternative

Failing to provide Craig Rue Coggins and/or other employees of the Defendant with spill prevention and containment plans and/or spill prevention and containment equipment.

9 Subsequently, the Environment Protection Authority (“the EPA”), as prosecutor, notified further particulars of negligent contribution as follows:-

Failing to remove the Stormwater Grate.
Failing to remove or re-locate the tap and/or the hose on the northern wall of the greenkeepers’ compound.

10 In answer to a request to specify in writing “the conditions” that the prosecutor says gave rise to the commission of an offence under s 116(1), the EPA provided the information and particulars as set out below:-

Conditions

The Defendant operated a golf course in the catchment of Brookvale Creek and Manly Lagoon. The operation of the golf course, in the ordinary course of events, involved the frequent application and use of insecticides, herbicides, fertilizers and other chemicals and the Defendant knew, or ought to have known, that this was the case.

In the context of the operation of the golf course in its particular location, the conditions which gave rise to the commission of the offence fall within three broad categories as follows:

(a) the physical conditions in and around the greenkeepers’ compound and the physical condition of the plant and equipment used for the application of chemicals; and/or

(b) the conditions relating to the use of the area in and around the greenkeepers’ compound and the use of the plant & equipment by the Defendant’s employees; and/or

Physical Conditions

The greenkeepers’ compound, including the workshop, the equipment and chemical store, the fuel shed and vehicle shed, the Concrete Slab and the Stormwater Grate, was located next to Brookvale Creek.

The Stormwater Grate was connected by a stormwater pipe which, within a distance of about 10 metres from the Stormwater Grate, discharged into Brookvale Creek.

The Concrete Slab drained to the Stormwater Grate.

Dangerous chemicals, including the Substance, were stored in the equipment and chemical store in close proximity to the Concrete Slab.

The vehicle shed, which housed the vehicles utilised for the application of dangerous chemicals, including the Substance, was located in close proximity to the Concrete Slab.

There was a tap and hose located on at the northern wall of the workshop so as the hose could spray water on and in the area of the Concrete Slab.

The Concrete Slab was the only concrete slab with provision for drainage in the vicinity of the greenkeepers’ compound.

The Concrete Slab was not contained by any bunding.

The Stormwater Grate was not contained by any bunding.

The dangerous chemicals applied from time to time on the golf course, including the Substance, were typically applied by means of the Spray Unit.

The features of the Spray Unit included two 200-litre plastic containers, which contained dangerous chemicals, including the Substance, and flexible hoses connecting the containers to the boom and nozzles of the Spray Unit. Each of the plastic containers had small screw type plugs at the bottom which could be manually disconnected causing the containers to drain through the plugs. The flexible hoses could be manually unclipped from the Spray Unit and, when unclipped, the hoses could readily drain onto the ground.

In the event of the malfunction of the spray unit, in circumstances where the containers were full or partly full of dangerous chemicals, as occurred on 12 February 2001, the fixing of the Spray unit could reasonably be anticipated to require the draining out of the chemicals from the plastic containers and hoses on the Spray Unit.

There was no washdown bay on the golf course, namely a bay for the maintenance and cleaning of plant and equipment with provision of drainage to the sewer or provision of drainage to the contained sump.

The Defendant’s greenkeeping and gardening staff, including the motor mechanic Mr Edwards (‘the greenkeeping and gardening staff”), were not provided with any spill prevention and containment equipment.

Conditions relating to the use of the greenkeepers’ compound by the Defendant’s employees

The Defendant’s greenkeeping and gardening staff adopted a practice of washing down machinery on the Concrete Slab using the hose attached to the tap at the northern wall of the workshop.

The Defendant’s greenkeeping and gardening staff adopted a practice of cleaning the Concrete Slab about once per week by hosing it down using the hose attached to the tap at the northern wall of the workshop.

The Defendant’s motor mechanic from time to time repaired plant and equipment, including the Spray Unit, in the area of the Concrete Slab.

The Defendant’s greenkeeping and gardening staff, from time to time, used the tap at the northern wall of the workshop to fill the containers of the Spray Unit while the Spray Unit was parked on the Concrete Slab.

The Defendant’s greenkeeping and gardening staff, particularly Mr Coggins, adopted the practice of pouring dangerous chemicals, including the Substance, into the containers of the Spray Unit while it was parked on or near the Concrete Slab.

Conditions with respect to training and instructions


The Defendant’s greenkeeping and gardening staff were not given any, or any sufficient, instructions that chemicals, including the Substance, were not to be handled in the vicinity of the Concrete Slab and/or the Stormwater Grate.

The Defendant’s greenkeeping and gardening staff were not given any, or any sufficient, instructions in relation to the handling of dangerous chemicals, including the Substance.

The Defendant’s greenkeeping and gardening staff were not given any, or any sufficient, instructions in relation to chemical spill management procedures.

The Defendant did not have any, or any appropriate, environmental plan or environmental management system or plan in relation to the use of chemicals and/or plant and/or equipment.

The Defendant’s greenkeeping and gardening staff were not given any spill prevention and containment plans.

The physical conditions of the greenkeeper’s compound, together with the conditions relating to the use of that area by the Defendant’s greenkeeping and gardening staff as previously described in these particulars were such that, if instructions were given to the Defendant’s greenkeeping and gardening staff in relation to the matters referred to…above but were inadvertently, negligently or deliberately ignored, then chemicals, including the Substance, might escape or be otherwise discharged into Brookvale Creek.

11 The following facts were agreed pursuant to a Statement of Agreed Facts dated 8 July 2002:-

The Defendant, Warringah Golf Club Ltd ACN 000 085 601 (“WGC”) is a company incorporated in Australia. It has offices at 397 Condamine Road, North Manly in New South Wales.

Warringah Council is, and was at all material times, the owner of the land upon which the Warringah Golf Course is located at North Manly (“the Golf Course Land”). The land is Volume 13394, Folio 147, part being 1/829456 and 7/829456.

