Environmental and Earth Sciences Pty Ltd v Environment Protection Authority

[1999] NSWCCA 192

Reported Decision: 103 LGERA 434

New South Wales

Court of Criminal Appeal

CITATION:	Environmental & Earth Sciences Pty Ltd v Environment Protection Authority [1999] NSWCCA 192 revised - 02/08/99
FILE NUMBER(S):	CCA 60208/98
HEARING DATE(S):	10 May 1999
JUDGMENT DATE:	2 August 1999
PARTIES :	Environmental and Earth Sciences Pty Limited v Environment Protection Authority
JUDGMENT OF:	Wood CJ at CL; Bell J; Carruthers AJ

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	50062/96
LOWER COURT JUDICIAL OFFICER:	Talbot J

COUNSEL:	J J Webster for the Appellant S Rushton for the Respondent
SOLICITORS:	Levy Peatman for the Appellant Stephen Garrett for the Respondent
CATCHWORDS:	Offence against Appeal from conviction of the Environmental Offences & Penalties Act 1989 by polluting waters contrary to s. 16(1) of the Clean Waters Act 1970. - whether guilt proved beyond reasonable doubt by the prosecutor - whether Proudman v Dayman offence available - whether pollutant placed into or on to the water or otherwise introduced into or on to the waters.
ACTS CITED:	The Criminal Appeal Act, 1912, s 5AB The Land & Environment Court Act, 1979, Division 5 Environmental Offences & Penalties Act, 1989 The Clean Waters Act, 1970. ss 5, 16. Clean Waters Regulations 1972, Reg. (2)(b)(iii).
CASES CITED:	Histollo Pty Limited v Director-General of National Parks & Wildlife Service (CCA, unreported 10.12.98) Knezovic v Shire of Swan - Guildford (1967) 118 CLR 468 at 475 Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659 Leyland Shipping Co Ltd. v Norwich Union Fire Insurance Society Ltd [1918] AC 350 at 369 Proudman v Dayman (1941) 67 CLR 536 Council of the City of Shoalhaven v The State Pollution Control Commission (1991) 52 A Criim R 291 at 294
DECISION:	Appeal dismissed and the determinations made by the Land & Environment Court confirmed.

28
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IN THE COURT OF
CRIMINAL APPEAL

60208/98

WOOD CJ at CL
BELL J
CARRUTHERS AJ

MONDAY, 2 AUGUST, 1999

ENVIRONMENTAL & EARTH SCIENCES PTY LTD v ENVIRONMENT PROTECTION AUTHORITY

JUDGMENT

1 THE COURT : This appeal is brought pursuant to s 5AB of the Criminal Appeal Act, 1912 from a conviction of the appellant, Environmental and Earth Sciences Pty Limited, after trial before Talbot J in the Land and Environment Court exercising its summary jurisdiction under Division 5 of the Land and Environment Court Act, 1979. The prosecutor is the respondent Environment Protection Authority (the EPA).

2 The appellant was convicted on 21 November 1997 of the charge that it did commit an offence against the Environmental Offences and Penalties Act, 1989, in that on or about 3 October 1995 in the Parish of Yass in the State of New South Wales it did pollute waters contrary to subs 16(1) of the Clean Waters Act, 1970 (“the Act”). On 30 March 1998, the appellant was fined $6,000 and ordered to pay the costs of the prosecutor determined by agreement, or if no such agreement could be reached, in accordance with the Regulations.

3 The nature of an appeal from the Land and Environment Court in matters such as the present was recently considered by this Court in Histollo Pty Limited v Director-General of National Parks and Wildlife Service (Spigelman CJ, Sperling and Greg James JJ, unreported, 10 December 1998).

4 By virtue of the fact that an appeal to this Court involves a rehearing, the Court in Histollo recommended that the legislature give consideration to reviewing such an extensive right of appeal. Be that as it may, the matter presently before the Court is to be dealt with by way of rehearing. In Histollo ( at pages 17 — 18) Greg James J (with whom Spigelman CJ and Sperling J agreed) succinctly summed up this Court’s function in an appeal such as the present, as follows:
“Nonetheless, where as here, there is a challenge to the correctness of the trial judge’s ultimate conclusion, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the re-hearing there is a reasonable doubt of guilt the appeal must be upheld. Adopting the remarks of Barwick, CJ. In Ratten v. The Queen (1974) 131 CLR 510 at 516:-
‘it is the reasonable doubt in the mind of the court which is the operative factor.’ ”

By way of background, the evidence established that for many decades, prior to 1995, Shell Australia Limited (Shell) leased from the Yass Shire Council land adjacent to the old Hume Highway at Yass and erected thereon a service station which, prior to the new expressway by-passing Yass township, was apparently, one of the busiest service stations in Australia.


