Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2)

[2005] NSWLEC 241

Land and Environment Court

of New South Wales

CITATION:	Newcastle City Council v Pace Farm Egg Products Pty Limited [No 2] [2005] NSWLEC 241
PARTIES:	PROSECUTOR: Newcastle City Council DEFENDANT: Pace Farm Egg Products Pty Limited
FILE NUMBER(S):	50071 of 2004
CORAM:	Pain J
KEY ISSUES:	Prosecution :- whether defendant placed pollutant in a position where it did or was likely to fall or descend into waters - whether rational inferences consistent with innocence open on the evidence Practice and Procedure :- application of Protection of the Environment Operations Act 1997 s 257
LEGISLATION CITED:	Clean Waters Act 1970 s 16 Marine Pollution Act 1987 s 8 Protection of the Environment Operations Act 1997 s 120, s 257
CASES CITED:	Chamberlain & Anor v The Queen [No 2] (1984) 153 CLR 521; Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51; Filipowski v Nikolaos; Pontian Shipping Co Limited [2005] NSWLEC 102; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Martin v Osborne (1936) 55 CLR 36; Mathews v Goulburn Wool Processors (Smart J, NSWSC, 6 November 1986, unreported); New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86; Shepherd v R (1990) 170 CLR 573; State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGRA 221
DATES OF HEARING:	21/02/2005 22/02/2005 23/03/2005 24/02/2005 25/02/2005 02/03/2005 03/03/2005
DATE OF JUDGMENT:	06/23/2005
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr M Craig QC and Mr J Maston (barrister) SOLICITORS: Sparke Helmore DEFENDANT: Mr T Hale SC and Mr S Docker (barrister) SOLICITORS: Paul Hines

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 June 2005

50071 of 2004 Newcastle City Council v Pace Farm Egg Products Pty Limited [No 2]

JUDGMENT

1 Her Honour: The Defendant is charged under s 120 of the Protection of the Environment Operations Act 1997 (“the POEO Act”) that it polluted waters known as Warabrook Lagoon (Upper Pond) on 3 October 2003. The Defendant pleaded not guilty.

2 Section 120 of the POEO Act provides:

Prohibition of pollution of waters

“pollute” waters includes cause or permit any waters to be polluted.

3 The place of the offence is particularised as the property owned and occupied by the Defendant at 23 Warabrook Boulevard, Warabrook (“the site”). The summons alleges that the pollutant consists of “poultry egg waste, caustic and chlorinated cleaning solution and rinse water and in particular, sterols, cholesterol, carboxylic acids, filtered sodium, chloride, oil and grease and coliforms” (“egg waste”). The waters are identified as Warabrook Lagoon (Upper Pond) within the Warabrook Wetland Reserve (“Warabrook Lagoon”).

4 The manner of the breach is particularised as the placement of the pollutant:

in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or other non-polluted waters. The pollutant was introduced into the said waters by passing though the pipes and pits within the Defendant’s land and through the public stormwater drainage pipe and pit system to discharge into the Warabrook Lagoon (Upper Pond) at the Warabrook Wetland Reserve.

5 “Water pollution” or “pollution of waters” under the Dictionary of the POEO Act includes:

(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or
…
and, without affecting the generality of the foregoing, includes:
(d) placing any matter (whether solid, liquid or gaseous) in a position where:
(i) it falls, descends, is washed, is blown or percolates, or
(ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or
…
if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

Prosecutor’s case

6 The summons does not identify who caused, and how the pollutant was placed in a position where it was likely to and did fall, descend or be washed into Warabrook Lagoon. The Prosecutor’s primary case as particularised and extensively argued was that the pollutant did enter Warabrook Lagoon. Its secondary case as particularised and argued, to a much lesser extent, was that pollutant was placed so that it was likely to fall, descend or be washed into Warabrook Lagoon.

(i) The pollutant fell or descended into Warabrook Lagoon

7 The Prosecutor argued that pollutant found in Warabrook Lagoon came from the Defendant’s premises as a result of the leak from a black tank located on the site for the storage of waste produced by the operations of the Defendant (“the black tank”) sometime on 2 or 3 October 2003.

8 The Prosecutor’s evidence included affidavits from:

· Mr Denis Bird – Local Resident, sworn 27 September 2004;

· Mr Adam Gilligan – Environment Protection Officer, sworn 24 September 2004;

· Ms Gabrielle Schofield – Environment Protection Officer, sworn 24 September 2004; sworn 4 November 2004;

· Mr Paul McMurray – Environmental Services Coordinator, sworn 24 September 2004;

· Mr Ian Richardson – Environment Protection Officer, sworn 24 September 2004;

· Mr Michael Rayner – Environment Protection Officer, sworn 24 September 2004;

· Mr Benjamin Davis – Environment Planning Investigations Officer, sworn 24 September 2004;

· Mr Roger Costanzi – Metallurgist, sworn 27 September 2004;

· Dr Ian Joliffe – Drainage Engineer, sworn 27 September 2004; and

· Mr Paul Anink – Aquatic Ecologist, sworn 5 November 2004.

9 The Prosecutor also relied on oral evidence given by Mr Tim Fitzpatrick, the driver/operator employed by Transpacific Industries Pty Limited trading as Valley Disposals Services (“Valley Disposals”) on 3 October 2003 and Mr John Coleman, Regional Manager of Valley Disposals. Mr Gilligan, Ms Schofield, Mr Costanzi, Mr Fitzpatrick and Dr Joliffe were cross-examined by the Defendant.

Facts not in dispute

10 On 3 October 2003, the Defendant owned and operated an egg products factory located at the site. The Defendant contracted Valley Disposals to empty any waste from the black tank on a weekly basis. The black tank was located near the loading bay area on the Defendant’s premises.

11 There are six stormwater access drains, SW1 to SW6, located on the Defendant’s premises. SW1 is a pipe leading from the loading bay area to SW2. The remainder, SW2 to SW6, are interconnected stormwater drains with grates on top and pits at their bases. The inlet pipes to SW2 and SW6 are slightly above the bottom of the pit so that some liquid can pool in that bottom space. The neighbouring property is connected to the same stormwater system by a pipe connection entering at SW6.

12 Stormwater flowing from the loading bay area is collected at SW1, and proceeds through SW2, SW4, SW5 and SW6. SW6, in turn, leading into the stormwater drainage system off the Defendant’s premises. These offsite drains are connected some distance away to three gross pollutant traps (“the GPTs”), which in turn lead to Warabrook Lagoon. SW3 is adjacent to SW2 and is not relevant to these proceedings.