WGC is the occupier of the Golf Course Land and has been since 1 July 1994, pursuant to registered lease U441145. There is a workshop area on the Golf Course Land located to the south of Kentwell Road and to the west of Brookvale Creek (“the Workshop Area”) …

WGC operates a public golf course on the Golf Course Land and has done so since 1936. A first lease dated 1 March 1957 was expressed to be for a period of twenty (20) years. A subsequent lease dated 25 June 1974 provided for a further twenty (20) year lease to commence 1 January 1975. The lease referred to in paragraph 3 expires on 30 June 2014.

At no time has WGC held an environment protection licence issued by the Environmental Protection Authority under the Protection of the Environment Operations Act 1997.

WGC has employed the following people in the operation of the public golf course:

Name Positions occupied Period of employment

Brian Chalmers General Manager approx 10 yrs to 1/12/2000

David Airey General Manager approx 1½ yrs to present

Craig Coggins Course Superintendent approx 12 yrs to 17/7/01

David Salter 2nd in charge approx 34 yrs to present

Brett Maurice 3rd in charge approx 12 yrs to present

Benjamin Hansen apprentice (1st yr) approx 4 yrs to present
greenkeeper

Teilhard Cullen groundsperson approx 4½ yrs to 11/1/02

Toni Nolan gardener approx 1½ yrs to 5/10/01

John Edwards mechanic approx 1½ yrs to 5/10/01

Ian Birrell groundsperson 2 yrs to present

John Hudson groundsperson 36 yrs to present

Michael Fraser groundsperson 2 yrs to present

Andrew Hiscocks groundsperson 2¼ yrs to present

12 Each one of the above persons has presented evidence by affidavit or statement and all but Michael Fraser, Andrew Hiscocks and David Airey were presented for cross-examination.

13 The prosecutor submits that on the basis of the facts proved it is clear beyond argument that had the spill been contained on-site on 12 February 2001 no environmental harm would have occurred or would have been likely to occur. Further, each of the conditions referred to above relevantly gave rise to the commission of the primary offence. Moreover, provided the prosecution proves that Mr Coggins committed an offence against s 116(1) of the PEO Act, how or why he did it has little bearing on the liability of the club except to expose that there were steps the club failed to take which would have prevented or limited the substance escaping the site (Environment Protection Authority v Ampol Ltd (1994) 82 LGERA 247 and Ampol Ltd v Environment Protection Authority [1995] NSWCCA, unreported). In Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Mahoney JA, with whom Badgery-Parker and Finlay JJ agreed, pointed out that the offence charged pursuant to s 116(2) goes to the “conditions which give rise to” the offence by the person referred to in s 116(1) (in this case, Mr Coggins) not to the offence by Mr Coggins as such (at p 440). It is not a case, therefore, of whether the club negligently contributed to the offence alleged against Mr Coggins or any element of it. Rather, did it negligently in a material respect contribute to the conditions which gave rise to the commission of the offence of Mr Coggins?

14 The defendant concedes that on 12 February 2001 Mr Coggins committed an offence against s 116(1) of the PEO Act but with two qualifications.

15 Firstly, the defendant says, that Mr Coggins wilfully caused a substance, namely Gusathion solution, to escape in a manner that harmed or was likely to harm the environment. The defendant submits in this respect that the evidence as to the wilfulness of Mr Coggins in committing the offence pursuant to s 116(1) is pertinent in determining what conditions gave rise to the commission of that offence. The defendant does not accept that its contribution falls so short of the standard of care required of an objectively reasonable person in the position in which it found itself that it was negligent to a criminal degree.

16 Secondly, as to environmental harm, the defendant claims that the prosecutor has failed to prove that Mr Coggins’ offence caused all the harm originally contended for. Having regard to the whole of the evidence, either taken singularly or cumulatively, it is submitted by the defendant that the Court is not left in a position where it could conclude with confidence beyond reasonable doubt that approximately 10,000 fish died as a consequence of ingesting azinphos-ethyl, which escaped from the defendant’s premises.

The Greenkeepers Compound and Spray Unit

17 A number of employees, witnesses and EPA officers have given consistent evidence describing the greenkeepers compound and plant and equipment used by the staff of the club for the maintenance of the golf course.

18 Access to the compound was, at the date of the alleged offence, by means of a dirt track leading off the southern side of Kentwell Road running along the western boundary of the compound adjacent to a wire mesh fence. The entrance to the compound itself is through a double gate in the wire mesh fence.

19 The improvements in the compound comprise a brick office and equipment storage building at the southern end, a partially covered concrete slab in the centre of the compound and a metal and fibre glass garage, chemical storage area and a brick fuel storage building in the north adjacent to the boundary with Kentwell Road. The boundary of the maintenance area on the east side is designated by a wire mesh fence along the top of the bank of Brookvale Creek.

20 The area between the east boundary of the compound and the concrete slab in the centre of the site was largely bare earth on 12 February 2001. Two grated drainage pits were located in the east side of the compound area inside the fence. The pits were each joined to an outlet pipe 450mm in diameter. They are described by one witness as standard pre-cast pits to suit 450mm diameter pipes with approximate service dimensions of 900mm x 900mm. The outlet pipes discharged through a concrete head wall immediately adjacent to Brookvale Creek.

21 Prior to the carrying out of rehabilitation works along the bank of the creek, under the direction of the council during which the grated pits were installed, there was a mound of earth outside the fence between the compound and the creek. The mound was described by the course motor mechanic, John Cunliffe Edwards, as being about 10 foot wide and four foot high.

22 There is evidence that the central concrete slab had been regularly used to wash down greens mowers, rough machines, a bunker raker, definer mowers, the spray unit, front-end loader buckets, punctured tyres, hand tools, irrigation equipment, sprinklers, vehicles and fairway mowers. When this occurred liquid was observed to pool on the concrete slab and then flow in an easterly direction towards the northern grated pit. Sediment that built up off the slab to the east would occasionally be removed by a member of the staff and deposited on the golf course.

23 Mr Edwards and Toni Ann Nolan said that they had observed liquid enter the grated pits from the washing down of machinery. Other witnesses could recall the practice of washing down on the slab on a regular basis but could not recall whether any liquid had reached the pits. There is evidence that, on occasions, chemicals to be used as pesticides or herbicides were mixed on the concrete slab in the compound either by, or under the direction of, Mr Coggins. There is no evidence that any chemicals entered the stormwater pits prior to 12 February 2001.

