Moore v Environment Protection Authority

[2021] NSWLEC 87

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moore v Environment Protection Authority [2021] NSWLEC 87

Hearing dates:

22, 25 March 2021 and 1 June 2021

Date of orders:

23 August 2021

Decision date:

23 August 2021

Jurisdiction:

Class 6

Before:

Pain J

Decision:

(1) The conviction appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

Catchwords:

CRIMINAL – appeal against conviction in local court of causing injury with pesticide use – individual exposed to diazinon from macadamia farm while driving on public road – new evidence of pharmacologist allowed in appeal – exposure and injury proved beyond reasonable doubt – conviction appeal dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) ss 3, 31, 37, 38, 39, 49

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10

Criminal Procedure Act 1986 (NSW) s 215

Pesticides Act 1999 (NSW) ss 3, 4, 10, 71, 97, 107, 111

Pesticides Regulation 2017 (NSW)

Cases Cited:

Chararav The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110

De Battista v Shoalhaven City Council [2020] NSWLEC 164

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Director of Public Prosecutions v Earl Burns (2010) 207 A Crim R 362; [2010] NSWCA 265

Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galeav Galea (1990) 19 NSWLR 263

Gianoutsos v Glykis [2006] NSWCCA 137

Green v The Queen (1971) 126 CLR 28; [1971] HCA 55

McClelland v Environment Protection Authority [2021] NSWLEC 25

Moore v R [2016] NSWCCA 185

Pell v The Queen [2020] HCA 12

SS Hontestroom v SSSagaporack [1927] AC 37

The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36

Vince Sunter v District Court of NSW [2008] NSWCA 313

Texts Cited:

Australian Macadamia Society, Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011)

ChemCert Australia, Chemical Users Handbook

Commonwealth Primary Industries Standing Committee, Spray Drift Management: Principles Strategies and Supporting Information (October 2002)

NSW Judicial Commission Criminal Trial Courts Bench Book (as at 22 March 2021)

Second Reading Speech to the Pesticides Bill 1999 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2351-2357)

Category:

Principal judgment

Parties:

William Robert Moore (Appellant)
Environment Protection Authority (Respondent)

Representation:

COUNSEL:
S Anderson (Appellant)
E Anderson (Respondent)

SOLICITORS:
Sommerville Laundry Lomas (Appellant)
Environment Protection Authority (Respondent)

File Number(s):

20/213668

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

23 June 2020

Before:

Magistrate K Stafford

File Number(s):

18/267754

Judgment

1. The Appellant William Moore was charged with an offence against s 10(1)(a) of the Pesticides Act 1999 (NSW) of using a pesticide in a manner that caused injury to the complainant Luke Sansom. Following a five-day hearing in the Local Court, the Appellant was convicted and fined $2,000. The Appellant was ordered to pay the Environment Protection Authority’s (EPA) investigation costs of $2,820 pursuant to s 97(1) of the Pesticides Act and professional costs of $10,000 pursuant to s 215(1) of the Criminal Procedure Act 1986 (NSW). The Appellant appeals against his conviction and sentence pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act) and asks that the Court uphold the appeal pursuant to s 39(1)(a). The EPA submits that the conviction and sentencing appeals should be dismissed, and that the Court should increase the award for costs in the Local Court to $30,000 as enabled by s 49(2) of the Appeal Act.

2. The charge arose from circumstances when on 18 August 2017 the Appellant’s employee Neville Battistuzzi was spraying macadamia trees on the Appellant’s property “Wingvale” with diazinon. Mr Sansom was driving north along Friday Hut Road at about 9:00 am near the Appellant’s property boundary on that day. The EPA alleges that Mr Sansom was injured as a result of exposure to diazinon emanating from Wingvale. Diazinon is a pesticide for the purposes of s 10(1)(a) of the Pesticides Act. It was agreed that if the conduct of the Appellant’s employees constituted an offence under s 10(1)(a), then that offence was caused or permitted by the Appellant for the purposes of s 111(1) of the Pesticides Act.

Legislation

Crimes (Appeal and Review) Act 2001 (NSW)

3. Relevant sections of the Appeal Act provide:

Part 4 Appeals from Local Court to Land and Environment Court

Division 1 Appeals by defendants

Subdivision 1 Making of appeals

31   Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

…

(2)   An appeal must be made—

(a)   within 28 days after sentence is imposed, or

…

but (in the case of an appeal against conviction) may not be made before sentence is imposed.

…

Subdivision 2 Determination of appeals

…

37   Appeals to be by way of rehearing on the evidence

(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38.

(2)   Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

…

39   Determination of appeals

(1)   The Land and Environment Court may determine an appeal against conviction—

(a)   by setting aside the conviction, or

(b)   by dismissing the appeal, or

(c)   in the case of an appeal made with leave under section 32 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court.

(2)   The Land and Environment Court may determine an appeal against sentence—

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.

…

Division 3 Miscellaneous…

49   Miscellaneous powers

…

(2)   In determining an appeal, the Land and Environment Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.

…

(4)   Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

Pesticides Act 1999 (NSW)

4. Relevant provisions of the Pesticides Act provide:

Part 1 Preliminary

…

3   Objects of this Act

The objects of this Act are as follows—

(a)   to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991,

(b)   to minimise risks to human health, the environment, property and trade,

(c)   to promote collaborative and integrated policies in relation to the use of pesticides,

(d)   to establish a legislative framework to regulate the use of pesticides.

…

4   Definitions

(1)   In this Act—

…

injury to a person includes any kind of physical or psychological injury whether temporary or permanent, including conditions such as nausea, allergic reaction, dizziness, headache, stress, and running nose or eyes.

…

Part 2 Control of pesticides

Division 2 Misuse of pesticides

10   Injury to persons or damage to property resulting from pesticide use

(1)   A person must not use a pesticide in a manner that—

(a)   injures or is likely to injure any other person, or

(b)   damages or is likely to damage any property of another person.

Maximum penalty—

(a)  $120,000 in the case of a corporation, or

(b)  $60,000 in the case of an individual.

…

(3)   “Due diligence” defence It is a defence in any proceedings against a person for an offence under this section if the person establishes—

(a)   that the commission of the offence was due to causes over which the person had no control, and

(b)   that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence.

…

Part 10 Procedural provisions

Division 1 Proceedings for offences

71   Manner in which proceedings for offences may be dealt with

…

(3)   If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is $20,000 despite any other higher monetary penalty provided in respect of the offence.

…

Division 6 Other procedural provisions

…

111   Causing or permitting offence

(1)   A person who causes or permits, by act or omission, another person to commit an offence under a provision of this Act or the regulations is guilty of an offence under that provision and is liable, on conviction, to the same penalty applicable to an offence under that provision.

…

Nature of the appeal

5. Subject to any leave given for the Appellant to adduce fresh evidence, the appeal is a rehearing based on the evidence before the Local Court pursuant to s 37(1) of the Appeal Act. The EPA continues to bear the onus of proving the charge against the Appellant beyond a reasonable doubt: Gianoutsos v Glykis [2006] NSWCCA 137 at [42]. No error in the findings of the magistrate needs to be found: Vince Sunter v District Court of NSW [2008] NSWCA 313 at [24]-[25] (Allsop P). It is for the Court to come to its own conclusion as to the Appellant’s guilt.

6. I discussed the nature of a rehearing in McClelland v Environment Protection Authority [2021] NSWLEC 25 at [4]-[6] referring to Chararav The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244 (Charara) at [17]-[24] where Mason P (Kirby and Hoeben JJ agreeing) in the Court of Criminal Appeal described what a rehearing (there in the District Court) entails:

17   The appeal is to be by way of rehearing on the Local Court transcripts …, obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur ...

18   The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-425, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).

19   The nature of an appeal “by way of rehearing” has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. “The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits” (Fox at [22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the “requirements, and limitations, of such an appeal”, their Honours continued (at [23], footnotes omitted):

… On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

20   In Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208-209 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms:

The rule … provides that all appeals shall be “by way of rehearing”. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred … [A power to draw inferences of fact and to give any judgment that ought to have been given] does not … curtail the recognition or respect that an appeal should accord to the decision of a trial judge.

21   These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220).

…

23   Howie and Johnson, Criminal Practice and Procedure NSW state [4-s 19.10(g)] that the reasons of the magistrate for finding the offence proved are not “evidence” and that the District Court may not have regard to those reasons unless the parties consent to that course. The point has not been argued before us, but I wish to express my doubts as to the correctness of this opinion of the learned authors. District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was do novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate’s reasons are not part of the “certified transcripts of evidence” referred to in s 18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them.

24   The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found (Paterson at 222-224). There is no basis in principle for a different approach in the criminal law.

7. The findings in the Local Court are necessary to consider in order to undertake the appeal function adequately.

Issues on appeal

8. The Appellant identified numerous areas in which findings of fact different to the Local Court findings are sought in the appeal against conviction. The evidence will be set out based on these issues, which are:

1. whether Mr Sansom saw a spray rig on Wingvale on 18 August 2017 around 9:00 am;

2. whether Mr Sansom lied/was mistaken that he saw/experienced spray mist on 18 August 2017 around 9:00 am;

3. in answering whether Mr Sansom was injured by exposure to diazinon from Wingvale on 18 August 2017:

1. what was the wind speed and direction on 18 August 2017 around 9:00 am at the site of the offence?

2. what was the location of the spray rig used by Mr Battistuzzi to spray on 18 August 2017 around 9:00 am?

3. whether the possibility of spray from other properties was excluded;

4. what is the effect of Professor Weatherby’s evidence? and

5. whether the defence of due diligence is established by the Appellant.

Evidence in the Local Court

Agreed facts

9. The parties provided the Local Court with the following statement of agreed facts (SOAF) (Ex 5/Local Court Ex 1).

Allegations

1. That the accused is charged with three offences of using a pesticide in a manner that injured another person contrary to section 10(1)(a) and section 111 of the Pesticides Act 1999.

The Farm

2.   The accused and his wife Judith Fay Moore own the macadamia farm located at 345 Friday Hut Road and 387 Friday Hut Road, Brooklet NSW (“the Farm”). The Farm trades in the name of “Wingvale”.

3.   The Farm is comprised of the following blocks:

a.   345 Friday Hut Road, Brooklet is referred to as the block “Wingvale”; and

b.   387 Friday Hut Road, Brooklet is referred to as the block “Ryanstone”.

4.   The Farm covers 160 acres and is comprised of approximately 14,800 macadamia trees.

5.   Macadamia trees were planted on the “Wingvale” block between 1992 and 1994.

6.   Macadamia trees were planted on the “Ryanstone” block between 1999 and 2000.

7.   A map showing the location of the Farm and surrounding properties is at Annexure 1.

8.   At the time the alleged offences took place, the accused employed a full-time leading hand to work at the Farm, Mr Neville Battistuzzi and two casual hands, Mr Johnny Ferguson and Mr Patrick Jamieson.

The Pesticide

9.   That Diazinon is an organophosphorous derivative agricultural insecticide.

10.   Diazinon is an “agricultural chemical product” as defined under Part 1, s 4(2)(a) of the Agricultural and Veterinary Chemicals Code Act (Commonwealth) 1994 (“Agvet Code”) as (extracted below):

4 Definition of agricultural chemical product

a.   Subject to subsections (3) and (4), an agricultural chemical product is a substance or mixture. of substances that is represented, imported, manufactured, supplied or used as a means of directly or indirectly:

(a)   destroying, stupefying, repelling, inhibiting the feeding of, or preventing infestation by or attacks of, any pest in relation to a plant, a place or a thing;

11. As a result, a diazinon is a “pesticide” for the purposes of section 5 (1) (a) of the Pesticides Act 1999 (NSW) (extracted below):

5 Definition of "pesticide"

(1)   In this Act, “pesticide” means:

(a)   an agricultural chemical product (within the meaning of the Agvet Code)

Pesticide use at the Farm

12.   The accused has ultimate management and control of all operational activities undertaken at the Farm, including pesticide application, and the accused makes the choice of what pesticide is to be applied at the Farm.

13.   The accused issues instructions in relation to pesticide application and all employees at the Farm report directly to the accused.

14.   The general process is that the application of pesticide is discussed between the accused and Mr Battistuzzi, with Mr Battistuzzi then providing instructions to the other employees. To the extent that Mr Battistuzzi issues instructions to other employees he does so upon being instructed to by the accused.