13 At 5.45 am on 3 October 2003, an employee of the Defendant discovered a leak from a hole in the black tank on the Defendant’s premises. Following the discovery of the spill, another employee placed a stick in the hole to stop the black tank from leaking. Sandbags were also placed over SW1 to ensure that the waste material did not enter the stormwater drainage system located on the Defendant’s premises. The Prosecutor adduced into evidence a diary entry of an employee of the Defendant for 3 October 2003 which read:

5.45 am: Walk out to the back dock to check if truck was here. Open roller door to find egg all over cement, walk around to black tank to find it leaking. Went to Bill to see if he could fix it. Bill fix the problem (leak) with a stick. Put two bags of salt down at the drain to try to stop the egg running down the drain.

14 At 7.40 am, the Defendant’s Maintenance Coordinator, Mr King, arrived at work and at 7.55 am was informed of the spill from the black tank. After being informed of the spill, Mr King ordered certain measures to be taken to clean it up. At some time shortly after 8.00 am Mr King inspected the drains and pits located on the Defendant’s premises. Mr King saw saltbags placed over SW1 with a small amount of orange substance pooled around the saltbags. At SW2, Mr King observed an orange and yellow liquid had pooled at the base of the pit which Mr King identified as egg waste. At SW4, Mr King noticed a milky white liquid substance, not flowing, at the base of the pit. At SW5, Mr King observed no flow and a minimal amount of clear water at the base of the pit. At SW6, Mr King observed dark greyish cloudy water flowing from the inlet pipe from the adjoining property into SW6 and then into the outlet pipe leading to the offsite stormwater drains.

Actions of Mr Fitzpatrick

15 An unknown employee of the Defendant called Valley Disposals sometime before 8.30 am and a vacuum truck belonging to Valley Disposals was sent to the site to empty the remaining waste material in the black tank. At approximately 8.40 am, the truck arrived driven by the driver/operator, Mr Fitzpatrick. Mr Fitzpatrick, who had previously been to the site to empty the black tank, hooked up the hose from the truck to the black tank and vacuumed the remaining 2,000 litres of waste into his truck.

16 At some time between 9.00 am and 10.00 am Mr Fitzpatrick finished emptying the black tank. Mr King then informed Mr Fitzpatrick that he was going to flush the stormwater drainage system on the site to remove any egg waste that may have fallen into the system. Mr King asked Mr Fitzpatrick if he had more tank capacity, which he did. Mr King decided that he would pour approximately 1,500 litres of water into SW1 to flush out the drainage system and requested Mr Fitzpatrick to vacuum the water and egg waste material that came out at SW6. At approximately 10.00 am and just prior to the flushing exercise Mr Fitzpatrick did not observe any egg waste in SW6 but did observe oily water flowing from the inlet pipe from the adjoining property to the outlet pipe leading into the offsite stormwater system.

17 Shortly after the completion of the flushing exercise, Mr Fitzpatrick removed the hose from SW6 and placed it on the ground near SW6. While Mr Fitzpatrick was packing up at the truck, an amount of liquid escaped from the hose spilling onto the surrounding grass and into SW6. There is dispute about how much liquid entered SW6 after the spill.

Inspection by Newcastle City Council’s Environment Officers

18 At approximately 11.00 am to 11.15 am, a local resident, Mr Bird, saw a white milky substance extending approximately 10 metres into the Warabrook Lagoon adjacent to the GPTs. Shortly after observing the pollution in Warabrook Lagoon Mr Bird reported the incident to the Newcastle City Council (“the Prosecutor”).

19 At approximately 11.50 am, two of the Prosecutor’s officers, Mr Gilligan and Ms Schofield, arrived at Warabrook Lagoon to inspect it. Mr Gilligan stated that he observed a white frothy substance with a greasy, rotten odour surrounding the GPTs. Ms Schofield’s evidence was that material in the GPTs had the same smell as material she had smelled at the Defendant’s premises.

20 At approximately 12.15 pm, two of the Prosecutor’s, officers Mr McMurray and Mr Richardson, conducted an inspection of seven stormwater pits at various locations offsite between the Defendant’s premises and Warabrook Lagoon for signs of pollution. At each of the locations neither of the officers observed any obvious signs of pollution. At approximately 12.45 pm, Mr McMurray and Mr Richardson arrived at Warabrook Lagoon. Mr McMurray and Mr Richardson also observed a white, frothy substance in the GPTs.

21 At approximately 1.15 pm Mr Gilligan and Mr McMurray accompanied Mr King and Mr Maher, Site Operations Manager of the Defendant, on an inspection of the premises. Mr King and Mr Gilligan observed some egg waste in the corners of SW6.

22 At approximately 1.30 pm a number of water and soil samples from various locations on the site and off the site were taken by Mr Richardson and Ms Schofield. Sediment samples were taken from the soil surrounding the GPTs and water samples were taken from five locations:

(i) Warabrook Lagoon;

(ii) the channel between Warabrook Lagoon and the GPTs;

(iii) the GPTs;

(iv) the black tank; and

(v) SW2.

23 At approximately 2.00 pm, two of the Prosecutor’s officers, Mr Davis and Mr Rayner, arrived at Warabrook Lagoon. Mr Davis and Mr Rayner also observed a white frothy substance in the GPTs and both described the odour of the pollutant as an unpleasant organic odour with a rotten greasy smell.

24 On 17 December 2003, Mr Gilligan, Mr Richardson, Ms Schofield and another of the Prosecutor’s officers conducted a fluorescein dye test. The test involved placing fluorescein dye and water into the onsite stormwater system to determine whether it connected with the offsite stormwater drainage system. The fluorescein dye was recorded as entering SW1 at 7.52 am finding its way to SW6 at 8.06 am. The fluorescein dye was recorded by Ms Schofield as arriving at the GPTs at approximately 8.16 am.

25 Mr Anink gave expert evidence in relation to the extent of the harm caused or likely to be caused to Warabrook Lagoon by the discharge of pollutant. Mr Anink concluded that in the immediate short term after the spill the discharge could have been expected to have resulted in the death and disturbance of aquatic fauna as a result of prolonged oxygen deletion in Warabrook Lagoon. In the long term, the discharge could have been expected to have resulted in an increase in the overall nutrient concentration in the water, contributing to plant growth and algal blooms in Warabrook Lagoon.

Additional matters
Actions of Mr Fitzpatrick

26 In addition to the matters set out above as not being in dispute, the Prosecutor relied on the following evidence. After arriving at the site at approximately 8.40 am, Mr Fitzpatrick’s evidence is that he observed a spill of egg waste in the area surrounding the black tank and the loading dock. Shortly after he arrived, Mr Fitzpatrick caused the black tank to be emptied by connecting it to a hose and vacuuming the contents into the truck. While Mr Fitzpatrick was emptying the tank, he observed two employees cleaning up the spill. According to Mr Fitzpatrick, one was operating an industrial vacuum cleaner to vacuum up egg waste while the other was operating a forklift. Mr Fitzpatrick saw that when the employee operating the forklift drove over the concrete slabs in front of the loading dock area, egg waste that had settled underneath the slabs squirted out. That egg waste was then vacuumed up by the other employee.