5 As a result of the by-pass Shell closed the service station and pursuant to its responsibilities under the lease, it was required to decommission the site which was thereafter to be used by the Council as a depot.

6 Shell commissioned OTEK Australia Pty Limited to prepare an environmental site assessment and, in particular, to ascertain the existence of any hydrocarbon contamination in the sub-surface soil at the site. Tests conducted by OTEK showed concentrations of hydrocarbons in the sub-surface soil in excess of EPA criteria at the site of old underground storage tanks. This was obviously as a consequence of leakage, over the years, from the tanks and consequential contamination of the sub-soil surrounding the tanks.

7 The appellant is experienced in the decommissioning and remediation of old service station sites and was retained by Shell to decommission the subject site. Work commenced under the contract on 28 June 1995. The appellant engaged Keough’s Plumbing Service (Keoughs) as sub-contractors to carry out specific tasks, including the removal and disposal of two 110,000 litre tanks, two 55,000 litre tanks and two 26,000 litre tanks, the removal and treatment of contaminated soil as well as the reinstatement of the holes with clean fill and compaction to 98% dry density. The contaminated soil was removed to an open area of land owned by Yass Shire Council adjacent to the northern boundary of the service station site. The appellant’s site supervisor was Mr Mark Stuckey, who was responsible for supervising the manner and method of disposal of the contaminated soil. Keoughs carried out that work under his instructions. Mr Stuckey supervised on-site excavations, on-site placement of soil and on-site validation. After the soil was moved to the remediation area, a process of bio-remediation was adopted to allow the removal of contamination of the soil by hydrocarbons.

8 It is convenient now to describe the characteristics of the site and, in particular, its drainage characteristics prior to certain excavation works being carried out by the appellant, to which reference will be made shortly. For the sake of convenience, a sketch plan of the site (which was in evidence at the trial) is appended to this judgment.

9 The service station site is on the northern side of the old Hume Highway which runs generally, in this location, in an east-west direction. The remediation soil area (the remediation pad) is directly to the north of the service station site. The land, comprising the service station site and remediation pad, slopes downhill in a westerly direction towards Bango Creek which flows into the Yass River. As far as drainage is concerned, there is a Stormwater channel which runs downhill from the service station site in a westerly direction. Roughly parallel to, and immediately to the north of that channel there is a drainage channel (the Shell channel) which carries water downhill from a drainage point on the service station concrete apron. These two channels merge into a main channel (the Main Channel) which flows into Bango Creek. Prior to the excavation work, to which we shall refer, there was what has been described as “a grassy swale”, created by an old track, which swale ran downhill, alongside the track, from the south-western corner of the remediation pad roughly parallel to and to the north of the Main Channel. This swale formed the southern boundary of a paddock which had formerly been a keyline irrigation area. The swale proceeded down the western boundary of that paddock and reached a culvert in the old track consisting of a 300mm diameter pipe of 3 metres in length (the culvert). This culvert allowed water traversing the grassy swale to pass underneath the old track. The grassy swale then continued downhill until it merged with the Main channel. Thereafter, the Main channel reached a confluence (the confluence) with a large Sewerage Treatment Plant channel (the Large STP Channel) which entered from the north. From this confluence the Main channel proceeded, as a single channel, to Bango Creek. (The Small STP channel shown on the plan to the east of the Large STP channel may effectively be ignored for the purposes of these proceedings.)

10 Thus, in summary, the service station site was drained by the Stormwater channel and the Shell channel which both merged into the Main channel which was joined downstream by the grassy swale which drained the area of the remediation pad and the former keyline irrigation paddock. Finally, the Large STP channel merged with the Main channel at the confluence. It was no part of the prosecution case that the appellant polluted waters within the Main channel prior to it being joined by the grassy swale.

11 We turn now to the sequence of events leading to the alleged offence.

12 By 25 August 1995 all the tanks had been pumped out and the surrounding contaminated soil transferred to the remediation pad.

13 On 25 August 1995 Mr Stuckey observed damage below (i.e. immediately to the west) of the remediation pad in that the grass in the first three lines in the adjacent former keyline irrigation area was yellow. Investigation revealed other areas of dead vegetation leading downstream as far as Bango Creek.