15.   Mr Ferguson is provided instructions as to his tasks on a day-by-day basis.

On Farm Equipment: Air Blast Sprayer

16.    The air blast sprayer operates as follows:

a.   The air blast sprayer is a unit on wheels that is drawn through the rows of macadamias by a person driving a tractor, from which pesticide is dispensed under pressure (“the tank”);

b.   Prior to use, the air blast sprayers are calibrated to determine correct nozzle flow rate compared to the manufacturer's specifications:

i.   The nozzle size is set to determine a flow rate at which the pesticide/water mix is applied to achieve a coverage rate of 6 litres per 100 cubic metres of tree canopy;

ii.   The height is set for each spray having considered the height of the trees to be sprayed;

iii.   To be effective, pesticide is required to be sprayed to the top of the tree canopy; and

iv.   Once the nozzle size and height is set, this cannot be altered by the operator of the tractor.

c.   The tractor operator can control the speed of the tractor. Electric switches inside the cabin of the tractor enable the operator to turn the flow of pesticide on or off.

d.   The air blast sprayer is driven between the rows of trees and pesticide is applied to trees on either side. The control unit in the tractor allows the spray to be independently turned 'on' or 'off for each side.

17.   The amount of pesticide to be used and the mixing of the pesticide into the air blast sprayer is undertaken by workers under instruction from the accused.

18.   The location of pesticide application as well as the identity of the person applying the pesticide and the type of pesticide used are kept in “pesticide use logs”.

19.   The cost of the pesticide for each tank is $71.87 for the Tornado 2000 litre air blast sprayer and is $125.80 for the for the Silvan 3500 litre air blast sprayer.

18 August 2017: Pesticide use at the Farm

20.   On 18 August 2017, the accused undertook pesticide spraying at the Farm as part of a prophylactic ‘calendar spray’.

21.   The pesticide spraying was undertaken due to the time of season and the development stage of the flower stem, and not in response to any pest outbreak.

22.   The air blast sprayers were used by Neville Battistuzzi and Johnny Ferguson on the 18 August 2017 to apply the pesticide to specific rows within the Farm as set out in Annexures 2-3 hereto.

Other matters

23.   The EPA has not previously taken any action against the accused and is not aware of any antecedents for environmental or any other type of offences.

10. Annexure 1 to the SOAF includes “Map A” dated 18 July 2018 showing the Appellant’s and surrounding properties. The Appellant’s properties are Wingvale at 345 Friday Hut Road (property “C”) and “Ryanstone” at 387 Friday Hut Road (property “B”). “Map B” is an enlarged version of Map A and identifies EPA sampling points/waypoints 4-7 and 11 taken on 21 August 2017 along Friday Hut Road opposite Ryanstone near Wingvale. Mark Coles and Phillip Scheaffe were also spraying on the morning of 18 August 2017 at 323 Alcorn Road (property “I”). The complainant Mr Sansom lives at 412 Friday Hut Road (property “A”) and has been there for about nine years. His parents-in-law Leilani Johnson and Ron Johnson live at the same address.

11. Annexure 2 to the SOAF, the “Wingvale and Ryanstone Pesticides Application Record Sheet” from Mr Battistuzzi, records the following entries for 18 August 2017:

1. start time 8:00 am, finish time 2:30 pm, operator initials “JF”; rows sprayed “R27/28N to R31/32N” and “R43S to R60S”, crops sprayed “macas”, product used “diazinon, supa bor, designer”, wind speed and direction “light N to NW changed to gentle SW” and a note that “spraying paused during moderate gusts”;

2. start time 8:00 am, finish time 2:30 pm, operator initials “NB”, rows sprayed “W85/86 to W103” and “W45/46 to W55/56”, crops sprayed “macas”, product used “diazinon, supa bor, designer”, wind speed and direction “light N to NW changed to gentle SW” and a note that “spraying paused during moderate gusts”.

12. Annexure 3 of the SOAF is a diagram of Wingvale and Ryanstone with diagonal lines indicating the macadamia rows sprayed by Mr Battistuzzi and Mr Ferguson on 18 August 2017.

Environment Protection Authority’s evidence

13. The EPA tendered exhibits 1-27 from the Local Court (Ex 2). The EPA’s documentary evidence in the Local Court included the SOAF extracted above in [9]-[12] (Local Court Ex 1). An additional copy of the “Wingvale and Ryanstone Pesticides Application Record Sheet” was separately tendered (Local Court Ex 10).

14. Mr Battistuzzi marked an aerial map to show the two areas of Wingvale he sprayed on 18 August 2017 (Local Court Ex 12). Mr Sansom marked an aerial map identifying the point on Friday Hut Road where he estimated he was exposed to spray (Local Court Ex 19).

15. Mr Coles and Mr Scheaffe both made contemporaneous records on a “Chemical Application Record” of their spray activity at 323 Alcorn Road (property “I”) on 18 August 2017 (Local Court Exs 8, 18).

16. Dr Adendorff prepared a medical certificate for Mr Sansom dated 14 September 2017 and attached Mr Sansom’s blood test results (Ex A/Local Court Ex 20).

17. The EPA tendered statements from its investigators Peter Lynch dated 5 September 2018 (Local Court Ex 14), Alicia Ryan dated 5 September 2018 (Local Court Exs 14, 15) and Michelle Roberts dated 17 July 2018 (Local Court Exs 14, 22). The exhibit to Mr Lynch’s statement (Local Court Ex 13) relevantly included the following documents:

1. Bureau of Meteorology (BOM) weather observations for Ballina Airport and Lismore Airport on 18 August 2017 summarised below in [39];

2. a photograph of Mr Sansom standing with EPA investigator Ms Ryan on the side of Friday Hut Road opposite Ryanstone near Wingvale. Ms Ryan recorded waypoint “4” at this location described as “location Luke Sansom alleges his car was sprayed on 18/08/2017” in Annexure 1 to the SOAF above in [10];

3. a spreadsheet titled “Pesticide use of surrounding macadamia farmers based on records received” for 1 June 2017 to 19 August 2017 based on spray records provided to the EPA (see below in [43]); and

4. industry guidelines for pesticide spraying summarised below in [46]-[48].

18. Two certificates dated 8 September 2017 and 25 September 2017, issued under the Pesticides Act s 107 in relation to samples taken by the EPA, were also tendered (Local Court Ex 23).

19. The following documentary evidence tendered by the EPA was not referred to in this appeal:

1. aerial maps marked by Mr Johnson (Local Court Ex 2), Mrs Johnson (Local Court Ex 5), a video recording taken by Mrs Johnson (Local Court Ex 6) and a record of a water sample taken by Mr Johnson on 22 August 2017 (Local Court Ex 11);

2. an aerial map of the Appellant’s property and surrounding farms marked by Mr Ferguson (Local Court Ex 9);

3. a statement of Mr Scheaffe dated 6 November 2018 (Local Court Ex 1 on voir dire) and an attached an aerial map (Local Court Exs 7 and 17);

4. a statement of Mr Coles dated 6 November 2018 (Local Court Ex 2 on voir dire); and

5. an affidavit of Ryan Verzosa dated 22 December 2020 (Ex 4) relevant to sentence.

20. The EPA also tendered the Local Court transcript (Ex 1). Evidence given by the following EPA witnesses is summarised and extracted from the transcript as referred to in this appeal:

1. Mr Sansom;

2. Mr Johnson and Mrs Johnson;

3. Mr Battistuzzi;

4. Mr Coles and Mr Scheaffe;

5. Mr Lynch, Ms Ryan and Ms Roberts; and

6. Andrew Hewitt spray drift expert.

Mr Sansom’s injury

21. The following summary of Mr Sansom’s evidence as contained in the EPA’s submissions reflecting the transcript from the third day of the Local Court hearing is relied on in relation to his injury on 18 August 2017 (Tcpt, 15 October 2019, pp 55-62):

a.   He woke up at about 5:00am and felt fine.

b.   At about sunrise (between 5:45am and 6:15am) he drove his vehicle from his property on Friday Hut Road to the nursery which he operates about four kilometres to the south on the same road.

c.   At around 9:00am he drove north up Friday Hut Road back to his property in order to have breakfast with both windows of his vehicle open.

d.   As he drove north up Friday Hut Road he smelt a strong chemical smell in the air.

e.   As he drove towards the entrance to Mr Moore’s farm he felt a stinging in his eyes and that he could not “breathe the air”.

f.   As he was going past Mr Moore’s farm he wound up the driver’s side window of his vehicle but was unable to reach across and wind up the other window.

g.   At about the same time he saw a mist of spray moving across Friday Hut Road from a spray rig situated close to Friday Hut Road on Mr Moore’s farm.

h.   Spray entered his vehicle.

i.   His mouth started filling with saliva, the stinging in his eyes became more pronounced and he felt like he could not breath.

j.   He drove his vehicle back to his property where he told his wife what had occurred and observed that the wind was blowing strongly from a westerly direction (i.e., from Mr Moore’s farm towards Friday Hut Road).

k.   The stinging in his eyes and the “saliva response” continued for the rest of the day and his breathing was also affected. His heart rate felt elevated and he also developed a headache for which he took Panadol.

I.   He made several calls to the EPA that day reporting what he had observed.

m.   He continued to suffer ill health for a number of days and ultimately made an appointment with Tintenbar Medical Centre which he attended on 29 August 2017.

n.   He told the doctor at Tintenbar Medical Centre what had occurred and, on 31 August 2017, subjected himself to blood tests.

22. A medical certificate prepared by Dr Adendorff dated 14 September 2017 included the following statements (Ex A/Local Court Ex 20):

During this consultation on 29^th August 2017, Luke reported that he lives on a property surrounded by macadamia farms. On the 18^th August 2017 he reports two rigs were working on a neighbouring property, spraying trees with an organophosphate product, Diazinon. Luke reports that there were very high winds at the time. Luke was working outside and he reports being able to taste the chemical in the air. That afternoon Luke reports experiencing a cluster of symptoms including hypersalivation, irritation in his ears, mildly restricted breathing, and being unable to get the taste of the chemical out of his mouth. Over the subsequent 3-4 days Luke experienced headaches, nausea and diarrhoea. He also reported feeling disorientated when he woke in the middle of the night to go to the toilet, and being unable to find his way around the house. Luke has not experienced any of these symptoms prior to the 18^th August 2017.

23. Mr Sansom’s blood test results collected on 31 August 2017 are summarised as follows:

1. serum cholinesterase measured at 9.8 kU/L, a range is provided in brackets “6.0-15.6” and the statement “no suggestion of recent organophosphate exposure (within 2-3 weeks)”; and

2. red cell cholinesterase measured at 11.9 kU/L of red blood cells (RBC’s), a range is provided in brackets “over 8.0” and the statement “no suggestion of organophosphate toxicity (within 2-3 months)”.

24. Mr Lynch gave the following evidence (Tcpt, 23 August 2019, p 98(17-20)):

WITNESS: So, look, if I can answer this as a lay person, certainly, I have no medical expertise, but I have been involved in organophosphate exposures and I have suffered it a number of times myself. So, I know that a – often, from a organophosphate exposure – the blood test will not detect it, and—

Mr Sansom’s experience/observation of spray mist on 18 August 2017 and a spray rig

25. Mr Sansom marked a red dot on an aerial map identifying the point on Friday Hut Road where he estimated he was exposed to spray (Local Court Ex 19). Mr Sansom marked an arrow pointing away from the red dot to the right.

26. Mr Sansom gave the following oral evidence in relation to his experience of/observation of spray mist on 18 August 2017 and a spray rig (Tcpt, 15 October 2019, pp 57(25)-58(20)):

Q. As you drove past more of the Wingvale property, what did you see?

A. I drove past Wingvale. You come around a bend. You can see it on the map, that sort of long bend. At some point along there I wound up my driver's side window, but I couldn't - I had a window down on the other side, but it's - they're not automatic windows, so you have to actually reach over - you've got to physically wind the windows. So as I was sitting around, I did that, wound up my driver's side window, and then I - as I came around the bend shortly after that, I could see - once I got into the straight, I could see a mist, like, a white, a mist moving across the section of the road there, which is marked in red on that map, and yeah, I was driving and I - it sort of came up quickly, it's not a big distance there, and then I drove through it and I looked to my left where it was coming from and there was a spray rig operating to my left, immediate left, at that sort of location heading up the road away from me.