27 There is a dispute in relation to the events leading up to the flushing exercise and the amount of material that leaked from the hose attached to the Valley Disposals’ truck. In his oral evidence, Mr Fitzpatrick stated that after he was instructed by Mr King to assist with the flushing exercise, he and Mr King placed four saltbags in the base of SW6 to ensure that no egg waste would enter the offsite stormwater drainage system. Two saltbags were used to prop up a board to cover the inlet pipe from the adjoining property, and two saltbags were used to block up the outlet pipe leading into the offsite drainage system.

28 In cross-examination Mr Fitzpatrick said that following the flushing exercise he moved the top saltbag covering the outlet pipe to check whether or not any waste had flowed out of SW6.

29 Mr Fitzpatrick then stated that while packing up, waste material discharged from the hose attached to the truck. He described the leak as merely a trickle of egg waste discharging from the hose and estimated the volume of the spill to be approximately 18 litres, the approximate volume of the hose of the truck. As the grate above SW6 was raised the majority of the egg waste spilled onto the grass area surrounding SW6, with only a small amount falling into SW6. Mr Fitzpatrick stated that he then vacuumed up the spill on the grass and in SW6. Mr Fitzpatrick’s evidence is that he recalled looking into SW6 after vacuuming up the material to ensure that no egg waste was left behind.

Pollutant in Warabrook Pond from Defendant’s premises

30 The Prosecutor relied on evidence of its officers and Dr Joliffe, a water resources engineer, to establish that the pollutant in Warabrook Lagoon was egg waste from the Defendant’s site. The evidence of Ms Schofield was that the unpleasant, greasy, rotten odour present at the GPTs was the same as that of egg waste at the Defendant’s premises. The Prosecutor also relied on evidence of the fluorescein dye test conducted by Mr Gilligan and Ms Schofield to determine connectivity between the Defendant’s stormwater drainage system and the GPTs leading to Warabrook Lagoon. The Defendant admitted that there was connectivity between SW1 and Warabrook Lagoon.

31 Dr Joliffe, in his report, gave evidence obtained from an analysis of chemical tests of onsite and offsite water and sediment samples provided by Mr Richardson and Ms Schofield on 3 October 2003. In his oral evidence Dr Joliffe concluded that “the samples from on the site and those from off the site indicated the same substance present” and that:

given the same three substances [sterols, cholesterol and carboxylic acid] appeared in samples from the site and from the GPT area, my inference is that some amount of chemical appears to have been observed on both sites and therefore there is a very high probability that the chemical got from Pace Farm site to the GPT area and lagoon – or chemical/substance.

How much pollutant escaped into Warabrook Lagoon?

32 In his report Dr Joliffe gave evidence that the calculated capacity of the black tank was approximately 6,830 litres. Given that Mr Fitzpatrick pumped approximately 2,000 litres of egg waste out of the black tank, Dr Joliffe calculated a potential spill volume of 4,830 litres. In addition, Dr Joliffe gave evidence about the potential flow rate from the black tank. Assuming a hole of five millimetres in diameter, Dr Joliffe estimated that the maximum flow rate would be 0.06 litres/second for a full tank, and 0.04 litres/second for a half full tank. He estimated that a half full tank would take 35 hours to drain and a full tank would take 55 hours to drain.

33 Dr Joliffe also gave evidence about the volume of spill and the time required to reach SW6 and Warabrook Lagoon. Dr Joliffe considered it would require approximately 15 to 20 litres of spill to reach SW6 and approximately 200 to 300 litres to reach Warabrook Lagoon. Based on evidence provided to Dr Joliffe that there was rainfall in the area on 2 and 3 October 2003, meaning that the internal pipes would have been wet prior to the spill and that there would have been water in the base of each of the pits within the drainage system, Dr Joliffe considered that it would require only five to ten litres of spill to reach SW6 and approximately 80 to 120 litres to reach Warabrook Lagoon. Assuming a flow rate of 0.06 litres/second Dr Joliffe estimated that the time required to reach Warabrook Lagoon was approximately one to two hours.

34 Based on photographs taken of the plume in Warabrook Lagoon, Dr Joliffe estimated that between 1,000 and 4,000 litres of pollutant might have escaped into Warabrook Lagoon.

35 The Prosecutor also relied on the evidence of what egg waste Mr Fitzpatrick and Mr King saw on top of the concrete slabs and the diary entry of the defendant on 3 October 2003 which stated that, “egg was all over the cement” to support the inference that the spill was large and had been flowing for a substantial period of time.

The condition of the black tank

36 Mr Costanzi, a metallurgist, gave evidence in relation to the state of repair of the black tank based on an inspection on 4 August 2004, some 10 months after the incident on 3 October 2003. In his evidence Mr Costanzi stated that on 4 August 2004 two holes caused by rust were present in the black tank. Mr Costanzi was also gave evidence that the likely causes of the rust and corrosion were mechanical damage to the black tank, the age, the general operating conditions, the type of paint and the installation of the black tank. Mr Costanzi did not give any evidence directly related to the state of repair of the tank on 3 October 2003, the alleged offence date.

(ii) The pollutant was likely to fall or descend into Warabrook Lagoon

37 The Prosecutor’s second contention was that the Defendant breached s 120 of the POEO Act because it placed the egg waste in a position where it was likely to fall or descend into Warabrook Lagoon as a result of the spill from the black tank. It is not disputed by the Defendant that there was a leak from the black tank and that some egg waste got into the onsite stormwater system as far as SW4.

38 In this respect, the Prosecutor pointed to evidence adduced in the cross-examination of Mr King. Mr King in his oral evidence said that there was potential on the morning of 3 October 2003 for a spill to move into pipes designed to pass rainwater into the stormwater system offsite. Mr King said that there was no bund in place in the event of a leak from the black tank or any permanent system for capturing spills from the tank to prevent them entering the stormwater drainage system through SW1. Mr King also stated that the Defendant had no regular maintenance program for checking the state of the tank. Rather that was the job of Valley Disposals which owned the tank.

39 The Prosecutor also relied on evidence that the black tank had rust holes in it, and evidence of the diary entry of the Defendant on 3 October 2003 which showed that measures taken by the Defendant to minimise the effects of the spill included plugging the hole in the tank with a stick, and placing saltbags at SW1.

40 Accordingly, the Prosecutor argued that there were no preventative measures to avoid a spill and, as evidenced by the diary entry of the Defendant on 3 October 2003, no procedures in place to effectively control a spill. The Prosecutor argued that the Defendant, therefore, put the pollutant in a position where if there was a malfunction in the tank it was likely that it would fall into the stormwater drainage system and ultimately into Warabrook Lagoon if there was sufficient rainfall or other liquid to carry it there.