14 It was thought by representatives of the respondent that this damage was likely to have been caused by hydrocarbons being washed off the remediation pad during heavy rain. Indeed, the appellant was charged with (deemed) pollution of waters consistently with this belief. That charge was dismissed by Talbot J on 21 November 1997, such charge having been dealt with concurrently with the subject matter. His Honour held that the real prospect of any hydrocarbon contamination from the remediation pad reaching Bango Creek had not been established by the evidence and therefore could not be regarded as “ likely ” within the meaning of subs. 16(2)(a)(ii) of the Act.

15 His Honour formed the view that some person or persons unknown (for whom the appellant was not responsible) had pumped product containing hydrocarbon directly onto the area immediately to the west of the remediation pad thus causing the damage observed to the vegetation in that area and downhill of the area.

16 The immediate events leading to the circumstances which gave rise to the subject charge are that there was a site meeting between representatives of the EPA, Yass Shire Council, Shell, and the appellant on 15 September 1995 when Mr Nigel Sargent, an environment protection officer with the EPA in Queanbeyan presented a plan (Exhibit G) in the form of a schematic diagram to clean-up the site as a result of the hydrocarbon contamination of the vegetation to which we have referred. Part of the plan was to remove dead or dying grass from areas affected by the hydrocarbon contamination, which areas included those above and below the culvert. Earth bunds were to be placed in strategic positions and hay bales were to be staked at intervals. Also silt fences were to be erected lower down the land. The EPA officers insisted that the work was to be done so that no erosion or sediment left the site.

17 Between 15 September 1995 and 3 October 1995 the appellant, using heavy machinery, excavated contaminated soil and vegetation both above and below the culvert in the vicinity of the grassy swale to which reference has been made. Specifically, the swale between the culvert and the junction with the Main channel was excavated to a depth of between .5 to 1 metre. This excavation was such that it created a permanent or semi-permanent body of water in which aquatic vegetation had become established by the time it was inspected by experts in 1997, in the course of preparing reports for these proceedings.

18 Certain bunds were erected by the appellant and hay bales were put in place and silt fences were erected for which shade cloth was used as silt cloth was not available locally. However, when an EPA officer returned to the site late in September 1995 he formed the view that what had been done was insufficient to prevent significant damage occurring in the event of further rain. And indeed, it rained heavily on 3 October 1995 - the day of the alleged offence.

19 The prosecution case before Talbot J (as explained by his Honour) was that the appellant, by removing the contaminated soil and vegetation above and below the culvert and in its omissions in implementing adequate works to control the flow of sediment and to stop erosion, caused pollution in that “ dirty water ” was flowing downhill from the excavated area above the culvert, through the culvert all the way down towards Bango Creek. The water was said to be made “ dirty ” by virtue of the erosion where the soil had been disturbed.

20 His Honour specifically referred to the fact that Mr Sargent (an EPA officer) gave evidence that in his opinion, the area below the culvert from where dead grass had been removed was “ a channel ” on the basis that it had been excised with banks.

21 It is convenient now to note relevant sections of the Act. Subs (1) and (2) of s 16 are in the following terms:
“ Prohibition of pollution of waters
(1) A person shall not pollute any waters.
(2) Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if:
(a) the person places any matter (whether solid, liquid or gaseous) in a position where:
(i) it falls, descends, is washed, is blown or percolates, or
(ii) it is likely to fall, descend, be washed, be blown or percolate,
into any waters, on to the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed in such a position, or
(b) the person places any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater of any water that is not polluted, or causes or permits any such matter to be placed on such a dry bed or in such a drain, channel or gutter,
and the matter would, had it been placed in any waters have polluted or have been likely to pollute those waters.”

