The Hills Shire Council v Kinnarney Civil and Earthworks Pty Ltd and Kinnarney

[2012] NSWLEC 45

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney [2012] NSWLEC 45
Hearing dates:	20 February 2012 to2 March 2012
Decision date:	16 March 2012
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	The defendants are convicted of the offences as charged under s 143(1) of the Protection of the Environment Operations Act 1997.
Catchwords:	ENVIRONMENTAL OFFENCES:- charge that corporate defendant transported waste to a place that could not be lawfully used as a waste facility for that waste contrary to s 143(1) Protection of the Environment Operations Act 1997 - charge that pursuant to s 169(1) the other defendant, as a director of that corporation which contravened s 143(1), is taken to have contravened s 143(1) - elements of s 143(1) offence - defence of honest and reasonable mistake of fact that development consent had been granted for deposit of fill - defendants did not discharge evidentiary burden of establishing mistake of fact - defence not one of mistake of fact but of law - in any event defence not exculpatory because environment protection licence also required.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 48, 76, 76A, 76B Protection of the Environment Operations Act 1997 ss 44(4), 48, 63, 143,169 Rural Fires Act 1997 ss 63,66,100C, 100F Waste Minimisation and Management Act 1995 s 63(1) Baulkham Hills Local Environmental Plan 2005
Cases Cited:	Australian Solvent Recyclers Pty Ltd v Environment Protection Authority of New South Wales [2000] NSWLEC 10, 105 LGERA 324 Cambridgeshire & Isle of Ely County Council v Rust [1972] 2 QB 426 Coles Myer Ltd v Catt (1992) 58 SASR 298 CTM v The Queen [2008] HCA 25, 236 CLR 440 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232, 172 LGERA 225 Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439, 137 LGERA 289 Environment Protection Authority v Hardt [2006] NSWLEC 438, 148 LGERA 61 Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76, 125 LGERA 332 Environment Protection Authority v N (1992) 26 NSWLR 352 Environment Protection Authority v Shannongrove [2010] NSWLEC 162, 176 LGERA 31 Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 Environmental Protection Authority v Hardt [2006] NSWLEC 438, 148 LGERA 61 G J Coles & Co Ltd v Goldsworthy (1985) 57 LGRA 122 Hardt v Environment Protection Authority [2007] NSWCCA 338, 156 LGERA 337 He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523 Iannella v French [1968] HCA 14, 119 CLR 84 Jiminez v The Queen [1992] HCA 14, 173 CLR 572 at 582 Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485, (2009) 251 ALR 135 Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 Ostrowski v Palmer [2004] HCA 30, 218 CLR 493 Owen v Willtara Construction Pty Ltd [1998] NSWLEC 216, 103 LGERA 137 Power v Huffa (1976) 14 SASR 337 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 The Hills Shire Council v Suciu [2009] NSWLEC 145, 168 LGERA 302 Thomas v The King [1937] HCA 83, 59 CLR 279 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Von Lieven v Stewart (1990) 21 NSWLR 52
Texts Cited:	Glanville Williams, Criminal Law: The General Part, 2nd ed (1961), Stevens & Sons
Category:	Principal judgment
Parties:	The Hills Shire Council (Prosecutor) 50416 of 2011 Kinnarney Civil & Earthworks Pty Ltd (Defendant) 50418 of 2011 Patrick Pius Kinnarney (Defendant)
Representation:	COUNSEL: Mr D A Buchanan SC and Mr M C Fraser (Prosecutor) Mr J Gooley, solicitor, and Mr M Warren, solicitor (Defendants) SOLICITORS: The Hills Shire Council (Prosecutor) Collins and Thompson (Defendants)
File Number(s):	50416/11 and 50418/11

CONTENTS
Paragraphs
THE CHARGES	1-3
OVERVIEW	4-20
PROTECTION OF THE ENVIRONMENT OPERATIONS ACT	21-23
ELEMENTS OF THE s 143(1) OFFENCE AND BURDEN OF PROOF	24-29
CATEGORIES OF EVIDENCE	30-30
CONDUCT OF MR KINNARNEY WAS CONDUCT OF HIS COMPANY	31
THE LAND AND ADJACENT BLOCK	32-38
CORPORATE DEFENDANT'S TRUCK AND TRAILER	39
MOTIVE	40
THE LAND PROPRIETORS - MR AND MRS CLARK	41-42
HISTORY OF FILLING ON THE LAND	43-53
2009 ARRANGEMENT WITH MR KINNARNEY FOR FILLING OF LAND	54-58
FILLING OF LAND PURSUANT TO 2009 ARRANGEMENT	59-65
COUNCIL INSPECTION ON 1 JULY 2010	66-71
MR CLARK'S CREDIT	72-80
MR KINNARNEY'S SUBSEQUENT DISCUSSION WITH MR CLARK	81-84
COUNCIL LETTER TO MR AND MRS CLARK 2 JULY 2010	85
COUNCIL INDEMNIFIES MR CLARK AGAINST PROSECUTION 21 JULY 2010	86
COUNCIL'S CORRESPONDENCE WITH CORPORATE DEFENDANT FEBRUARY 2011	87-90
SURVEY, INSPECTIONS AND ANALYSIS OF SAMPLES	91-98
ANALYSIS OF AERIAL PHOTOGRAPHY AND SATELLITE IMAGES	99-101
EXTENT TO WHICH DEFENDANTS RESPONSIBLE FOR FILL BODIES	102-119
Defendants entirely responsible for Fill Body 2	102-110
Defendants partially responsible for Fill Body 1	111-116
Conclusions re both Fill Bodies	117-119
INVOICES AND PAYMENTS PURSUANT TO 2009 ARRANGEMENT	120-131
PROPORTION OF FILL BODIES FOR WHICH DEFENDANTS RESPONSIBLE	132-137
FILL PUSHED OVER EDGE OF ESCARPMENT AT FILL BODY 1	138-144
THE MATERIAL TRANSPORTED WAS WASTE	145-152
UNLAWFULNESS OF USE OF THE LAND AS A WASTE FACILITY	153-170
Unlawful use of the Land under the EPA Act	155-161
Unlawful use of the Land under the POEO Act	162-169
Conclusion	170
DEFENCE OF HONEST AND REASONABLE MISTAKE OF FACT	171-191
Mistake of law not fact	175-183
Environment protection licence under POEO Act also required	184
Defendants' evidentiary burden not satisfied	185-191
RURAL FIRES ACT	192
ORDERS	193

Judgment

THE CHARGES

1. There are two charges to be determined against two defendants in respect of the same alleged criminal activity between about 1 June 2009 and 1 July 2010, at Maraylya, NSW:

(a) The defendant Kinnarney Civil & Earthworks Pty Ltd transported waste to a place that could not be lawfully used as a waste facility for that waste, contrary to s 143(1) of the Protection of the Environment Operations Act 1997 (POEO Act) (proceedings 50416 of 2011).

(b) Pursuant to s 169(1) of the POEO Act, the defendant Patrick Pius Kinnarney, as a director of Kinnarney Civil & Earthworks Pty Ltd which contravened s 143(1) of the POEO Act, contravened s 143(1) (proceedings 50418 of 2011).

1. By consent, the charges have been heard together with the evidence in one being evidence in the other. The offence in each case is alleged to have been a continuing offence.

1. There is a third, back-up charge against Mr Kinnarney in separate proceedings (50417 of 2011), which has not been tried. It is that Mr Kinnarney transported the same waste in the same period to the same place that could not be lawfully used as a waste facility for that waste, contrary to s 143(1). By consent, it has been put to one side until conviction of the defendants on the above two charges and the expiry of any appeal period, whereupon the prosecutor will apply for it to be dismissed. In the event that they are both not convicted on the other charges, the prosecutor will consider its position.

OVERVIEW

1. The waste in issue was deposited on two areas of land at 190 Cattai Ridge Road, Maraylya being Lot 1 DP 566767 (the Land). The two areas were described in evidence as "Fill Body 2" with an area of 900 square metres, and "Fill Body 1" with an area of 1,850 square metres. There were 950 cubic metres of fill in Fill Body 2, which weighed an estimated 1,425 tonnes. There were 2,050 cubic metres in Fill Body 1, which weighed an estimated 3,075 tonnes. The totals were therefore 3,000 cubic metres weighing an estimated 4,500 tonnes. Fill Body 2 included brick, piping, hessian and fragments of asbestos-containing fire cement sheeting. Fill Body 1 included brick, metal, concrete, bitumen, artificial grass and fragments of asbestos-containing fibre cement sheeting. The material in the two fill bodies did not comprise excavated natural material and analysis of samples revealed elevated levels of Benzo(a)Pyrene.

1. The Land is a large rural lot owned by Ralph and Suzanne Clark. They have lived and conducted businesses from there since the 1980's.

1. The defendant Mr Kinnarney resided next door where he conducted a business through the corporate defendant. As its name suggests, the business of the corporate defendant involves earthworks. Mr Kinnarney is the sole director and shareholder of the corporate defendant, and he is its controlling mind and will, and drove its truck during the relevant period .

1. Mr Kinnarney did not give evidence.

1. It is common ground that:

(a)   An oral arrangement was entered into between Mr Clark and Mr Kinnarney for Mr Kinnarney to transport and deposit fill on the Land for which Mr Clark would charge a fee. The object was to contribute to the creation of a firebreak. I find that the arrangement was entered into in late 2009.

(b)   Thereafter Mr Kinnarney deposited fill on the Land using the corporate defendant's truck and trailer. I find that he did so between about and including late 2009 and June 2010.

(c)   Between January and July 2010 Mr Kinnarney paid for depositing the fill by six cheques he drew on the corporate defendant's bank account against six invoices which he received from Mr Clark's company. Five of the six invoices are in evidence and are dated from January 2010 to July 2010. They were paid on or within days after the dates they bore. The sixth invoice cannot be located but, judging by its payment date of 4 May 2010 and the pattern of payment of the other invoices, it most likely was invoiced on or shortly before 4 May 2010.

1. The fill transported by Mr Kinnarney constituted "waste" as defined in the POEO Act even if it was clean. In fact, I find that it contained the various materials referred to above at [4]. He transported it to a place that could not lawfully be used as a "waste facility" as defined in the POEO Act. This is not disputed.

1. On the basis of the undisputed matters outlined above, the defendants are guilty of the offences charged subject to consideration of their only defence, identified on the first day of the trial, namely, the common law defence of honest and reasonable mistake of fact.

1. The only other issues the defendants identified on the first day of the trial go not to guilt but to the seriousness of the offences, namely, the amount of fill and whether it was clean. However, the latter issue was not pressed in submissions, presumably because of the unchallenged evidence that it included a large amount of demolition material and the like.

1. Calculation of the amount of fill turns on the rate paid per load and what constituted a load, neither of which were recorded on the invoices nor elsewhere in writing. I accept Mr Clark's evidence that he and Mr Kinnarney orally agreed that Mr Kinnarney would pay $100 plus GST per load; that periodically Mr Kinnarney informed Mr Clark how many loads he had delivered so they could be invoiced; and that a load was treated as a combined truck and trailer load (each with a capacity of a little over 10 tonnes, total 20 tonnes). The defendants submit that the rate was $200 per load (plus GST), but there is no evidence of that rate.

1. On the basis of a rate of $100 per load of about 20 tonnes and the defendants' admitted payments of the invoices in the total amount of $16,550 (excluding GST), I conclude that Mr Kinnarney deposited approximately 3,310 tonnes of waste on Fill Bodies 1 and 2 in the six or seven months before 1 July 2010. Of this amount, I am satisfied that he deposited all the waste of 1,425 tonnes on Fill Body 2, and that the balance of his waste, approximately 1,885 tonnes, was deposited on Fill Body 1.

1. A further issue, identified by the defendants in closing submissions, is whether Mr Kinnarney pushed fill over the escarpment on Fill Body 1. Having regard to the totality of the evidence and my assessment of Mr Clark's credit recounted later, I do have a reasonable doubt about whether Mr Kinnarney did so, and therefore I do not find that he did.

1. Turning to the common law defence of honest and reasonable mistake of fact, the defendants say that Mr Kinnarney's mistake of fact was that, in reliance on what Mr Clark told him, he believed that Mr Clark had development consent which permitted the deposit of the fill on the Land under the Environmental Planning and Assessment Act 1979 (EPA Act). Although Mr Kinnarney did not give evidence, 15 propositions were put to Mr Clark in cross-examination, which the defendants say encapsulate this defence. Many of them Mr Clark denied or said he did not recall and there is no other evidence of them. Nevertheless, the defendants argue that the 15 propositions should be accepted as establishing the defence or as giving rise to a reasonable doubt as to whether they are guilty.

