Tonks v Hourigan - [2017] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Criminal)
TONKS v HOURIGAN
[2017] SASC 77
Judgment of The Honourable Justice Hinton
1 June 2017
ENVIRONMENT AND PLANNING - POLLUTION - AIR POLLUTION - OFFENCES - PROCEDURE AND EVIDENCE
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL
Appeal against conviction.
The appellant was convicted by a Judge of the Environment, Resources and Development Court of one count of contravening a mandatory provision of an environment protection policy by causing or permitting the burning of matter by a fire in the open on domestic premises, contrary to s 34(2) of the Environment Protection Act 1993 (SA) (EPA) and cl 5(3) of the Environment Protection (Burning) Policy 1994 (SA) (the Policy), and one count of intentionally or recklessly doing the same, contrary to s 34(1) of the EPA and cl 5(3) of the Policy.
The appellant started two fires in the backyard of his home. The appellant’s defence was that the fire was used principally for the preparation of food, as permitted by cl 5(5)(b) of the Policy. The Judge held that the appellant failed to establish the defence provided for by cl 5(5)(b) on the balance of probabilities.
The appellant contends that the onus of proving the fires were not used principally for the preparation of food fell upon the prosecution and was not an exception or excuse to be proven by the appellant on the balance of probabilities. The appellant further complains that the Judge erred in rejecting the evidence of his partner who was present at all material times, erred in admitting and in using the appellant’s failure to protest his innocence at the time of being asked what he was burning, and erred in taking into account the improbability that the cooking of food would not have been smelt by those nearby had food in fact been cooking.
Held, allowing the appeal:
1. Clause 5(5)(b) of the Policy operates as an exception to the offence in cl 5(3) within the meaning of s 56 of the Summary Procedure Act 1921 (SA). The appellant bore the onus of discharging the elements of that defence on the balance of probabilities.
2.       The Judge did not err in rejecting the evidence of the appellant’s partner.
3.       The Judge did not err in admitting and using evidence of the appellant’s failure to protest his innocence.
4.       Absent evidence that food wrapped in alfoil and cooking in the coals of a fire would emit an odour that would be detected, it was not open to the Judge to reason that because witnesses could not smell food cooking, that food was in fact cooking was improbable.
Environment Protection Act 1993 (SA) s 34, s 124; Environment, Resources and Development Court Act 1993 (SA) s 30; Summary Procedure Act 1921 (SA) s 56, referred to.
R v Edwards [1975] 1 QB ; Dowling v Bowie (1952) 86 CLR 136; Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428, applied.
Department of Land & Water Conservation v Bailey (2003) 136 LGERA 242; Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, distinguished.
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, discussed.
Rowbottom v Nicolitsi (1986) 41 SASR 576; Downie v Lockwood [1965] VR 257; Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Coombes v Roads and Traffic Authority [2006] NSWCA 229; Holland v Jones (1917) 23 CLR 149, considered.

TONKS v HOURIGAN
[2017] SASC 77
Civil
HINTON J.
Introduction

Mr Tonks, the appellant, was charged on Complaint and convicted of one count of contravening a mandatory provision of an environment protection policy by causing or permitting the burning of matter by a fire in the open on domestic premises, contrary to s 34(2) of the Environment Protection Act 1993 (SA) (EPA) and cl 5(3) of the Environment Protection (Burning) Policy 1994 (SA) (the Policy), and one count of intentionally or recklessly doing the same, contrary to s 34(1) of the EPA and cl 5(3) of the Policy. He now appeals against his convictions.[1]
[1] The right of appeal is contained in s 30(4) of the Environment, Resources and Development Court Act 1993 (SA).
Clause 5(3) of the Policy prohibits the burning of matter by fire in the open on domestic premises within those council areas or portions of council areas referred to in Schedule 1 to the Policy or on any other domestic premises between 10.00 am and 3.00 pm on Monday to Saturday (inclusive). Clause 5(5)(b) of the Policy states, relevantly, that cl 5(3) does not apply to any fire used principally for the preparation of food. At his trial Mr Tonks’ defence was that he was cooking potatoes and damper in the coals of the fires which, on the two occasions subject of the charges, he admittedly started in his backyard. The trial was conducted on the basis that cl 5(5)(b) of the Policy operated as an affirmative defence to be established by an accused on the balance of probabilities. The trial Judge held that Mr Tonks failed to do so.