Defendant’s case
(i) The pollutant fell or descended into Warabrook Lagoon

41 The Defendant relied on the oral evidence of Mr King, maintenance coordinator of the Defendant, and Dr Staniland, a civil engineer and consultant to argue that no pollutant escaped from the site to Warabrook Lagoon.

Mr King’s Evidence

42 Mr King’s evidence was that he checked all of the drains SW1 to SW6 soon after arriving at work at 7.40 am on 3 October 2003 and found no egg waste past SW4. In addition, at approximately 9.00 am Mr King gave evidence that he inspected three offsite stormwater drains. In each of the four offsite drains there was no egg waste, but Mr King observed a dark greyish cloudy water flow similar to that which he had observed earlier at SW6. Mr King concluded from his inspections that no egg waste had passed off the site.

43 The Defendant adduced evidence from Mr King in relation to the actions of Mr Fitzpatrick on 3 October 2003. At approximately 10.00 am, following the flushing exercise, Mr King stated that he returned to the loading dock to delegate the removal of water receptacles used to flush water down SW1. While at SW1, Mr King said he observed what looked like a large flow of egg waste coming from the hose attached to Mr Fitzpatrick’s truck adjacent to SW6. According to Mr King, the flow coming from the hose was splashing up in all directions and was consistent with a full flow. Mr King said that he immediately ran over to SW6 and arrived at SW6 ten to 15 seconds later. When he arrived at SW6 Mr King observed that the flow from the hose had reduced to a small flow and that some of the egg waste was inside SW6. Mr King said that he then looked into SW6 and observed that there were no saltbags remaining in SW6, and the board covering the outlet pipe had been removed.

44 In relation to the hours of operation of the loading bay area near the black tank, Mr King gave evidence that people on the site generally started working in the area from 5.30 am to 6.00 am every morning. Mr King said that people and trucks would still be in the loading bay area up until nearly midnight.

Dr Staniland’s Evidence

45 The Defendant adduced evidence from Dr Staniland in relation to the volume of the spill and the time required for the spill to enter the onsite stormwater system to establish that it was unlikely that the egg waste could have progressed beyond SW4. In his oral evidence, Dr Staniland said that while the hole in the tank was 5 millimetres in diameter, as Dr Joliffe had used in his calculations, it was more likely that the hole was only approximately 3 millimetres in diameter during the spill as the act of forcing the stick into the hole was likely to have caused the hole to widen. Dr Staniland based his calculations on a 3 millimetre hole and estimated that the flow rate would be 35 – 40 per cent less than that calculated by Dr Joliffe and would equate to a flow rate one would expect from a “dribbling tap”.

46 Based on this flow rate and an experiment carried out by Dr Staniland with water mimicking the spill from the black tank, Dr Staniland gave evidence of the volume of spill and the time required for the spill to reach SW4. Dr Staniland calculated that the flow rate of egg waste would generally be 5 – 15 per cent slower than that of water and that it would take egg waste approximately six to eight hours to reach SW1 from the black tank. This was because, before reaching SW1, egg waste seeped into a void approximately 300 litres in volume located underneath the concrete slabs in the loading area before reaching SW1. Dr Staniland then calculated that it would take in the order of eight to eleven hours for the egg waste to reach SW4 from the black tank. Dr Staniland also concluded that on the basis of his calculations the maximum amount of egg waste that could have discharged from the black tank over a period of 12 hours was 400 litres.

47 In his evidence, Dr Staniland said that he was told by Mr Maher, the Site Operations Manager of the Defendant, that on 2 October 2003 the last truck left Warabrook Lagoon at 3.00 pm. On the basis of the assumption that the flow could not have gone unnoticed for a period of more than 12 hours (the approximate period between the time the last truck left and the discovery of the spill), Dr Staniland then concluded that in his opinion it was unlikely that the flow could have proceeded beyond SW4.

48 The Defendant also adduced evidence from Dr Staniland in relation to experiments that he conducted around SW6 to establish that a possible alternative hypothesis existed for how egg waste got into Warabrook Lagoon. This hypothesis was that Mr Fitzpatrick’s actions caused egg waste to flow from SW6 into the offsite stormwater system. In two experiments, Dr Staniland discharged liquid in the immediate vicinity of SW6, first, with 700 litres of water and, second, with approximately 40 litres of water. From the experiments, Dr Staniland came to several conclusions in relation to the behaviour of a discharge of liquid around SW6. First, he concluded that in order for liquid to have fallen into SW6 through the top, a significant flow rate and a volume significantly larger than 40 litres would be required due, predominantly, to the raised edge of the grate located on top of SW6. Second, Dr Staniland concluded that water, as well as flowing directly into SW6 through the grate, could also seep into SW6 through leakages in joints located in the pit structure itself. As the pipe perimeters within SW6 were not sealed, water that had seeped into the grass could also seep into SW6. This was the case, according to Dr Staniland, even with an amount of water as small as 40 litres.

49 Dr Staniland was then asked to comment on the method adopted by Dr Joliffe to calculate the volume of the plume. Dr Staniland stated that Dr Joliffe’s calculations lacked a scientific basis as it was not possible to determine the volume of a plume only from photographs and knowledge that the plume length was 10 metres. Dr Staniland gave evidence that the plume could have resulted from a volume of pollutant as little as 20 to 50 litres.

Other rational inferences open on the evidence

50 The Defendant argued that the Prosecutor had not proved its case that egg waste from the Defendant’s premises fell or descended into Warabrook Lagoon. The Defendant argued that the Prosecutor’s case relied on circumstantial evidence as no-one saw the pollutant leave the Defendant’s premises and enter Warabrook Lagoon. In such cases, the Prosecutor is required to show that there were no other rational inferences consistent with innocence open on the evidence.

51 The Prosecutor relied on the facts that there was a spill from the black tank on 2 or 3 October 2003 before 5.45 am, that there is connectivity between SW1 to SW6 and Warabrook Lagoon (not denied by Defendant) and that there is chemical consistency between the samples taken from Warabrook Lagoon on 3 October 2003 and the samples taken from the black tank as analysed by Dr Joliffe. The Prosecutor’s officer Ms Schofield also gave evidence that the odour from the material in the GPTs was similar to that which she had smelled at the site which she had visited on several occasions before 3 October 2003.

52 The Defendant argued this was insufficient to prove that there had been an actual discharge of egg waste from the site into Warabrook Lagoon before 10.00 am, that is, resulting from the leak from the black tank. There was no evidence of any egg waste being seen in SW5 and SW6 before 10.00 am. Nor was there any evidence of egg waste in the drains and pipes between the Defendant’s property and the GPTs.

53 Further, the Defendant argued that there was no evidence of the amount of pollution in Warabrook Lagoon. The Defendant submitted that Dr Joliffe’s evidence on this issue should be disregarded as lacking any scientific basis as required by Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, which submission I agree with.