24 Following the events of 12 February 2001, a direction was issued by Mr Coggins that there be no further wash downs on the concrete slab. A hand painted sign to that effect appeared on the wall of the shed.

25 Only two employees, namely Mr Coggins and David Salter held keys to the chemical storage shed.

26 The staff formerly used a Kubota tractor, with a detachable spray unit attached, to carry out chemical spraying on the golf course. The detachable spray unit had folding booms with tanks on each side. During 2000 the Kubota tractor was traded in and the club purchased a John Deere tractor with a Hardy boom spray unit on the back. The new spray unit has two folding booms and a hand held hose reel which is fixed at the rear. There are four yellow plastic tanks attached to the spray unit. There are two 200-litre yellow plastic cylinder tanks on either side of the spray unit that are used to hold the chemical to be applied. A small vertical yellow plastic tank on the right hand side is used to store fresh water and a larger vertical yellow plastic tank on the left hand side is used to store line-marking foam to facilitate the marking of areas that have been sprayed. The 200-litre tanks can be loaded with concentrated chemical mixed with water. They each have screw plugs at the base to facilitate draining after use.

9 February 2001

27 A pest known as the Argentina Stem Weevil (“the weevil”) was located on the fifth green of the golf course on 9 February 2001.

28 On that same day Brett Daniel Maurice instructed Ms Nolan to spray some herbicide on weeds on the second green. After she had finished she says she received a telephone request from Mr Coggins to fill up the tanks on the spray machine with about twenty litres of water as he wanted her to spray the fifth green with insecticide. The tanks already had 50 litres of water in them. Ms Nolan observed Mr Coggins walk over to the chemical shed and pick up a container and pour liquid from the container into both of the tanks on the side of the spray unit. The water turned a milky white colour. Mr Coggins placed the container on a table next to the concrete slab within the workshop compound. She observed that it was a five litre metal container. It was quite rusty and had a faded label on it. She read the word “Gusathion” on the label as well as the words “Bayer” and “five litres”. Mr Coggins indicated an area towards the fifth green that required spraying. Ms Nolan drove from the workshop compound to the fifth green where she lowered the booms using the controls on the front of the spray unit. After waiting for Mr Hiscocks to finish working on the green, and for golfers to move away from the area, she flicked the switch on the spray unit to start spraying. Nothing came out of the nozzles on the booms. She called over Mr Coggins, Mr Maurice and Mr Hiscocks who were nearby. A discussion took place. It was observed that a black pump appeared to be sucking instead of pumping. After pressure was relieved from the bladder manually the spray started coming out of the nozzles but it failed again and the spray stopped. She drove the spray unit back to the workshop, put the booms up and parked it in the lockable machine shed located next to the locked chemical store.

12 February 2001

29 Ms Nolan did not work on 12 February 2001.

30 On 12 February 2001 Benjamin Hansen was instructed by Mr Coggins to commence spraying. He changed into protective gear. He understood that Mr Coggins had prepared the spray unit for use and that the chemical insecticide was already mixed and ready. He checked the unit and observed that the storage tanks on the side were about three quarters full, that is, they contained around 300 litres of liquid. He started spraying the seventh green and noticed that one of the nozzles was loose. He returned to the workshop area where Mr Edwards and Mr Maurice helped him fix the problem. He then sprayed another eight greens. A further problem developed while spraying the practice putting green so he returned to the compound area. Mr Edwards, with Mr Maurice’s assistance, worked on and fixed the machine. Mr Hanson then sprayed three more greens. At the sixteenth green the unit failed to work completely. He then returned to the workshop compound area and advised Mr Coggins what had happened. After morning tea the spray unit was driven onto the concrete slab. Mr Hansen, assisted by Mr Edwards and Mr Coggins, removed all the nozzles and put them into a container to clean them. The pump was working but there was no pressure at the nozzles. Mr Edwards made telephone calls to the manufacturer and checked and cleaned the filter.

31 While Mr Edwards was manually operating the pump, thereby overriding the spray unit controls, some liquid from the booms spilled onto his shorts, legs, socks and shoes. He says about 5 to 10 litres of yellowy, creamy coloured liquid spilled onto the concrete slab at this time. Mr Edwards was aware that the 200-litre liquid storage tanks fitted to the side of the spray unit were about half to three quarters full of liquid and that if the hose was disconnected any liquid remaining in the pipe system and the tanks would flow out onto the ground. He says that he said words to the following effect to Mr Coggins:-

We need some sort of a container or drum so it doesn’t go on the ground.

32 Mr Coggins did not respond. Mr Edwards made some attempt to find a container without success.

33 Subsequently, Mr Hansen says that a conversation to the following effect took place:-

Hansen: We will have to disconnect one of the main lines and drain it and then see if it is pumping from there on.
Coggins: Disconnect that pipe there
(and he pointed to one of the flexible hoses on the spray unit).

34 Mr Hansen initially ignored Mr Coggins’ request to disconnect the pipe because, in his opinion, the storage tanks on the spray unit were about half full and as they contained about 150 to 200 litres of insecticide they would discharge onto the ground. Mr Hansen ignored a second request from Mr Coggins to “undo that clip” but after a third request to the effect of “oh, just release that” he complied with the direction and unclipped and removed the spring-loaded hose fitting from the spray unit. As Mr Hansen held the hose a creamy coloured liquid flowed out. He pointed the hose away from himself. The liquid flowed out of the hose and spilled out onto the concrete directly under the spray unit and spread out over an area that Mr Hansen described as about 2 x 3 metres. In his affidavit evidence he estimated that around 50 to 100 litres spilt from the hose in less than two minutes.

35 About a minute or two later Mr Hansen says that Mr Coggins used a hose to wash the liquid that had spilled towards the north edge of the concrete slab. The liquid then flowed off the concrete slab and onto the dirt area next to the slab. Although Mr Hansen saw the liquid flow towards one of the grated pits he did not see any liquid enter a pit.

36 Mr Edwards confirmed from his own observation that Mr Coggins hosed the liquid from under and around the spray unit off the concrete towards the northeastern stormwater pit.