On appeal Mr Tonks’ primary complaint is that on a proper construction of cl 5(5)(b) of the Policy the onus of proving that the fires he started in his backyard were not used principally for the preparation of food fell upon the prosecution and was not an exception or excuse to be proven by him on the balance of probabilities.
The trial
At trial Mr Tonks agreed that on Sunday 17 May 2015 and again on Sunday 7 June 2015 he started fires in the backyard of his house which was located in the City of West Torrens, a council area referred to in Schedule 1 of the Policy. Mr Tonks also agreed that on each occasion Mr Howard, an officer of the Council, had attended at Mr Tonks’ home, been granted access to the backyard and seen the fires as they were burning.
The prosecution called two witnesses, Mr Ritorto, Mr Tonks’ neighbour, and Mr Howard. Mr Tonks gave evidence in his defence and called his former partner, Ms Warren.
The trial Judge summarised the evidence in relation to count one, the offence of 17 May 2015, as follows:[2]
The defendant purchased the property concerned in these proceedings in about October 2014. There was a chicken shed on the land which the defendant demolished prior to 17 May 2015. The chicken shed was partly constructed of jarrah posts, which the defendant stacked on the land.
It was the evidence of the defendant that, on 17 May 2015, he constructed a fire with newspaper on the bottom, splinters of timber on top of that and bigger pieces of timber on top. He then lit the fire. He said that he remained with the fire. Initially he said “I didn’t come inside all day”, but he contradicted that later in his evidence. It was an agreed fact that this fire was lit between midday and 1pm.
Mr Ritorto occupies the residential property the rear boundary of which abuts the rear western side boundary of the land. Mr Ritorto gave evidence that, on 17 May 2015, his sons drew his attention to smoke pouring through his shed, which is sited near to the rear boundary of his property. Mr Ritorto went outside and looked for the fire. He went behind his shed and saw the fire on the land, which he estimated to be about two metres east of the boundary fence. He observed that the fire consisted of “bits of jarrah, they were there burning in a pile”. The fire was causing thick white smoke to come down Mr Ritorto’s driveway. Mr Ritorto saw sparks coming from the fire and into the side door of his shed. He was concerned because he has petrol and oils in his shed. He looked over the fence to see if there was someone he could speak to about the fire, but no-one was in the yard. He therefore telephoned the Council. Mr Ritorto did not see any food cooking in the fire and neither did he smell any food cooking.
It was the defendant’s evidence that Ms Warren called out to him from the house to say that the food was ready, and that he waited after that until the fire had burnt down. Then he collected six to eight potatoes in foil and one damper in foil. He said that he made two trips into the house to collect the food, and that he carried it in his hands. When he arrived at the fire, he put the food on the ground. Then, he said, he collected a shovel from the shed and used it to move coals around in the fire before placing the food in the fire with the shovel and covering it with coals. He said that he protected himself from the heat by having a hood on and stretching his arm out. He said that Mr Howard arrived a few minutes after he had placed the food in the fire.
Mr Howard, council’s authorised officer, attended the land at 1pm in response to Mr Ritorto’s call, which was logged at 12.11pm. Mr Howard said that he smelled burning wood when he was at the front of the property, and he could see smoke in the air. He was met by the defendant at the front of the house and went with him to the back of the house. There Mr Howard observed a fire which was about a metre to a metre and a half square. Mr Howard said “there was a fair bit of heat coming out of that”. He saw that the fire was composed of stacked and angled wood of various lengths. Mr Howard’s evidence was that he stood five metres from the fire and could feel its heat. He thought there was some dry grass in the fire. He did not see any food in the fire. …
(footnotes omitted).
[2] Hourigan v Tonks [2017] SAERDC 8 at [10]-[14].
Mr Howard told the Court that he inspected the fire on this occasion from a distance of about five metres. He denied in cross-examination that the distance was more like 15 metres. He said that Mr Tonks advised that the wood he was burning came from a chicken shed that Mr Tonks had demolished. Mr Howard told Mr Tonks that he was not meant to be burning unless he was doing so for the purposes of cooking or heating. Mr Tonks made no mention at this time of his using the fire for the purposes of cooking and Mr Howard did not smell food cooking.