1. The defendants submit, and I accept, that in assessing whether there is reasonable doubt in any respect, there should be taken into account damage to the credit of the main prosecution witness, Mr Clark, because:

(a)   he admitted in cross-examination to lying to the Council investigating officers when they interviewed him on 1 July 2010 and to similarly lying in his two affidavits; and

(b)   he was granted an indemnity against prosecution by the Council on 21 July 2010, even though he was criminally involved in and profited from the defendants' activities, on the basis of no more than his interview by Council officers and before the Council had conducted any further significant investigation.

1. Consequently, I treat Mr Clark's evidence with particular caution. Nevertheless, having assessed his oral evidence, I do accept some but not all aspects of his evidence including evidence favourable to the defendants.

1. In my opinion, the defence raised of honest and reasonable mistake of fact fails for at least three reasons. First, the alleged mistake was not one of fact but one of law, or alternatively was one of mixed fact and law, which is to be treated as a mistake of law. Secondly, the alleged belief, if true, would not take the defendants outside the operation of the POEO Act because lawful authority was required not only by development consent under the EPA Act but also by an environment protection licence under the POEO Act Chapter 3. Thirdly, in any event the defendants have not satisfied their evidential burden of proving that Mr Kinnarney was honestly and reasonably mistaken as alleged.

1. Consequently, I propose to find the defendants guilty as charged.

1. Having stated my conclusions shortly and summarised the main evidence and reasoning, I now proceed to a more detailed analysis.

PROTECTION OF THE ENVIRONMENT OPERATIONS ACT

1. Sections 143 and 169 of the POEO Act provide:

143 Unlawful transporting or depositing of waste

(1) Offence

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:

(a) the person, and

(b) if the person is not the owner of the waste, the owner,

are each guilty of an offence.

Maximum penalty:

(a) in the case of a corporation-$1,000,000, or

(b) in the case of an individual-$250,000.

(2) Proof of lawfulness

In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.

(3) Defence-owner of waste

It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes:

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

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

(3A) Defence-approved notice

It is a defence in any proceedings for an offence under this section if the defendant establishes that:

(a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and

(b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and

(c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste.

(3B)However, it is not a defence in such proceedings for the defendant to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility.

(3C) Defence-waste not deposited

It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.

(4) Definitions

In this section:

approved notice means a notice, in a form approved by the EPA:

(a) stating that the place to which the notice relates can lawfully be used as a waste facility for the waste specified in the notice, and

(b) that contains a certification by the owner or occupier of the place that the statement is correct.

owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported.

169 Offences by corporations

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a) (Repealed)

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(5) In this section, the state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the person, and

(b) the person's reasons for the intention, opinion, belief or purpose.

1. The defendants did not raise any of the statutory defences in ss 143 and 169.

1. The Dictionary to the POEO Act defines "waste" and "waste facility" as follows:

waste includes:

(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b) any discarded, rejected, unwanted, surplus or abandoned substance, or

(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or

(d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or

(e) any substance prescribed by the regulations to be waste.

A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.

waste facility

ELEMENTS OF THE s 143(1) OFFENCE AND BURDEN OF PROOF

1. In my opinion, the elements of the offence created by s 143(1) are :

(a)   the defendant transported a substance to a place;

(b) that substance was "waste" within the meaning of that word in the POEO Act; and

(c)   the place to which the waste was transported could not lawfully be used as a "waste facility", within the meaning of that expression in the Act, for that waste. That is, that lawful authority was required .

1. The first two elements may be described as physical elements, and the third as a status element.

1. In relation to the burden of proof and taking s 143(2) into consideration, a charge of the offence requires an inquiry into whether:

(a)   the prosecutor has proved that a substance which was waste was transported to a place;

(b)   the prosecutor has proved that lawful authority (for example, a licence) was required to use that place as a waste facility under the Act; and

(c)   the defendant then has proved that, at the time the waste was transported, it was lawful to use the place to which the waste was transported as a waste facility for that waste (for example because a necessary licence had been obtained): Environment Protection Authority v Hardt [2006] NSWLEC 438, 148 LGERA 61 at [92] - [93]. In relation to a not relevantly different element of the offence of permitting land to be used as a waste facility, contrary to s 144(2) as it was framed before 1 May 2006 - namely the element that specified land could not lawfully be used as a waste facility.

1. In Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162 176 LGERA 31 at [75] Craig J said:

The elements of the offence against s 143(1) of the Act are:

(i) the defendant transported a substance;

(ii) that substance is "waste" within the meaning of the Act;

(iii) the place to which that waste was transported was being used as a "waste facility" within the meaning of the Act;

(iv) that place could not lawfully be used as a waste facility for that waste.

1. The prosecutor submits that element (iii) in this passage is not an element of the s 143(1) offence and, on that point, Shannongrove should not be followed. His Honour may not have had the benefit of argument as to the elements. I do not think that his Honour meant that it was an element that the place to which the waste was transported by the defendant was previously being used as a waste facility. That would not be a purposive construction because it would give a charter to dump waste in bushland or any other place that had not previously been used as a waste facility. His Honour may have had in mind something narrower. However, since s 143(1) does not, in its terms, require that the place is "being used" as a waste facility, in my respectful view it should be construed without that requirement and thus without his Honour's element (iii). His Honour's remaining elements are in substance the same as I have proposed at [24] above.

1. As a "tier 2" offence under s 114 of the POEO Act, the s 143(1) offence of unlawfully transporting waste is an offence of strict liability subject to the statutory defences in ss 143 and 169, which require the defendant to bear the onus of proof: Shannongrove at [138]. As a strict, rather than absolute, liability offence it is also subject to the common law defence of an honest and reasonable but mistaken belief in a state of facts, which, if they had existed, would have rendered the act innocent. The defendant bears the evidential burden of establishing such a belief of proof. That is the only defence raised by the defendants, who do not seek to rely on the statutory defences, and it is considered below at [171].

CATEGORIES OF EVIDENCE

1. The prosecution case mainly comprises three categories of evidence:

(a)   evidence of alleged admissions by Mr Kinnarney as to transporting loads of fill to the Land, and to pushing a portion of the fill over the escarpment at Fill Body 1.

(b)   evidence of motive; and

(c)   circumstantial evidence that the principal offence was committed by the corporate defendant, and thus also by the individual defendant, including unchallenged evidence from Mr Clark that -

(i)   he made an oral agreement with Mr Kinnarney for him to deliver clean fill to the Land and deposit it in the areas of Fill Body 1 and Fill Body 2 in exchange for Mr Kinnarney paying Mr Clark money at a rate per load;

(ii)   he subsequently saw Mr Kinnarney driving his truck and trailer laden onto the Land and unladen off the Land some 20 to 25 times during the charge period, and occasionally heard the sound of a tailgate slamming while Mr Kinnarney was on the Land while, over time, noticing the Fill Bodies increase in size; and

(iii)   following Mr Kinnarney advising Mr Clark from time to time of the number of loads he had delivered, Mr Clark's company gave invoices to the corporate defendant for the loads of fill delivered, which Mr Kinnarney paid by cheques drawn on the corporate defendant's account that were banked.

CONDUCT OF MR KINNARNEY WAS CONDUCT OF HIS COMPANY

1. At the time of the offences charged, Mr Kinnarney was the sole director and shareholder of the corporate defendant. His conduct is to be treated as the conduct of the company itself because he was its directing mind and will and therefore was the embodiment of the company: Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 717F per Gleeson CJ (Mahoney JA and Campbell J agreeing); Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232, 172 LGERA 225 at [78] - [95] where I reviewed the authorities. That is not in dispute in this case.

THE LAND AND ADJACENT BLOCK

1. The Land the subject of the charges belonged to Mr Kinnarney's neighbours, Ralph and Suzanne Clark.

1. The Land was a residential semi-rural block running south-west, downhill from Cattai Ridge Road. It is bounded on the south-eastern side by Cattai Creek. The Land is a large rural acreage with mixed uses. There is a dwelling house and curtilage and a business in separate areas (each of which areas is substantially cleared of the natural bushland), with roads and tracks and other areas where the natural bushland has been disturbed.

1. The Land is accessed from Cattai Ridge Road on the northern boundary, down a driveway. There is a collection of buildings on the northern, upper part of the site. These largely service a business called "Baligarden", a Balinese garden products, artefacts and furniture business. They also include a mechanical workshop.

1. Below and south of the Baligarden buildings and workshop is a roughly circular part of the driveway and tracks on the Land, which was referred to by some witnesses as "the roundabout", but is part of the gravel track and road network on the Land. South of the roundabout, the driveway does a loop and descends to a fork. The eastern travelling road services a dwelling in the middle of the Land on the eastern side.

1. The western travelling road descends to an area on the western side which is the first area the subject of the charges. Adopting the terminology employed by Mr Wierzchowski , the surveyor who prepared a survey of the fill sites, the north-western area is called " Fill Body 2 ". It appears in recent aerial photography as a semi-cleared and grassed area with a few items of plant or sheds around it.

1. The pathway continues to descend, moving in a south-easterly direction until it reaches the top of an escarpment. On recent aerial photography, that too appears as a cleared or recently grassed area. South of the escarpment is a steep drop of some 3 to 4 metres to a tributary of Cattai Creek. The area at the top of the escarpment and part of the escarpment comprises the second area the subject of these charges. Employing the terminology used in the survey of the site, it is called " Fill Body 1 ". The plan prepared by Mr Wierzchowski comprising an extract from an aerial photograph taken on 26 February 2011 on which he overlaid a reduced size version of his survey is the basic reference plan which has been used in these proceedings.

1. The adjacent block to the east was Lot 2 in DP 566767, known as 188 Cattai Ridge Road, Maraylya. It was owned and occupied by Mr Kinnarney. The block was also the registered office and principal place of business of the corporate defendant.

CORPORATE DEFENDANT'S TRUCK AND TRAILER

1. Among other things, the property at 188 Cattai Ridge Road had on it a dwelling and facilities for the corporate defendant's business. As the corporate defendant's name suggests, its business was and had been civil excavation and earth-moving. Among other of its plant kept on the site were a truck and trailer (or "dog") and a front-end loader. At all relevant times Mr Kinnarney was a sole trader through the corporate defendant and operated a succession of its trucks over time. Since some date after 2002, Mr Kinnarney only ever operated one truck at a time. At the time of the offences charged, Mr Kinnarney operated a white Sterling truck with trailer. This truck and trailer were registered to the corporate defendant.

MOTIVE

1. The prosecutor submits that the motive which may be attributed to the defendants was to save on the costs of conducting the corporate defendant's business. That seems to be so but I do not think that motive is a significant consideration in the circumstances of this case where it is clearly established (and common ground) that the defendants, pursuant to the arrangement between Mr Clark and Mr Kinnarney, transported and deposited a large amount of fill on the Land and paid for doing so by cheques against invoices.

THE LAND PROPRIETORS - MR AND MRS CLARK

1. Mr Ralph and Mrs Suzanne Clark have owned the Land since about 1982-1983. Although Mr Clark had other commercial interests, in recent years they have lived on the land and have derived income relevantly to this case from Baligarden, and from Mr Clark driving commercial trucks.

1. Mrs Clark spent a lot of time running the Baligarden business, both inside and outside the office for that business. The office was located beside the driveway.

HISTORY OF FILLING ON THE LAND

1. I accept Mr Clark's evidence as to the history of filling on the Land recounted below, which I understand to be undisputed.

1. At the time of purchasing the Land, Mr Clark noticed there were areas on it which had been disturbed, some of which contained demolition rubble. In particular there was some demolition rubble on Fill Body 1.

1. Before the offence period, Mr Clark moved rubble from one area on the Land, on its western boundary, into Fill Body 1.

1. In the mid 1990s, over a period of a few months, Mr Clark allowed various operators to put fill on the Land. A particular operator was Mr Mark Vaughan. The fill was placed right at the very top of the Land, where the Baligarden buildings and structures were later erected. His object at the time was to create a platform on which to build stockyards. The filling got out of control and to stop it Mr Clark put a gate with a lock on it at the entrance. He fell into dispute with the Council about the filling. In 1994, he lodged a development application in respect of that fill . It was refused in 1995. In 1996 he lodged another one.

1. The fill which was the subject of Mr Clark's dispute with the Council in 1994-1996 was in a different area to the fill which is the subject of the present charges.