37 Teilhard Cullen also gave evidence of his observation of Mr Hansen holding the end of the hose in his hand as a milky white liquid came out of the hose. He saw a large pool of white liquid spreading out over the concrete slab running away from the spray unit. He also saw that Mr Coggins was using a garden hose connected to the tap on the northern wall of the greenkeepers shed to hose the white liquid off the concrete slab towards the northern edge. Mr Cullen described the actions of Mr Coggins as using a fast jet spray on the hose to push the white liquid away from the area underneath the spray unit and around the side of the concrete slab. He says the force of the hose was pushing it around the concrete slab. He did not actually see the white liquid go into the northern most grated stormwater pit, although he says the liquid travelled towards it.

38 Several witnesses confirm that the hose was left running on the concrete slab after Mr Coggins hosed down the slab, possibly for several hours.

39 Immediately prior to having his lunch Mr Hansen walked out of the meal room in the greenkeepers shed and joined Mr Coggins who was standing on the top creek bank next to Brookvale Creek. Mr Coggins was looking in the general direction of Brookvale Creek. Mr Hansen observed a milky coloured plume in the creek about two metres wide and three metres long near the drain outlet that was the furthest north of the two. As he watched, the plume gradually grew larger. After lunch Mr Hansen observed that one end of the hose was in the pit closest to the northern end of the slab and that water was flowing from the hose.

40 Mr Coggins told the Court that the quantity of material that was spilt from the spray unit was about 20 or 30 litres and that it spilt for about 20 seconds. Mr Coggins denied that the liquid would have reached as far as the stormwater pits or that the hose was left on for a period of at least two hours. The other witnesses are more credible than Mr Coggins in this respect and their evidence is accepted in preference to his evidence.

41 In answer to a question by Mr Rushton SC, Mr Coggins described his actions after the liquid had spilled onto the concrete slab as follows:-

A. After it spilled I really wanted to get it away from where we were working and any other stuff coming into the meal room, so I got the hose from the corner there of the actual workshop and hosed it off the concrete in there, north, north-west direction.

42 Mr Coggins made an attempt to shift some blame onto Mr Hansen by describing his actions as follows:-

A. I instructed Ben Hansen to take the hose off to see if the actual hose to the pump was blocked, which has happened before. He took the hose off but he didn’t hold it about the level of the water in the tanks. He dropped it below that level.

Q. And what happened?
A. Well it spilled on the concrete.

Q. Were you able to observe for what period of time there was a spill?
A. Twenty seconds.

Q And were you able to observe roughly what quantity of material was spilled from the unit?
A. Roughly about the same in litres, 20 or 30 litres.

Q. Was any corrective action taken to stop the material spilling out of the tanks?
A. Well apart from lifting the hose back up. Ben lifted that, I got him to lift the hose back up and [he] connected it.

Q. What did he connect it to?
A. Part of the pump.

13 February 2001

43 After observing dead fish south of Kentwell Road weir on 13 February 2001 Ms Nolan inspected the Collex Bin at the entrance of the workshop compound and observed two five-litre containers lying in the front right hand corner of the bin at the bottom. She read the words “Gusathion”, “bayer” and “five litre” on one label. She could not read the words on the other, but as far as she could tell it appeared to have the same label. Both tins were rusty on the rim on the top and bottom. She recognised the containers as looking the same as the container she had seen Mr Coggins get out of the chemical store and pour liquid into the spray unit from on 9 February 2001. She observed Mr Coggins drive into the compound, walk through the workshop building, walk down to the banks of Brookvale Creek and then walk back through the workshop and onto the concrete slab carrying a stick. He walked over to the Collex Bin and pulled out one of the containers using the stick. She later observed Mr Coggins entering the chemical shed carrying two five-litre containers.

44 Ian Gregory Birrell, who is employed by the club as a groundsman and machinery operator, also observed Mr Coggins remove the tins from the Collex Bin. He says he saw Mr Coggins place the containers in the boot of his car.

Mr Coggins’ actions

45 For the purposes of these proceedings it is necessary to determine whether or not Mr Coggins committed an offence under s 116(1) of the PEO Act. His plea of guilty before Cowdroy J carries with it an admission of the essential legal ingredients of the offence admitted by the plea (R v O’Neill (1979) 2 NSWLR 582 at 588). However, what is clear beyond reasonable doubt, from the evidence presented in these proceedings, is that the hosing down of the slab by Mr Coggins, after the spill occurred, constituted a wilful or, at the very least, negligent act causing the poisonous substance to escape from the club’s land into Brookvale Creek. The placing of the hose in the grated pit itself is not explained but by that time the hosing of the slab had had the effect of transmitting liquid to the pit from the slab.

46 In cross-examination Mr Hansen gave evidence that subsequent to 12 February 2001 he participated in a simulated replication of the events on that day. As a consequence he is able to estimate that about 80 litres of liquid escaped from the spray unit onto the concrete slab on 12 February 2001. As Mr Hansen said, the initial spread was only approximately 2 x 3 metres. Taking into account the nature of the substance, Gusathion, and the proximity of drainage pits with outlets leading to Brookvale Creek, if Mr Coggins’ act of hosing down the area was not wilful, it was certainly negligent.

Dr Stephen Webb

47 Under instruction from the EPA, Dr Stephen Webb has prepared a hydraulic assessment of the maintenance area as it was in March 2002.

48 He identified the components of the drainage system as including two pits adjacent to the concrete slab, the outlet pipes and the headwalls at the toe-of-bank with Brookvale Creek. He says the pervious areas between the boundary fence and the concrete slab would contain and convey flows in large events or flows that failed to enter the pits. Surface run-off from the unpaved access road and concrete slab would flow towards the creek and, in his opinion, may pond in the unpaved area between the eastern boundary fence and the concrete slab. In his view, the layout of the system shows there was no consideration for the nearby water body or the need for a buffer zone between the water body and an area which remains clear of pesticide application. The non-bunded concrete slab allowed liquid to flow from it towards the land between the concrete slab and Brookvale Creek.