54 The Defendant asserted that no egg waste from the spill from the black tank on 2 or 3 October 2003 entered Warabrook Lagoon. Mr Bird first reported the plume in Warabrook Lagoon at 11.00 am. Warabrook Lagoon is surrounded by a walking track that is frequently used. It is also elevated above the water level of Warabrook Lagoon near the point where the plume was detected. These circumstances suggest that if the pollutant plume had been detectable earlier it would have been noticed by a member of the public. If the pollutant in Warabrook Lagoon did result from the leak in the black tank it should have been seen much earlier in the day.

55 Another hypothesis consistent with the evidence was that the spill was caused by the operator of Valley Disposals, Mr Fitzpatrick, when egg waste escaped into SW6 after the pump out operation.

56 The Defendant did not positively assert that the pollutant came from the Valley Disposals’ truck spill, and there is no direct evidence of this, but said that is one hypothesis which could explain the presence of pollutant in Warabrook Lagoon. Another hypothesis is that the pollutant came from elsewhere given that a number of other properties drain into the offsite stormwater drainage system between the Defendant’s land and the GPTs and Warabrook Lagoon.

(ii) The pollutant was likely to fall or descend into Warabrook Lagoon

57 The Defendant argued that there was no likelihood of the egg waste reaching the Warabrook Lagoon because there was no evidence that there was a real possibility of a leak from the black tank on 3 October 2003, and there was no real possibility that any egg waste that did escape would make its way to SW6 without being detected and stopped.

58 In this respect, the Defendant noted that while there was evidence that the hole in the black tank was created by rust there was no evidence this rust was apparent before the leak or that the tank was otherwise unsound on 3 October 2003. The Defendant also relied on the evidence of Dr Staniland who considered that before egg waste could reach SW1 it would need to fill a void of approximately 300 litres in volume under the concrete slabs of the loading bay. As egg waste would need to fill the void it would take up to 11 hours for the egg waste to reach SW4 and a sufficient amount of additional time would be needed for the egg waste to progress to SW5, as it would first need to fill the void in the base of SW4 in order to flow to SW5. As there was evidence that the last truck left the site at 3.00 pm on 2 October 2003 and as the egg waste had a distinct smell and appearance, the Defendant argued that it was unlikely that any leak could make its way to SW6 without being detected and stopped before reaching SW6. There was simply not enough egg waste and not enough time to establish beyond reasonable doubt that there was a likelihood the egg waste would proceed to Warabrook Lagoon. In these circumstances there was no likelihood of egg waste falling or descending into Warabrook Lagoon.

Reliance on s 257 of the POEO Act

59 In response to the no case submission made and then withdrawn by the Defendant at the close of the Prosecutor’s case, the Prosecutor raised for the first time that reliance would be placed, if necessary, on s 257 of the POEO Act in the event that the Court found that the spill was caused by Mr Fitzpatrick.

60 Section 257 of the POEO Act states:

Occupier of premises responsible for pollution from premises
(1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:
(a) the pollution was caused by another person, and
(b) the other person was not associated with the occupier at the time the pollution occurred, and
(c) the occupier took all reasonable steps to prevent the pollution.
A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.
(2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.

Finding

61 The particulars in the summons state that “the pollutant was in a position where it was likely to and did fall, descend and be washed into the waters…”. It does not state how the pollutant got into that position or who caused it to do so. It is clear that the evidence relied on is circumstantial as no-one saw the pollutant escape from the premises and enter Warabrook Lagoon. Accordingly the Prosecutor is relying on evidence of a basic fact or facts from which I must infer a further fact or facts.

62 The Prosecutor bears the burden of proving all the elements of the crime beyond reasonable doubt. In a case of circumstantial evidence, the obligation of the Prosecutor is to exclude all reasonable hypotheses consistent with the innocence of the defendant. The guilt of the defendant should not only be a rational inference but it should be the only rational inference that could be drawn from the circumstances. In Shepherd v R (1990) 170 CLR 573 Dawson J states at 578 – 580:

The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances… Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction…

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt.

63 In Shepherd, Dawson J continued at 583 – 584 referring to the decision of Brennan J in Chamberlain & Anor v The Queen [No 2] (1984) 153 CLR 521 at 599:

In Chamberlain (30) Brennan J also expresses the view that in a case turning upon circumstantial evidence:
“the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts … An inference of guilt may properly be drawn although any particular primary fact, or any concatenation of primary facts falling short of the whole, would be insufficient to exclude other inferences. It follows that the insufficiency of a piece of evidence to support an inference of guilt does not by itself warrant the setting aside of a verdict of guilty if that piece of evidence, however important, is but a part of the whole body of evidence available to support the inference.”

In the passage the reference to “the primary facts from which the inference of guilt is to be drawn” is clearly a reference to such intermediate conclusions of fact as are necessary for the drawing of the inference of guilt and is not a reference to each basic fact – each individual item of evidence – upon which those conclusions may be based. That is why his Honour points out that an inference of guilt may be drawn even though a particular “primary” fact falling short of the whole would be insufficient to exclude other inferences. I do not take this latter reference to a “primary” fact to mean anything more than a piece of evidence. That, I think, is shown by the use of that term in the sentence that follows. The term “primary facts” is apt to confuse if it is used to refer to the basic facts – the individual items of evidence – as well as to the factual conclusions from which inferences may be drawn. More often than not it is in the latter sense that the term is used when it is said that an appellate court may draw its own inferences from the primary facts as found by the trial judge.

64 In Filipowski v Nikolaos; Pontian Shipping Co Limited [2005] NSWLEC 102 Talbot J recently considered the test for proof beyond reasonable doubt based on circumstantial evidence in relation to a strict liability offence under s 8 of the Marine Pollution Act 1987. At [61] he relied on Martin v Osborne (1936) 55 CLR 367 per Dixon J at 375:

If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.

Talbot J held at [61]:
I am not able to conclude in this case that the degree of probability that the discharge of oil took place from the Frixos is so high that the contrary cannot reasonably be supposed. The prosecution case is directed solely to showing that the Frixos was the source of the spill. That in itself has not been proved to my satisfaction beyond reasonable doubt. Furthermore, as the prospect of a discharge from another ship or of the Frixos travelling through an existing slick has not been negatived and the means of a mixture occurring has not been explained, then the defendants should be given the benefit of the doubt.

(i) The pollutant fell or descended into Warabrook Lagoon

65 The primary case argued by the Prosecutor is that the egg waste from the Defendant’s premises entered Warabrook Lagoon before 10.00 am on 3 October 2003 in contravention of s 120(1) of the POEO Act and the definition of “water pollution” contained in (d)(i) of the Dictionary. The Defendant argued that the passing of egg waste through SW5 and SW6 on the way from the black tank to the Prosecutor’s drainage system before 10.00 am is an intermediate fact that has to be proven beyond reasonable doubt in order for the Prosecutor to succeed on its primary case that the pollution was caused by a leak from the black tank before 10.00 am. Further, there are other drains which could have been the source of the pollution. Has the Prosecutor discharged its onus of proof in circumstances where no-one saw the discharge of egg waste beyond the Defendant’s property, there is no evidence of discharge between the Defendant’s property and the GPTs and there is no evidence of egg waste in the Defendant’s property beyond SW4 before 10.00 am, that is in either SW5 or SW6?