Mr Tonks told the Court that prior to lighting both fires he searched the websites of the City of West Torrens, the Country Fire Service and the Environment Protection Authority. He learnt that it was lawful to light a fire in the open for the purpose of cooking or warmth provided that the fire was four metres from anything flammable. With respect to the fires subject of the charges, he said each was lit for the purposes of cooking food. In each instance damper and potatoes were wrapped in alfoil then put into, and covered by, the fire coals.
Mr Tonks told the Court that in the ten minutes prior to Mr Howard’s arrival in relation to the first fire he had placed six potatoes and damper in the coals of the fire which he took out some 25 minutes later. Contrary to Mr Howard’s evidence, Mr Tonks said he did not inspect the fire from a distance closer than 16.5 metres (i.e. from the pergola).
As mentioned Ms Warren gave evidence. She said that she was living with Mr Tonks at the relevant time. She said it was her idea to cook potatoes and damper in an open fire. It was something she had done with her father as a child. Mr Tonks agreed and doing so went out to start the fire in the backyard whilst she made the damper and prepared the potatoes. Both the damper and the potatoes were wrapped in alfoil.
Ms Warren recalled Mr Howard’s visit. She said that when Mr Howard and Mr Tonks began speaking she moved to a position close to the back door, some three to four metres away from the two men, in order to listen to their conversation. She said she could hear quite clearly what was said. She said she heard Mr Howard ask what was on the fire and Mr Tonks answer that it was dried timber. She heard Mr Tonks ask if he had to put the fire out and Mr Howard respond in the negative. She heard Mr Howard tell Mr Tonks that he was not in any trouble and not to worry. The two men did not go down to the rear of the yard.
Ms Warren said when the food was ready Mr Tonks brought it into the house. She was clear in her evidence that she remembered that the fire was not lit in the afternoon but at night after dark.
The Judge summarised the evidence in relation to count two, the offence of 7 June 2015, as follows:[3]
Mr Ritorto again became aware of smoke coming out of his shed on 7 June 2015 at about 7pm. Again, he walked behind his shed and looked over the fence, and again he saw a fire on the land within about 2.5m from his fence. He saw that, again, jarrah pieces were being burned. He said the flames would have been about half a metre high and the fire itself was a little smaller than on the previous occasion. Mr Ritorto did not see any food in the fire, and nor did he smell any food cooking. I note that it was early winter, and it would have been dark by 7pm. Again, Mr Ritorto was concerned about the flammable material in his shed. He saw no-one in the yard of the land, so he called the Council.
Mr Tonks agreed that he lit the fire on the night of 7 June 2015, and he agreed that it smoked for a time. Then, he said it burned very hot. He said that, after the fire had burned for 45 minutes, he collected the food from inside the house. The food consisted of one damper and six potatoes. He said that he placed the food in the fire with the shovel prior to Mr Howard arriving.
It was Mr Howard’s evidence that, as he approached the land at 7.35pm, in response to the complaint, he could see a great deal of white smoke in the locality. He was concerned. It was very windy. Mr Howard reached the house and saw Mr Tonks. …
(footnotes omitted).
[3] Hourigan v Tonks [2017] SAERDC 8 at [24]-[26].
Mr Howard told the Court that Mr Tonks informed him that he was burning the last pieces of the chicken shed. Again he inspected the fire from a distance of five metres. He denied being any further away. A lot of smoke was coming from the fire. Mr Howard considered the fire to be generating a lot of heat and dangerous. Again he told Mr Tonks that he could only burn for cooking. Mr Howard could not see nor smell food cooking and saw no implements for cooking food nearby. Mr Tonks did not mention that he was cooking food.
In cross-examination Mr Howard was asked if he had ever cooked damper on an open fire. He had. He also said that if there was damper or potatoes cooking in the coals he would have been able to see them even if they were wrapped in alfoil. He thought the fire was too hot to cook anything. Mr Howard conceded that on neither occasion did he ask Mr Tonks what his purpose was in lighting the fire.