1. Starting in about 2000-2001, Mr Clark did occasional work for Mr Kinnarney - driving Mr Kinnarney's truck and performing repairs on it. When Mr Clark drove Mr Kinnarney's truck in the early 2000s, the truck was a tipper truck and he carted a range of excavated earth and demolition waste. Mr Clark also conducted mechanical servicing and repairs on Mr Kinnarney's truck, both on Mr Kinnarney's land and in Mr Clark's own workshop. The last time Mr Clark drove for Mr Kinnarney was in about 2002. In 2003, Mr Clark purchased his own truck and ran it for three years before selling it in 2006. Since that time, Mr Clark's main business has been interstate truck driving on contract and logistics consulting - advising on truck routes and rosters for truck drivers for other companies.

1. In 2000-2002, when Mr Clark was driving for Mr Kinnarney, Mr Clark brought crushed sandstone onto the Land as well as loads of shale and blue metal or road-base. He put all this material on the driveway, all the way down to the bottom of the Land, south of the escarpment. Mr Kinnarney also brought some of this material in and placed it on the driveway for him. Each of these areas was different from the areas on the Land the subject of the charges (Fill Bodies 1 and 2).

1. Some time in the period 2002-2007, Mr Clark arranged for Mr Jerry Delaney to bring what Mr Clark described as "a few, very few" loads of crushed sandstone and soil onto the Land. It went into a north-west to south-east running depression or gully in Fill Body 1 .

1. In the period 2000-2006, Fill Body 1 was used for filling by Mr Clark himself and also Mr Kinnarney. In the period 2003-2006, at Mr Clark's request, Mr Kinnarney brought building demolition waste, bricks and rubble onto Fill Body 1.

1. Mr Clark wanted the area to be a firebreak. That had always been his motivation for filling Fill Bodies 1 and 2. The reason the material which put in Fill Body 1 in these preceding periods was put there was demolition material and the like was that Mr Clark wanted to ensure that the tongue-shaped depression or gully there was filled with coarse material to ensure decent drainage. Mr Clark brought the same sort of material onto the Land and placed it in the area of Fill Body 1. He used the tipper truck and dog he had at the time and brought between 20-30 loads. He said the truck and dog had the capacity to carry very roughly 11 tonnes each.

1. Mr Clark also brought in less coarse material - the impression is that it was soil - and placed it over the area of the tongue-like depression containing the rubble and also over a much broader area including the northern part of Fill Body 1 and in the area immediately to the north of Fill Body 1.

2009 ARRANGEMENT WITH MR KINNARNEY FOR FILLING OF LAND

1. Mr Clark said in his affidavit evidence that: (a) in or about late July or early August 2009 he came to an oral arrangement with Mr Kinnarney that he, Mr Kinnarney, would deliver clean soil to the Land in exchange for payments by Mr Kinnarney; (b) he asked Mr Kinnarney to put the soil in Fill Body 2; (c) he told Mr Kinnarney that he wanted to create a firebreak in that area; (d) there was discussion between the two men about the fact that Mr Kinnarney would need to construct a ramp there so that his truck would not tip over; and (e) he also showed Mr Kinnarney Fill Body 1 and asked him to put some soil on the top of the escarpment but not to put any over the edge of it.

1. Mr Clark explained, and I accept, that the reason for wanting the fill he arranged for Mr Kinnarney to be brought onto the Land was that he wanted to construct a firebreak on the western side to guard the buildings on the Land against bushfires spurred by westerly winds. Prevailing westerly winds in the area caused a real risk of fire funnelling up the valley and across the swamp at the bottom of the escarpment, up and over the escarpment onto the northern part of the Land. Depositing fill onto the stretch of land ranging from the top of Fill Body 2 to the end of Fill Body 1 enabled the area to be grassed and managed much better than if vegetation was merely cleared. And a level grassed area would be much easier to maintain as a firebreak than an area simply cleared of vegetation.

1. Mr Clark also said in an affidavit that on one occasion he spoke to Mr Kinnarney while he was delivering fill onto the Land and said he would like clean soil with some clay in it so the soil retains water to get some grass and lawn growing, to which Mr Kinnarney agreed.

1. When confronted with new information received by the prosecution in conferences with the Council's lawyers on 15 and 21 February 2012 (notes of which are in evidence), Mr Clark revealed more: namely, that his arrangement with Mr Kinnarney included that Mr Kinnarney would pay a rate proposed by Mr Kinnarney of $100 GST per load, that Mr Kinnarney paid by the defendant corporation's cheques, and that he remembered giving Mr Kinnarney some invoices.

1. I find that in late 2009 Mr Clark and Mr Kinnarney entered into an oral arrangement for Mr Kinnarney to dump fill on Fill Bodies 1 and 2 in exchange for Mr Kinnarney paying a fee per load. The quantum of the fee is in dispute and is discussed below.

FILLING OF LAND PURSUANT TO 2009 ARRANGEMENT

1. Shortly after making the arrangement with Mr Kinnarney, Mr Clark saw Mr Kinnarney's white Sterling truck with trailer being driven by Mr Kinnarney on the Land. He saw and heard it arrive laden and depart empty. Over the next period of months, Mr Clark saw Mr Kinnarney driving his truck onto the Land, usually with the trailer attached, although there would also be periods when apparently there were no deliveries at all. When Mr Clark saw them, the truck and trailer were laden when they arrived and empty when they departed. Mr Clark estimated he saw Mr Kinnarney driving his truck onto the Land between about 20 and 25 times. On occasions after the truck or truck and trailer arrived, he heard the sound of a metal tailgate slamming shut.

1. Mr Clark, as he admitted, was not in a position to observe whether Mr Kinnarney drove his truck and trailer onto the Land every day of every week because he, Mr Clark, regularly worked interstate driving trucks 4 to 5 days a week. However, he occasionally said he inspected the areas known as Fill Bodies 2 and 1 and saw a number of piles of fill comprising what he thought was clean soil, some of which had been levelled. During the course of these inspections of Fill Bodies 2 and 1, he noticed that they were getting bigger. I accept that he made these inspections but given the independent evidence of the foreign material in those Fill Bodies, I do not accept that he always thought it was clean soil.

1. Mrs Clark, from her position in the office of Baligarden, saw and heard a white truck go up and down the driveway but she never saw the driver and could not tell whether the truck was laden or not. Her evidence was consistent with that of Mr Clark.

1. In his first affidavit, Mr Clark said that the first delivery by Mr Kinnarney was made about a week after they made their arrangement, "probably in early August 2009". However, during the trial Mr Clark's invoices (discussed in detail at [120] ff below) were tendered and all were dated between January and July 2010, commencing with the first one dated 28 January 2010.

1. After being exposed to the invoices and payments, Mr Clark said in oral evidence that he now doubted whether any fill was delivered by Mr Kinnarney before January 2010. He also came to doubt his earlier date of July 2009 for their arrangement but believed that the arrangement was made some time in the latter half of 2009 and the first delivery was a couple of weeks later. He could not recall Mr Kinnarney delivering any fill in 2009 but could recall him delivering fill in 2010.

1. There is no doubt, as the prosecutor concedes, that Mr Clark's memory as to dates and time is not very reliable. However, based on a rate of $100 per load plus GST (which I accept, as discussed below) the net amount (ex GST) of that first invoice, $2,700, gives rise to an inference that Mr Kinnarney transported 27 loads (truck and dog) to the Land - a number which seems unusually high to have taken place in the space of one month, particularly given the holiday period during which construction and excavation sites are generally shut down. Accordingly, the first invoice suggests at least a likelihood that the deliveries commenced in December 2009.

1. I conclude that before 1 July 2010 Mr Kinnarney transported fill onto Fill Bodies 1 and 2 between about December 2009 and June 2010.

COUNCIL INSPECTION ON 1 JULY 2010

1. Two Council compliance officers, Parmjit Singh and Ryan Carr, gave evidence that on 1 July 2010 they were driving on Boundary Road, Box Hill, when they saw Mr Kinnarney's white Sterling truck and trailer. It appeared that the trailer was laden with soil-like material. They followed it. By an indirect route, the truck and trailer led them to the Land. They saw it enter the Land and followed it down the driveway. The truck went down past the Baligarden business before coming to a halt. It did not go down to Fill Body 2 or beyond. They could see that the truck and trailer appeared to be laden. Eventually they saw Mr Kinnarney emerge from the Baligarden office, get into the cabin of the truck and drive the truck and trailer back out without unloading.

1. After the Council officers spoke with Mrs Clark, they went down to Fill Body 2 and saw a large landfill platform jutting into the bush. Fill Body 2 appeared to comprise soil containing waste including bricks, agricultural pipes, tiles, cement, asphalt, gyprock, wood, clods of clay and fibrous asbestos sheeting. The fill area appeared to be about 25 metres by 25 metres and up to about 5 metres deep in parts. A stationary backhoe was sitting to one side of the fill platform, which had been previously observed by Council officers on Mr Kinnarney's property and was also subsequently seen there. This is the same machine that Mr Clark described as a front-end loader. Mr Clark gave evidence that that he had never operated that machine.

1. During the Council officers' inspection of Fill Body 2, Mr Clark arrived and was spoken to. They had a conversation there which Officer Carr noted in a notebook and which Mr Clark signed. In amplified form, which I accept, in a file note made by Officer Carr the next day, the conversation was to the following effect:

R Carr: Who is bringing in the material?

R Clark: Patrick Kinnarney, my neighbour. I think I am allowed to fill to 1m depth.

P Singh: You mentioned 1 metre, why up to 1 metre?

R Clark: I checked with council many years ago and recall something about 1 metre.

P Singh: The requirement is also less than 100m2 and the material has to be excavated natural material. This fill material contains waste including asbestos.

R Clark: Asbestos! That can not be true and I wasn't aware of that 100m2 requirement

P Singh: Do you know the source of the landfill?

R Clark: It's supposed to be clean fill.

P Singh: How did you come about engaging Mr Kinnarney?

R Clark: I approached Mr Kinnarney and asked if he could bring in some clean fill so as I could create a firebreak.

P Singh: When did you approach Mr Kinnarney?

R Clark: I know him. I have driven his truck many years ago. I approached him about fill some 6-12 months ago however he has only brought in fill more recently, over the last few months.

R Carr: Did you pay any money or receive any money for the fill?

R Clark: No not at all .

R Carr: May I have your details please?

R Clark: Ralph Clark [mobile phone number].

(emphasis added)

1. Mr Clark explained to the Council officers that the site was already cleared of vegetation and it was his intention to bring in some fill to create a firebreak to be used for fire fighting purposes. The conversation continued:

P Singh: You are allowed to import and deposit clean fill in less than 100 m2 area without consent and it can not be deposited within 40 m of the natural watercourse. This soil is also not natural excavated material and polluted water may run into the natural water course.

R Clark: It is quite far away from the creek. What about clay, is clay a problem?

P Singh: The polluted water would easily travel to the natural water course from here. This clay material is a problem as it is not natural to the area. It will spread several types of weeds into the natural bushland areas. You should immediately cease bringing in fill, not spread this material any further and install sediment and erosion control fencing.

R Clark: So what's my best option now?

P Singh: Stop import and deposition of landfill waste and install sediment and erosion controls to prevent the material from polluting waters. You may also be required to remove the material and rehabilitate the area returning it to its natural state.

R Clark: Please note that I was unaware of the 100 m2 requirement. What would you suggest I now do?

P Singh: To cease, not spread any further and install the controls as discussed until the matter has been fully investigated. Action may include a fine (PIN) or even a Court Attendance Notice. A Clean-Up Notice requiring the removal of the landfill beyond the permissible limit may also be required.

R Clark: Okay

P Singh: Did I speak to you before?

R Clark: Yes, I spoke to you before about Patrick Kinnarney bringing some extraordinary amount of landfill onto his land. I still maintain to this day that he was the only one to bring in fill.

P Singh: What about here?

R Clark: Yes, he is the only one to bring in fill.

R Carr: Mr Clark, you may be required to make a statement or attend an interview regarding this matter and your instructions to Mr Kinnarney.

R Clark: OK.

(emphasis added)

1. Officers Singh and Carr with Mr Clark then walked further south. At the top of the escarpment, in the area referred to as Fill Body 1, Officers Singh and Carr saw another large body of fill. Fill material appeared to have been also tipped over the edge of the escarpment. Again, the fill appeared to contain a quantity of waste including bricks, agricultural pipes, tiles, cement and asphalt. Mr Clark was also spoken to about this area. The Council officers took photographs of both sites. Mr Clark said:

My wife and I have owned this property since 1982. I am very unhappy with the fill that has been placed here. I did not give Patrick Kinnarney permission to dump fill here. I did not know that he had been dumping the fill in this location

1. If he was referring to Fill Body 1, then, according to Mr Clark's own evidence, this was incorrect in that he had asked Mr Kinnarney to dump fill in Fill Body 1 albeit (he says) not over the edge of the escarpment: see [54] above.