49 In his opinion, the facility at the golf club should reasonably be expected to have a bund or at least some provision to allow spills to be contained or treated prior to reaching the adjoining creek. He states that the concrete slab within the maintenance area could reasonably be assumed to be a storage and handling area because of its central location and its proximity to all facilities. Accordingly, in his view, AS2507-1998, for the storage and handling of agricultural and veterinary chemicals, applies. He says that safe management practices are clearly required for this site in order to prevent contamination of Brookvale Creek and to prevent unwanted human health problems.

50 Dr Webb provided the following list of the main issues of concern regarding the layout of the system and the site procedures as he understood them:-

I The proximity of the oversized pits to the concrete slab.

II The oversized stormwater pits for the small local catchment.

III The proximity of the concrete slab to the waterway.

IV The lack of appropriate facilities for the collection of contaminated water.

V The lack of a pre-wash area.

VI Lack of significant vegetation between the maintenance area and the nearby environment.

VII The apparent lack of training and awareness when using pesticides.

VIII The proximity of the maintenance area to Brookvale Creek.

IX The limited access for emergencies.

51 A number of documents were produced to Dr Webb including “Australian Rainfall and Runoff: A Guide to Flood Estimation”, Volume 1, 1987 (revised edition) and “Managing Urban Stormwater”, 3rd edition, August 1998. If Dr Webb had been responsible for designing stormwater drainage in the area with the intention to improve the water quality in Brookvale Creek, he would have decided there was no need to have any pits or pipes of any type. In his opinion the works installed could not have any function other than to accommodate stormwater run-off and, in his opinion, would not even do that job very well because there had been no attempt to channelise the water to them or concentrate the water flow towards them. When asked whether a civil engineer may have fallen short of the standard that Dr Webb would expect from an ordinary qualified civil engineer responsible for the carrying out of the works he replied as follows:-

A. Yes and no. What we have here is something that’s unnecessary, like we’re normally concerned in engineering where you put something that is inadequate or too small rather than something that’s too large. On the face of it, installing large pits like this are not going to do any harm. They’re unnecessary and they mightn’t do any good but they’re not going to do any harm. It’s only when you consider the potential for pollution or other things like that that they’re in a position to cause harm.

52 While Dr Webb made reference to the Australian Standard, referred to above, in his report, it became clear in cross-examination that he made no inquiry as to the type of materials stored in the maintenance area.

53 Dr Webb was not a witness to the actual events that occurred on 12 February 2001. His opinions are expressed relying upon information provided to him by officers employed by the prosecutor. For example, he elected to describe the concrete slab area as a wash down area without direct knowledge that it was a designated wash down area. His efforts were concentrated on the maintenance area and the concrete slab area although he inspected the surrounding land in a general way. Nonetheless his evidence provides an expert’s view of causation and foreseeability.

54 Dr Webb concludes that the pesticide and water liquid entered Brookvale Creek and contaminated Manly Lagoon as a consequence of the failure to follow normal practice procedures.

55 Finally, Dr Webb says the event was foreseeable and would have inevitably happened at some point in time in the absence of remedial measures. The Court accepts his expert opinion in this respect.

Sean Hardiman

56 Sean Hardiman is a Senior Regional Operations Officer employed by the prosecutor. Mr Hardiman visited the club on 17 February 2001.

57 He observed sandbags surrounding the metal grate cover over the northern and southern pits.

58 He records a conversation between Mark Callaghan, an employee of the EPA, and Mr Coggins on 20 February 2001. During that interview Mr Coggins identified the chemical used as chlorphrifos. Mr Coggins explained it was an old can sitting on top of the other chlorphrifos cans so he assumed it was chlorphrifos. He stated that the can did not have a label on it. He assumed he used about 200ml, although he says he might have put a little extra in. Mr Coggins further explained to Mr Hardiman that a little bit of liquid spilt at the time and he just hosed it over the edge pointing to the northern edge of the concrete slab.

59 Mr Hardiman inspected the seventh, eighth and ninth green while Mr Coggins took core samples of grass and soil. Mr Hardiman observed a shallow earthen drain that sloped to the east towards the northern pit along the edge of the concrete slab in the compound. He collected a sample of soil in the earthen drain.

60 After the samples revealed high levels of the pesticide, azinphos-ethyl (known as Gusathion), Mr Hardiman reported this back to Mr Coggins and issued a Clean Up Notice in accordance with Part 4.3 of the PEO Act. The notice required drains to be blocked off, sediment and water to be removed from pits and drains and all soil to be removed from the edge of the concrete slab.

61 In the company of Ms Hawyes, a fellow EPA officer, Mr Hardiman visited North Manly Bowling Club and inspected the pesticide storage cabinet. No Gusathion or azinphos-ethyl pesticide was observed.

62 Ms Hawyes and Mr Hardiman also visited Manly Golf Club. They inspected a wire-caged bunded chemical storage shed and a pit area partly filled with water where a boom sprayer and other equipment are washed down after use.

63 Two five-litre containers of Gusathion were collected from the greenkeeper’s shed at Balgowlah Golf Club. An inspection of the chemical storage shed at Wakehurst Golf Club did not reveal the presence of any Gusathion or other azinphos-ethyl product.

64 Mr Hardiman collected numerous samples of soil sediment and water at various locations.

65 Initially, Mr Coggins attempted to mislead the EPA officers investigating the cause of the fish kill after 12 February 2001. Mr Hardiman deposes the following conversation on 20 February 2001 between Mr Callaghan and Mr Coggins:-

Coggins: We found an infestation of argentine stem weevil on the fifth green last Friday and had to spray with pesticide

Callaghan: What sort of pesticide did you use?

Coggins: Chlorphrifos.
…

Coggins: It was bad timing to find the weevil on Friday afternoon. It can take over a green in a couple of days. I set up the boom sprayer with pesticide but it broke down. Toni used the 5 L hand sprayer and did the approach to the green where we found the weevil.

Hardiman: Who found the weevil?

Coggins: Dave and me. So on Friday we watered it in. On the next Monday we fixed the boon sprayer and it went back out. We did a few greens before the it went again.

Hardiman: What did you do?

Coggins: We brought it back to fix and we drained it out.

Hardiman: Where?