With respect to the second fire, Mr Tonks said that he and Ms Warren decided to cook damper and potatoes in an open fire a second time because the first occasion “was nice.” Again the damper and potatoes were completely covered by coals and again they were in the fire before Mr Howard attended.
Mr Tonks said that Mr Howard inspected the fire from a position on the pergola but further back than on the first occasion, a position which Mr Tonks said he had measured as 18.5 metres from the fire. As with Mr Howard’s first visit, Ms Warren remained inside.
Mr Tonks agreed that on neither occasion did he tell Mr Howard that he was using the fire to cook food. He said that he did not do so on either occasion because he was not asked. He also said that on neither occasion could he smell the food cooking.
Ms Warren said that she and Mr Tonks decided to cook on an open fire again that night. She thought that they only had damper, but she was not sure. She said that the food was already in the fire when Mr Howard arrived. Ms Warren also said that she knew that they could cook on an open fire because their neighbours at their old house had done so and Mr Tonks had remarked to her that cooking food on an open fire was lawful.
Ms Warren was cross-examined about how the damper was prepared. She could not say. That was because, she explained, she would “Google” the recipe and then follow it, implying that it was not something she attempted to commit to memory. In her examination-in-chief, Ms Warren said that preparing the damper involved some sort of recipe involving flour and salt, kneading it on the bench, and putting it in alfoil.
With respect to Mr Howard’s second visit, Ms Warren was in a position to overhear in part this conversation between Mr Howard and Mr Tonks. She could not recall Mr Tonks telling Mr Howard that the fire was burning to cook food. She denied that the fires were lit for the sole purpose of burning the wood from the chicken shed.
Mr Tonks was issued with expiation notices in relation to each fire.[4] He elected to be prosecuted.[5] His trial was conducted in, and was heard by a judge of, the Environment, Resources and Development Court.[6]
[4] The offence created by cl 5(3) of the Policy is designated by that clause as a Category D offence. Under s 34(1) of the EPA such offence is punishable by a Division 3 fine (a fine not exceeding $30,000; Acts Interpretation Act 1915 (SA) s 28A). No point was taken on the hearing of the appeal as to whether this offence was expiable and, if it was not, any consequence for the prosecution.
Under s 34(2) of the EPA such offence is punishable by a Division 9 fine (a fine not exceeding $500; Acts Interpretation Act 1915 (SA) s 28A) or by a Division 9 expiation fee (a fee of $100; Acts Interpretation Act 1915 (SA) s 28A). As the offence is punishable by an expiation fee fixed under the EPA an expiation notice may be given under that Act to a person alleged to have committed the offence and the alleged offence may be expiated in accordance with the Expiation of Offences Act 1996 (SA); see Expiation of Offences Act 1996 (SA) s 5.
Both offences created by s 34 of the EPA being designated as Category D offences are summary offences; Summary Procedure Act 1921 (SA) s 5.
[5] Expiation of Offences Act 1996 (SA) s 8.
[6] Jurisdiction to try criminal offences created by the EPA is conferred upon the Environment, Resources and Development Court by s 132 of the EPA. Section 7(3a) of the Environment, Resources and Development Court Act 1993 (SA) provides that the Environment Resources and Development Court will deal with a charge of a summary offence in the same way as the Magistrates Court deals with such a charge (and in accordance with the procedures that would apply if the Magistrates Court were dealing with such a charge) and the Summary Procedure Act 1921 (SA) applies to the Court subject to any additions, exclusions or modifications prescribed by the regulations as if references to the Magistrates Court extended to the Court.
The trial Judge’s findings and verdicts
Mr Tonks having admitted that he lit both fires as alleged, the primary issue in dispute was whether the fires were lit for the purposes of preparing food and thus whether Mr Tonks’ actions fell within cl 5(5)(b) of the Policy.
As to the fire of 17 May 2015, the Judge concluded:[7]
I find, on the basis of the evidence of Mr Ritorto, Mr Howard and Mr Tonks, that the fire on 17 May 2015 on the land was lit, burned and then ceased to burn all during daylight hours. Mr Ritorto’s complaint to the Council was received at 12.11pm, so the fire had been lit prior to that time. I do not believe Ms Warren in relation to her account of the fire of 17 May 2015. She clearly asserted that she remembered that day, and she clearly asserted that the fire was lit at night. I find that the whole of her evidence in relation to 17 May 2015 was a fabrication.