MR CLARK'S CREDIT

1. In cross-examination, Mr Clark admitted to lying in two respects at his initial interview by Council officers on 1 July 2010 and in his affidavits of 14 April 2011 and 26 July 2011.

1. One of his lies, told to the Council officers on 1 July 2010, was that Mr Kinnarney did not pay him anything for the fill delivered. In fact, Mr Kinnarney paid a fee per load. When cross-examined as to why he told this lie, Mr Clark said he just did not think it advisable to let the Council officers know, and he agreed he thought it best to manufacture a lie to protect himself in relation to the Council. Mr Clark did not disclose to the Council that he had been paid by Mr Kinnarney until a conference with the Council's lawyers on 15 February 2012 when he was confronted with certain information. At a subsequent conference with the Council's lawyers on 21 February 2012, after the trial started, he disclosed that he gave Mr Kinnarney some invoices for the loads he delivered in 2009 - 2010. During these conferences Mr Clark revealed that he agreed to Mr Kinnarney's proposed rate of $100 per load; that Mr Kinnarney paid by cheque; and that he estimated that he received about $8,000 - $10,000 in total over maybe a ten month period. In fact, that estimate was well short of the true amount he received of over $18,000:see [127] below.

1. The other lie, according to Mr Clark's admission, concerns (a) his statement to Council officers on 1 July 2010 whilst standing at Fill Body 2 that only Mr Kinnarney had delivered the fill; and(b) the statements in his first affidavit of 14 April 2011 that between July 2009 and July 2010, other than trucks making deliveries to Baligarden, he did not see any trucks other than that of Mr Kinnarney enter the Land, that Mr Kinnarney was the only person he had authorised to deliver fill to the Land, and that as far as he was aware the only person who delivered fill to the Land was Mr Kinnarney.

1. Other evidence establishes that, by arrangement with Mr Clark, Gubler & Associates Pty Ltd delivered seven loads of fill to the Land in May and June 2010 but I am satisfied that none of those loads was place don Fill Bodies 1 and 2: see [104] - [117] below.

1. The prosecutor submits that the statement to the Council officers on 1 July 2010 was not in fact a lie because they were then standing on Fill Body 2 and, according to Mr Clark's oral evidence, he believed, at the time, that Gubler & Associates had delivered some loads of soil to Fill Body 1 (not Fill Body 2) prior to 1 July 2010. Even if I were to accept that statement of belief, Mr Clark may not have been distinguishing in his mind at that time between Fill Bodies 1 and 2. However, as discussed below at [105], I accept the evidence of Mr Vili Osborne, the Gubler & Associates truck driver, that the only fill he deposited on these Fill Bodies was on Fill Body 2 (not Fill Body 1) but not until 2011. Therefore, if Mr Clark held his claimed belief, it was erroneous. Be that as it may, the statements by Mr Clark in his first affidavit referred to above at [74] related to the Land itself and were untrue because he knew (as established by invoices given to Gubler & Associates) that the Gubler & Associates' truck had entered the Land laden with fill in the month or so prior to July 2010; and, at the time, he mistakenly believed that this truck had deposited soil on Fill Body 1 some time between mid 2009 and 1 July 2010.

1. At one point in cross-examination Mr Clark claimed that he told Council Officer Carr on 1 July 2010 that another truck had been there, at a time when he thought Officer Singh may not have been present. He said that this was a reference to Gubler & Associate's truck. Officers Carr and Singh denied that Mr Clark said anything about another truck. It is not recorded in Officer Carr's contemporaneous notes of the conversation nor in his amplified file note made the next day, which they said were correct. It is inconsistent with his later affidavit evidence. It is self-serving. I do not accept his evidence on this point.

1. The defendants submit that by reason of the Council's indemnity against prosecution, Mr Clark's evidence should be regarded as tainted. The defendants are critical that the Council favoured Mr Clark with an indemnity against prosecution on 21 July 2010 without further investigation, particularly as he had profited from his own criminal involvement, lied to Council officers on 1 July 2010 and, as later transpired, lied in later affidavits and acted contrary to the Council's cease and desist letter of 2 July 2010 by allowing Gubler & Associates to bring fill onto Fill Body 2.

1. Mr Clark appears to have obtained the indemnity against prosecution on the basis of his initial interview on 1 July 2010 where he lied (as he admitted) about the financial arrangement with Mr Kinnarney and where, to his understanding, he had lied because he thought Gubler & Associates had delivered fill to Fill Body 1 (although, as discussed elsewhere, I think he was mistaken in that understanding). Having obtained the indemnity on that basis, It can be understood why he would wish to keep lying about those matters, as he did in his subsequent affidavits. It was not until less than a week before the trial, when the prosecutor confronted him with new information, that he started to reveal the truth. At the trial he admitted to lying, but that did not do him much credit because by then the game was up.

1. I accept that the indemnity against prosecution, coupled with his subsequent lies and non-disclosure require that I should be very cautious in accepting his evidence where it does not assist the defendants. I have attempted to exercise such caution. I am even more cautious when I scrutinise his evidence which is capable of being regarded as self-serving or exculpatory of himself, such as the alleged admission by Mr Kinnarney of pushing soil over the ridge at Fill Body 1 (see [141] below) and the matter referred to at [74] above. I have kept in mind, however, that he also gave evidence exculpatory of the defendants which has the ring of truth. That evidence includes the long history of filling Fill Body 1 before 2009 (see [50] - [53] above, his ultimate acceptance that the arrangement with Mr Kinnarney was made late in 2009 and that he could not recall any deliveries being made in 2009, and his proposition that there were only perhaps a couple more invoices than the five tendered.

MR KINNARNEY'S SUBSEQUENT DISCUSSION WITH MR CLARK

1. Shortly after the Council officers inspected the Land on 1 July 2010, Mr Clark said he told Mr Kinnarney not to deliver any more fill and that Mr Kinnarney said -

OK. I will not deliver any more fill.

1. I accept this as evidence of an admission by Mr Kinnarney that at times recent to the occasion of that conversation, he had been delivering the Land.

1. Mr Clark claims that on this occasion he also told Mr Kinnarney that he had seen where Mr Kinnarney had been tipping fill over the end of the ridge into the gully below Fill Body 1 and that he had not told Mr Kinnarney to tip there (or he might have said I told you not to tip there), and asked him "Why did you tip the fill there?" According to Mr Clark, Mr Kinnarney replied "Don't worry. I can pull it out". If this evidence is true, that reply constituted an admission. However, as discussed below at [141] - [144], I have a reasonable doubt as to whether this discussion occurred and as to whether Mr Kinnarney in fact tipped fill over the ridge. I therefore make no finding that Mr Kinnarney tipped fill over the ridge.

1. In cross-examination, Mr Clark agreed that on the same occasion he told Mr Kinnarney that Officer Singh had said that the Council was after Mr Kinnarney. In cross-examination it was put to Officer Singh, and he denied, that he said to Mr Clark words to the effect "It's not you we are interested in, it's Mr Kinnarney". I accept Officer Singh's evidence. If Mr Clark told Mr Kinnarney that Officer Singh had said that the Council was after Mr Kinnarney, I do not accept that it was correct. If what Mr Clark in fact said to Mr Kinnarney was that he (Mr Clark) thought the Council was after Mr Kinnarney, such a statement of Mr Clark's own state of mind might be another matter.

COUNCIL LETTER TO MR AND MRS CLARK 2 JULY 2010

1. On 2 July 2010, Council officer Carr hand-delivered a letter to Mr and Mrs Clark advising them of the need to (among other things) immediately cease importation of landfill and any other unauthorised earthworks including the spreading of previously imported landfill material, and immediately install sediment and erosion control measures, failing which the Council may undertake further regulatory action. In fact, subsequently Mr Clark allowed Gubler & Associates to bring some landfill onto the Land. Mr Clark in cross-examination denied ever seeing that letter before. I accept Officer Carr's evidence that on 2 July 2010 he delivered it to, and discussed it with, Mr and Mrs Clark. I do not accept Mr Clark's denial, which was self-serving.

COUNCIL INDEMNIFIES MR CLARK AGAINST PROSECUTION 21 JULY 2010

1. On 21 July 2010 the prosecutor Council provided Mr Clark with an indemnity against prosecution on the basis that he appear as a Council witness in prosecutions against Mr Kinnarney and cooperated with the prosecution. The letter said that no information given by him in the prosecutions would be used in any criminal proceedings against him in any Court in New South Wales. Whatever the status of the document was so far as Council prosecutions were concerned, it could not have bound any other prosecuting authorities.

COUNCIL'S CORRESPONDENCE WITH CORPORATE DEFENDANT FEBRUARY 2011

1. On 22 February 2011 the Council wrote a letter entitled "Show Cause Letter" to the corporate defendant about this matter. After referring to the unauthorised landfill revealed by its investigation, the Council expressed the opinion that the corporate defendant had committed an offence against s 143 of the POEO Act and that Mr Kinnarney had committed an offence under s 169. It stated that the purpose of the letter was to provide an opportunity to put to the Council in writing why prosecutions should not be commenced against them.

1. On 25 February 2011 the defendants' solicitors replied, stating in part:

We are instructed to advise you as follows:-

1. Our client has never transported any waste to that place or any other place.

2. Our client has frequently and over a very extended period provided day hire on a truck and/or trailer basis only (ie no driver supplied) to the proprietor of 190 Cattai Ridge Road, Maraylya.

3. On those occasions the truck has been driven, to the best of our client's knowledge, by Mr Clark.

4. As you are aware, Mr Clark has given evidence in other proceedings that he is a long distance truck driver with extensive experience in driving tip trucks etc.

Our client denies any activity of the kind alleged by you at any time at any premises.

1. The instructions recorded in this letter sit unhappily with the unchallenged evidence in this case.

1. The defendants criticise the Council's investigations. They say that had the Council investigated the matter further by attempting to interview or obtain a statement from Mr Kinnarney, then it is possible that these proceedings may not have been brought. While it was inapt that the Council's letter was described as a "show cause letter", the reply to that letter is such that I am not attracted to the defendants' proposition that the Council should have done more to interview or obtain a statement from Mr Kinnarney.

SURVEY, INSPECTIONS AND ANALYSIS OF SAMPLES

1. There was evidence from an environmental scientist, Mr Nicholas Passlow, and from a surveyor, Mr Ziemowit Wierzchowski. On 18 August 2010, accompanied by Council officers, they inspected the Land with their respective assistants.

1. Mr Passlow is an experienced contaminated sites investigator. He undertook what he called a fill material investigation. It was conducted with some objectives which were not directly relevant to whether these charges have been proved (such as ascertaining waste classifications and soil contamination levels to help determine whether remediation was required). However, he also -

• conducted measurements and investigations with a view to estimating the dimensions and volume of the fill comprising the two Fill Bodies,
• identified sites for the digging of test pits,
• took soil samples for laboratory analysis, and
• conducted investigations to determine whether the fill material could be considered excavated natural material (ENM).

1. Mr Wierzchowski is experienced in surveying landfill sites. He surveyed Fill Bodies 1 and 2 and produced a plan of survey. He plotted the location of the test pits. He took measurements of the Fill Bodies and, together with information supplied by Mr Passlow who also took a number of measurements, he used that data to estimate the area and volume of fill in each Fill Body using specialised software.

1. The evidence of both experts as to dimensions and volume was as follows:

Area	Volume	Estimated tonnage
Fill Body 2	900m 2	950m 3	1,425 tonnes
Fill Body 1	1,850m 2	2,050m 3	3,075 tonnes
Totals:	3,000m 3	4,500 tonnes

1. Mr Passlow prepared a report in which he indicated that in parts of Fill Body 2 he observed brick, piping and Hessian. In parts of Fill Body 1 he observed brick, metal, concrete, bitumen and artificial grass. Mr Passlow reported observing fragments of asbestos-containing fibre cement sheeting on the surface of both Fill Bodies 2 and 1. In his report and covering affidavit, Mr Passlow gave the opinion that the material comprising the Fill Bodies is not considered excavated natural material. He reported on the results of the analysis of the samples taken from the Fill Bodies. Among other things, the analysis of the samples taken from three test pits revealed elevated levels of Benzo(a)Pyrene.