Coggins: On the 8th tee into some 20 L drums, probably only 10 litres.

Hardiman: How much?

Coggins: Not a huge amount, about 10 litres.

Hardiman: What did you do with the boom sprayer?

Coggins: We backed it into here [pointing to the locked shed next to the chemical store]. While we worked on the Monday, some of the liquid spilt on the slab over there [pointing to a covered concrete slab near the workshop] and we hosed it off.

Hardiman: So which chemical did you use again?

Coggins: It was chlorphrifos. It was an old can. I didn’t have my glasses on but it was sitting on top of the other chlorphrifos cans so I assumed it was chlorphrifos. It didn’t have a label on it but as I said I didn’t have my glasses on.

Hardiman: How much did you use?

Coggins: About 200 mL. I assumed it was about 200 mL, I might have put a little extra in.

66 Subsequently, on 23 February 2001 Mr Hardiman says he had the following conversation with Mr Coggins at the compound:-

Hardiman: How are you today Craig, remember you told me that on the Monday the 13th February, you drained the pesticide from the boom sprayer on the 8th tee into some drums? I’d like to see the drums please.

Coggins: Come here.

67 They then walked to the southern end of the compound area where the conversation continued as follows:-

Coggins: It didn’t happen.

Hardiman: Pardon.

Coggins: It didn’t happen. I drained it here. There were no drums.

68 Mr Coggins then pointed to an area of ground approximately eight metres south of the southern gate of the compound and the conversation continued as follows:-

Hardiman: So what you told me last week when you were pointing to the 8th tee showing me where you emptied the pesticides into the drums wasn’t true?

Coggins: It didn’t happen, it’s here.

Hardiman: When did you drain it?

Coggins: On Monday when we were fixing the sprayer.

The credibility of Mr Coggins’ evidence

69 Evidence by Mr Coggins does not stand up to close scrutiny. His initial contention is that he thought he was using Chlorphrifos rather than Gusathion and that he made a mistake because the tin was rusty. Other witnesses, including Ms Nolan, had no difficulty in discerning words of identification on relevant tins. Mr Coggins’ subsequent actions, designed, in the Court’s view, to hide the tins from investigators, confirm his lack of honesty. In cross-examination Mr Coggins conceded that elements of the reports of the incident on 12 February 2001, including the extent and location of the spill, that he gave to Mr Ingham, who is employed by Warringah Council, Mr Hardiman and the club manager, Mr Airey, were untrue.

The Conditions

70 Section 116(2) of the PEO Act operates to assign a duty to an occupier of land whereby they shall take reasonable steps to ensure that the condition of the land will prevent or control a foreseeable risk of actual harm or likely harm to the environment. The word “likely” is to be treated as synonymous with the word “probable” (Boughey v The Queen (1986) 161 CLR 10).

71 The primary offence was caused by either the wilful or negligent act of Mr Coggins in hosing the poisonous substance off the concrete slab under conditions where there were no adequate measures in place to prevent a discharge to the creek. The evidence before the Court in this case reveals that Mr Coggins deliberately dispersed the spilled liquid in a manner which harmed or was likely to harm the environment.

72 The conditions that gave rise to the commission of the offence by Mr Coggins insofar as they relate to the run-off from the concrete slab into the stormwater pits, which have an outlet to Brookvale Creek, are the state of the greenkeepers compound and associated buildings, including, in particular, a workshop, chemical store and concrete slab where substances, including poisonous chemicals, were stored, handled and mixed from time to time. Furthermore, the concrete slab was frequently used for the wash down of vehicles and equipment used in connection with the maintenance of the golf course, including the application of insecticides, fertilisers and herbicides. The concrete slab was used from time to time as a place to repair plant and equipment, including in particular, the spray unit for the application of chemicals. A tap was located at the northern wall of the workshop to facilitate, inter alia, the use of water for the purpose of washing down machinery and for the mixing of chemicals to be used in the spray unit. There was no bunding or other protective devices around the concrete slab or the stormwater pits. There were materials such as soil, sand and proprietary fuel absorbent products available in or adjacent to the compound but there was no specific provision of absorbent materials or clean up utensils designed to contain liquids, including chemicals, on the site to prevent them from entering into the stormwater system or Brookvale Creek in the event of either a deliberate act or an accident causing a spill.

73 There is evidence that the club paid for courses undertaken by a number of employees on the greenkeeping staff and that the staff were allowed time off work to attend the courses. Part of the education obtained by the employees in this way included instruction on the safe handling and disposal of poisonous substances. The club also subscribed to various professional magazines and manuals that were made available to Mr Coggins. Mr Coggins, along with others, also attended work-related conferences organised by affiliated professional bodies.

74 However, Brian Chalmers, who was General Manager of the club from November 1994 to December 2000, told the Court there were no written policies or guidelines for the handling of chemicals. It was expected that the course superintendent had the necessary knowledge and experience in that area.

75 In October 1997 a document was prepared on behalf of the club entitled Environmental Policy Version 1. The draft document refers to a policy of only using chemicals on fairways and greens and applications to be carried out to industry standards. The following statement appears:-

At no time do staff apply chemicals to areas close to waterways.

76 The effect of Mr Chalmers evidence regarding implementation of the draft environmental policy is that, other than in a very limited extent, it was not acted upon.

77 In March 1999 EnviroLink Design Pty Ltd provided a Master Plan Report for the club.

78 A key feature of the master plan proposal included as follows:-

The maintenance facility should be fitted out when appropriate with recognised environmental protection features to comply with existing and anticipated legislation.

79 Mr Chalmers told the Court that he could not recall any environmental protection features being fitted to the maintenance facility during the time he was General Manager.

80 The President of the club, Ronald Charles Newell, gave evidence that the fitting of environmental protection features to the maintenance facility was not of particular concern to the Board of Directors of the club (“the Board”) at that time as its focus was “on other matters”. Furthermore, Mr Newell explained that, in his opinion, the Board has no responsibility in relation to ensuring that toxic substances do not leave the golf course site. He said that if there is a problem it is one for management and it is then brought to the attention of the Board. He had assumed there was no problem. The present General Manager, Mr Airey, also gave evidence that he was unaware of any guidelines or procedures in relation to the handling and storing of chemicals and that there were no design features to prevent entry of contaminants into stormwater pits.