22 Section 5 (Definitions) defines “ pollute ”, in relation to any waters, to mean:
“(a) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or
(b) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or
(c) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter , whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and pollutant and pollution have corresponding interpretations.” (Our emphasis).
23 It will be noted that in paragraph (c) there is reference to “any matter, …that is of a prescribed nature, description or class”. Regulation (2)(b)(iii) of the Clean Waters Regulations 1972 prescribes the following as “ matter” for the purposes of paragraph (c) of the definition of “ pollute” in s 5 of the Act:
(iii) “inorganic matter of any description including ashes, ballast, soil, earth, mud, stones, sand, clay residue or washings from any mineral processing or extractive operation or soil, spoil or washings from any dredging operation,”

24 It should be noted, that the prosecutor particularised the charge as one of actual pollution of waters in breach of s 16(1) of the Act by removing the contaminated soil and vegetation above and below the culvert and omitting to implement adequate erosion and sediment controls as required by the EPA, thereby introducing into waters solid matter being sediment or non-filterable residues so as to change the physical condition of the waters or to make the waters unclean. The prosecution relied on all three alternatives in the definition of “pollute” and upon Regulation (2)(b)(iii) for identification of the prescribed matter for the purposes of paragraph (c) of the definition.

25 In respect of each alternative, it was necessary for the prosecution to establish that the appellant had placed in or on or otherwise introduced in to or on to the waters the relevant matter. However, in relation to paragraph (c) it was not necessary for the prosecution to prove that the condition of the waters was thereby changed.

26 Section 5 defines “ waters” to mean:
“any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or part thereof, and includes water stored in artificial works, water in water mains, water pipes and water channels, and any underground or artesian water, or any part thereof.”

27 In this regard, his Honour noted that the prosecution relied (inter alia) upon the words “ natural or artificial watercourse ” including “ water in water pipes and water channels ” in the above definition.

28 The prosecution submitted that the relevant “waters”, as defined , commenced, at least, at the eastern end of the culvert. It was submitted that the culvert was a combination of a natural or artificial watercourse and water channel. Thereafter the “ waters ” continued all the way down to Bango Creek.

29 The appellant submitted, however, that one did not reach “waters” , as defined, until the confluence of the Main channel and the Large STP channel and that by the time the sediment reached the confluence, the matter was already in the “ waters ”. Thus there was no physical placing of matter by the appellant in the “ waters ” at that point. The relevant act of placing was the exposure of the soil at the point where the removal of vegetation occurred. However, that was further upstream than the confluence. It was submitted that, at best, the area upstream of the confluence was a depression enlarged by the action of the appellant solely for the purpose of removing the dead grass.

30 In his judgment, Talbot J referred to the definition of “watercourse” by Barwick CJ in Knezovic v Shire of Swan - Guildford (1967) 118 CLR 468 and 475, where the Chief Justice expressed the view that at common law a “ watercourse ”
“must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks, with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve other land of excess water in times of major precipitation.”
31 Talbot J accepted that, prior to the excavation, there was no defined bed or banks to raise the depression (which we have called the grassy swale) between the culvert and the confluence to the status of a “watercourse”. His Honour went on to say:
“Although Mr Lloyd [who appeared for the prosecution] is correct when he says that waters as defined include waters in artificial or man made channels, the Court does not accept his further assertion that if anyone had any doubt whether the depression was a channel before it was cleared out, it clearly became a channel after it was cleared out.
The purpose of removing the vegetation was to reclaim the area polluted by hydrocarbon fluids. The installation of silt filtration devices such as hay bales and fences was to prevent the exposed soil being washed downhill and into the watercourse below. By omitting to carry out these works effectively the defendant allowed the loose soil to fall, descend, be washed, or percolate into the waters below. These waters comprised a watercourse with banks leading from the confluence with the water channels down stream including the channel leading directly from the old service station site and the separate channel running from the sewerage treatment works.”

Thus, his Honour accepted the appellant’s submission that “ the waters” , as defined, did not commence until the confluence. This matter will be addressed in a little more detail later in the judgment.


32 His Honour was satisfied, however, that the omissions by the appellant in implementing adequate erosion and sediment controls actually led to the pollution of “ the waters ” leading to Bango Creek. He said the pollution equated to definition (c) of “ pollute” in s 5 i.e. by introducing into the waters, as defined, matter prescribed by Regulation (2)(b)(iii). He concluded that even if the actions of the appellant did not strictly amount to physically placing the matter in or on “ the waters ”, the appellant did “ otherwise introduce the matter into or on to the waters ” within the meaning prescribed in s 5. Further, his Honour said the actions of the appellant fell within s 16(2)(a) and accordingly contravened s 16(1). This statement conflicts, however, with an earlier statement by his Honour that “ The charge relates to actual pollution under s. 16(1) and not deemed pollution under s. 16(2). ”

33 His Honour referred to the submission on behalf of the appellant that because “ the areas ” had been “ constructed” at the direction of the EPA, the appellant was merely following instructions and therefore not responsible for the offence. His Honour said that even if this were correct, which he did not accept, the directions were not followed implicitly, observing that when the major storm event, which gave rise to the complaint from the EPA, occurred, at least one of the hay bales had been removed and the earth bunds were ineffective to prevent free flow down through the pipe and over the depression. Further, the fences constructed from shade cloth did not cover the full width of the flow so that, even if they had been comprised of the correct material, they were ineffective.