Q. So just to recap, the red dot that you've marked on the map, that's about where you saw this mist come across the road; is that correct?

A. That's right, that red, so across where that arrow is going.

Q. In terms of where you saw the spray rig, where was the spray rig relative to that red dot?

A. It was basically at that red dot. It wasn't - it looked like it had just started up a row, so it maybe only, you know, not many metres in the row. It was just from where my vehicle was, I'm on the left-hand side of the road, I estimate it to be about 15 metres from my vehicle.

Q. From your vehicle to the rig?

A. Yeah.

Q. You wound up your driver's side window?

A. Yeah.

Q. Did you wind up your passenger's side window?

A. I attempted to. It happened quickly and I sort of went for a lean, and then I realised it just - I was better just to keep - I couldn't get to it. It was just - it felt, yeah, sort of stiff and it takes a bit of force and I would have had to slow right down or stop and then I would have been in it, you know, right in, stationary where the spray was, so I just kept driving.

Q. Why did you try and put your window up?

A. Because I could see that it was going to come into the vehicle.

Q. When you say, “it”?

A. The mist that was coming from the rig.

Q. Are you able to say which property the rig was on at that time?

A. It was on Wingvale.

…

27. In cross-examination, Mr Sansom stated the following (Tcpt, 15 October 2019, pp 68(26)-70(35)):

Q. Could you say whether or not you saw the rig spraying anything into the

air?

A. Yes, I did.

Q. Were you able to estimate in your statement that you saw the spray coming from the rig about 20 metres above the tree canopy?

A. Yes, that's correct.

Q. Do you remember saying that?

A. Yes, I do.

Q. This is the rig that is being sprayed on this point where you've marked on exhibit 19 and it's spraying 20 metres above the tree canopy at that stage?

A. That's my estimation, yes.

Q. You're sure about that?

A. Yes. I mean, it's an estimation, so it's - I'm sure that it was spraying and it was spraying very high into the air. It's a - the might is an estimation.

Q. At that point when you're driving along the road and you can see this spray mist into the air, you're confident, are you, that you can actually see into the property from where you're driving?

A. Yes.

Q. You can see the spray rig itself?

A. Yes.

Q. Physically see the spray rig?

A. Absolutely.

Q. I suggest to you that you are mistaken about that.

A. I don't believe so. That's my observation.

Q. I suggest to you that you didn't see the spray rig spraying any spray 20 metres into the tree canopy at that point.

A. No.

Q. Or at any point?

A. That's - it's my observation.

Q. Just in terms of the speed that you were travelling when you say you saw this, you say you were travelling at 60 kilometres per hour; is that right?

A. Yes.

Q. That road itself is 80 kilometres; is that right?

A. It is, yeah.

Q. You were travelling at 60 kilometres at that particular point where you say that you saw the rig; correct?

A. Yes, correct.

Q. In terms of the actual time that you say that you got to that point, it would have been some time after 9am or thereabouts; is that correct?

A. Correct.

Q. Can I suggest to you that in terms of driving at 60 kilometres at that particular point on the road, it would have been a number of seconds for you to drive past the rig?

A. I'm not clear on your question.

Q. This is a property you drive past frequently; correct?

A. That's right.

Q. In terms of 60 kilometres an hour, if you're driving a vehicle at that speed, can I suggest to you that it takes less than a minute to entirety of the property of Wingvale as it faces Friday Hut Road?

A. It would depend on the speed you're travelling.

Q. At 60 kilometres, I'm suggesting to you, it takes less than a minute?

A. I wouldn't know and I couldn't say.

Q. I suggest to you that in terms of that particular portion of the road that it would take a matter of seconds to pass; would you agree with that?

A. To pass? What is it?

Q. The part of the road where you say you marked where you saw the rig?

A. It was, yeah, about a 20/30-metre sort of section. There's a clearing to.

Q. So the part that you say that you saw this rig spraying, the rig was, effectively, closest to the road; is that correct?­

A. Closest compared to what?

Q. To the rest of the property? To the rest of the Wingvale? Closer to the road than it was--

A. That's right. It was at the beginning of a row, so it looked like - as in an angle of the tree row, so it's sort of head uphill from the road from that point and it was just inside the first row heading up the hill, yeah.

Q. If you're heading away from your property, in terms of towards Tintenbar, do you say it was a row that was, effectively, the last row of macadamias that you could see?

A. No. It's not - there's a whole series of rows. When I say it was at the end of the row, I mean at the end closest to the road of a row, not the end row of trees.

Q. In terms of what you've depicted on this map where you say you saw it, it's actually much closer to your house than it is to, say, the end of the Wingvale property as you're travelling towards Tintenbar down Friday Hut Road; correct?

A. Yes.

Q. You said in your statement to Ms Roberts that when you saw this rig, you could actually see in detail an outline of the operator of the tractor?

A. I could. No, not in - I couldn't in detail see the operator, I couldn't make out the operator, but I could - I - yeah, no, I couldn't make out who - identify the operator, no.

Q. No, I understand that. It was just an outline of the operator is what you told Michelle Roberts?

A. Yes. As I was coming along, the rig is at an angle to - yeah, the angle it's on, I could make out an operator.

…

Position of spray rig used by Mr Battistuzzi on Wingvale

28. Mr Battistuzzi’s contemporaneous record on the “Wingvale and Ryanstone Pesticides Application Record Sheet” is set out above in [11].

29. Mr Battistuzzi gave oral evidence that he has worked at Wingvale for approximately 25 years. He is a volunteer fire fighter. As a firefighter Mr Battistuzzi is focused on safety and observing wind patterns. On 18 August 2017 Mr Battistuzzi sprayed two areas on Wingvale, which he marked in red on an aerial map (Local Court Ex 12). Mr Battistuzzi started spraying the first area at 8:00 am and finished at about 10:15 am. He sprayed the second area from about 11:00 am to 2:30 pm. The trees he sprayed were probably between 30-500 m away from Friday Hut Road.

30. In cross-examination, Mr Battistuzzi stated that he had started spraying at row 103, the eastern most row on Wingvale. Mr Battistuzzi marked an “X” on Local Court Ex 12 at this spot. He then moved west, going back into the farm. Mr Battistuzzi sprayed one tank from 8:00 am to about 9:00 am. When he stopped at the end of the first tank, Mr Battistuzzi was at row 92. He filled a second tank and restarted spraying from about 9:40 am until about 11:00 am when he finished at row 86.

31. When spraying row 103, Mr Battistuzzi used one side of the air blast sprayer and was mindful to keep spray on the farm. Mr Battistuzzi agreed that he did not overspray on 18 August 2017 and that he would have stopped had he observed spray drift.

32. Mr Battistuzzi agreed that there is a buffer zone between Wingvale row 103 and Friday Hut Road to prevent spray going onto neighbouring properties. The buffer includes pine trees, privet, camphor laurels with undergrowth and a native called pittosporum lantana. Mr Battistuzzi described the buffer as basically a hedge with foliage 30 m tall or higher. There is a small gap in the buffer near the entrance to the Appellant’s property on the edge of Wingvale, but Mr Battistuzzi was not spraying these exposed trees on 18 August 2017.

28. Mr Battistuzzi agreed there is also an embankment in the area where he was spraying “where Friday Hut Road has been cut in”. Mr Battistuzzi estimated the embankment is about three to four metres high so that the road is not necessarily level with where the trees are situated.

Wind conditions on 18 August 2017

34. Mr Sansom gave oral evidence that it was “extremely windy” between 5:45 am and 6:15 am. At 9:00 am, Mr Sansom observed mist travel from the left hand side of the road to the right, being from the west towards the east. Mr Sansom’s evidence was based on his experience of making daily wind observations.

35. In cross-examination, Mr Sansom stated that at about 9:00 am there were wind gusts in excess of 65 km/h. Mr Sansom disagreed that between 5:45-6:15 am the wind was of the same intensity as at 9:00 am. Mr Sansom disagreed that whilst he was driving the wind could have been much less, meaning 30 km less, than 65 km/h. It could have been possibly less or possibly more.

36. Mr Battistuzzi’s contemporaneous record of wind conditions is recorded on the “Wingvale and Ryanstone Pesticides Application Record Sheet” above in [11]. Mr Battistuzzi gave oral evidence that there was a northerly wind at approximately 8:00 am, that it turned around to the north-west (he could not say at what time) and became a south-westerly wind later in the day. In cross-examination, Mr Battistuzzi agreed that different parts of the Appellant’s farm have different wind conditions.

37. Mr Coles gave oral evidence that he was spraying “Lepidex” at 323 Alcorn Road (property “I”) on 18 August 2017 from before sunrise at 5:30-8:00 am. The wind was coming from the west at roughly 5-6 km/h when he started spraying. Mr Coles did not notice any change in the wind conditions between 5:30-8:00 am, when Mr Scheaffe took over spraying. Mr Scheaffe had a break from 9:00-9:30 am. At about 9:30 am they decided to stop spraying because it was too windy. In cross-examination, Mr Coles agreed that 323 Alcorn Road (property “I”) is in an area with varied topography and that wind conditions are location-specific. The wind was coming from the west at 8:00 am and at 9:00 am.

38. Mr Scheaffe gave oral evidence that he was spraying Lepidex at 323 Alcorn Road (property “I”) on 18 August 2017 from about 8:00-9:00 am. The wind was a slight westerly when he started spraying. At about 9:00 am the wind was westerly, and it was too windy to spray so he and Mr Coles decided to stop. In cross-examination, Mr Scheaffe stated that it was not too windy to spray at 323 Alcorn Road (property “I”) between 8:00-9:00 am. Mr Scheaffe agreed that wind conditions on Friday Hut Road can be significantly different from wind conditions at Ballina or Lismore.

39. A summary of the BOM recordings for Ballina Airport (about 14 km south-east of Wingvale) and Lismore Airport (about 30 km south-west of Wingvale) on 18 August 2017 is included below:

Lismore Airport		Ballina Airport
5:30am	NNW	2km/h	CALM	0 km/h
6:00am	NNW	13 km/h	W	6 km/h
6:30am	NW	17 km/h	W	6 km/h
7:00am	NW	9 km/h	W	6 km/h
7:30am	NW	15 km/h	NW	11 km/h
8:00am	NNW	17 km/h	WNW	15 km/h
8:30am	WNW	17 km/h	NW	15 km/h
9:00am	WNW	22 km/h	WNW	15 km/h
9:30am	W	22 km/h	WNW	24 km/h

40. Dr Hewitt, spray drift expert, opined that based on statements made by Mr Sansom, Mr and Mrs Johnson and the BOM recordings summarised immediately above, the wind speed at Wingvale would have been in excess of 20 km/h at about 9:00 am on 18 August 2017. Dr Hewitt accepted that wind speeds can vary over tens of kilometres.

Sample testing and spray records

41. On 21 August 2017, the EPA took samples from various locations including waypoints 5-7 and 11 along Friday Hut Road opposite Ryanstone close to Wingvale. Waypoints were recorded at relevant sampling points, identified on Annexure 1 to the SOAF above in [10]. The Office of Environment and Heritage Environmental Forensics analysed the samples. A “Report of Analysis” dated 8 September 2017 identified that a sample from the left side of Mr Sansom’s car contained diazinon.

42. A “Report of Analysis” dated 25 September 2017 identified the following results:

1. a sample from “Macadamia” (waypoint “6”) identified diazinon and cyfluthrin;

2. a sample from “Macadamia 2” (waypoint “7”) identified diazinon and cyfluthrin;

3. a sample from “site of car exposure” (waypoint “5”) identified diazinon; and

4. a sample from the windscreen of Mr Sansom’s car did not identify any diazinon.