1. The evidence does not allow for a precise calculation of the amount of fill transported to the Land by the defendants. This is because the evidence of Mr Passlow and Mr Wierzchowski produces a calculation of the total volume and estimated tonnage of deposited material in Fill Bodies 2 and 1. However, in respect of Fill Body 1, Mr Clark gave evidence (see [44] - [45], [51] - [53] above) which I accept, that:

• some demolition rubble was present in that area when he purchased the Land;
• he moved some building rubble from the Land's western boundary to Fill Body 1 before 2009;
• he and Mr Kinnarney placed a quantity of demolition waste on part of Fill Body 1 in 2000-2006 (the tongue-shaped depression);
• Mr Clark placed a quantity of soil on part of Fill Body 1 in presumably the late part of 2000-2006 (the depression and part of the northern part of Fill Body 1); and
• a Mr Delaney placed a "very few" loads of material onto Fill Body 1 in 2002-2007.

1. It follows that not the whole of the volume of 2,050 cubic metres in Fill Body 1 can be attributed solely to the corporate defendant's activities.

1. However, the evidence is sufficient for me to be satisfied that a substantial proportion of the material identified by Mr Passlow and surveyed by Mr Wierzchowski to produce that volume was transported and placed there by Mr Kinnarney in his company's truck and trailer in the period of about seven months prior to 1 July 2010. In the end, I have a reasonable doubt whether Mr Kinnarney pushed some of the fill at Fill Body 1 over the escarpment. Consequently, I make no finding that he did.

ANALYSIS OF AERIAL PHOTOGRAPHY AND SATELLITE IMAGES

1. Mr William Wright, a spatial information analyst with the Council, has considerable experience in interpreting aerial photography and satellite imagery to determine information about things such as vegetation, water bodies and earth disturbance, and has expertise in the operation of geographic information systems. He analysed various aerial photographs and satellite images of the Land and gave his opinion as to what could be seen.

1. Mr Wright said that in his opinion:

(a)   no significant disturbance of the Land consistent with land filling can be seen on aerial photographs of the Land taken in 2000, 2003 or 2006;

(b)   disturbance is visible in the aerial photograph of the Land taken on 19 October 2008; and

(c)   far more significant disturbance can be seen in satellite images of the Land taken in April and May 2010.

1. The disturbance visible in satellite images taken in April and May 2010 is consistent with the introduction onto the Land of material transported by the corporate defendant. That disturbance is also consistent with the relatively fresh nature of the Fill Bodies when inspected by the Council officers on 1 July 2010 and Messrs Passlow and Wierzchowski on 18 August 2010 (although Fill Body 2 appeared to be fresher than Fill Body 1).

EXTENT TO WHICH DEFENDANTS RESPONSIBLE FOR FILL BODIES

Defendants entirely responsible for Fill Body 2

1. There is an issue as to whether any (and, if so, what proportion) of the fill on Fill Bodies 1 and 2 on 1 July 2010 was placed there by Gubler & Associates Pty Ltd (Gubler) in the period of the charges (1 July 2009 to 1 July 2010).

1. Gubler did deliver material to the Land during the charge period shortly before 1 July 2010, and thereafter, by arrangement with Mr Clark. The quantity of Gubler material delivered can be determined from a combination of Mr Ernest Gubler's secretary's list and 25 Clark invoices to Gubler relating to those deliveries. Only the earliest four invoices relate to delivery of material prior to July 2010. They are dated in May and June 2010 and charge for a total of seven loads at $200 per load.

1. The Gubler driver was Mr Vili Osborne, whose evidence I generally accept. He recalled delivering some 12 to 14 loads in 2010-2011 in a truck with a capacity of 10 tonnes. He said that each load was between 8.5 and 9 tonnes. However, it is clear from the invoices to Gubler that in the years 2010-2011 he delivered more than the number he recalled. Mr Osborne said it was he who normally made the Gubler deliveries to the Land. The only other person who made deliveries for Gubler was Mr Shannon Gubler. However, it does not appear that he made more than perhaps one delivery to the Land and this may have been when he was with Mr Osborne on the latter's first trip .

1. Mr Osborne estimated that 90 per cent of the material he delivered was crushed sandstone and the rest was topsoil. He indicated that most of the loads were placed in a location outside Fill Bodies 1 and 2, which Mrs Clark confirmed was a sandstone stockpile area. The rest Mr Osborne said he placed on Fill Body 2. Mr Osborne said that he only placed two loads on Fill Body 2 and that was in 2011.

1. Significantly:

(a)   the Gubler secretary's list, the Clark invoices to Gubler and Mr Osborne's evidence all indicate that the Gubler deliveries started no earlier than May 2010, very much at the end of the offence period charged;

(b)   the vast bulk of the Gubler deliveries were after 1 July 2010;

(c)   Mr Osborne's evidence was that, at the direction of Mr Clark, some 90 per cent of the Gubler deliveries were to the bottom of the Baligarden business (immediately south of the "roundabout"), well outside Fill Bodies 1 and 2. This was confirmed by Mrs Clark;

(d)   Mr Clark's evidence is to like effect and that he used the crushed sandstone for the driveway on the premises;

(e)   according to the aerial photograph he marked , Mr Osborne delivered two loads to Fill Body 2 - and those deliveries comprised sandstone mixed with some soft material, possibly soil, possibly another form of soft sandstone;

(f)   however, those two deliveries to Fill Body 2 were in 2011 - outside the period of the offences charged; and

(g)   bearing in mind that the material delivered by Gubler seems predominantly to have been crushed sandstone, despite the fact that the two Fill Bodies have been inspected and observed, and samples have been analysed, there is no suggestion that either Fill Body contains quantities of crushed sandstone.

1. Although there is evidence that Gubler delivered crushed sandstone to a stockpile outside Fill Bodies 1 and 2, and hesitant evidence from Mrs Clark that she might have told the Council officers that there was a load of sandstone just down the driveway, I accept that such a stockpile was not seen by the Council officers on 1 July 2010. It follows that that stockpile is likely to have come into existence after the period of the offence charged.

1. Evidence given by Mr Clark in re-examination was that, as a result of a conversation or conversations he had with Mr Osborne, he believed that some loads of topsoil, no more than half a dozen, were tipped at Fill Body 1 by Mr Osborne in the period before the Council officers arrived on 1 July 2010. Mrs Clark was not sure where the Gubler soil went, but thought it was somewhere down below and later she included the Fill Body 1 area. I prefer Mr Osborne's evidence that he placed no material on Fill Body 1 and that the only material he placed on Fill Body 2 was in 2011 after the period of the offences charged. I conclude that if Mr Clark held the belief, he was mistaken.

1. There is no evidence that anyone else delivered material to Fill Body 2.

1. I conclude that the only person to deliver material to Fill Body 2 was Mr Kinnarney on behalf of the corporate defendant during the period of about six or seven months prior to 1 July 2010.

Defendants partially responsible for Fill Body 1

1. On Mr Clark's account, which I accept, in the period 2000-2007, he and Mr Kinnarney, and to a much lesser extent a Mr Delaney, deposited amounts of material into the depression or gully running from the north-west to the south-east in a tongue-like fashion in the area at the top of the escarpment at Fill Body 1 . Some of that material Mr Clark moved there from another site, from right on the western boundary of the Land (further west than Fill Body 2), which had contained demolition rubble since the time in 1983 when he and his wife purchased the Land. However, as noted above, at [50] - [53] he and Mr Kinnarney also brought a significant amount of material onto the Land to deposit in that place; and during 2002-2007 a few loads were put into the same depression or gully by Mr Delaney . Mr Clark then covered that material with soil that he brought onto the Land .

1. Mr Clark subsequently, in 2009, asked Mr Kinnarney to deliver soil - later, soil with some clay in it - to the area of Fill Body 1, as well as the area of Fill Body 2. He wanted to reduce the slope of the escarpment at Fill Body 1 and to grass the areas .

1. Mr Clark saw Mr Kinnarney driving his truck and usually also his trailer, laden, into the Land and depart unladen - and that from time to time he looked at the areas comprising the two Fill Bodies and they were increasing in height and size.

1. In the first half of 2010 Mr Kinnarney was, through the corporate defendant, paying Mr Clark's company significant amounts of money in order to be able to tip fill onto the Land. pursuant to invoices issued by Mr Clark's company. The defendants admit that these invoices were for fill delivered to the Land by Mr Kinnarney, and that each of them was paid.

1. A significant proportion of Fill Body 1 pre-existed Mr Clark's arrangement with Mr Kinnarney in late 2009 and was put there by Mr Clark. This evidence is adverse to Mr Clark and reduces the defendants' culpability in respect of that Fill Body. It is therefore unlikely to be a lie.

1. When inspected by Officers Carr and Singh on 1 July 2010 and later, in August 2010, by Messrs Passlow and Wierzchowski, the only two parts of the Land to account for such a large amount of fill were Fill Bodies 2 and 1. Officer Singh gave evidence that on 1 July 2010 there were recent tyre marks at Fill Body 2 but not at Fill Body 1, the fill at Fill Body 1 was relatively fresh but did not appear to be as fresh as the fill at Fill Body 2, and he formed the impression that the fill at Fill Body 1 was maybe two or three months old. It is clear that the deliveries by the corporate defendant, for which it paid, were made during the six or seven months preceding 1 July 2010. Accordingly, I accept Mr Clark's evidence as to Mr Kinnarney's responsibility in that period for a portion of the fill in Fill Body 1.

Conclusions re both Fill Bodies

1. I conclude that there is no reasonable possibility that anyone else contributed to the volume of Fill Bodies 1 and 2 in the charge period (1 July 2009 to 1 July 2010). This is because I have concluded that Gubler did not place fill in those Fill Bodies in that period; none of the people identified as also having access to the Land had relevant connections with the trucking industry ; and there is evidence that any significant contribution made by anyone else would have come to the attention of Mr Clark - and none did .

1. On 1 July 2010, Mr Kinnarney was observed driving his truck and trailer, laden with soil-like material, into the Land. This load cannot be taken into account as part of the tonnage delivered: s 143(3C) POEO Act. The prosecutor submits that it should be inferred from this conduct that he did not tip that load only because he became aware that he was being followed by Council officers, and that this conduct is available to be taken into account to prove that during the offence period the corporate defendant was engaging in a course of conduct - consistent with it committing a continuing offence - of transporting such material to the Land. I do not accept the submission because I have a reasonable doubt as to whether Mr Kinnarney had the alleged awareness and as to whether there is some other explanation for his conduct.

1. I conclude that:

(a)   the evidence proves beyond reasonable doubt that Mr Kinnarney on behalf of the corporate defendant transported the bulk of the fill found in Fill Bodies 1 and 2 by the Council officers on 1 July 2010, and

(b)   there is no evidence to support a reasonable possibility that the person delivering fill to Fill Body 1 or 2 in the charge period was anyone other than Mr Kinnarney on behalf of the corporate defendant.

INVOICES AND PAYMENTS PURSUANT TO 2009 ARRANGEMENT

1. Mr Clark said, and I am prepared to accept, that under his arrangement with Mr Kinnarney:

(a)   the rate charged to the corporate defendant was $100 plus GST per load;

(b)   a "load" was the load carried on any one delivery by both Mr Kinnarney's truck and dog (trailer);

(c)   if Mr Kinnarney reported he delivered only a truckload without a trailer-load at the same time, then the charge was $50; and

(d)   invoices were prepared by Mr Clark's company based on the number of loads reported from time to time by Mr Kinnarney, and were paid.

1. The rate per load is relevant to working out the tonnages delivered. It was put to Mr Clark in cross-examination that the agreed rate was $200 per load (plus GST). He denied it. There is no evidence of that rate. Nevertheless, the defendants submit that I should hold that the rate agreed with Mr Kinnarney was $200 plus GST per load and say that was the rate Mr Clark agreed with Gubler, as discussed at [122] below. That is not accurate: the Gubler rate was $200 inclusive of GST. The defendants make the criticism that it was not until his oral evidence that Mr Clark indicated that he treated a Kinnarney load as a truck and trailer (each of about 10 tonnes) and that if it was a truck without a trailer the charge was only $50 plus GST . There is no evidence that the rate charged was other than the $100 plus GST per load (truck and trailer) to which Mr Clark testified. Mr Clark's unchallenged evidence was that the Clark invoices sent to the corporate defendant were based on the number of loads advised from time to time by Mr Kinnarney.