I do not believe Mr Tonks’ account of 17 May 2015 either. It is improbable that damper and potatoes would be cooking in coals without either Mr Ritorto or Mr Howard smelling them. It is improbable that Mr Tonks would put food in the fire and then omit to tell an authorised officer who arrived minutes later that he was using the fire to cook food. Instead, Mr Tonks said that he was burning the remains of the “chook house”. Mr Tonks said that he familiarised himself with the Policy prior to lighting the fire and saw, among other things, that “you can have a fire for comfort or food”. It is unlikely, if the defendant did this, that he would omit to tell Mr Howard that he was cooking food. I reject the defendant’s explanation that he did not say it because Mr Howard told him that he was not in trouble and I reject his explanation that he thought it would be more appropriate at a later time in the process.
(footnotes omitted).
[7] Hourigan v Tonks [2017] SAERDC 8 at [22]-[23].

As to the fire of 7 June 2015, the Judge again accepted the evidence of Mr Ritorto and Mr Howard. The Judge then reasoned:[8]
… It is clear that on the second occasion, like the first, Mr Tonks did not mention that food was cooking. Again, I find it unlikely that, had food been cooking, Mr Tonks, knowing, as he said that he did, that this was exculpatory, would not have drawn Mr Howard’s attention to it. As with the first fire, it is unlikely that, had food been cooking, neither Mr Howard nor Mr Ritorto could smell it.
Ms Warren said that she remembered 7 June 2015, but her memory was deficient in relation to much of the detail of the evening. It is unlikely that, had she prepared damper twice, she would not be able to describe the process. Her account of the conversation she said she overheard was unconvincing. This was true of her account of the first fire as well. I do not accept Ms Warren’s evidence.
Ms Warren described the weather on the evening of 7 June 2015 as “absolutely freezing” and Mr Howard said that it was very windy. These are not the kind of conditions usually considered to be conducive to outdoor cooking in the suburbs. In addition, both Mr Howard and Mr Tonks said that the fire was very hot. The dangers and difficulties in placing food in such a fire and removing it are obvious.
In making these findings, I bear in mind the time which elapsed between the events the subject of the evidence and the trial and the effect the passage of time may have had on the memories of the witnesses. I also bear in mind all of the alternative explanations put forward in the defendant’s case, such as the submission that the defendant was renovating the house and had available a skip into which he could place the jarrah should he simply wish to be rid of it.
(footnotes omitted).
[8] Hourigan v Tonks [2017] SAERDC 8 at [34]-[37].
The Judge concluded her consideration of the evidence finding as follows:[9]
Taking into account all of the evidence on both sides and all of the submissions, I find that there was no food in the fire on either 17 May 2015 or 7 June 2015. The defendant has not discharged the onus of proving, on the balance of probabilities, that the fire on either 17 May 2015 or 7 June 2015 was principally for the preparation of food. In fact, the defendant himself indicated to Mr Howard on both occasions that he was burning the wood from the “chook shed”, implying that this was the purpose of each fire. I find that the burning of the jarrah was, on both occasions, the principal purpose of the fire.
[9] Hourigan v Tonks [2017] SAERDC 8 at [38].
And ultimately concluded:[10]
The defendant has admitted that he intentionally lit both fires. The defendant has failed to make out the defence in clause 5(5) of the Policy. The lighting of both fires was therefore in contravention of clause 5(3) of the Policy, which is a mandatory provision. I find the defendant guilty of both count 1 and count 2 charged on the complaint.
Was the onus on the appellant to prove on the balance of probabilities that the fire was used principally for the preparation of food? (Ground one)
[10] Hourigan v Tonks [2017] SAERDC 8 at [39].
It is readily apparent from the Judge’s conclusions that she considered cl 5(5)(b) of the Policy to operate as an affirmative defence to a charge laid under cl 5(3) of the Policy and either s 34(1) or (2) of the EPA and that the onus of establishing that defence fell upon Mr Tonks to the civil standard.