43. The EPA collected pesticide spray records for 1 June 2017 to 19 August 2017 from farms within 1 km of the incident location. These properties are identified from “B” to “N” on Annexure 1 to the SOAF in [10] above. A table summarising the records was exhibited to Mr Lynch’s statement. Properties “D”, “E”, “L” and “M” reported no pesticide spraying from 1 June to 19 August 2017. The following properties reported spraying:

1. Wingvale (property “B”) sprayed diazinon on 18 August 2017;

2. Ryanstone (property “C”) sprayed diazinon on 17 and 18 August 2017;

3. 161 Alcorn Rd (property “F”) sprayed “Bulldock” on 2, 3 August 2017 and diazinon on 1, 2 August 2017;

4. 241 Alcorn Rd (property “G”) sprayed diazinon on 16, 17 August 2017 at;

5. 271 Alcorn Rd (property “H”) sprayed Lepidex on 14, 16, 17 August 2017;

6. 323 Alcorn Rd (property “I”) sprayed Lepidex on 17, 18 August 2017;

7. 517 Friday Hut Rd (property “J”) sprayed diazinon sprayed on 17 August 2017;

8. 493 Friday Hut Road (property “K”) sprayed diazinon on 15, 16 August 2017; and

9. 522 Fernleigh Rd (property “N”) sprayed diazinon on 7, 8, 9 August 2017.

Environment Protection Authority’s process of evidence collection

44. Ms Roberts’ statement dated 17 July 2018 outlines the process of conducting interviews/conversations with Mr Battistuzzi, Mr Ferguson, the Appellant, Mr Johnson, Mrs Johnson and Mr Sansom. Ms Roberts also gave oral evidence. In cross-examination, Ms Roberts was asked about her process for preparing the complainants’ statements. She spoke on the phone and emailed with Mr Sansom, who then finalised and signed his statement on 13 June 2018. Ms Roberts spoke with Mr Johnson on the telephone and drafted a statement. Mr Johnson had some technical difficulties. Around 22 May 2018, Ms Roberts emailed Mr Johnson’s statement to Mr Sansom with the request that he forward it to Mr Johnson. Mr Johnson finalised his statement on 25 June 2018.

45. Ms Ryan’s statement dated 5 September 2018 recounts an inspection she conducted with Mr Lynch on 21 August 2017 at the Johnsons’ property and surrounding areas when they met with Mr and Mrs Johnson and Mr Sansom.

Defendant’s reliance on defence of due diligence

46. The Australian Macadamia Society’s Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011) states that neighbours should be notified of spray operations via an appropriate method.

47. The Commonwealth Primary Industries Standing Committee’s Spray Drift Management: Principles Strategies and Supporting Information (October 2002) states that chemical users should communicate with neighbouring properties regarding anticipated spray schedules using an agreed method of communication. Detailed communication may be needed for specific neighbours in susceptible situations. Communication with neighbours will promote the development of cooperative spray management strategies and help to avoid future conflicts.

48. ChemCert Australia’s Chemical Users Handbook, produced for users of registered agricultural, horticultural, turf and veterinary chemicals states in relation to best practice that communication with neighbours prior to application can reduce the impact of or lead to the avoidance of many spray drift incidents.

49. Dr Hewitt gave oral evidence that residents at 412 Friday Hut Road (property “A”) should be notified if diazinon was being sprayed on Wingvale.

Environment Protection Authority’s evidence relied on by the Appellant to submit pesticide spraying at other properties on 18 August 2017

50. The Appellant relied on evidence adduced by the EPA in the Local Court to submit there was pesticide spraying at other properties on the day of the offence which could have been the source of Mr Sansom’s exposure. I note that the two complaints in the Local Court relying on the Johnsons’ evidence were dismissed. I do not know the details of those charges. Mr Johnson gave oral evidence in the Local Court that at about 6:30 am on 18 August 2017, he was at 412 Friday Hut Road (property “A”) and had a dry, sore throat and sore eyes. He could smell a chemical-type smell. Mr Johnson went out onto the property. He observed some wind and could hear machines running, being machines that he would attribute to a macadamia farm. Mr Johnson looked across his property towards Wingvale and saw spray mist. In cross-examination, Mr Johnson agreed that at about 4:00 pm he could still smell pesticide, could see it in the air and hear machinery like blowers working.

51. Mrs Johnson gave oral evidence in the Local Court that at about 7:30 am on 18 August 2017, she stepped out of the house at 412 Friday Hut Road (property “A”) and could smell a chemical. Mrs Johnson observed wind, mist and she could hear machines running. In cross-examination, Mrs Johnson agreed that as she could hear machinery after 4:00 pm on 18 August 2017 she thought that Wingvale did not stop spraying pesticide until then.

52. Mr Sansom gave oral evidence in the Local Court that on the morning of 18 August 2017 he could smell a strong chemical smell from before Killen Falls Drive. From the driveway at 412 Friday Hut Road (property “A”), Mr Sansom observed one or two spray rigs operating on the Appellant’s properties until around 4:00 pm on 18 August 2017.

53. Dr Hewitt gave oral evidence that when pesticide is applied to a crop, spray drift is anything that moves away from the intended target, it could be spray droplets or solid particles. How far spray can travel depends on wind speed and the height at which it is released. Small particles of spray can travel “large distances, tens of kilometres, hundreds of kilometres, wherever the wind takes them until they finally deposit”. Exposure to spray drift depends mainly on the wind direction.

54. Dr Hewitt gave the following evidence in cross-examination on “inversion spray drift”. During the day, the air gets colder higher into the atmosphere. Temperature inversion occurs when later in the day or at night, there is colder air closer to the ground and the temperature increases with height. Spray drift under inversion conditions is a special case that applicators need to understand because they do not know where the spray is going to go. It would not be best practice to spray when there is little or no wind and temperature inversion, which commonly would be before daylight, unless there is heavy cloud cover.

Appellant’s evidence

55. The Appellant tendered a report of David Bell spray drift expert dated 24 July 2019 (Local Court Ex 24) and an addendum report by Mr Bell dated 14 August 2019 (Local Court Ex 25). An enlarged map of the Appellant’s and surrounding farms identifies the intersection of Killen Falls Drive and Friday Hut Road south of Wingvale (Local Court Ex 26). Amber Ford, who lives in a dwelling on Wingvale, made a statement dated 8 August 2019 outlining that she is generally kept aware of spraying on the property (Local Court Ex 27). The Appellant also relied on oral evidence given by himself and Mr Bell.

56. The following documentary evidence tendered by the Appellant was not referred to in this appeal: photographs of the front of a property (Local Court Exs 3 and 4); an EPA information sheet on “Horticulture” dated December 2017 (Local Court Ex 16); and a diagram of 412 Friday Hut Road (property “A”) (Local Court Ex 21). Four character references for the Appellant from the Local Court were tendered for the sentencing appeal (Ex D).

Mr Moore (wind conditions on 18 August 2017/due diligence)

57. The Appellant Mr Moore gave oral evidence that the wind conditions on his farm of 18 August 2017 were appropriate for spraying. The spray applicators stopped at about 11:00 am when the wind picked up. They sprayed again from 12:30 pm, stopping at about 2:00 pm because the wind was coming up. Mr Moore heard other sprayers on 18 August 2017 but could not say which property they were at. Mr Moore gave oral evidence that people living in a dwelling on Wingvale are informed when spraying occurs.

58. In cross-examination, Mr Moore agreed that he was aware of best practice guidelines published by the Australian Macadamia Society and that these guidelines require neighbours to be informed of spraying. Mr Moore used to do this when notification was required on the labels of chemicals he used. Since those chemicals have since been withdrawn from use, Mr Moore has not been informing his neighbours of spraying. Since these allegations have come to light, Mr Moore has been advising his neighbours about spraying. Mr Moore agreed that looking back it would have been reasonable to notify his neighbours in advance of spraying on 18 August 2017.

59. Mr Moore stated that he uses BOM forecasts for Lismore and Ballina as a very rough guide for weather conditions on his property. Conditions on his property can be “vastly different” to those recorded at Lismore and Ballina. Mr Moore assesses wind conditions using an industry approved standard called the Beaufort scale, which states that it is appropriate to spray in wind speeds of 3-20 km/h.

Mr Bell (wind conditions on 18 August 2017/other sources of pesticide/inversion spray drift)

60. Mr Bell’s opinion in his report dated 24 July 2019 relied on spray records collected by the EPA summarised above in [43] and BOM weather data for corresponding dates at Ballina Airport and Lismore Airport. Mr Bell concluded that it was possible there was spray drift from 241 Alcorn Road (property “G”) on 17 August 2017 which deposited diazinon onto the Appellant’s property and surrounds.

61. Mr Bell’s addendum report dated 14 August 2019 outlined two site visits he undertook to the Appellant’s property and surrounding areas on 11 August 2019 and 12 August 2019. Following these visits, Mr Bell concluded that wind conditions at Friday Hut Road and surrounds did not mimic BOM wind recordings at Ballina Airport or Lismore Airport.

62. Mr Bell stated that spray drift can occur up to 5 km. Given the nature of the topography observed surrounding the Appellant’s property (rolling hills, undulations, gullies and waterways, small valleys and tall vegetation) it is highly probable that inversion spray drift could have travelled from up to 10 km away. Mr Bell observed there are many macadamia farms in a 10 km radius from Wingvale. Spray records collected by the EPA demonstrated that several farms in the region spray diazinon and Lepidex in the afternoon, evening and at night being conditions that increase the risk of inversion spray drift.

63. Mr Bell opined that based on his site visits it was unlikely that spray drift emanated from Wingvale on 18 August 2017. This conclusion was supported by the inconsistent wind conditions he had observed between BOM sites at Lismore and Ballina and at the Appellant’s property. It was highly likely that spray drift occurred from surrounding properties between 1 to 17 August 2017 based on records collected by the EPA.

64. Mr Bell also gave oral evidence that since the Appellant had not used cyfluthrin in August 2017, there would have been a drift event from another farm in the region which deposited the cyfluthrin (sold as Bulldock) picked up in the EPA samples collected on 21 August 2017.

65. Mr Bell estimated that Killen Falls Drive is about 1.1-1.2 km south of 412 Friday Hut Road (property “A”). Assuming the wind was coming from the west and that Mr Sansom encountered a chemical smell before Killen Falls Drive, there is potential that it was spray drift from a farmer other than the Appellant. Mr Bell stated that if there had been wind speeds of 65 km/h any cloud of mist would have dissipated. One can basically minimise and stop spray drift totally if an air blast sprayer is set up correctly. Mr Bell believed that the Appellant had taken all reasonable precautions in relation to the use of pesticide on 18 August 2017.

66. In cross-examination, Mr Bell stated that the Australian Macadamia Society’s guidelines are “very ambiguous and quite difficult to interpret”. Mr Bell did not necessarily agree that spraying in strong wind conditions would be a failure to take reasonable precaution to prevent spray drift because it would depend on what is downwind. It would be safe to spray if one was using a properly calibrated air blast sprayer. Mr Bell would not necessarily expect a farm operator to notify neighbours before spraying. Mr Bell did not agree that the Appellant should have notified the occupants of 412 Friday Hut Road (property “A”) before spraying.

No injury from diazinon exposure

67. The Appellant was granted leave by the Court at the outset of the appeal hearing to tender fresh evidence relevant to injury pursuant to s 37(2) of the Appeal Act, namely the affidavit of Professor Weatherby pharmacologist affirmed 26 February 2021 (Ex B) including a copy of his curriculum vitae and a report dated 10 November 2020 and a bundle of medical records for Mr Sansom from 13 July 2011 to 19 September 2018 (Ex C). Leave was also granted for Professor Weatherby to give oral evidence pursuant to s 38(1) of the Appeal Act.

Professor Weatherby’s report

68. In summary, organophosphate insecticides such as diazinon affect the parasympathetic nervous system. The parasympathetic nervous system controls bodily functions. When the parasympathetic nervous system is stimulated (eg exposed to organophosphate insecticides), it decreases respiration, decreases heart rate, increases digestion, produces constriction of the pupils of the eye, decreases blood pressure, constricts bronchial muscles and stimulates bronchial secretions, increases production of saliva and mucus and increases urine production. Organophosphate insecticides reduce the activity of an enzyme known as cholinesterase found in red blood cells and in the plasma parts of the blood, inter alia. The red cell test and serum test measure cholinesterase activity. These tests provide a measure of the severity of exposure to organophosphate insecticide. Mild exposure usually produces a decrease to 20-50% of normal activity (compared to 100%). Exposure to organophosphate insecticide with no symptoms can see a decrease in serum cholinesterase activity to 50-90% of normal activity.