34 Further, the unexplained removal of a hay bale which had been placed at the eastern entrance to the culvert served only to demonstrate that the maintenance of the works was not adequately supervised. His Honour rejected an argument raised by the appellant
“that it was entitled to rely on the defence of honest and reasonable mistake of fact and that it fully believed on reasonable grounds that the works would achieve the proper results”.

His Honour found that the offence had accordingly been proved beyond reasonable doubt.

35 This Court has had the benefit of detailed written and oral submissions by counsel for both parties. The appellant submitted that by the prosecution’s own admission the prosecution was confined to a case of actual pollution under s. 16(1) of the Act and it was not open to it to rely upon the extension of the ambit of the pollution of waters to be found in s. 16(2). On that basis, the appellant submitted that the evidence was not capable of supporting a finding beyond reasonable doubt that the appellant had been guilty of the offence of polluting any waters. Detailed submissions were placed before us in that regard, each of which has received careful consideration.

36 The appellant also submitted that his Honour had erred in failing to hold that it was entitled to rely on the defence of honest and reasonable mistake of fact and that it fully believed on reasonable grounds that the works which it undertook would achieve the proper results.
37 The respondent submitted that his Honour had erred in certain respects, in what could be referred to as mixed questions of fact and law, those errors being, however, favourable to the appellant. His Honour had, it was submitted, nevertheless, correctly found that the offence had been established beyond reasonable doubt. The respondent submitted that there were alternative ways in which the respondent had proved its case before the trial judge and even if this Court differed from the trial judge it was open to it to uphold the conviction on other bases. The alternative bases effectively turned upon the question of what constituted “ waters” in the circumstances of this case.

38 We have set out above the reasoning process by which his Honour concluded that the appellant was guilty of the offence charged. Specific reference however, should be made to certain aspects of that reasoning. His Honour accepted the appellant’s argument, with regard to the grassy swale downstream from the culvert to the convergence of the grassy swale (as it was before excavation) and the Main channel that it had no defined bed or banks to raise the depression (as his Honour called it) to the status of a “ watercourse”.

39 His Honour accepted that counsel for the prosecution was correct when he submitted that “waters” as defined includes waters in artificial or man-made channels. However, his Honour did not accept the prosecution’s further assertion that, if there was any doubt whether the depression was a channel before it was cleared out, it clearly became a channel after it was cleared out. His Honour seems to have taken this view because the purpose of removing the vegetation was to reclaim the area polluted by hydrocarbon fluids and not to erect a watercourse or water channel.

40 His Honour referred to the installation of silt filtration devices and the like to prevent the exposed soil being washed downhill following the removal of vegetation and into the watercourse below. However, his Honour concluded that by omitting to carry out these works effectively the appellant allowed the loose soil to “ fall, descend, be washed, or percolate ” into “the waters below”. It can be seen here that his Honour is using terminology in s. 16(2)(a)(ii) of the Act. As we have earlier noted, his Honour then went on to define “the waters below”, as follows :
“These waters comprised a watercourse with banks leading from the confluence with the water channels downstream including the channel leading directly from the old service station site and the separate channel running from the Sewerage Treatment Works.”

41 Although counsel for the respondent submitted otherwise, we are satisfied that his Honour was there referring to the waters in the main channel downstream from the confluence. This finding was consistent with the appellant’s submission at trial and in this Court.

42 Before this Court there was much debate as to whether it was open to the respondent to rely upon the deeming provisions in s. 16(2). The appellant argued that from the outset of the trial the prosecution had contended that this was a case of actual pollution in contradistinction to the first charge which was one of deemed pollution. Counsel for the respondent before us submitted, however, that at no stage did the prosecution ever abandon reliance upon s. 16(2). There may be a nice distinction here. However, counsel for the appellant makes the reasonable point that if the prosecution had intended to rely upon s. 16(2), such should have been made clear at the outset of the trial and the defence would have conducted its case accordingly. Thus, he argued it was not open to the trial judge to rely upon s. 16(2) as an element in his ultimate finding of guilt on the part of the appellant. There is merit in this submission although there may have been some misunderstanding at the trial in this regard. Certainly, however, one can find no reference to s. 16 (2) or a reference to “ deemed pollution” in either the opening or closing addresses by counsel for the prosecution at trial.