Mr Tonks contends that this approach was erroneous. He argues that it is incumbent upon the prosecution to prove beyond reasonable doubt that the fire he was burning was not one used principally for the preparation of food.
The respondent contends that cl 5(5)(b) of the Policy falls within s 56 of the Summary Procedure Act 1921 (SA) (SPA). That section provides:
56—Exceptions or exemptions need not be specified or disproved by the complainant
(1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the complaint.
(2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant.
Thus, if cl 5(5)(b) of the Policy is an exception, exemption, proviso, excuse, or qualification as the respondent contends, no proof in relation to it was required on the part of the complainant and the Judge was correct to proceed as she did.
Section 56 SPA reflects the common law. In R v Edwards the Court of Appeal considered the English equivalent of s 56.[11] Speaking for the Court, Lawton LJ said:[12]
In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception.
In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), vol. 4, p. 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. What does provide a working rule is what the common law evolved from a rule of pleading. We have striven to identify it in this judgment. Like nearly all rules it could be applied oppressively; but the courts have ample powers to curb and discourage oppressive prosecutors and do not hesitate to use them.
[11] [1975] 1 QB 27.
[12] R v Edwards [1975] 1 QB 27 at 39-40; see also, Rowbottom v Nicolitsi (1986) 41 SASR 576 at 579 (Cox J).
In the leading High Court authority on exceptions and provisos, Dowling v Bowie, Dixon CJ, with whom Fullagar and Kitto JJ agreed, said:[13]
The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification... The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it. ...
(citations omitted).
[13] (1952) 86 CLR 136 at 139-140.
The High Court had cause to consider the Victorian equivalent of s 56 SPA in Chugg v Pacific Dunlop Ltd.[14] In their reasons Dawson, Toohey and Gaudron JJ, with whom Brennan and Deane JJ agreed, said:[15]
For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch. The distinction does not depend on the rules of formal logic: Dowling v. Bowie. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”: Director of Public Prosecutions v. United Telecasters Sydney Ltd. The intention may be discerned from express words or by implication. See Reg v. Edwards and Reg v. Hunt.
(citations omitted).
[14] (1990) 170 CLR 249.
[15] (1990) 170 CLR 249 at 257.
In Overland Corner Station Pty Ltd v Gould, White J conveniently distilled the relevant principles applicable in a case such as this to the following:[16]
[16] (2010) 106 SASR 428 at [28].
The following propositions are discernible in the authorities concerning the application of s 56 and its equivalents.
(i) The question of whether an enactment contains a provision in the nature of an exemption or proviso for the purposes of s 56(2) is to be resolved by the construction of the statute under which the charge is laid. When some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”.
(ii) The focus on the process of statutory construction should be on the substance (“the essence or thrust”), rather than the form, of the statutory provision in question. However, that does not mean that the form of the statutory provision is irrelevant as the way in which a section is set out may be a useful guide to the intention of Parliament with respect to any postulated exception or proviso.
(iii) A qualification or exception which assumes the existence of facts upon which the general rule of liability is based and which depends on additional facts of a special kind is, depending on issues of substance, more likely to be a qualification or exception to which s 56(2) applies, or, as it was put by Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop:
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule.
(iv) If a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.
(v) There are many authorities indicating that the fact that defendants are likely to have peculiar knowledge bearing upon the application of the exemption or proviso, or enabling them to prove the positive of any negative averment is immaterial in the process of construction involved. However, the circumstance that a relevant fact would be difficult for the prosecution to establish and easy for a defendant to establish might well dispose the legislature to make the proof of that fact an exception within the meaning of s 56. In this respect Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop said:
If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.
(vi) Ultimately, the application of s 56 depends upon a postulated legislative intention which is to be determined by reference to all of the relevant circumstances. This makes it difficult to state any general rule on the subject and can limit the utility of comparison of one case with another.
(footnotes omitted).
Clause 5(3) of the Policy provides:
(3) A person must not cause or permit the burning of matter by a fire in the open or in a domestic incinerator—
(a)on any domestic premises situated within a council area or portion of a council area referred to in Schedule 1; or
(b)on any other domestic premises except between the hours of 10.00am and 3.00pm on Monday to Saturday (inclusive).