69. In relation to Mr Sansom’s blood test results, the result was 9.8 kU/L of serum cholinesterase activity. The normal range in the community is 6.0-15.6 kU/L. As the activity was found within this range, the laboratory interpreted this result as “No suggestion of recent organophosphate exposure (within 2-3 weeks)”. The second test was the red cell cholinesterase which was recorded as 11.9 kU/L. The normal range for the community is over 8.0. As the activity found was greater than 8.0 then again this is not a decrease in activity as would occur if an organophosphate insecticide exposure had taken place. The laboratory has interpreted this result as “No suggestion of organophosphate toxicity within 2-3 months”. The conclusion following both tests must be that no exposure has occurred.

70. Professor Weatherby expressed at par 11 that a single blood sample was taken, and two different tests were carried out, both which showed no decrease in cholinesterase activity after 11 days. These tests are able to detect decreased activity for a longer period than that, 2-3 weeks for the serum test and 2-3 months for the red blood cell test. The red blood cell test is more sensitive and regarded as the more appropriate test to use. The same result from both tests indicates very strongly that there was no exposure to diazinon even at a mild level.

68. Professor Weatherby concluded:

19. My overall opinion in this matter is that:

(i)   Mr Sansom has reported a group of symptoms which do correspond to. overstimulation of the parasympathetic nervous system. However there are symptoms of parasympathetic stimulation that occur that were not reported by Mr Sansom. If it was parasympathetic stimulation, then the exposure to diazinon would appear to have been severe.

(ii)   Decreased activity of cholinesterases occurs prior to symptoms appearing (Fuzery & Clarke, 2017). Therefore, with the symptoms described, the cholinesterase activity would have decreased in the hours immediately after exposure. The two blood tests are very significant in that together there is no evidence of decreased activity of cholinesterases. Therefore it must be concluded that no exposure to diazinon (or other organophosphate insecticide) occurred either at the time immediately prior to the symptoms being experienced or at the time the symptoms were experienced.

(iii)   An alternative explanation is that the symptoms which were self-reported were actually those of an attack of allergic rhinitis. Similarly to the symptoms of organophosphate exposure, the list of reported symptoms does not include all the symptoms possible. However a person self-reporting a health incident is not always able to provide exact information on what is being experienced at the time.

(iv)   In conclusion, my opinion is that, the significant aspect of determining exposure to an organophosphate insecticide such as diazinon are the 2 blood tests. These together do not indicate that any exposure occurred.

Professor Weatherby’s oral evidence

72. Professor Weatherby gave oral evidence that the blood test results are accurate and precise. The red cell test is very sensitive to organophosphate pesticide exposure and is the test predominately relied on. The fact that the red blood cell test says no suggestion of toxicity demonstrates quite clearly that Mr Sansom was not exposed to diazinon. Mr Sansom’s results for the serum test being 9.8 kU/L and for the red cell test being 11.9 kU/L simply demonstrated that he is within the range of the normal general population results for both tests. Mr Sansom did not have a baseline test.

73. Mr Sansom’s medical records demonstrate that he is allergic to various things found on farms. Given that Mr Sansom’s symptoms became more severe after three days, that would indicate a high probability that the symptoms were an allergic reaction.

74. In cross-examination, Professor Weatherby agreed that, generally speaking, if someone is exposed to organophosphate pesticide they may suffer decreased enzyme activity. It depends on the level of exposure. If there is only a very tiny amount there may not be any decrease in activity. Even in some people who have a mild exposure sometimes no loss of activity occurs, but for severe exposure a significant loss of enzyme activity occurs.

75. Professor Weatherby agreed that in relation to the serum test an individual might have an ordinary activity level of somewhere up near 15.6 kU/L or as low as 6.0 kU/L. Mr Sansom’s result for the serum test was 9.8 kU/L. In relation to the red blood cell test, the normal range is over 8.0 kU/L and can be as high as about 18 kU/L. Mr Sansom’s red blood cell result of 11.9 kU/L could be consistent with mild exposure to organophosphate but not further. Professor Weatherby agreed that there was no baseline activity test which Mr Sansom’s test results could be compared against.

76. Professor Weatherby was asked to assume that if Mr Sansom had a relatively high baseline number relative to that general population study, whether his results would be consistent with a decrease in enzyme activity. Professor Weatherby stated that if Mr Sansom had very mild exposure the results could be consistent with that. But Mr Sansom’s symptoms point to severe exposure. For severe exposure the result would be well below the general population range because enzyme activity would be towards zero. Given that Mr Sansom’s results are within the general population range they suggest there has been no severe exposure. Professor Weatherby agreed that the impact of exposure to organophosphate can vary between individuals. There can be differences in the degree of decrease in enzyme activity between different people.

77. Professor Weatherby agreed that if someone was driving past a spray rig spraying diazinon, observed the spray coming towards them and immediately suffered stinging in the eyes, then stinging eyes could be consistent with exposure to diazinon. However, there are other things can cause stinging in the eyes. Mr Sansom reported saliva production, headache, stinging of the eyes. Professor Weatherby stated that these symptoms would require more than a mild exposure to diazinon.

Magistrate’s findings

78. The EPA tendered the magistrate’s reasons dated 23 June 2020 (Ex 3). The magistrate found that Mr Sansom’s direct observations at 9:00 am in relation to injury and causation should be accepted beyond reasonable doubt. The hypothesis that the spray came from a property other than Wingvale, supported by the opinion of Mr Bell, was not a reasonable possibility. Mr Battistuzzi was accepted to be a very honest witness but his evidence had to be assessed in light of the fact that the prevailing wind when he was spraying on the morning of 18 August 2017 next to Friday Hut Road, was blowing from the west. Mr Battistuzzi’s evidence did not demonstrate that he was positively not in the area where Mr Sansom said he observed the rig.

79. The EPA relied on the following findings in relation to Mr Sansom’s credit:

Credibility of Luke SAMSON [sic]

I rejected Luke SAMSON's [sic] evidence about wind variability before he left for work. His evidence that it was an extremely windy day at 5:45-6:15am was inconsistent with the independent evidence from COLES and SCHAEFFE [sic].

There was a question around Luke SMASON's [sic] ability to observe spraying 20 metres above the tree canopy. I did not accept that reliability of that evidence because it was made from a moving car, by the driver of that car, and would only have been a momentary look.

The inconsistencies between his estimate of windspeed at 65 kph in his statement and his concession that it could have been 35 kph are other factors of unreliability that I have taken into account when assessing all of the evidence.

However, a tribunal of fact can reject parts of a witnesses' evidence and accept others. In this case, I direct myself that I must consider my above findings in assessing whether I find Luke SAMSON [sic] to be an honest and reliable witness, particularly where he gave evidence that spray blew into his car from Wingvale at 9:00am. Despite those findings, there was overwhelming corroborative evidence that taken together persuades me to accept Luke SANSOM's evidence about the events that occurred around 9:00am.

They include:

•   Luke SAMSON [sic] was unshaken during cross-examination that he was driving along Friday Hut Road next to Wingvale which was to the west of his car.

•   His evidence that he saw a spray rig on Wingvale as he drove past was corroborated in part by the evidence of Mr BATTISTUZZI

•   Mr BATTISTUZZI was spraying Diazinon on rows that were 30 metres to the west of Friday Hut Road that morning.

•   Mr BATTISTUZZI agreed that at 8:00am, the wind was Northerly and that it turned North Westerly and later in the day became South Westerly.

•   Mr BATTISTUZZI conceded that if he was spraying near Friday Hut Road, he relied on “anything with an easterly type influence”, however he conceded there was no direct easterly wind that day.

•   Mr SCHAEFFE [sic] and Mr COLES who were only 1 km away, decided to break at 9:00am because the wind was too gusty and was coming from the West.

•   Mr SAMSON [sic] was unshaken in his evidence that he saw spray mist coming from the rig working on Wingvale and blowing from right to left across Friday Hut Road

•   He engaged in consistent conduct to prevent mist coming into the car, by winding up the driver's window and leaning across to the passenger window to try to close it. When unable to close it quickly, he decided to keep driving through the mist.

•   His subsequent conduct was also consistent: when he got out of the car at the JOHNSONs property, he spoke to his wife about what happened. He then rang the EPA for the first time that day, between 9:00am and 10:00am.

•   Mr SAMSON's [sic] evidence that after he first called EPA he saw 2 rigs on Wingvale, is consistent with the evidence from Mr BATTISTUZZI and Mr FERGUSON that they were both spraying from separate rigs at Wingvale that morning, but that Mr FERGUSON was not spraying near Friday Hut Road when he first started at 8:30am.

•   Mr SAMSON's [sic] evidence that he observed spray mist above the canopy was partly corroborated by the evidence of Mr BATTISTUZZI that spray is ideally applied above the canopy to achieve maximum coverage - he assumes that on 18 August, it was applied half a metre above the canopy but could have been higher. The trees he sprayed would have been up to 10 metres tall.

•   A swab taken from the side of SAMSON's [sic] car (that is the side closest to Wingvale) was analysed and revealed the presence of Diazinon

•   A sample was taken from the site at which Mr SAMSON [sic] complained that the car was exposed, and subsequent analysis revealed the presence of Diazinon

•   Mr SAMSON [sic] sought medical treatment for ailments that were not present when he woke on 18.8.17, and gave a consistent history to his doctor.

•   His oral evidence that he experienced symptoms at 9:00am was unshaken during cross-examination by experienced Counsel.

Defence Counsel submits that there are further factors that undermine Luke SAMSON's [sic] credibility: his close relationship to the JOHNSONs and the probability of contamination of his evidence by the JOHNSONs (directly and because he was sent a copy of Ronald JOHNSON's statement), his bias against pesticides, the implausibility of a mist during supposedly windy conditions, his failure to seek immediate medical attention, the inconsistent history given to Dr ADENDORFF and the test results which showed no exposure to organophosphates.

I do not accept those submissions for these reasons:

•   There is no evidence of collusion with the JOHNSONs. In fact their evidence was in parts inconsistent with Mr SAMSON's [sic]. I watched Mr SAMSON [sic] closely during his cross-examination and found him to be a straight-forward witness, even vague at times, who was unlikely to have concocted a false account with his parents-in-law.

•   The sending of Mr JOHNSON's statement to Luke SAMSON [sic] by Ms ROBERTS was unfortunate, however there was nothing sinister in that - Mr JOHNSON does not own a computer whereas Mr SANSOM does. In addition, there is nothing in Mr JOHNSON's statement relating to Luke SAMSON's [sic] allegation of driving up Friday Hut Road. There is no evidence that the receipt of Mr JOHNSON's statement infected the recollection of Luke SAMSON [sic].

•   There was no evidence, only a rejected suggestion, that he has a bias against pesticides. The evidence was to the contrary: he, unlike the JOHNSONs, works in agriculture and has customers who are macadamia farmers who use pesticides. He used to spray as a contractor for a company 20 years ago. Further, he uses chemicals in his nursery. He was unshaken in his evidence that any concern about Diazinon arose from concern of its use that day when it drifted off the property.

•   The witness was adamant in cross-examination that he drove through mist on Friday Hut Road. That passage of driving was not a long one in terms of time. His evidence was that the mist was across the road moving quickly from left to right. His evidence was not that the mist was stagnant on Friday Hut Road but was moving from the rig and across the road. It is not implausible, even on his own account of strong winds, that mist could be over the road at that moment.

•   His evidence about the speed of the winds and the height of the spray above the canopy at that moment is unreliable, given the circumstances in which his observation was made: driving on a public road, winding up manual windows, struggling to wind up the passenger side window.

•   Mr SAMSON's [sic] failure to obtain immediate medical attention needs to be assessed in light of the fact that he made an immediate complaint to the EPA, then followed the EPA investigator's suggestion which came days later and submitted to blood testing. That conduct is inconsistent with someone who, as the Defence submits, was lying about having driven through pesticide spray mist.

•   The inconsistencies in the history given to the doctor were adequately explained in cross-examination: the doctor incorrectly recorded "ears" rather than “eyes”, he worked outside all day and could taste the chemical in his mouth all day. While there was no mention in the Doctor's statement of injury whilst driving, this must be viewed in the context that he had already made that complaint to the EPA investigator Peter LYNCH on 21 August, 8 days earlier.