66 The principal evidence relied on by the Prosecutor is that:

(i) There was a leak from the black tank on the same day as a pollutant consistent with egg waste was found in Warabrook Lagoon. The Defendant did not dispute the leak.

(ii) The leak was large, continued over a number of hours, and therefore reached SW6 and Warabrook Lagoon as supported by Dr Joliffe’s evidence, the observations of the Defendant’s employee in the diary at the time the leak was discovered about 5.45 am on 3 October 2003 and the presence of egg waste in several stormwater pits on the Defendant’s premises.

(iii) There is a direct physical link between the stormwater drain on the Defendant’s premises and the GPTs and Warabrook Lagoon through the intervening offsite stormwater drainage system. The Defendant did not dispute this.

(iv) Dr Joliffe’s conclusion that the sample from Warabrook Lagoon had a high correlation with egg waste from the Defendant’s premises. This evidence was not disputed by the Defendant but the Defendant does not admit that the pollutant in Warabrook Lagoon was egg waste.

(v) The substance in Warabrook Lagoon affected the chemical and biological state of the water. The Defendant does not put forward evidence to contradict this.

(vi) The Prosecutor’s officer, Ms Scofield, considered the odour of the pollutant at the GPTs and the Lagoon was the same as the egg waste she had smelled at the Defendant’s premises.

(vii) The fact that no egg waste was detected in SW5 and SW6 before 10.00 am can be explained. Mr King and Mr Fitzpatrick both saw water from the premises next door flowing through SW6 which would have washed out any egg waste residue. SW5 was said to be free of egg waste because of, by inference, the clean up activities undertaken by the Defendant’s employees before Mr King arrived at about 7.50am. There is no evidence about what the nature of those clean up activities were. The Prosecutor also argued that no egg waste may have been detected in SW5 and SW6 because the egg waste had been diluted by the time it had reached SW5.

Other pollutant sources

67 There are a number of other drains from numerous properties which connect with the stormwater system connected to the GPTs between the Defendant’s land and the GPTs. This is clear from exhibit F. The sample testing undertaken by the Prosecutor’s employees and provided to Dr Joliffe for analysis, is set out at par 22 above. Dr Joliffe was not asked to test samples from the other drains which flowed into the GPTs and Warabrook Lagoon between the Defendant’s property and Warabrook Lagoon to see if these were consistent or not with egg waste passing through them. Had this been done and no trace of egg waste found, these hypotheses could clearly be ruled out. Rather, he was asked by the Prosecutor to test a single hypothesis, namely guilt of the Defendant and whether the pollutant found in Warabrook Lagoon and the GPTs was consistent with egg waste from the Defendant’s site. In this respect this case has similarities to Nikolaos.

68 The hypothesis that the pollutant came from other sources can therefore be maintained as there is no attempt in the evidence to negate that hypothesis. No samples were taken from any of these other drains to demonstrate that no egg waste was in them. It is therefore necessary to consider the evidence as a whole to determine whether, in the absence of that evidence, the Prosecutor has proved its case beyond reasonable doubt.

Consistency between egg waste and pollutant

69 Dr Joliffe’s conclusions as to the consistency between what he tested from Warabrook Lagoon samples and the Defendant’s egg waste are set out at par 31 above. He concluded there is a very high probability that the pollution in Warabrook Lagoon must have come from the Defendant’s premises. On its own, this does not overcome the possibility that the source of the pollutant was elsewhere as it is theoretically possible there is another source of pollutant which feeds into the same stormwater drainage system because such a source has not been ruled out by the sample testing evidence.

How much pollutant escaped into Warabrook Lagoon?

70 The Prosecutor argued that a large amount of egg waste had escaped from the black tank, possibly over many hours. The time at which the leak from the black tank commenced is unknown. The evidence of Dr Staniland that he was told the last truck left the loading bay area at 3.00 pm on 2 October 2003 is more specific than the evidence of Mr King that trucks generally used the loading bay area until midnight. Mr King did not have specific knowledge of truck movements on 3 October 2003. Accordingly, the relevant time period in which the leak could have occurred is between 3.00 pm on 2 October 2003 and 5.45 am on 3 October 2003, a period of up to 14 hours. The capacity of the black tank is approximately 6,830 litres and Mr Fitzpatrick pumped approximately 2,000 litres from the black tank. However, the amount which leaked from the black tank is unknown with the upper limit being 4,830 litres, given the tank’s capacity.

71 The Prosecutor relied on Dr Joliffe’s evidence, which was disputed, that the estimated volume of pollutant that escaped into Warabrook Lagoon was between 1,000 and 4,000 litres based on photographs of the plume. As Dr Joliffe stated in his report and in oral evidence this was a very difficult calculation to do with any certainty in the absence of any information about the flow rate and time of flow. Dr Staniland gave evidence which criticised Dr Joliffe’s evidence in this area as lacking any scientific basis. I do not accept this part of Dr Joliffe’s evidence as proving that the possible amount of pollution that escaped into Warabrook Lagoon was between 1,000 and 4,000 litres, rather his evidence should be considered speculative. I note that Dr Staniland estimated that based on the experiments he conducted the amount could be as little as 20 litres. The amount of pollutant in Warabrook Lagoon is essentially unknown in my view of this evidence.

72 The respective civil engineers gave their opinion in relation to the flow rate of the leak from the black tank and therefore the time over which the leak took place, and the likely time liquid of the nature of egg waste would take to flow to SW4 and/or SW6 and then to the GPTs and Warabrook Lagoon.

73 The evidence of Dr Joliffe was that, in his opinion, it would take 35 hours for the egg waste to drain through a 5 millimetre hole in the black tank if the tank was half full, and 55 hours to drain if the tank was full. Dr Staniland agreed with Dr Joliffe’s evidence in relation to a hole 5 millimetres in diameter. Dr Staniland considered, however, that the hole in the black tank was probably 3 millimetres in diameter at the time of the leak and he calculated that the drainage rate for a hole of 3 millimetres would be 35 to 40 per cent of the drainage rate for a hole of 5 millimetres in diameter. Assuming the hole was 3 millimetres in size, Dr Staniland estimated that it would take approximately 160 hours for the black tank to drain if the tank was full. Both the experts’ evidence suggests that if the leak was from a full to half full tank, it should have been obvious sometime during the day on 2 October 2003 or earlier. I consider Dr Staniland’s conclusion that the hole in the tank was smaller at the time of the leak is likely. This also suggests it is likely the leak was not as large as suggested by Dr Joliffe’s estimate of 1,000 to 4,000 litres.