1. The amount of $50 at the end of a payment excluding GST of $1,950 for the missing invoice referred to at [125] below is prima facie consistent with Mr Clark's evidence and prima facie inconsistent with the defendants' proposed $200 plus GST per load. However, the defendants submit that this $50 plus GST is explicable on the basis that there might have been a contra involved. In relation to the contra they assert that perhaps Mr Clark (a) deducted $50 off the invoice for fuel used in his Bobcat when he spread material because the fuel was provided by Mr Kinnarney; or (b) perhaps it was $50 off for the fuel to be used in Mr Kinnarney's grader when he allegedly pushed material over the edge of the escarpment at Fill Body 1. Upon my asking what evidence supported the contra submission and those assertions, I was told that the evidence was: (a) proposition 13 in the statement put to Mr Clark in cross-examination and denied by him, that he told Mr Kinnarney that he wanted $200 plus GST per load and that Mr Kinnarney would thereby save money (see below at [181] re proposition 13), and (b) the absence from the evidence of any written record of the load information provided by Mr Kinnarney to Mr Clark on the basis of which the invoices were compiled. I do not accept the defendants' contra submission and assertions. There is no evidence to support proposition 13. The rate of $200 inclusive of GST per load charged to Gubler does not lead to a conclusion of a rate of $200 plus GST per load agreed with Mr Kinnarney and charged to the corporate defendant. If any of the number-of-loads information supplied by Mr Kinnarney was written, it is unsurprising that a copy was not retained. The explanation of a contra and the assertions of two possible contra situations were not put to Mr Clark in cross-examination and have no evidentiary foundation. I have difficulty seeing why Mr Clark would lie about the rate. If anything, and notwithstanding his indemnity against prosecution, he might have an interest in agreeing that the rate was $200 plus GST per load since it would halve the amount of fill deposited by Mr Kinnarney in the charge period and correspondingly reduce the degree of Mr Clark's own involvement. I am satisfied on the evidence that the rate agreed and charged to the corporate defendant was $100 plus GST per load, which Mr Clark treated as a truck and trailer load with a truckload alone treated as a half load for which half that rate was charged.

1. There are in evidence five invoices from Mr Clark's company, CFS Logistics Pty Ltd, addressed to Kinnarney Civil Pty Ltd (sic), generated in 2010 . The first three in time bear dates from January through to April 2010 . Mr Clark did not generate them but they were generated at his request. The fourth and fifth in time bear dates in May and July 2010. While they all have electronic funds transfer details on them, it appears these were included only because the documents were created from pre-existing templates, used for other debtors. While the services described in the first template all spoke of "Fees for earth fill January 2010", the use of "January" can be ascribed to a mistake on the part of the person creating the invoices in February and April 2010. While the invoices in May and July spoke of "Maintenance and driving services as requested", Mr Clark himself created those from a template used by him when he was doing subcontracting work for Mr Kinnarney many years before. The use by him of an identical template (with the same electronic funds transfer details for Jo-Anna Taylor) in 2008 for his daughter's photographic services shows that this is likely to be right.

1. Mr Clark found records in the statements of his bank accounts for the payment of four of those five invoices, and it is accepted by the defendants that Mr Kinnarney drew cheques on the corporate defendant's account in payment of all five invoices, as shown by what appear to be Mr Kinnarney's handwritten annotations on each invoice.

1. In addition, there is compelling evidence of a sixth invoice and its payment. The stub kept by Mr Kinnarney for cheque number 301255 on the account of Kinnarney Civil & Earthworks Pty Ltd was dated 4 May 2010 and records that the cheque was drawn in the sum of $2,145 in favour of CFS Logistics. As GST on that sum would have been $195, the net amount would have been $1,950. That figure can be divided by $100 to arrive at 19.5 loads. That would be consistent, on Mr Clark's evidence , with 19 loads comprising a truck and trailer at $100 per load and one half load comprising just a truck at $50. The date of 4 May 2010 is roughly halfway between the two invoices dated 7 April and 30 May 2010. This cheque stub is consistent with there having been a sixth invoice. Mr Clark agreed that there were possibly "a couple more" than the five in evidence, and said that fire damage to his computer prevented him from locating copies. Having regard to the closeness of the dates of the corporate defendant's other cheques to the dates of the other five invoices, the missing sixth invoice was most likely dated 4 May 2010 or shortly before that date. The precise date is not important. Mr Clark said that he believed the cheque stub concerned was referable to such an invoice. He identified a deposit made the same day into the CBA account of CFS Logistics Pty Ltd which corresponds with the date of the cheque stub. Mr Clark said (and was not challenged on this) that he was doing no work for Mr Kinnarney at this time. There was nothing else for which such a payment would have been made. I infer that such an invoice was rendered by Mr Clark to Mr Kinnarney on about 4 May 2010.

1. The defendants, I understand, accept that there were the six invoices discussed above for fill Mr Kinnarney delivered and that he caused them to be paid on the corporate defendant's cheque account.

1. A table of the invoices and payments is set out below:

Invoice date	Exhibit	Cheque Ex AF	Payee	Total amount	GST	Net amount
28.1.10	2	28.1.10 301235	Ralph Clarke	$2,970	$270	$2,700
25.2.10	2	25.2.10 301244	Ralph Clarke	$5,390	$490	$4,900
7.4.10	2	8.4.10 301251	CFS	$4,510	$410	$4,100
assumed 4.5.10	AF	4.5.10 301255	CFS Logistics	$2,145	$195	$1,950
30.5.10	AC	7.6.10 301269	[illegible]	$1,430	$130	$1,300
21.7.10	AC	23.7.10 301273	CFS Logistics	$1,760	$160	$1,600
Total	$18,205	$16,550

1. Two consequences flow from this objective evidence.

1. First, in the circumstances, payment by the corporate defendant of the invoices constitute admissions that it had transported to the Land the fill for which it was invoiced. This evidence is on top of the admissions made by Mr Kinnarney, on behalf of the corporate defendant, to Mr Clark of the number of loads taken to the Land on the basis of which the invoices were compiled.

1. Secondly, from the evidence of the invoices and cheques, and the evidence as to the capacity of the corporate defendant's truck and trailer, reasonable estimates can be made of the quantities of fill transported by Mr Kinnarney. There may have been any number of half loads. It is immaterial as to whether what occurred was half loads (just the truck) or full loads (truck and trailer). The payments reflect $50 for a truck without a trailer.

1. The net payments (excluding GST) total $16,550, which, divided by $100 (per load), equals 165.5 loads. This leads to a calculation of 165 deliveries by truck and trailer, and one delivery by truck alone.

PROPORTION OF FILL BODIES FOR WHICH DEFENDANTS RESPONSIBLE

1. Adopting 10 tonnes per truck and 10 tonnes per trailer, the estimated weight of the fill delivered by the defendants is:

165 loads x 20 tonnes (truck & trailer) = 3,300 tonnes

add 1 truck load only of 10 tonnes

Total = 3,310 tonnes.

1. 3,310 tonnes is 73.5 per cent of the 4,500 tonnes of fill estimated by the experts to be in the two Fill Bodies: see [94] above.

1. On the evidence, the defendants transported all of the fill found in Fill Body 2. The calculation becomes:

Total fill delivered	3,310 tonnes
subtract all of Fill Body 2	1,425 tonnes
thus	1,885 tonnes went into Fill Body 1.

1. 1,885 tonnes out of the 3,075 tonnes total in Fill Body 1 is 61 per cent of Fill Body 1.

1. Due to likely variations in the actual tonnage per load, these calculations cannot be viewed as mathematically precise. However, I am satisfied that they are approximately correct.

1. The total weights derived from the invoices and the cheques is a substantial proportion of the 4,500 tonnes estimated by the experts as being present in a combination of the two Fill Bodies. From the evidence of the invoices and the corporate defendant's cheques paying them, I conclude that the defendants transported 100 per cent of the material comprising Fill Body 2 and approximately 60 per cent of the material comprising Fill Body 1.

FILL PUSHED OVER EDGE OF ESCARPMENT AT FILL BODY 1

1. The fill pushed over the edge of the escarpment at Fill Body 1 falls into a different category from the fill on the top of the escarpment. It is relevant to the seriousness of the offence. The prosecutor submits that Mr Kinnarney was responsible for all of that part of Fill Body 1 which was found over the edge of the escarpment. The defendants submit that there is at least a reasonable doubt, and that there is a reasonable possibility, that Mr Clark pushed it over the edge of the escarpment using his Bobcat.

1. Officer Singh considered that it was too dangerous to reverse a truck to the edge of the escarpment at Fill Body 1 and dump the waste directly from the truck into the gully. He considered that it had to have been pushed over using some other implement. He said that on 1 July 2010 there were recent tyre marks at Fill Body 2 but not at Fill Body 1, the fill at Fill Body 1 did not appear to be as fresh as the fill at Fill Body 2, and he formed the impression that fill at Fill Body 1 was maybe two or three months old.

1. The material on the escarpment can be seen in the photographs taken by the Council officers, and is noted in Mr Wright's analysis of the satellite images taken on 13 April and 11 May 2010 . The prosecutor submits that these support the conclusion that at least the portion of Fill Body 1 which ended up over the edge of the escarpment was relatively fresh. In addition, the prosecutor submits, Mr Kinnarney had access to his front-end loader on the Land which was alternatively described by the Council officers as a backhoe loader when they found it, on the Land on 1 July 2010. The prosecutor submits that the Court should infer that Mr Kinnarney used his loader to spread recently tipped soil on both Fill Bodies and that, in order to make room for the truck and trailer to deliver more loads onto Fill Body 1, he used the loader to push recently tipped soil over the edge of the escarpment.

1. Mr Clark had a Bobcat and thus had access to the means to push fill over the edge of the escarpment. The prosecutor submits that the Court should reject any suggestion that Mr Clark did so for several reasons. First, such a suggestion was not put to Mr Clark. Secondly, the evidence of Mrs Clark took the matter no further. Although at first she said she had heard the sound of the Bobcat in what she called "the bottom paddock", which seems to have been a reference to Fill Body 1, upon re-examination she said she could not say whether she heard that before or after the day when the Council officers came to the Land and could not say that the sound was not of the Bobcat working to repair holes in the driveway. Thirdly, the unchallenged evidence of Mr Clark is that he regarded the escarpment itself as intrinsically important and did not want any material put over its edge . This is said to be supported by the evidence from Officers Carr and Singh of apparent shock on Mr Clark's part when he saw material had been pushed over the escarpment edge. Fourthly, there is Mr Clark's evidence that, when he spoke with Mr Kinnarney after the officers had been to the Land on 1 July 2010 and asked him to cease deliveries, Mr Clark also expressed his unhappiness at fill having pushed over into the escarpment when he had not told Mr Kinnarney to tip there (or he might have said I told you not to tip there) to which Mr Kinnarney responded with the admission, "Don't worry. I can pull it out" (see [83] above).

1. While there is force in the prosecutor's submissions on this point, I take into account the damage to Mr Clark's credit by the lies he told the Council officers on 1 July 2010 and in his subsequent affidavits and his failure to disclose the truth until shortly before the trial (and then only when confronted with indications that his evidence had not been truthful). If he pushed material over the escarpment, he had a motive to lie about who was responsible for it. He had the ability to push it over using his Bobcat and Mrs Clark's evidence indicates that he was using it in that area possibly before 1 July 2010. Apart from Mrs Clark's evidence concerning her husband using his Bobcat in that vicinity, there is no evidence of machinery being used in that vicinity. Mr Clark's evidence, for instance, did not refer to hearing machinery being used in that area by Mr Kinnarney on the occasions he saw and heard Mr Kinnarney on the Land in his truck.

1. If, as Mr Clark alleged, he specifically told Mr Kinnarney, when making the 2009 arrangement, not to put fill over the escarpment at Fill Body 1, it would be surprising, to say the least, if Mr Kinnarney were to do so because he would have foreseen that Mr Clark would discover that he had disobeyed his directive. If Mr Clark said to Mr Kinnarney on 1 July 2010 that he had not told Mr Kinnarney to tip there, that would have been not consistent with the alleged 2009 directive not to tip there: it is different form saying to Mr Kinnarney on 1 July 2010 "I told you not to tip there". This uncertainty in Mr Clark's evidence as to what he said to Mr Kinnarney on this significant point in the alleged 1 July 2010 conversation detracts from the reliability of his evidence as to this conversation. Mr Clark said he had been on Fill Body 1 approximately a month before the Council officers' visit in 1 July 2010 . If so, he should have seen the fill pushed over the escarpment because, according to Officer Singh's estimate, at that date the fill at Fill Body 1 was two or three months old. Yet he professed to experiencing shock when he saw it with the Council officers on 1 July 2010.

1. In the result, I have a reasonable doubt whether Mr Kinnarney made the admission claimed by Mr Clark (see [141] above), and or pushed material over the ridge at Fill Body 1, and, consequently, I make no finding that he did.