•   Dr ADENDORFF's record (Exhibit 21 [sic]) indicates a consistent history given by a regular patient: that Mr SAMSON [sic] had been a patient for 3 years, had presented with a concern about his exposure to Diazinon and his subsequent symptoms, that 2 rigs were spraying on a neighbouring property spraying macadamia trees, that the winds were very high at the time and that he experienced a cluster of symptoms which lasted 3 -4 days.

•   The lack of pathological findings is, according to Peter LYNCH, not unexpected. Mr LYNCH has had his own experience of exposure and gave unshaken evidence that often blood tests do not show the presence of organophosphorus.

Mr SANSOM's description of symptoms he experienced at 9:00am was consistent and unshaken during cross-examination.

His conduct in making a complaint to EPA, directing investigators to take samples from the exterior of his vehicle and then consulting a medical practitioner when his symptoms persisted, are all actions that are consistent with someone having been injured in the manner described.

Given the corroboration of Luke SAMSON's [sic] account and having found that the evidence of Mr BELL does not raise a doubt that is reasonable, I find as a fact that the wind at 9:00am was westerly and gusty.

Considering the proximity of the spraying area on Wingvale next to Friday Hut Road at the moment when Mr SAMSON [sic] was driving by, the westerly wind and the westerly position of Wingvale in relation to Friday Hut Road, the only logical explanation is that the mist that blew into his car blew from Wingvale.

I further find proved beyond reasonable doubt that when Mr BATTISTUZZI was spraying close to Friday Hut Road, he was doing so in a manner that was likely to injure people passing at that time along Friday Hut Road. Although that road is a rural road, it connects Tintenbar, Brooklet and other villages and is regularly used by motorists and school buses. At 9:00am on a week day, the likelihood is that people would either be driving or otherwise be a passenger around that time.

Given that Mr BATTISTUZZI was spraying close to that road in unfavourable wind conditions, and given that the Diazinon spray was blown from Wingvale onto a passing car, l find that the Prosecution has proved beyond reasonable doubt that at that time, the Defendant permitted the pesticide to be used in a manner likely to injure another person.

I accept Luke SAMSON's [sic] evidence BRD that he was injured and that his injuries were caused by the manner in which the pesticide was sprayed on Wingvale. Accordingly, I am satisfied BRD that the defendant used a pesticide in a manner that injured Luke SAMSON [sic].

Due diligence defence – magistrate’s reasoning

80. The EPA also relied on the magistrate’s reasons in relation to the available defence of due diligence:

MATTERS TO BE PROVED BY THE DEFENCE

Defence Counsel submits that the defence has been made out because the spray drift occurred due to caused over which the Defendant had no control, the Defendant had taken all reasonable precautions and had exercised due diligence to prevent the commission of the offence.

I accept Counsel’s submission that safety was a paramount concern to the Defendant who was an experience macadamia farmer with no prior adverse history. He appropriately trained and oversaw his staff and the calibration of machinery. I accept that the use of the Beaufort scale to measure wind was appropriate, and that the use of buffer zones and awareness of sensitive areas were aspects that he addressed.

I further accept that Mr BATTISTUZZI made observations of the wind before he started spraying. As did Mr FERGUSON.

However, I do not accept Defence Counsel’s submission that the onus has been discharged. That is because the Defendant has failed to discharge his burden of proving on the balance of probabilities each of the essential elements. That is that the spray drifted due to a cause out of his control AND that he took all reasonable precautions AND that he exercised all due diligence to prevent it. For the reasons below, I find that he did have control over the cause, and that while he took precautions and exercised due diligence, he did not take all reasonable precautions and he did not exercise all due diligence.

Was the offence committed due to causes over which the Defendant had no control?

Mr BATTISTUZZI acknowledged in his evidence that pesticide spray drifts in the same direction as the wind. When Mr SAMSON [sic] drove past Wingvale, the Westerly wind carried the Diazinon off Wingvale and across Friday Hut Road, drifting easterly.

While the defendant had no control over the wind direction, he did have control, through the operation of the air blaster by Mr BATTISTUZZI, over the drift of spray with the wind. At the time that the Westerly wind carried Diazinon from his air blaster off the farm, Mr BATTISTUZZI was in control of the spray leaving the air blaster.

Accordingly, the offence was committed due to a cause over which the Defendant had control.

Even if I was wrong about that, I would have found that the Defendant had failed to discharge his onus in relation to the second essential element of the defence.

Did the Defendant take all reasonable precautions and exercise all due diligence to prevent the commission of the offence?

Defence Counsel submits that all reasonable precautions and due diligence were taken.

I reject those submissions for the following reasons.

I do not accept the evidence of Mr BATTISTUZZI that they made all attempts to prevent spray drift. This is because of the location at which he was spraying, he was close to a public road. The sensitivity of that area is the reason why buffer zones are in place. As Mr BATTISTUZZI said, to spray there, there should be an easterly wind, and yet there was no easterly component to the wind when he was spraying near that area. This was known to him before he started spraying.

For the spray to be travelling across to Friday Hut Road, he was not paying proper attention to the prevailing westerly winds at that time, even despite spraying only one side of the trees. The location in which he was spraying was near a public road on which school buses travel, it was a school day and the road separated Wingvale from a residential property. Given those circumstances and the time of day at which he was spraying, when a school bus or commuter traffic could be reasonably expected, a high standard of care was necessary to prevent drift, in order to amount to reasonable precautions. All reasonable precautions would include only spraying close to Friday Hut Road when there was an easterly wind.

Defence Counsel submits that the failure to notify neighbours was not a failure to exercise due diligence. It is not a matter referred to by the Minister in the Second Reading Speech. However I do not accept that submission for these reasons:

Mr Battistuzzi

162. Mr Battistuzzi is a diligent and experienced applicator but that does not dismiss the possibility that on the basis of the evidence, he did not do the right thing on the day in question. He was spraying at a time and place which was inappropriate given the direction of the wind.

The Appellant

163. It is accepted that the Appellant is a person of good character but this does not assist the Court in assessing whether a strict liability offence has occurred. It is accepted that the Appellant calibrated the machinery and had properly trained his applicators.

Available defence

164. If the Court is satisfied beyond reasonable doubt that Mr Sansom was injured in the way that he says, the question becomes whether the Appellant exercised or his employee exercised all due diligence to prevent that. The Appellant bears the onus of establishing the due diligence defence under s 10(3)(a) and (b) of the Pesticides Act on the balance of probabilities.

165. The magistrate’s findings on this issue extracted above in [80] should be adopted. In relation to s 10(3)(a), the magistrate accepted that the Appellant had control over operation of the air blast sprayer and therefore the defence was not satisfied. In relation to s 10(3)(b), the magistrate found that the Appellant or his employee ought not to have used the air blast sprayer as close to Friday Hut Road as they were using them at about 9:00 am, in the absence of a favourable wind. This would be an easterly wind that directs spray back onto the property. Common sense says spraying should not occur near a public road and residential properties without a favourable wind. For completeness also refer to the evidence of Dr Hewitt on due diligence. Applying the magistrate’s findings in respect of liability to the question of the defence, one cannot spray as the wind was in terms of its direction on that day (ie it was coming from the west).

166. In relation to notification of neighbours, the Court should apply the magistrate’s reasons where she sets out why notification of properties and people in the immediate vicinity of spraying is appropriate. The Appellant failed to notify neighbours as the relevant guidelines required. The Appellant’s criticism was that Mr Sansom was not relevantly a neighbour in the circumstances in which he came to be affected. That is, he was driving up the road and could simply have been any other member of the public. The answer is though, Mr Sansom was not just any member of the public. Had he been notified, he could have, as the magistrate found, delayed or minimised his driving on the day in question or at least had his windows wound up. If there had been notification, it is entirely possible Mr Sansom would not have been injured in the way he says he was. All due diligence, given that Mr Sansom was a neighbour, was not exercised.

Consideration of conviction appeal

167. As summarised above in [5], and emphasised by the Appellant in [81], the EPA bears the onus of proof of its case and the Appellant is not required to prove error by the magistrate. The EPA must prove the Appellant’s guilt beyond reasonable doubt. The Appellant argues that in a number of respects the EPA has not proved its case beyond a reasonable doubt. A large number of matters have been raised.

168. The relevant principles I am applying in this rehearing are identified in the extract of Charara set out above in [6]. As identified in Charara at [23]-[24] it is permissible to consider the reasoning of the magistrate. The magistrate’s reasons are briefly summarised above in [78]. The magistrate’s findings in relation to Mr Sansom’s credit and the available defence are extracted in full above in [79]-[80]. The reasons are detailed and address the evidence extensively. I note that the majority but not all the matters referred to by the magistrate in reaching her finding of guilty were referred to in this appeal. No criticism is intended by that observation. I make it simply to explain why I do not refer to every matter the magistrate did because it was not a matter raised in this appeal.

169. As the EPA identifies, key to a finding of guilt is the credibility of Mr Sansom, whose evidence the Appellant submits should not be accepted in key areas. In this regard, the EPA referred to Galea v Galea where Kirby A-CJ held (Priestley and Meagher JJA agreeing) at 265-266:

The judge hears the evidence in its entirety, where the appellate court is typically taken to selected passages chosen by the parties to the appeal: see Lend Lease Developments Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210. The trial judge hears and sees all of the evidence in context, chronologically unfolding as it is given in testimony. Typically, the trial judge has the time during the trial and adjournments to reflect upon the evidence and to weigh it against all of the other evidence whilst the latter is still fresh in his or her mind. A busy appellate court may not always, in the nature of things, have the time or opportunity to do more than to visit particular passages of the transcript. From these there may, or may not, emerge an accurate impression of the whole of the evidence and the conclusions to be derived from it. The trial judge has advantages which simply cannot be provided to an appellate court under present arrangements. He or she is aware of interruptions, hesitations and delays in the giving of testimony which will generally be quite unknown to the appellate court. The judge at the trial will be able to observe the body language of the witnesses that can sometimes be important for interpreting communication. This is usually unrecorded in the cold page of an appeal book. These and other reasons have led to the conventional theory, accepted by the courts of this country and of England, that a trial judge has marked advantages in the assessment of the credibility of witnesses which an appellate court, prisoner of the transcript, can rarely match.

170. As the extracts from Charara and Galeav Galea above identify, the magistrate had an important advantage during the five-day trial in observing a witness and hearing all the evidence, in contrast to this Court on appeal. As identified by the EPA, the threshold for departing from a trial court’s credit-based findings is high. Such findings should stand unless it can be shown that the trial court “palpably misused” its advantage: SS Hontestroom v SS Sagaporack at 47 cited in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at 479 (Brennan, Gaudron and McHugh JJ). There has been no suggestion that the magistrate “palpably misused” her advantage.

171. The Appellant submits that when the evidence as a whole is considered there is reasonable doubt as to the Appellant’s guilt, relying on Pell v The Queen at [39], [57]-[58] and [118]-[119].

172. The major change in evidence relied on by the Appellant compared to the Local Court hearing is the expert opinion of Professor Weatherby to the effect that the red cell and serum test results mean that Mr Sansom did not have any exposure to organophosphate in the two or three months before the test in relation to the red cell results and two or three weeks in relation to the serum results. This opinion was relied on extensively to argue that Mr Sansom’s evidence and Mr Lynch’s evidence could not be correct. Professor Weatherby’s opinion evidence about the blood test results inter alia has no bearing on the evidence of what physically occurred on the day of the alleged exposure and does not undermine Mr Sansom’s credibility in that respect. Contrary to the Appellant’s submission in [83], Professor Weatherby’s opinion is not an interconvertible fact that demonstrates the magistrate’s conclusions are erroneous and does not support a departure from her findings on credit.

173. Apart from Professor Weatherby’s fresh evidence, the matters relied on by the Appellant as undermining Mr Sansom’s credibility are summarised above in [112]-[112]. Firstly, the Appellant submitted Mr Sansom is related to the Johnsons, and this was a motive to be untruthful. This was not accepted by the magistrate because there was no evidence to support such a claim. The magistrate found Mr Sansom’s evidence varied from the Johnsons, (see the extract above in [79]). No basis has been presented for a different finding in this appeal. Secondly, concerning the suggestion that Mr Sansom’s evidence was compromised by the EPA’s investigation, why the EPA sent Mr Johnson’s statement to Mr Sansom’s computer was explained above in [44] and [161], and there is no evidence that he read the statement or that its contents influenced his evidence. None of the bases put forward for undermining Mr Sansom’s credibility in relation to his own experiences are made out in this appeal.