43 Counsel for the respondent submitted, that his Honour’s reference to
s. 16(2) was really of no consequence because his Honour did not, in reaching his ultimate finding, need to rely upon s. 16(2) because of the decision of McClemens CJ at CL in Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659. That case was a prosecution under s. 16(1) of the present Act, which then provided that:
“A person shall not…cause any waters to be polluted.”

44 It is only necessary to note that the definition of “pollute” in s. 5 was not relevantly different from the present definition in that in paragraphs (a), (b) and (c) it was necessary to place the pollutant in or on the waters.

45 The defendant, Sunbeam Corporation Ltd occupied land upon which was erected a factory and three tanks containing potassium cuprocyanide. By reason of a faulty valve a large quantity of the chemical escaped from a pipe joining two of the tanks together, and, having passed along a drain situated on the land, reached the Cooks River. Relevantly, his Honour held that it was not necessary in order to make out a case that the defendant had caused the waters to be polluted to establish that there had been an active act of placing the pollutant in or on the water. It was sufficient to establish that a pollutant in the possession of the defendant and on its land gets into the water as a direct result of being where it is; in other words, if the defendant causes it to get there.

46 McClemens CJ at CL said (at 662-663):
“Considerable emphasis was placed by the defendant on the definition which I have set out above. The defendant had not, according to its counsel, placed in or on the water any matter that attracted the operation either of par. (a) or par. (b) of the definition. According to the defence, to justify a conviction the prosecution has to prove a placing in or on the water and a causal connexion between that placing and pollution. According to counsel the defendant had placed the pollutant in a position in the tank four and a half days earlier and had not placed it in or on the water. There was no causal connexion, it was claimed, between the placing in the tank and the pollution. With that I am unable to agree. Counsel’s argument, as I understand it, involved this: that before there could be a conviction there has to be an active act of placing in or on the water, such as would happen if a man went to the side of a river and threw in the contents of a garbage tin. With this I am unable to agree.
In my opinion, there is a placing in or on the water, if the pollutant in the possession of the defendant and on his land gets into the water as a direct result of its being where it is; in other words, if the defendant causes it to get there.”

47 Later (at 664) his Honour referred to the concept of “cause” and referred to the well-known statement of Lord Shaw in Leyland Shipping Co. Ltd. V Norwich Union Fire Insurance Society Ltd [1918] AC 350 at 369, where his lordship pointed out that what caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.

48 It should be noted, for present purposes, that the definition of “pollute” in s. 5 has now been strengthened by the addition in each paragraph of the phrase “or otherwise introduce into or on to, the waters.” .

49 Talbot J held that the relevant act of placing was the exposure of the soil at the point where the removal of vegetation occurred. If, as a result of the exposure of this soil it found its way (as his Honour held) down to the defined waters then there is a sufficient cause or connection between the “ placing” and the pollution of the defined waters. As it was put by counsel for the respondent ‘there is ‘placing’ in water if the pollutant gets into the water as a direct result of its being where it is; in other words, if the defendant causes it to get there.” There was, he submitted therefore no need in his Honour’s line of reasoning for any reliance to be placed upon the deeming provision in s. 16(2).

50 His Honour referred, at times, to the pollutant as “dirty water” which was one of the phrases used by the prosecutor in the trial. Particulars of the pollution in the Summons were given in the following terms:
“Includes non-filterable residue (total suspended solids).”

51 For the purpose of determining the issue of pollution his Honour relied upon a number of photographs showing the progression of what his Honour described as “dirty water” flowing downhill from the former keyline irrigation paddock through the culvert down to Bango Creek. However, for the purposes of the definition of pollute in paragraph (c) it was sufficient that matter of a prescribed nature under Regulation 2(2)(b)(iii) had been placed in or on or otherwise introduced into or on to the waters. No question arises there of the pollutant being required to change the condition of the waters. However, the condition of the waters must necessarily have been changed by the flow of sediment. To the extent that it was already unclean it would have been made more unclean. However, this leads to a point made with some force by counsel for the appellant.