81 The Court has heard evidence from employees of other clubs in the locality. Each of those clubs have taken steps to control run-off from work areas used for similar purposes to the greenkeepers compound at the club.

82 Michael Scott Bradbery, the Course Superintendent at Manly Golf Club, gave the following evidence:-

In order to meet the stricter environmental standards that we have set ourselves at Manly Golf Course and in accordance with the general discussions and negotiations with Manly Council, we have completed construction of two large bunded and covered areas. One is used for fuelling and chemical mixing and the other for the washing down of machinery and equipment. This ensures that all operations that involve the use of potential water pollutants will be undertaken within strictly controlled areas. Construction started for these new areas in December 2000 and finished approximately May 2001. Those areas do not discharge to any creeks or stormwater systems.

83 Robert Victor Batho, the Course Superintendent at Wakehurst Golf Club, made the following statements in an affidavit:-

The chemicals are added to the cart tanks in an area adjacent to the main greenkeeping shed. This area is not bunded. The area has a dirt floor, and carbon is kept in the fertiliser shed, adjacent to the area to soak up any spillages. The nearest stormwater drain is located approximately 10 metres from this area. Any liquid spilt in this area drains to a sump from that stormwater drain. The liquid can be collected from the drains leading from this sump at a number of places, including at the next sump, before it discharges into a dam on the golf course.
…
Once finished the cart is returned to the wash bay area and is cleaned. The wash bay area is located in the greenkeepers compound near the greenkeepers shed. This area is fully bunded, and the water goes into a filtration system called a separator. Wastes that have been separated are discharged to the sewer from the separator under an agreement with Sydney Water.

84 Although at the date of the alleged offence Balgowlah Golf Club did not have a wash down bay, the Course superintendent, John Stephen Gard, disclosed in cross-examination that one had been installed in February 2002. Prior to that date all washing down after spraying was carried out “over the other side of the ninth green”. If the containers need to be washed out after spraying by the employees, he says that the solution is diluted and sprayed on the fairway.

85 The defendants argument is that all its employees, including Mr Coggins, were well aware as a matter of common sense that it was not a proper thing to do to release an insecticide onto the concrete slab. Each of the employees of the club who gave evidence were well aware of the instructions to deal with surplus chemicals and the washing out of containers such as those fixed to the spray unit at places on the golf course where there was no prospect of the chemical entering the creek.

86 Nonetheless, a spill did occur on the concrete slab. Employees of the club have given evidence in cross-examination as to how they would have dealt with the situation. Mr Hansen said he would have contained the spill by soaking it up with sand and soil. Mr Maurice would have soaked up the spill using a chemical soaker or in an emergency some dirt. Mr Cullen would have initially placed sand on the spill. None of them considered that hosing the chemical spill off the concrete slab was an appropriate method of cleaning up. Although Mr Edwards did not appear to act in this way himself when the initial spill took place on 12 February 2001, he nevertheless told the Court that he considered the most sensible thing to do was to contain the spill using sand.

87 The proximity of the tap located at the northern wall of the workshop provided an opportunity for a hose to be used and indeed it was used on a regular basis for washing down machinery and hosing off the slab, at least once a week. Not only was there no bunding around the concrete slab, there were no formal provisions for drainage of material that washed off the slab. At best, there was an informal arrangement whereby from time to time the material which collected or accumulated along the eastern parameter of the slab was removed by machinery and placed elsewhere on the golf course.

88 It is the prosecutor’s contention that the physical conditions of the greenkeepers compound, together with the conditions relating to the use of that area by the greenkeeping and gardening staff were such that if such instructions and advice as were given in relation to the safe handling of chemicals or the dictates of common sense in that regard were inadvertently, negligently or deliberately ignored then chemicals, including, as in the present case, Gusathion, might escape or be otherwise discharged into Brookvale Creek. Further, the prosecutor submits that it is clear, beyond argument, that had the spill been contained on the site no environmental harm would have occurred or have been likely to occur. Therefore, the cumulative effect of the physical conditions and the conditions of use relevantly gave rise to the commission of the primary offence by Mr Coggins. Thus, the prosecutor contends, the defendant breached its duty to take reasonable steps to avoid or minimise harm to the environment. Applying an objective test it was reasonable and foreseeable that environmental harm might occur as a consequence of that failure. The Court agrees with this submission.

89 For the purpose of attributing liability pursuant to s 116(2) the Court is satisfied that the club, by its negligent act of omitting to take the requisite degree of reasonable care that could be expected of it as the occupier of the land to guard against the foreseeable escape of polluting material from its premises, contributed to the physical conditions of the site that gave rise to the commission of the primary offence.

Criminal Negligence

90 Both parties adopt the principles enunciated by the Court of Criminal Appeal in Ampol Limited v EPA; New South Wales Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 75 LGERA 320 and EPA v Ampol Limited. Criminal negligence is negligence of “the criminal type” or negligence to the criminal degree that warrants criminal punishment. The degree of negligence is assessed in the context of the circumstances of the instant case and the seriousness of the principle offence and determined by reference to the likely harm or actual harm to the environment. The primary offence and the offence for which the club is charged are tier one offences and are regarded by the legislature as being in the most serious category.

91 The degree of reasonable care for the purpose of determining whether there has been criminal negligence is to be assessed objectively. Dr Webb has undertaken this task. The evidence of the measures taken at other golf clubs in the locality, carrying on similar operations as the defendant, corroborates Dr Webb’s view that effectively the condition of the greenkeepers compound made it the site of an accident waiting to happen and should have been recognised as such. The Court agrees with this assessment.