74 The evidence of Dr Staniland suggests that the amount of the leak must be over 300 litres, that being the amount Dr Staniland estimated would fill the void under the cement next to the tank. Some additional material would then flow beyond SW1 to SW4. He estimates that the liquid would take eight to eleven hours to travel beyond SW1 to SW4, given the viscosity of the egg waste solution.

75 Dr Joliffe’s evidence on the period of time of the leak does not take into account the void under the concrete slab which would take up a sizeable amount of liquid, approximately 300 litres. The calculations of Dr Joliffe set out above at par 23 that it would require 80 to 120 litres on 2 or 3 October 2003 to reach Warabrook Lagoon cannot be correct if the void is as sizeable as Dr Staniland estimates. This void would presumably fill up first before much liquid could get to SW1 and beyond. The observations in the Defendant’s diary, relied on by the Prosecutor, that there was “egg waste” all over the cement does not assist in determining whether the leak on and off the site was as large as the Prosecutor sought to argue, given the void under the concrete slab.

76 The leak was discovered at 5.45 am on 3 October 2003 and saltbags then placed over SW1 to stop further liquid flowing in. The pollutant in Warabrook Lagoon was not reported by Mr Bird until 11.00 am. While the Defendant argued that if a leak from the black tank had reached Warabrook Lagoon earlier on 3 October the pollutant would have been reported earlier than 11.00 am, it may simply be that others saw the pollution but chose not to report it. I do not consider that Mr Bird’s evidence establishes that the egg waste did not reach Warabrook Lagoon until after 10.00 am. The time the pollutant entered Warabrook Lagoon before 11.00 am is simply unknown.

77 Ultimately given the relatively large window of time in which the leak could occur from 3.00 pm on 2 October 2003 to, say, an hour before 5.45 am on 3 October 2003, the expert evidence is not conclusive in the absence of any further specific data on the amount and time of the leak, and the amount of pollutant in Warabrook Lagoon. Given Dr Staniland’s evidence that the hole in the tank was likely to be 3 millimetres, the void under the cement, the viscosity and therefore likely flow rate of the egg waste, I consider it is likely the leak was small rather than large.

78 In relation to matter (ii) in the evidence relied on by the Prosecutor (see par 66), the evidence does not conclusively demonstrate beyond reasonable doubt that the leak was so large and continued for so long that egg waste must have reached SW6 and travelled to Warabrook Lagoon. In the absence of direct evidence that the egg waste did reach SW6 I agree with the Defendants that it cannot be assumed to be the only possible hypothesis consistent with the evidence. The hypothesis that it did not get there is also open on the evidence.

Conclusion

79 While the authorities such as Shepherd state that it is not necessary in a circumstantial case that every fact be established beyond reasonable doubt the evidence when viewed as a whole must establish the Prosecutor’s case beyond reasonable doubt. As Martin emphasises there must be no other reasonable explanation open on the facts.

80 I consider the Prosecutor has not established beyond reasonable doubt that the pollutant in Warabrook Lagoon did come from the Defendant’s premises as a result of the leak from the black tank before 10.00 am. The intermediate facts necessary to prove the Prosecutor’s case have not been made out. The facts as proven in (i) (there was a leak), (iii) (direct link between the premises and Warabrook Lagoon), (iv) (high correlation between the pollutant and egg waste), (v) (water quality was affected) and (vi) (odour detected) in par 66 above do not preclude hypotheses inconsistent with guilt.

81 In relation to matter (vii) relied on by the Prosecutor in par 66 above there is not any evidence of what clean up activities were undertaken before Mr King’s arrival at work. I do not therefore infer that the reason there was no egg waste detected in SW5 was because of those activities. I further note that there is no evidence of any egg waste being detected in the drain between the GPTs and the Defendant’s premises.

82 I am unable to conclude in this case that the degree of probability that egg waste fell, descended or washed into Warabrook Lagoon from the site is so high that the contrary cannot reasonably be supposed. The Prosecutor’s case is directed solely to showing that the black tank was the source of the spill. The prospect of a discharge from elsewhere, such as the other drains flowing into the stormwater drainage system between the Defendant’s premises and the GPTs, has not been negated and there is insufficient evidence to overcome that deficiency. The Defendant should be given the benefit of the doubt. The Prosecutor therefore fails on this part of its case.

Was the pollutant in Warabrook Lagoon as a result of Mr Fitzpatrick’s actions?

83 The Defendant has argued that one possible hypothesis for how the pollutant got into Warabrook Lagoon is as a result of the spill from the Valley Disposals’ truck hose after the flushing exercise at SW6.

84 The only evidence of the sighting of egg waste in SW6 was a couple of hours after the spill from the Valley Disposals’ truck hose which occurred at approximately 10.00 am. The sighting was made by Mr Gilligan and Mr King after 1.15 pm on 3 October 2003. This is well after the pollutant was first discovered in Warabrook Lagoon by Mr Bird who reported the incident to the Council at approximately 11.00 am to 11.15 am. I have already held at par 76 that Mr Bird’s sighting is not conclusive as to the time the pollutant entered Warabrook Lagoon in any event. Further, there is no evidence to suggest that there was any further pollution flowing into Warabrook Lagoon after approximately 1.15 pm.

85 Both Mr Fitzpatrick and Mr King gave evidence that all the egg waste which spilled from the hose was cleaned up around and in the SW6 pit immediately after the spill. There is no direct evidence that any of the spill from the hose seeped into SW6 through leakages into the joints in the pit structure of SW6 but Dr Staniland’s evidence suggests this was possible given the experiments he conducted at SW6 described at par 48 above. Consequently, the circumstantial evidence, namely Dr Staniland’s evidence and the sighting at 1.15 pm of some egg waste in SW6, supports a conclusion that some egg waste did get into SW6 from that spill. It is likely the amount was small given that the maximum capacity of the truck hose was about 20 litres and I consider most of that must have been cleaned up by Mr Fitzpatrick as he commenced cleaning up immediately after the spill occurred.

86 There is no direct evidence that that egg waste in SW6 escaped into Warabrook Lagoon, because there is no evidence that the flow of water from the next door property seen by Mr King shortly after 8.00 am and by Mr Fitzpatrick at about 10.00 am continued to flush out SW6 after some egg waste may have filtered into SW6 some time after the spill from the hose attached to the Valley Disposals’ truck. I further note that it was not part of the Prosecutor’s case that there was an escape of egg waste into SW6 due to Mr Fitzpatrick’s actions, rather the Prosecutor’s efforts were directed towards establishing that it did not. There is no need to resolve the conflicting evidence of events as between Mr King and Mr Fitzpatrick.