THE MATERIAL TRANSPORTED WAS WASTE

1. It is convenient to repeat the relevant part of the definition of "waste" in the Dictionary to the POEO Act:

(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b) any discarded, rejected, unwanted, surplus or abandoned substance, or

(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or

...

The definition concludes -

A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.

1. The prosecutor submits without contest, and I accept, that on the evidence the material transported to the site in the corporate defendant's truck and trailer comprised "waste" under the Act for the following reasons.

1. First, the material transported was deposited in "such a volume and...a manner as to cause an alteration in the environment" within par (a) of the definition of "waste" (cf the bioremediation pile held to fall within that part of the definition in Australian Solvent Recyclers Pty Ltd v Environment Protection Authority of New South Wales [2000] NSWLEC 10, 105 LGERA 324 at [104]) per (Sheahan J).

1. Secondly, if only so far as it comprised soil-like material excavated from building sites and other places where it was no longer wanted, at the time it was loaded at source ( Environment Protection Authority v Shannongrove at [89] - [92]), the material transported was either -

(a)   an "unwanted [or] surplus" substance within par (b) of the definition of "waste", or

(b)   an "otherwise discarded, rejected, unwanted, surplus ... substance intended ... for recycling [or] processing... by a separate operation from that which produced the substance" within par (c) of the definition ( Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76, 125 LGERA 332 at [19] - [20] per Pearlman CJ.

1. Having regard to the rider at the conclusion of the definition of "waste", the fact that Mr Clark had a purpose of using the material for a firebreak or for covering existing fill did not prevent it being "waste".

1. Perhaps four to six truckloads, on the evidence of the Council officers, of the material transported to the Land was left in mounds on Fill Body 2 and not levelled by the time the it was sighted by Officers Singh and Carr. However, it was still "waste" for the purposes of these proceedings.

1. I do not regard that as stockpile material, but if it was, two questions would arise on which the decision in Owen v Willtara Construction Pty Ltd [1998] NSWLEC 216, 103 LGERA 137 turned. In that case, Willtara Constructions was the builder on a construction site from which a quantity of soil was excavated and stockpiled on an adjacent road reserve. The purpose of it being placed there was for storage pending the soil being redeployed as backfill on the construction site. Willtara Construction was prosecuted for an offence of disposing of waste on land without lawful authority, contrary to s 63(1) of the Waste Minimisation and Management Act 1995. The charge was dismissed for a number of reasons. Two reasons are relevant here. First, because the soil was only being stockpiled and was not being gotten rid of, Bignold J said he was not satisfied the soil was being disposed of: at [77] - [79]. Secondly, relevantly to the question of proof that the material in this case was waste, Bignold J found that because the soil was being stockpiled before being redeployed to the site from which it came, it was not "discarded, rejected, unwanted, surplus or abandoned": at [82] - [84]. In addition, it was simply mounds of soil. There was insufficient evidence to find that, approached in a commonsense way, the mere existence of the mounds "caused an alteration in the environment": at [90] - [93]. This decision is distinguishable because here the material delivered to the Land was, at the time it was loaded onto Mr Kinnarney's truck and trailer, plainly unwanted or surplus material.

1. I conclude that the material transported to the Land comprised "waste" within the meaning of that term in the POEO Act.

UNLAWFULNESS OF USE OF THE LAND AS A WASTE FACILITY

1. The next aspect to be considered is whether the Land was a place that could not lawfully be used as a waste facility for the waste concerned. A place cannot lawfully be used for a particular purpose if it does not have such lawful authority as is required in the circumstances for that use by any statute: Environment Protection Authority v Hardt [2006] NSWLEC 438, 148 LGERA 61 at [72] and [97] per Preston CJ.

1. In my opinion, the defendant's use of the Land was unlawful under both the EPA Act and the POEO Act for the following reasons.

Unlawful use of the Land under the EPA Act

1. The defendant's use of the Land constitutes "development" under s 4(1) of the EPA Act.

1. The EPA Act's tripartite classification is development that does not need consent, development that needs consent, and development that is prohibited, according to the classification in an environmental planning instrument: ss 76, 76A, 76B.

1. The relevant environmental planning instrument is the Baulkham Hills Local Environmental Plan 2005 ( LEP ) under which the Land is zoned Rural 1(a). In that zone use of land for the purpose of a waste facility is prohibited. The use of land for the purpose of "filling of land" is allowed only with development consent, but "filling of land" is defined to require deposition of "clean (uncontaminated) excavated natural, earthy material". That is not this case.

1. Development consent could not be granted to use the Land for the prohibited purpose of a waste facility.

1. As a matter of fact, no development consent has been granted authorising use of the Land for the purpose of a waste facility (nor for the purpose of filling of land).

1. The defendant's use of the Land is therefore not lawful under s 76B of the EPA Act.

1. Accordingly, I find that the Land could not lawfully be used as a waste facility under the EPA Act. Even if the defendants' use of the Land was for the purpose of "filling of land" (which was not submitted and which I do not accept), the Land could not lawfully be used for that purpose either under the EPA Act because there was no development consent.

Unlawful use of the Land under the POEO Act

1. "Waste facility" is relevantly defined in the Dictionary to the POEO Act as -

any premises used for the storage, treatment, processing, sorting or disposal of waste...

1. In the context of this legislation, "disposal" means "getting rid of": Environment Protection Authority v N (1992) 26 NSWLR 352 per Hunt CJ at CL (Enderby & Allen JJ agreeing) at 355E-F. The word "for" in the definition of "waste facility" ("premises used for...the disposal of waste") does not mean that the prosecutor must prove that the purpose of using the premises was for the disposal of waste. Rather, it means only that in the circumstances there was such a use: Environment Protection Authority v Hardt at [106] - [109] per Preston CJ.

1. The Land was a "waste facility" as defined in the POEO Act because it was used for the disposal of waste.

1. Waste disposal by application to land is a premises-based "scheduled activity" within the meaning of that term in the POEO Act (ie an activity listed in Schedule 1): Dictionary, cl 39(1) Part 1 Schedule 1, s 5(1) POEO Act.

1. An environment protection licence is required under the POEO Act to carry out the scheduled activity: s 48 POEO Act.

1. In fact there was no environment protection licence under the POEO Act to use the Land as a waste facility.

1. The defendants did not submit that the Court should not make any of the above findings.

1. In addition, I note that under s 50 of the POEO Act, where development cannot be carried out without development consent under the EPA Act, an environment protection licence under the POEO Act cannot be granted unless development consent has been granted for the development. Logically, if a development is prohibited under the EPA Act, such a licence under the POEO Act should also not be able to be granted. Section 50 does not expressly refer to prohibited development under the POEO Act, and the question might arise as to whether it should be construed so as, in effect, to preclude the issue of a licence under the POEO Act in the case of prohibited development. That would be this case. However, as the point was not argued, I say no more about it.

Conclusion

1. In summary, in my opinion it was not lawful to use the Land as a waste facility for the waste transported there by the defendants for two independent reasons. First, that use was prohibited under the EPA Act (and even if it was permissible with development consent, there was no such consent). Secondly, no environment protection licence had been granted under the POEO Act.

DEFENCE OF HONEST AND REASONABLE MISTAKE OF FACT

1. The only defence raised by the defendants is the common law defence of honest and reasonable mistake of fact. The defendants claim Mr Kinnarney operated under the mistaken belief, induced by Mr Clark, that there was a development consent, , for the construction of a firebreak on the Land, namely, the firebreak which Mr Clark had told him would be constructed by placing fill in the areas of Fill Bodies 2 and 1. In fact there was no such development consent.

1. The evidentiary burden of establishing a defence of honest and reasonable mistake of fact is in the first place upon the defendants. There must be evidence that makes it appear that the defendant had reasonable grounds for believing in the existence of a state of facts which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The necessary foundation in evidence will in most cases have to be provided in the defendant's case. But it is conceivable that during the prosecution case sufficient evidence may be elicited by way of cross-examination or otherwise to provide the necessary evidentiary foundation. The evidentiary burden in this context is to be understood in light of the concept of honest and reasonable belief. The concept has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the defendant, and an objective element that must be capable of being measured by the court against the evidence. If that evidentiary burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, in the existence of that state of facts: He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523 at 534-535, 592-593; Jiminez v The Queen [1992] HCA 14, 173 CLR 572 at 582; CTM v The Queen [2008] HCA 25, 236 CLR 440 at [7] - [8] and [35] - [39]; Ostrowski v Palmer [2004] HCA 30, 218 CLR 493 at [10], [42] and [85]; Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485, (2009) 251 ALR 135 at [73] - [87] (Reeves J); Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439, 137 LGERA 289 at [55] - [58]; Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 at [255] - [262] (Pepper J).

1. In the case of a corporation, the mistaken belief of fact must be held by a person whose belief can relevantly be the belief of the corporation, often the directing mind and will of the corporation: Director-General Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232, 172 LGERA 225 at [78] - [95] where I reviewed the authorities relating to attribution of personal conduct to a corporation (see also in the mistaken belief context G J Coles & Co Ltd v Goldsworthy (1985) 57 LGRA 122 (WA CCA) at 127-128, 130, 133 and Coles Myer Ltd v Catt (1992) 58 SASR 298 (FC) at 305-306). In the case of the corporate defendant, there is no issue but that Mr Kinnarney, as the sole owner and director, fitted that description (cf the owner and sole director of a corporation, Mr Suciu, in The Hills Shire Council v Suciu [2009] NSWLEC 145, 168 LGERA 302 at [103] (Pepper J)).

1. In my opinion, the defence fails for at least three reasons:

(a)   the alleged mistake was not a of mistake of fact but of law, or alternatively of mixed fact and law, and neither is a defence;

(b) the alleged belief, if true, would not take the defendants outside the operation of the POEO Act because lawful authority was required not only under the EPA Act by way of a development consent but also under the POEO Act Chapter 3 by way of an environment protection licence; and

(c)   in any event, the defendants have not discharged their evidentiary burden of establishing that Mr Kinnarney in fact held the alleged belief honestly and reasonably or at all.

Mistake of law not fact

1. The long-standing maxim of the criminal law is that ignorance of the law is no excuse: Iannella v French [1968] HCA 14, 119 CLR 84 at 112-116 per Windeyer J. It is thus irrelevant that an accused person did not know that his conduct constituted an offence: Ostrowski at [1] per Gleeson CJ and Kirby J. A mistake of law is therefore not a ground of exculpation. In Ostrowski Callinan and Heydon JJ said at [85]:

A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion, unlike here, in relation to it may be exercised.

1. Glanville Williams said in Criminal Law: The General Part , 2nd ed (1961) Stevens & Sons, at [100] (p 287) -

Generally speaking a fact is something perceptible by the senses, while law is an idea in the minds of men. The distinction may be illustrated by reference to marriage and ownership. A mistake as whether a marriage has been celebrated may be either a mistake of fact or a mistake of law. It is a mistake of fact if no ceremony has been performed; a ceremony is a fact, of which a cinematograph picture could be taken. But the mistake is one of law if, though the ceremony has been performed, there is a misunderstanding of the rules of law governing the validity of the ceremony. In the same way, a mistake as to ownership may be either a mistake as to whether a deed of conveyance has been executed, which is a question of fact, or a mistake as to the law of property in its impact on a particular deed of conveyance. ...

1. A belief that something is lawful is a belief in an idea. It is a belief that the requirements of the law have been satisfied. It is thus a belief of law: Ostrowski at [46] - [49] per McHugh J applying Von Lieven v Stewart (1990) 21 NSWLR 52 per Handley JA at 66-67.

1. This is illustrated by the South Australian case of Power v Huffa (1976) 14 SASR 337, discussed by McHugh J in Ostrowski at [58]. In that case, a defendant charged with loitering claimed that she had, during a telephone conversation with a federal Minister, been authorised by the Minister to remain in place in defiance of police orders to move on. The majority (Bray CJ at 345 and Jacobs J at 356- 357) held that while the belief the defendant held that she had received an authority from the Minister was one of fact, her belief that that authority was lawful was a belief as to a matter of law.

1. Thus, a belief in the legality of one's act is a belief about a matter of law and, as such, cannot exculpate: Ostrowski at [55] citing Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580; and at [57] citing Cambridgeshire & Isle of Ely County Council v Rust [1972] 2 QB 426 at 434 per Lord Widgery CJ, as illustrating the set of cases "where the defence of mistake of fact failed even though the defendant believed that he or she had been given lawful authority to act as charged". Where one's act is unlawful, a belief that the act was lawful is a claim to a defence of ignorance of the law, a defence long held to be impermissible.

1. Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (referred to above) is an instructive decision. The defendant was charged with polluting waters under the POEO Act. The defendant had held an environment protection licence under the POEO Act which did not authorise the pollution it caused. The trial judge (Talbot J) had found the defendant held mistaken beliefs as to two matters. First, a mistaken belief as to how the environment protection licence operated - a misunderstanding of particular environment protection licence conditions. Secondly, a mistaken belief that pollution by stormwater discharge from the site was conditionally authorised. Applying Ostrowski v Palmer , the Court of Criminal Appeal at [65] held that such beliefs were mistakes of law.

1. A mistaken belief, without more, that an activity is authorised will be a mistaken belief as to a matter of law rather than to a matter of fact: Ostrowski at [59]. A mistaken belief expressed as a belief that there was some document which authorised an activity may involve a more detailed analysis.

1. A clear distinction needs to be made between the construction (operation) of a statute or document, for example a development consent, on the one hand and the fact of its existence on the other: Ostrowski at 524 citing (inter alia) Iannella at 96-97. The former is a question of law, the latter is a question of fact. In the present case, it may be possible to characterise the mistake on which the defendants rely as being a single mistake of mixed fact and law constituted by: (a) a mistaken belief as to the existence of a development consent which applied to the Land (a mistake as to a fact); and (b) a mistaken belief that this supposed development consent (which in fact did not exist) as a matter of construction permitted the depositing of the waste on the Land (a mistake of law). Mistakes on mixed questions of fact and law will not ordinarily constitute mistakes of fact: Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751 per Gleeson CJ (Clarke JA and Lee A-J concurring). Such mistakes will be treated as mistakes of law "if one of the components vital to the total belief is a belief on a question of law": Power v Huffa (above) at 345 per Bray CJ (Jacobs J concurring at 357). Strathfield was cited in Ostrowski at [13] fn [51] per Gleeson CJ and Kirby J and at [35] fn [63] per McHugh J. Dixon J in a bigamy case, Thomas v The King [1937] HCA 83, 59 CLR 279 at 306, in which the majority of the High Court did not join, said obiter that "a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law". Dixon J immediately illustrated what he meant by reference to a situation discussed in an English bigamy cases, which is irrelevant for present purposes. Thomas was distinguished by Jacobs J in Power v Huffa at 356. The decision in Strathfield is binding on this Court.

1. In my opinion, whether Mr Kinnarney's alleged mistake is characterised as a pure mistake of law or one of mixed fact and law, the outcome is the same. The alleged defence fails.

Environment protection licence under POEO Act also required

1. In any event, the claimed belief in a relevant development consent under the EPA Act would not have taken the corporate defendant's conduct outside the operation of s 143(1) of the POEO Act because, in addition to a development consent, lawful authority by way of an environment protection licence under Chapter 3 of the POEO Act was also required for his conduct and no such licence existed. There is no claim that Mr Kinnarney believed that such a licence existed. Thus, even if Mr Kinnarney's evidence of a belief that Council had authorised the filling by way of development consent were to be accepted and even if such a belief could be recognised as a mistaken belief of fact, it would not, if true, have exculpated since the conduct would still have been in breach of s 143(1) because lawful authority was required not only under the EPA Act but also under the POEO Act: Environment Protection Authority v Hardt at [97] - [98] (appeal against this holding abandoned and appeal dismissed: Hardt v Environment Protection Authority [2007] NSWCCA 338, 156 LGERA 337).

Defendants' evidentiary burden not satisfied

1. In any event, in my opinion the defendants' evidentiary burden has not been discharged. Mr Kinnarney did not give evidence. Therefore there is no direct evidence as to his state of mind in a context where his state of mind is critical. However, that is not fatal if sufficient evidence is elicited by way of cross-examination or otherwise to provide the necessary evidentiary foundation : He Kaw Teh at 592 per Dawson J.

1. The defence is sought to be established by reference to a pending development application for Baligarden buildings to the north of Fill Bodies 1 and 2, lodged by Mr Clark on 12 October 2009 and granted by the Council on 29 June 2010 and to Mr Clark's answers to 15 written propositions put to him in cross-examination as to the content of his discussions with Mr Kinnarney in late 2009 when they arranged for the corporate defendant to deposit fill on the Land for a fee . That oral arrangement would have been shortly after that development application had been lodged. I would say immediately that I have difficulty in seeing how in late 2009 Mr Kinnarney could possibly have thought that there was a development consent when it was not granted until about six months later, after he had transported the fill to the Land.

1. The 15 written propositions put to Mr Clark and his oral answers were as follows:

(1)   "You spoke to Kinnarney about Sept/Oct 2009 and said Sonya had said that DA was almost ready to go through Council."

Mr Clark's answer was no. He agreed it was possible he had spoken to Mr Kinnarney about the development application and that one such conversation could have been in September/October 2009. "Sonya" was Sonya Phillips, a former Mayor of the Council. .

(2)   "You told Kinnarney it was a lot of hard work and cost but almost finished".

Mr Clark agreed. He accepted that this placed the discussion closer to October than July 2009.

(3)   "You told Kinnarney that DA would mean the whole property was legitimised".

Mr Clark denied saying this. I note that the development application is not in evidence but the terms of the June 2010 development consent indicate that it was concerned with development of structures associated with the Baligarden business, not with land fill development with which this case is concerned. Any "legitimisation" should be understood accordingly. Further, a development "application" could not authorise, nor could it reasonably be understood as authorising, anything until it was consented to.

(4)   "You told Kinnarney a firebreak was necessary as part of the DA and told him there would be a survey by fire experts or Council to confirm firebreak location".

Although Mr Clark at first said he quite possibly said this , shortly afterwards he said that there was confusion here and he had not discussed anything about Council involvement of any sort with the firebreak that the fill went into. That is consistent with the scope of the later 2010 development consent. The defendants submit that Mr Clark's answer to proposition 4 is consistent with him showing Mr Kinnarney a copy of a letter of 24 November 2009 from the Rural Fire Service to the Council thereby inducing Mr Kinnarney to think that a firebreak was required in the context of the development application. They refer to condition 6 of the 2010 development consent which required compliance with the requirements in this letter, a copy of which was attached to the consent. The requirements did not relevantly extend to the two Fill Bodies the subject of these proceedings . I do not accept the submission. There is no evidence that Mr Clark had a copy of that letter at that time let alone showed it to Mr Kinnarney. Even if he did, there is no evidence as to Mr Kinnarney's consequential state of mind. Indeed, I was informed by the defendants from the bar table that Mr Kinnarney did not recall being shown a copy of the letter.

(5)   "You told [Kinnarney] that other things in the DA would benefit [Kinnarney's] property, such as no more sewage discharge".

Mr Clark had no recollection of saying this at all.

(6)   "You told [Kinnarney] you wanted him to bring in clean fill as soon as it was okay, for firebreak".

Mr Clark agreed he said this.

(7)   "Sometime later you went back to [Kinnarney] with some documents and asked if he would be objecting to DA and [Kinnarney] said he would not object to the DA".

Mr Clark recalled saying this.

(8)   "You showed [Kinnarney] documents from the DA and said Sonia Phillips said it is all going through OK".

Mr Clark's answer was that he probably did. He was not asked what the documents may have been. The defendants submit that the documents included the letter of 24 November 2009 from the Rural Fire Service to the Council which was referred to in the later development consent of June 2010. I do not accept the submission. That was not put to Mr Clark. There is no evidence that he had a copy of that letter before receiving notice of determination of the development consent. The letter in its terms was not part of the development application but was addressed to the Council in response to the Council's request subsequent to receipt of the development application.

(9)   "[Kinnarney] said because of past problems between you (Clark) and Council, and the fact the DA had been demanded by Council that [Kinnarney] was concerned".

Mr Clark denied this.

(10)   "[Kinnarney] said that Clark (you) had told him you got fined twice by Council because he had not put in this DA for a long time".

Mr Clark agreed that he told Mr Kinnarney at some time about two fines he had received in the past for lodging a late development application, but Mr Clark had no idea whether that was of concern to Mr Kinnarney or not. He said he had not discussed with Mr Kinnarney anything about Council involvement of any sort with the firebreak that the fill was being put into .

(11)   "[Kinnarney] said that he wanted confirmation that there were no problems bringing fill in for firebreak".

Mr Clark did not recall that ever being said. Nevertheless, the defendants submit that it should be held that Mr Kinnarney said it and that it was consistent with his approach that Mr Clark had had problems in the past and that Mr Kinnarney was not going to get involved unless he had the confirmation. I am unable to accept the submission. There is no evidence that Mr Kinnarney said what is attributed to him.

(12)   "Sometime after that you showed documents to [Kinnarney] and said this meant it was okay, and there were discussions about price".

Mr Clark denied this

(13)   "You told [Kinnarney] you wanted $200 a load plus GST and he would save money on disposal facility fee and fuel by tipping next door".

Mr Clark denied this. The rate is relevant to working out the tonnages delivered by Mr Kinnarney: see [121] - [131] above. Mr Clark said $100 per load plus GST was agreed and that this rate was offered by Mr Kinnarney.

(14)   "[Kinnarney] said he would only do it if he got invoices for fill and he would only pay by cheque".

Mr Clark did not recall this.

(15)   "The arrangement and all loads were complete by 1 July 2010".

Mr Clark said that they certainly came to an end as a result of Council officers coming onto the Land. He said that he discovered that all the material he needed was there by that time.

1. The defendants submit that the 15 propositions put to Mr Clark are an alternative hypothesis, which I should accept; that they are as equally able to be true as anything Mr Clark said or denied; and that Mr Clark's response to them in a certain way does not mean that his responses are true. In the absence of any evidence from Mr Kinnarney, I do not accept that the propositions put to Mr Clark are correct except to the extent that Mr Clark agreed with them. This is subject to a qualification relating to his answer to proposition 15. I accept the evidence of Mr Vili Osborne that Mr Clark received some fill from Gubler in Fill Body 2 in 2011.

1. In CTM v The Queen [2008] HCA 25, 236 CLR 440 there was more than there is in the present case, namely, out-of-court assertions by the accused, but even that, the High Court held, was not sufficient to raise the defence. The High Court held that in the absence of sworn evidence from an accused charged with underage sex, evidence in a Crown case of out-of-court assertions by the accused that the complainant lied to him about her age, was insufficient to raise an issue of honest and reasonable mistake of fact as to the victim being above the age of consent: per Gleeson CJ, Gummow, Crennan & Kiefel JJ at [36] - [39], Hayne J at [136], [179], [194].

1. Honesty and reasonableness are essential features of the mistaken belief relied upon. The belief of Mr Kinnarney was a matter peculiarly within his own knowledge. In the absence of evidence from Mr Kinnarney, Mr Clark's answers to the propositions put to him in cross-examination do not establish that Mr Kinnarney held the alleged mistaken belief, honestly and reasonably or at all.

1. It is unnecessary to address the prosecutor's further submission that even if Mr Kinnarney honestly held the alleged mistaken belief, it was not reasonably held. The submission is that a professional truck driver such as Mr Kinnarney should never accept that it is lawful to dump just on the say so of a private landowner and should sight and satisfy himself that there was both a development consent under the EPA Act and an environment protection license under the POEO Act.

RURAL FIRES ACT

1. In closing submissions the defendants submitted that the Rural Fires Act 1997 applied and ousted the EPA Act (presumably meaning that no development consent was required under the EPA Act). The defendants refer specifically to sections 63 (concerning the duties of public authorities and owners and occupiers of land to prevent bush fires), 66 (bush fire hazard reduction notices), 100C (carrying out of bush fire hazard reduction work) and 100F (issuing bush fire hazard reduction certificates). I can see nothing in those provisions or otherwise in the Rural Fires Act which relevantly ousts the EPA Act.

ORDERS

1. I make the following orders:

Proceedings 50416 of 2011 :

1. The defendant is convicted of the offence as charged under s 143(1) of the Protection of the Environment Operations Act 1997.

Proceedings 50418 of 2011 :

2. The defendant is convicted of the offence as charged under s 143(1) of the Protection of the Environment Operations Act 1997.

In respect of both proceedings

3.   The proceedings are stood over to 9.30 am on Friday 23 March 2012 before me for the purpose of making directions for a hearing on sentence .

Proceedings 50417 of 2011

4.   The proceedings will be listed before me at 9.30 am on Friday 23 March 2012 for mention.

Amendments

04 April 2012 - slip rule amendment to para 165 - "facility" replaced by "disposal by application to land"

Amended paragraphs: 165

Decision last updated: 16 November 2012