52 On 3 October 1995 certain tests were conducted to determine the level of non-filterable residues in various waters (using that term in its non-statutory sense) on the site. A reading at a point in the Stormwater channel immediately to the west of the service station site was 77mg/L. A reading between the culvert and the junction of the former grassy swale and the Main channel produced 250mg/L, and a reading below the confluence and in the watercourse which his Honour accepted as defined waters was 81mg/L. Counsel for the appellant submitted that the Court could accept the reading in the Stormwater channel as the background level unaffected by pollution. Therefore, as in the defined waters the reading was only 4mg/L higher this indicated that by the time water was entering Bango Creek its pollution level had been reduced to an insignificant difference to the background level. Thus, he contended, the 250mg/L reading had been broken down to virtually background level by the preventive measures taken by the appellant.

53 However, this submission overlooks the photographic evidence which clearly demonstrates that pure clean water was entering the Main channel from the Large STP channel at the confluence point and this would have had the effect of necessarily reducing the level of non-filterable residues entering the confluence from upstream. The argument also overlooks the fact that the actual pollution included other than non-filterable residues. The evidence clearly supports the finding that the water proceeding past the confluence contained sediment and silt resulting in clear photographic evidence of turbidity. In our view the submissions regarding the non-filterable residue levels do not undermine his Honour’s findings.

54 As has already been indicated, it was submitted that the appellant was entitled to rely on what was referred to as the defence of honest and reasonable mistake of fact and that the appellant believed on reasonable grounds that the works which it had executed would achieve the proper results. Reliance was placed here upon the evidence of Andrew Dawkins who carried out and supervised the relevant works on behalf of the appellant. It was said that the evidence demonstrated an honest belief on his part that the works were adequate. However, his Honour held that this belief was not reasonable as the results demonstrated.

55 A ground of appeal before this Court was to the same effect. It was however said to be supported by the combined evidence of certain other witnesses who had been called on behalf of the appellant.

56 No submissions were made by either party as to the precise principle of law to be applied to the circumstances of this case. Presumably the appellant was seeking to rely upon cases such as Proudman v Dayman (1941) 67 CLR 536 which are authority for the principle that whilst ignorance of the law is no excuse, ignorance or mistake of fact may in some cases be allowed as an excuse for the inadvertent commission of a crime where the accused acted under a belief which, if true, would have justified the act done. If a sufficient basis for such an excuse is raised then the Crown must negative that possibility. The relevant authorities are discussed in “ The Proudman defence” in Gillies: Criminal Law (fourth edition) p.97 et seq.

57 Having reviewed the evidence we are unable to conclude that there is a sufficient basis for the raising of a possible Dayman defence. Indeed the photographic evidence demonstrates beyond doubt that the work was not executed properly in that they demonstrate dirty water by-passing the bunds, the hay bales and the silt fences. Indeed, the hay bale which was placed on the eastern entrance to the culvert was removed at a time and under circumstances which the evidence did not disclose. However, its removal together with the other matters to which I have referred amply demonstrate that there could be no reasonable basis for the conclusion that the works were properly executed and proper supervision was maintained.

58 Thus, this Court is of the view that his Honour correctly concluded (allowing for the conflicting references to the deeming provision in s. 16(2)) that the appellant was guilty of the offence under s. 16(1). We are not persuaded on a review of the evidence that guilt was not proved, beyond reasonable doubt, by the prosecutor.

59 However, before leaving this case the following observations could usefully be made.

60 In the Council of the City of Shoalhaven v The State Pollution Control Commission (1991) 52 A Crim R 291 Clarke JA speaking for the Court said (at 294), after referring to the definition of “waters” in s. 5:
“Given this width of expression, it is difficult to contemplate any waters which were not within the definition….”

61 In the light of the evidence which was presented at the trial it was, in our view, clearly open to the trial judge to have held that prior to the excavation works being carried out by the appellant the drainage line commencing at least from the eastern end of the culvert down to the Bango Creek constituted a water channel within the definition of “ waters ”. The water pipe was obviously placed in position to effect the drainage water from the land above the culvert downstream to Bango Creek. However, even if this were not so, the excavation works carried out by the appellant to the west of the culvert clearly created a water channel which facilitated the progress of water from points east of the culvert downstream to Bango Creek. The finding by his Honour that the “ waters ” as defined commenced at the final confluence was an extremely favourable one to the appellant but was in the light of all the evidence, nevertheless, quite sufficient to lead to an ultimate finding of the commission of the offence.

62 The appeal is accordingly dismissed. The determinations made by the Land and Environment Court are confirmed.
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