92 The Court finds beyond reasonable doubt that the club itself breached its duty to take reasonable steps to avoid or minimise harm to the environment. It negligently, and in a material respect, contributed to the conditions that gave rise to the commission of the offence by Mr Coggins. This is because it failed to implement fundamental safeguards and procedures to protect the environment from harm in the event of an accident or the careless or negligent performance of duties by the defendant’s employees in the area of the greenkeepers compound. In particular, as chemicals were handled and mixed in and about the area of the compound generally but particularly on the concrete slab and further that machinery used in the application of chemicals were serviced or repaired in that area, it was reasonably foreseeable that there was a realistic prospect of the escape of a dangerous substance into the nearby Brookvale Creek either directly or through the stormwater pits. It was equally foreseeable that in the normal course of operations the regular hosing down of the concrete slab could result in substances previously spilt being washed into the waterway. It may not have been essential to install a specific wash down bay in order to satisfy the duty to protect the environment but it was clearly negligent to a criminal degree to allow conditions to exist in an area where little or no precautions had been taken to prevent escape of dangerous substances. The placing of the hose through the grate in the stormwater pit, by whoever did it, only compounded the primary offence which had already occurred. That the poisonous substance reached the creek has been proved beyond reasonable doubt as a consequence of the observations made of the milky coloured plume in the creek near to the drain outlet after lunch on 12 February 2001. The physical entry of the chemical into the creek proves that there was harm to the environment and confirms that the original actions by all of the employees, but particularly Mr Coggins, were “likely to harm the environment”.

93 There has been a great deal of evidence devoted to the extent of the harm particularly as it relates to the death of fish, ducks and other wildlife. The extent of the “kill” is not strictly relevant to proof of the offence. However, this evidence goes to the seriousness of the offence. The defendant contends that the prosecutor has failed to establish the so-called catastrophic results once the substance entered Brookvale Creek to the extent that the Court is not left in a position where it could conclude, beyond reasonable doubt, that approximately 10,000 fish died as a consequence of ingesting azinphos-ethyl, which escaped from the defendant’s premises.

94 The defendant’s expert witnesses have sought to throw doubt on the extent of harm actually caused. The Court has not been convinced by this evidence that there is a reasonable doubt the actions of Mr Coggins on 12 February 2001 caused the deaths.

95 The Court is prepared to draw an inference that the fish, bird and wildlife deaths which occurred in Manly Lagoon in the days following 12 February 2001 were caused by the introduction of azinphos-ethyl from the defendant’s property into the waters of Manly Lagoon. The primary facts (which the Court finds proved beyond reasonable doubt) to enable the Court to draw that inference, are as follows:-

(1) A white plume was observed extending from the outlet of the stormwater pit into the waters of Brookvale Creek;

(2) Prior to that occurrence, witnesses had testified to the abundance of healthy marine and bird life living in and around the Manly Lagoon;

(3) Azinphos-ethyl is an extremely toxic compound (48 – 96h LC50) with acute lethal effects on a wide range of species at concentrations between 0.2 to 20 micrograms per litre;

(4) Azinphos-ethyl is the active ingredient of Gusathion;

(5) Dead fish were observed below the weir at Kentwell Road;

(6) No dead fish were observed above the weir at Kentwell Road;

(7) No alternative source of a cause of death consistent with the innocence of the defendant has been established. The evidence by the two expert witnesses called by the defendant to prove the prospect of other causes was unconvincing and reliant upon hypotheses, which were based on inaccurate and unreliable material;

(8) The prospect of Gusathion or azinphos-ethyl in any other form entering the lagoon from other sources has been investigated and rebutted;

(9) Azinphos-ethyl was found in water samples taken on 13 and 14 February 2001 from four locations in Manly Lagoon at a concentration above the LC50 toxicity value for the species of dead fish identified in the location of the samples;

(10) Samples of water taken from another stream running into Manly Lagoon out of Manly Golf Course did not contain detectable levels of azinphos-ethyl;

(11) The livers and gills of four dead fish were found to contain fatal concentrations of azinphos-ethyl. The fish were taken from locations where azinphos-ethyl was detected in the water;

(12) The observed rapid twitching and erratic behaviour of fish is consistent with an intake of azinphos-ethyl; and

(13) The observed irregular behaviour of ducks was consistent with poisoning from a chemical of a type including azinphos-ethyl.

96 Accordingly, the Court draws the inference that, as a result of the analysis of samples taken by the prosecutor and the observations of witnesses, including a number of lay witnesses, it is proved beyond reasonable doubt that the discharge of the insecticide chemical Gusathion into Brookvale Creek on 12 February 2001 from the premises of the defendant was the cause of a significant fish kill which took place in the following days (Seltsam Pty Ltd v McGuiness and Another; James Hardie & Coy Pty Ltd v McGuiness And Another (2000) 49 NSWLR 262 at 276-7 and Shepherd v The Queen (1990) 170 CLR 573). There is no question that a significant number of fish, in the order of 10,000, died on or soon after 12 February 2001.

97 It is not in dispute that azinphos-ethyl is an extremely toxic compound, particularly for fish. It is true that only a limited number of dead fish were actually tested. The defendant’s expert, Harold Roper, was prepared to concede that azinphos-ethyl killed only four fish. This was the only scientific conclusion he was prepared to reach after analysing the results of testing.

98 Alternative causes of the fish kill put forward by the defendant’s experts include the extent of dissolved oxygen, the level of turbidity determined from data received from the Manly Hydraulic Laboratory, a turbidity spike for a limited period of time and sewerage overflow.

99 Criticism was made of the sampling methods not only in respect of the number of samples taken but also the unsatisfactory methodology and inadequate sampling process such as a failure to procure the taking of replicate samples or control samples.

100 Notwithstanding the valiant and in some respects unhelpful and misleading attempts by the expert witnesses called in support of the defendant’s case, there is no alternative rational inference to be drawn that is consistent with innocence. The Court is, therefore, satisfied beyond reasonable doubt that the death of approximately 10,000 fish and numerous ducks and other wildlife occurred as a result of the introduction of Gusathion into Brookvale Creek from the defendant’s premises on 12 February 2001.

101 The failure to maintain the condition of the premises to the standard expected by others in the same position warrants criminal punishment.

102 Although the failure on the part of the defendant may not have been wilful nevertheless the Court finds it is beyond reasonable doubt that the club was negligent in a material respect by omitting to take reasonable steps to prevent the escape of a dangerous substance from its premises and thereby contributed to the conditions that gave rise to the commission of the offence by Mr Coggins.

103 The Court finds the offence proved.