174. It is necessary to consider Mr Sansom’s first-hand account of what occurred on 18 August 2017.

Mr Samson saw a spray rig on Wingvale on 18 August 2017

175. Mr Sansom’s oral evidence was that he saw a spray rig as he drove north along Friday Hut Road past Wingvale at about 9:00 am (see above in [21] and [26]). He marked a red dot on the map being Local Court Ex 19 to show the approximate location of where he saw the spray rig, see above in [25]. His evidence did not alter in cross-examination. In cross-examination extracted in [27] above Mr Sansom stated he could see the outline of the operator in the spray rig cabin. His evidence is consistent with Mr Battistuzzi’s oral evidence summarised above in [29] of where he was spraying. In cross-examination, Mr Battistuzzi gave evidence summarised above in [30] that he started spraying close to Friday Hut Road at Wingvale row 103 at about 8:00 am and moved inward reaching Wingvale row 92 at about 9:00 am. He marked where he sprayed on a map tendered as Local Court Ex 12. The magistrate observed that Mr Battistuzzi was spraying on rows that were about 30 m to the west of Friday Hut Road at the time of the offence.

176. Mr Battistuzzi’s location on Wingvale is confirmed by the contemporaneous record attached to the SOAF at Annexure 2 above in [11] and the diagram attached at Annexure 3 extracted above in [12].

177. The Appellant’s counsel referred to the photograph of Ms Ryan and Mr Sansom taken at waypoint “4” on the map attached to the SAOF at Annexure 1 (see above in [10]), being the point where Mr Sansom said his car was sprayed, and submitted that because this photograph showed trees on the Wingvale side Mr Sansom’s observation could not have been correct. The Court is not able to draw its own conclusions in relation to any aspect of that photograph in the absence of any other information about the surroundings at that point. No inference arises which can challenge the direct evidence of the eyewitness being Mr Sansom.

178. The Appellant’s strongest argument is that the points marked on Local Court Ex 12 and on Annexure 1 to the SOAF as the location where Mr Sansom saw a spray rig and experienced spray, are actually opposite Ryanstone (property “B”) not Wingvale (property “A”). The Appellant submits that since Mr Battistuzzi was on Wingvale, Mr Sansom must have been mistaken when he says he saw a rig from a point that is directly opposite Ryanstone. According to the records attached to the SOAF, Mr Ferguson was on Ryanstone. Mr Ferguson’s location was not raised in this appeal. I agree with the EPA that to the extent a spot opposite Ryanstone as opposed to Wingvale has been nominated on the maps in Local Court Ex 19 and Annexure 1 to the SOAF, this does not undermine Mr Sansom’s oral evidence that as he drove around the bend in Friday Hut Road past Wingvale he saw a spray rig to his left.

179. Mr Sansom’s evidence extracted above in [27] is that the spray rig was at the end of a row. His evidence was not that the spray rig was at the end of all the rows and therefore close to Friday Hut Road. I agree with the EPA’s explanation of the evidence, summarised above in [142]-[145]. Mr Sansom was extensively cross-examined about events on 18 August 2017 as set out in [27] above. His evidence of seeing a spray rig at the end of a row was clarified as meaning at the end of the row closest to Friday Hut Road, “not the end row of trees”. This statement does not in any way undermine Mr Sansom’s evidence of what he saw.

180. The EPA has proved that Mr Sansom saw a spray rig on Wingvale on 18 August 2017 at about 9:00 am as he was driving past.

Mr Sansom was exposed to spray mist on 18 August 2017

181. Mr Sansom’s evidence above in [21] and [26] was that as he drove his car north along Friday Hut Road beside Wingvale, spray mist came through his car window from the spray rig he saw and he experienced an immediate onset of symptoms including salivation, stinging in the eyes and difficulty breathing. This evidence is not contradicted by any other evidence of fact (in contrast to the opinion evidence from Professor Weatherby). Mr Sansom’s evidence of exposure to spray mist is reinforced by his immediate actions in closing the driver’s side window and trying to close the passenger car window on the Wingvale side, telling his wife what occurred on his return to his house nearby at 412 Friday Hut Road (property “A”) and ringing the EPA several times that day about what occurred. Mr Sansom later had blood tests and attended a doctor’s appointment with Dr Adendorff. I agree with the EPA that is it very unlikely Mr Sansom would have made up a version of events and then later sought medical advice and had blood tests to try to bolster that. The magistrate had a similar view.

182. No credible reason to disbelieve evidence of what physically occurred has been identified. Mr Sansom’s cross-examination set out above in [27] did not result in his evidence being undermined in relation to exposure to spray mist. Professor Weatherby’s opinion evidence does not undermine findings about the events on 18 August 2017.

183. Mr Sansom’s evidence above in [27] that he saw spray about 20 m above the tree canopy was not accepted by the magistrate. Nor did she accept his evidence concerning wind gusts of 65 km/h. I do not consider these findings undermine Mr Sansom’s overall evidence given the relatively fleeting exposure he experienced.

184. Accordingly I accept the submissions of the EPA summarised above in [136]-[137] that Mr Sansom’s evidence should be accepted. I find that he was exposed to spray mist on 18 August 2017.

Mr Sansom was injured

185. The Court Attendance Notice particularises the injury to Mr Sansom as follows:

Whilst driving North along Friday Hut Road near the Premises [at or near 345-387 Friday Hut Road, Brooklet in the State of New South Wales 2479], Mr Luke Sansom was exposed to the pesticide. As a result, Mr Sansom suffered injury in the form of, but not limited to, headache, nausea, irritated, watering and stinging eyes and sinuses, restricted breathing, sore throat, elevated heart rate and anxiety.

186. Mr Sansom described his symptoms when he gave oral evidence on the third day of the hearing in the Local Court, summarised above in [21], of salivation, stinging eyes, headache and elevated heart rate on the day of exposure.

187. The medical report of Dr Adendorff extracted in [22] above is consistent with the symptoms Mr Sansom reported experiencing on the day and identifies symptoms he reported as continuing for several days afterwards.

188. Injury is broadly defined in s 4(1) of the Pesticides Act to include any kind of physical or psychological injury whether temporary or permanent including (not exhaustively) nausea, allergic reaction, dizziness, headache, running nose or eyes. Mr Sansom was injured within the meaning of that definition in the Pesticides Act regardless of any medical report later obtained. To constitute an offence Mr Sansom had to be exposed to a pesticide regulated by the Pesticides Act in this case diazinon as identified in pars 9-11 of the SOAF.

189. The Appellant relies on Professor Weatherby’s report and oral evidence set out in detail above in [68]-[77] to submit that the EPA has not proved beyond reasonable doubt that Mr Sansom was exposed to diazinon on 18 August 2017. Professor Weatherby considered the same blood test results as those attached to Dr Adendorff’s report, summarised above in [23]. After explaining how diazinon affects the parasympathetic nervous system, Professor Weatherby identified a number of symptoms resulting from diazinon exposure and provided an explanation for the how certain blood tests can be used to detect exposure and the severity of that exposure. The explanation for the pathology results finding of no exposure to an organophosphate based on an assumed normal range of serum cholinesterase and for red cell cholinesterase in the community is identified. While Professor Weatherby considered Mr Sansom had experienced a number of symptoms consistent with exposure, because he did not experience all symptoms which suggested a severe exposure, which the symptoms he did experience suggested, Professor Weatherby proffered an opinion that Mr Sansom may have had an allergic rhinitis reaction to an unknown substance. Once again he identified that not all the symptoms of such a reaction were experienced by Mr Sansom.

190. In cross-examination Professor Weatherby agreed that there was no baseline activity against which Mr Sansom’s test results could be compared. He considered the results if adjusted for an assumed baseline pointed to severe exposure. He agreed that the impact of exposure varied between different individuals.

191. I agree with and accept the EPA’s submissions at [138]-[139] that Professor Weatherby’s findings are not positive proof that Mr Sansom was not exposed to organophosphate because of the absence of knowledge about Mr Sansom’s background levels of the enzyme cholinesterase. His opinion that the symptoms experienced were consistent with an allergic reaction does not raise a reasonable doubt. The principal doubt raised by Professor Weatherby’s evidence is whether the exposure of Mr Sansom to an organophosphate was mild or severe given the theoretically different symptoms that might arise in each case. The EPA’s case does not require a finding on whether exposure was mild or severe, simply that there was exposure of Mr Sansom. Professor Weatherby’s evidence does not undermine a finding of exposure beyond reasonable doubt.

192. Mr Lynch EPA investigator gave evidence before the magistrate extracted above in [24] that in his experience exposure to organophosphate is not always confirmed by blood tests. That appears to be consistent with the evidence of Professor Weatherby given orally that results vary between individuals. There is no reason not to accept that opinion from an investigator of these kinds of cases. Professor Weatherby’s informed opinion, set out above in [71], that these blood tests suggest no exposure does not raise a reasonable doubt given the physical evidence of what occurred to Mr Sansom on the day.

193. I consider the EPA has proved that injury through exposure to a chemical likely to be an organophosphate did occur to Mr Sansom on 18 August 2017.

Was the spray mist in Mr Sansom’s car diazinon from Wingvale?

194. The EPA sought to prove that the spray mist was diazinon, a pesticide for the purposes of the Pesticides Act. The EPA also sought to prove diazinon came from Wingvale being from the spray rig operated by Mr Battistuzzi.

195. Determining whether the EPA has proved that the spray mist was diazinon from Wingvale requires consideration of several matters. There is no dispute that Mr Battistuzzi was using a spray rig at about 9:00 am on Wingvale and was spraying diazinon, indeed he was called in the EPA’s case to say that. The Appellant seeks to challenge (i) evidence of where Mr Battistuzzi’s spray rig was located when Mr Sansom says he saw the spray rig and therefore whether Mr Sansom saw a spray rig on Wingvale as he was driving past on 18 August 2017; (ii) topography along Friday Hut Road suggested Mr Sansom could not see the spraying and/or his view was obscured by trees (buffer) along Friday Hut Road; (iii) whether the wind direction was westerly around 9:00 am; (iv) the wind speed around 9:00 am; (v) spraying was occurring elsewhere which could have been the source of the spray seen by Mr Sansom or there was the possibility for inversion spray drift; and (vi) diazinon detected in samples taken by the EPA does not support Mr Sansom’s account.

(i) Mr Battistuzzi’s spray rig was close to Friday Hut Road at 9:00 am

196. I have already considered above in [175]-[180] Mr Sansom’s evidence of seeing a spray rig on Wingvale as he drove past at about 9:00 am. The evidence of Mr Battistuzzi of where he sprayed on the morning of 18 August 2017 is located partly in the annexures to the SOAF indicating rows sprayed and in oral evidence. As identified by the EPA above in [142], his evidence does not contradict Mr Sansom’s.

197. Mr Sansom identified on the map being Local Court Ex 19 where he considered he was exposed to spray mist. His oral evidence was that he saw a spray rig as he came around the bend on Friday Hut Road. As discussed above, the cross-examination of Mr Sansom did not undermine his recollections of experiencing spray mist and seeing a spray rig on Wingvale.

(ii) Topography/buffer

198. The Appellant’s counsel referred to the photograph of Ms Ryan and Mr Sansom taken at waypoint “4”, described as the site where Mr Sansom was exposed to spray mist in his car, and submitted that a buffer row of trees described above in [32] was visible on the Wingvale side which must have prevented him from seeing a spray rig on Wingvale. That submission is no more than an assertion and is not otherwise grounded in any of the evidence heard by the magistrate. As noted above, the Court is not able to draw any conclusion about the photograph, described above in [17(b)], in the absence of further evidence. It does not raise any doubt about Mr Sansom’s observations. The assertion that Mr Sansom’s observation was obscured by an embankment, described above in [33], is simply an assertion.

(iii) Wind direction

199. Key to finding that the pesticide experienced by Mr Sansom came from Wingvale is a finding of fact that the wind direction at 9:00 am had a westerly component. The EPA’s evidence given by Mr Sansom, Mr Coles and Mr Sheaffe, summarised above in [34], [37]-[38], was to the effect that the wind direction on the day was westerly, therefore moving across Wingvale to Friday Hut Road. Mr Battistuzzi’s evidence summarised in [36] above was that the wind direction was northerly and then shifted to north-westerly at an unknown time in the morning. The notes of his spray records on Wingvale attached to the SOAF in Annexure 2 reflect that.