Reliance on s 257 of the POEO Act

87 To make out its case the Prosecutor does have the benefit of the statutory presumption in relation to evidence, that the occupier is taken to have caused the pollution as provided in s 257 of the POEO Act. Section 257 essentially provides a defence available to a defendant which can be relied on to overcome the presumption. I do not consider that it is necessary for the Prosecutor to particularise s 257 given that it is in the POEO Act and a matter about which the Defendant can be assumed to be aware. Section 257 does not overcome the necessity for the Prosecutor to prove its case that pollutant did fall or descend into Warabrook Lagoon beyond reasonable doubt, however.

88 It is useful to consider the facts of Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51. In that case, it was alleged that the Defendant was the occupier of premises when a large quantity of heating oil escaped into the stormwater system polluting waters in contravention of s 16 of the Clean Waters Act 1970, the equivalent provision of s 120 in the POEO Act. Talbot J was satisfied beyond reasonable doubt that a large quantity of heating oil had escaped from a point on the Defendant’s premises through the stormwater drain into the waters. On the evidence, however, Talbot J considered that it was not possible to determine the actual cause of the spill and whether it was the actions of the Defendant or the Defendant’s independent contractor which were responsible for the spill. His Honour held accordingly that he was unable to establish beyond reasonable doubt whose actions caused the pollution. As he could not draw any inference as to the cause of the pollution, the offence had not been proved beyond reasonable doubt. Snowy Mountains Engineering Corporation was decided when the Clean Waters Act 1970 had no equivalent provision to s 257 of the POEO Act so that there was no statutory presumption that the occupier was liable for pollution escaping from its premises unless the statutory defence could be relied on.

89 In Snowy Mountains Engineering Corporation it was proved that the pollutant had escaped from the premises. What was unclear was how and who caused it to escape. I consider s 257 of the POEO Act would overcome the need to prove these matters in circumstances where the Prosecutor has proven beyond reasonable doubt that the pollutant had escaped from the premises into the specified “waters”.

90 In this case, I have already found that the Prosecutor has failed to satisfy the onus of proving beyond reasonable doubt that egg waste from the black tank fell, descended or washed into Warabrook Lagoon. I also consider that it has not been proved that egg waste fell, descended or washed into Warabrook Lagoon from the actions of Mr Fitzpatrick. In these circumstances s 257 of the POEO Act does not assist the Prosecutor’s case.

(ii) The pollutant was likely to fall or descend into Warabrook Lagoon

91 The other argument put forward briefly by the Prosecutor was that the pollutant was placed on the Defendant’s premises in such a way that it was likely to fall into Warabrook Lagoon in contravention of s 120(1) of the POEO Act and (d)(ii) of the definition of “water pollution” contained in the Dictionary.

92 There is no dispute, and the evidence proves beyond reasonable doubt, that egg waste did get into the stormwater drain on the Defendant’s land. Was it therefore likely to fall, descend or be washed into Warabrook Lagoon through the intervening stormwater drainage system? While I have held that the Prosecutor has not proved beyond reasonable doubt that egg waste did reach Warabrook Lagoon, that is not the same as conclusively finding that it did not reach it as the Defendant sought to argue. I consider it is therefore open to the Prosecutor to argue that the egg waste was likely to get there as a result of the leak from the black tank.

93 In considering whether the pollutant was likely to fall or descend into the waters, it is to be noted that the word “likely” has been held to mean “a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance” (Mathews v Goulburn Wool Processors (Smart J, NSWSC, 6 November 1986, unreported)); “only a real chance or possibility, and not more probably than not” (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGRA 221 at 224); and “does not mean ‘probable’. It means ‘a real possibility’” (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).

94 It is useful to consider the facts of Blayney Abattoirs and New South Wales Sugar Milling in determining whether the egg waste was likely to fall or descend into Warabrook Lagoon. In Blayney Abattoirs the defendant conceded that a malfunction in one of the defendant’s pumps caused a tank to overflow. The defendant in that case submitted that a system of contour banks (measuring approximately 18 inches to two feet high) had the effect of diverting pollution away from waters and, accordingly, it was not likely that waters would be polluted. Hemmings J held that it had not been proved beyond reasonable doubt that the defendant had placed pollutant in a position where it was likely to pollute waters and stated at 224 that:

The prosecutor bears the onus to establish that entry of the matter into the waters or drains is "likely". Such onus may not be discharged if there is evidence of other relevant factors such as intervening contour banks or berms which would impede such flow from the position placed, or divert it away from such waters.

95 In New South Wales Sugar Milling a small amount of ion effluent escaped from a waste water treatment plant. The evidence provided that any run-off from the waste water treatment plant would, if in sufficient quantities, descend into the main eastern drain. Any run-off from the area of the trenches constructed on the north-western part of the defendant's premises would descend into the main western drain. Cripps J held at 100 that:

I am not satisfied beyond reasonable doubt that matter from where it was placed outside the waste water treatment plant was on any of the three days likely to fall or descend or be washed into Narho Creek… the evidence is that on 30 January 1990 a small amount overflowed and lay on the ground. It was 1.5 kilometres to Narho Creek, the drains were flat and there were depressions.

96 While the Defendant argued the egg waste was not likely to reach Warabrook Lagoon because there was action taken to prevent it leaving the site, I consider that the Prosecutor has proved beyond reasonable doubt that it was likely to. There was no mechanism such as a bund around the black tank on the Defendant’s premises. There was no physical impediment to prevent any leak from the tank getting into SW1 and thereafter travelling through the stormwater system offsite. In addition, it was Mr King’s evidence that there was no maintenance program in relation to the black tank. It is not sufficient for the Defendant to argue that maintenance of the black tank was Valley Disposals’ responsibility. There is clearly a direct connection between the stormwater system on the site and Warabrook Lagoon through the offsite stormwater pipes, as is clear from the fluorescein dye tests conducted by the Prosecutor.

97 I also agree with the Prosecutor’s submissions that there were inadequate emergency procedures in place to deal with a spill of this nature, or to control a spill.

98 The evidence of the expert metallurgist, Mr Costanzi, also supports this finding. Mr Costanzi stated that on 4 August 2004 two holes caused by rust were present in the black tank and that the likely causes of the rust and corrosion were mechanical damage to the black tank, the age, the general operating conditions, the type of paint and the installation of the black tank. While not specifically dealing with the state of the tank on 3 October 2003 I consider this evidence is sufficient to suggest that the Defendant needed to exercise care in ensuring the tank was sound.

99 I find the Defendant guilty of the offence of polluting waters on 2 or 3 October 2003 within the meaning of s 120(1) of the POEO Act and the definition of “water pollution” contained in (d)(ii) of the Dictionary by placing egg waste in a position where it was likely to fall, descend, or be washed into Warabrook Lagoon.

100 The Defendant is found guilty of the offence of placing egg waste in a position where it was likely to fall, descend, or be washed into Warabrook Lagoon on 2 or 3 October 2003 under s 120(1) of the POEO Act. I reserve the question of penalty and costs and will make final orders when these issues are determined.