200. Mr Lynch attached to his statement wind direction records of Ballina and Lismore airports, which are about 14 and 30 kms away from Wingvale, showing winds being generally westerly (WNW) at 9:00 am on 18 August 2017. As both Dr Hewitt and Mr Bell gave evidence that wind conditions can vary substantially between different locations, this evidence is of limited assistance. The Appellant also stated that conditions on his property can be vastly different from those recorded at Lismore at Ballina (see above in [59]). The evidence of Mr Bell on wind direction above in [61] is of little assistance in determining wind direction given his report was prepared years after the event and can do no more than make an educated guess at best or speculate as to what occurred on 18 August 2017.

201. The best evidence on wind direction is from those in the vicinity at the time of the alleged incident. Spray applicators such as Mr Coles and Mr Scheaffe are likely to be conscious of wind speed. They identified that the wind was westerly at 323 Alcorn Road (property “I”) on 18 August 2017 at 9:00 am. Mr Battistuzzi’s evidence did not contradict them in that he identified a westerly component in wind direction. There is no evidence to support a finding that the wind was easterly.

(iv) Wind speed

202. On wind speed, the magistrate did not accept Mr Sansom’s evidence summarised above in [35] that there were gusts of wind up to 65 km/h at 9:00 am. There was differing evidence about wind speed before the magistrate. The evidence of Mr Coles and Mr Scheaffe summarised above in [37]-[38] is that they were spraying on 323 Alcorn Road (property “I”) from 5:30-9:00 am and decided to stop at 9:30 am because it was too windy. The notes of Mr Battistuzzi’s spray records for Wingvale attached to the SOAF in Annexure 2 record light to gentle winds and that spraying paused during the day due to moderate gusts.

203. The evidence of Dr Hewitt above in [40] is of little assistance in determining wind speed given his evidence was based on statements made by the Johnsons, Mr Sansom and the BOM recordings summarised above in [39] and he can do no more than make an educated guess at best or speculate as to what occurred on 18 August 2017.

204. The Appellant Mr Moore, an experienced macadamia farmer, gave evidence summarised above in [59] that applying the Beaufort scale, spraying could occur in wind speeds of 3-20 km/h. He assessed that wind conditions on the morning of 18 August 2017 were appropriate for spraying, see above in [57].

205. Ultimately wind speed was not particularly material to the magistrate’s conclusion that exposure had occurred, more relevant was the finding of wind direction being westerly. This is supported by Dr Hewitt’s evidence summarised above in [53] that whether one is exposed to spray drift depends mainly on wind direction.

(v) Other sources of diazinon

206. Possibilities that are “fantastic and unreal … ought not to be regarded … as the source of reasonable doubt”: Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 per Barwick CJ, McTiernan and Owen JJ at 33. Where an argument only raises a fanciful doubt, this is not a reasonable doubt: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) at [36]-[37] cited in De Battista v Shoalhaven City Council [2020] NSWLEC 164 at [78]-[79]. Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the prosecutor’s case: Moore v R [2016] NSWCCA 185 at [43] per Basten JA (with RA Hulme J generally agreeing).

207. Records were sought by the EPA from properties with macadamia farms within a 1 km radius of the exposure site. Those properties are set out in Annexure 1 to the SOAF (see above in [10]). A summary of the records of pesticide use of those surrounding macadamia farms between 1 June 2017 and 19 August 2017 were attached to Mr Lynch’s statement (see above in [43]). Properties within the 1 km radius spraying on 18 August 2017 were 323 Alcorn Road (property “I”), Wingvale (property “C”) and Ryanstone (property “B”).

208. The Appellant argues that the EPA cannot negative the possibility that the spray mist experienced by Mr Sansom came from other sources, such as 323 Alcorn Road (property “I”) or properties beyond the 1 km radius, because Mr Bell in [62] above and Dr Hewitt in [53] above, gave opinions that spray drift could arrive from several kilometres away.

209. I have found that wind was blowing in a westerly direction so that spray drift could not have come from 323 Alcorn Road (property “I”) as that lies to the north-east of the exposure site. An additional aspect of the evidence in the Local Court was the topic of inversion drift arising from night time/early morning spraying in clear, cold conditions resulting in cool air collecting spray droplets or solid particles close to the ground. In cross examination, summarised above in [54], Dr Hewitt was asked to identify such a phenomenon and explained aspects of how it might arise, with the drift of spray a possibility depending on conditions if undertaken early in the morning. His oral evidence did not address any particular scenario. Mr Bell was also asked about inversion drift in relation to events on 18 August 2017 in his examination in chief, summarised above in [62]. That evidence was addressed to the experience of Mrs Johnson and does not appear to have any relevance to Mr Sansom. The evidence from Mr Bell and Dr Hewitt on inversion spray drift does not raise a reasonable possibility that mist could have come from 323 Alcorn Road (property “I”) as a result of spraying from around 5:30-9:00 am 18 August 2017, given the wind direction was westerly.

210. The other argument that the spray could have come from elsewhere is that the Johnsons gave evidence that they heard other machinery on 18 August 2017 before spraying had commenced on the Appellant’s properties (see above in [50]-[51]). Spraying at 323 Alcorn Road (property “I”) was undertaken earlier in the day. They also gave evidence that they heard machinery which they thought was on Wingvale after spraying had ceased on the Appellant’s properties at about 4:00 pm (see above in [50]-[51]). Spraying had ceased at 323 Alcorn Road (property “I”) by the afternoon. Mr Sansom gave evidence summarised above in [52] of observing spray rigs on the Appellant’s properties from the driveway on 412 Friday Hut Road (property “A”) of Wingvale or Ryanstone until around 4:00 pm. As no records of spraying outside the 1 km radius were collected, the Appellant submitted that there was machinery working other than at the Appellant’s farm which could also have been spraying at the relevant time and been the source of spray. I consider this submission amounts to no more than speculation. That spraying was possibly occurring in the afternoon at a property other than the Appellant’s has no relevance to Mr Sansom’s exposure at 9:00 am. The Johnsons’ evidence summarised above in [50]-[51] and Mr Sansom’s evidence summarised above in [52] does not undermine the direct evidence of his experience at 9:00 am.

211. I consider Mr Bell’s conclusions, based on two site visits some two years after the event, that there were other credible sources of the spray experienced by Mr Sansom are speculative. Further, his opinion summarised above in [65] that the spray mist could have come from another farm based on Mr Sansom smelling a chemical before Killen Falls Drive, south of Wingvale, is speculative.

212. None of this evidence raises a reasonable hypothesis or a reasonable possibility inconsistent with the EPA’s case.

(vi) Sample testing undertaken by Environment Protection Authority

213. As identified in the evidence above in [41]-[42], the EPA undertook testing of several locations including sampling points 5-7 and 11 as identified on Map B in Annexure 1 to the SOAF. The EPA also took samples from the external surface of Mr Sansom’s car.

214. The Appellant submits that the samples do not support a finding that diazinon emanated from the Appellant’s farm because there is no evidence when these samples could have been deposited. Given the potential for spray drift, there is a reasonable possibility that the chemicals detected came from another farm, considering those farms identified by the spray records collected by the EPA as spraying pesticide in August 2017 (summarised above in [43]). Mr Bell’s opinion above in [60] was that the diazinon picked up in the EPA’s samples could have been the result of a spray drift event from 241 Alcorn Road (property “G”) on 17 August 2017, being the day before the exposure event.

215. The presence of diazinon was detected in the samples taken from the left side of Mr Sansom’s car and sampling points 5-7 along Friday Hut Road opposite Ryanstone near Wingvale (see above in [41]-[42]). Mr Bell’s opinion summarised above in [64] was that the detection of cyfluthrin (Bulldock) at sample points 6 and 7 suggested there had been spray drift from another property, as may well be the case. Supa Bor and Designer, also sprayed on the Appellant’s farm on 18 August 2017, were not detected in the samples. No diazinon in the sample taken from the windscreen of Mr Sansom’s car was detected. The sample results were part of the multiple matters the subject of the EPA’s evidence and as submitted provide some support for its case. The sampling evidence is not conclusive and can be considered as essentially a supplement of the direct evidence of what occurred. The criticisms of the sampling by the Appellant suggesting it was not reliable can be accepted but does not give rise to a reasonable hypothesis or a reasonable possibility inconsistent with the EPA’s case, providing at most some support for Mr Sansom’s evidence that diazinon emanated from the Appellant’s farm across Friday Hut Road.

In conclusion

216. The Appellant has raised a large number of issues to challenge the findings of the magistrate that the offence was not established beyond reasonable doubt. No single issue was conclusive in doing so and the issues in combination do not raise a reasonable hypothesis or a reasonable possibility inconsistent with the EPA’s case. The onus remained on the EPA to prove the offence beyond reasonable doubt. It too relied on a number of matters, most particularly the events attested to by Mr Sansom. For the reasons outlined above, the EPA has proven the offence charged beyond reasonable doubt.

Is the due diligence defence established?

217. A defence of due diligence as found in s 10(3) of the Pesticides Act can be relied on if the Appellant can prove on the civil standard, namely that on the balance of probabilities, firstly the offence arose from circumstances over which he had no control and, secondly that all reasonable precautions were taken and all due diligence exercised to prevent the offence. Both elements must be established.

218. The magistrate found that the Appellant did not satisfy the requirements of due diligence as set out above in [80]. The offence was not a result of causes over which the Appellant had no control as Mr Battistuzzi controlled the airblast sprayer from which the pesticide was sprayed, as the magistrate identified. Further, the Appellant did not take all reasonable precautions and did not exercise all due diligence because the wind was westerly when Mr Battistuzzi sprayed near a public road on a school day and the Appellant did not notify the Johnsons and Mr Sansom of intended spraying on 18 August 2017, as relevant guidelines required. No basis to find contrary to the magistrate’s detailed findings has been provided.

219. Relevant guidelines summarised above in [46]-[48] suggesting that notification of neighbours should occur were tendered by the EPA being the Australian Macadamia Society’s Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011), the Commonwealth Primary Industries Standing Committee’s Spray Drift Management: Principles Strategies and Supporting Information (October 2002) and ChemCert Australia’s Chemical Users Handbook. Dr Hewitt’s opinion above in [49] was that notification of the occupants of 412 Friday Hut Road (property “A”), being the Johnsons and Mr Sansom, should have occurred. Mr Bell’s opinion above in [66] was to the contrary.

220. Application of the guidelines in evidence requires common sense. The fact that they have not been legislated by Parliament does not undermine their application. Notification of neighbours is a straightforward requirement to the effect that those living next to or very close to a property should be contacted if chemical spraying is planned. That included in addition to Ms Ford who lived in a dwelling on Wingvale, the Johnsons’ property, immediately opposite the Appellant’s properties given that they were separated only by a public road. The Appellant agreed in cross-examination that it would have been reasonable to notify his neighbours in advance of spraying in 18 August 2017, see above in [58].

221. Characterising Mr Sansom as someone driving along a public road rather than as a neighbour, suggesting that there was no expectation he would be notified ignores the plain words of the guidelines. The Appellant submitted that the guidelines do not require perfection. I agree but that does not undermine a conclusion in the circumstances of this matter where Mr Sansom was a neighbour and the guidelines could have been easily complied with. The fact that he was travelling on a public road does not undermine that conclusion, as the magistrate also found. The reason to notify neighbours is to ensure that they can plan accordingly, as referred to in the magistrate’s reasons set out above.

222. Mr Bell’s opinion summarised above in [65]-[66] that it was appropriate to spray on 18 August 2017 is speculative. No weight can be placed upon it.

223. The defence of due diligence is not made out by the Appellant. Accordingly, the Appellant’s conviction for the offence charged remains.

Conclusion

224. I consider the Appellant’s conviction appeal should be dismissed as provided for by s 39(1)(b) of the Appeal Act.

225. Since the conviction is upheld, the appeal against sentence must be considered. At the request of the Appellant, judgment was formally reserved on the conviction appeal only. Conduct of the sentencing appeal will be discussed with the parties.

Orders

226. The Court orders:

1. The conviction appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

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Decision last updated: 25 August 2021