Mandatory Provision: Category D offence.
Clause 3(3) provides of the Policy:
In this policy, the expression Mandatory Provision followed by a statement as to the category of an offence is to be taken to signify that contravention of the provision at whose foot the expression appears will be an offence of the category so stated for the purposes of Part 5 of the Act.
The expression, “Mandatory Provision,” appears at the foot of cl 5(3) of the Policy. Clause 5(3) does not, therefore, create an offence independent of Part 5 of the EPA (which contains s 34). That explains why the offences with which Mr Tonks was charged are pleaded as contravening cl 5(3) of the Policy and s 34(1) and (2) of the EPA.
The offence created by s 34(1) EPA requires proof of a fault element – intention or recklessness. The offence created by s 34(2) EPA does not expressly require proof of intention or of recklessness. The implication to be drawn from the express requirement in s 34(1) of the EPA that intention or recklessness be proven and the absence of any reference to intention and recklessness in s 34(2) is obvious and compelling – proof of intention or recklessness form no part of the offence created by s 34(2). Bearing in mind that the general defence contained in s 124 EPA applies, the offence created by s 34(2) EPA may be considered a strict liability offence. Consequently, if a defendant seeks to invoke the general defence he or she bears the onus of discharging the elements of that defence on the balance of probabilities.
For both s 34(1) and (2) of the EPA the physical elements of the offence consist of the act or omission constituting the contravention of the mandatory provision of the relevant environment protection policy. It is then to the policy that one must look for the particular physical element of the offence.
Turning to cl 5(3) of the Policy, before a person may be convicted of the offence contained in cl 5(3) the prosecution must prove that matter is being burned by a fire in the open or in a domestic incinerator. These are physical elements in the nature of circumstances with the act itself being the burning. Proof of the purpose for which the act of burning is undertaken in the relevant circumstance forms no element of the offence.
Clause 5(5) of the Policy provides:
(5) Subclauses (3) and (4) do not apply to –
(a)     any fire within a dwelling; or
(b)     any fire used principally for the preparation of food or beverages or the heating of a potable liquid; or
(c)     the burning of charcoal within a brazier principally for the purpose of heating an area used for outdoor entertainment; or
(d)     burning off by a person for the purpose of reducing the hazard of bushfires, provided that –
(i)the Authority or another administering agency, or a council or council officer as delegate of the Authority, has permitted the burning-off by notice in writing, or by notice published in a newspaper or other publication relating to burning-off in the area concerned, and the person complies with the conditions to which the permission is subject; or
(ii)the person has a permit under the Country Fires Act 1989 to carry out the burning-off.
As a matter of form, cl 5(5)(b) of the Policy and the exculpatory circumstances to which it refers do not form part of the general rule or norm of conduct created by cl 5(3). That suggests that they were not intended to form part of the rule or norm.
Turning to matters of substance. Clause 5(5)(b) – (d) of the Policy introduce in each instance a subjective mental element – purpose. Proof will depend on adducing evidence of additional facts. That suggests they are exceptions. It is tempting to consider that cl 5(5)(a) is different because, in establishing for the purposes of cl 5(3) that the fire was in the open, the prosecution will ordinarily necessarily rebut an assertion that the fire was within a dwelling, but that may be to give an unduly narrow meaning to the word dwelling. A dwelling is not the same as a dwelling-house. If dwelling-house is capable of a wide meaning,[17] dwelling can only be capable of a wider meaning. What if, for example, in an area adjacent to an onsite caravan reserved for the annex the caravan owner, who has chosen not to put the annex up but rather enclosed the area using a small fence, burns a fire to heat metals to make jewellery? Proof of where a dwelling ends and the open begins may not invariably be obvious. In such cases, additional facts will need be proven.
[17] Downie v Lockwood [1965] VR 257 at 262-263 (Smith J).
I do not consider that any of cl 5(5)(a) – (d) of the Policy involve the proof of facts peculiarly within the knowledge of an accused such that it could not have been within the contemplation of Parliament that the prosecution bear the onus of proof. I appreciate the concept of purpose referred to in cl 5(5)(b) and (c) introduces the subjective, but having regard to the requirements of cl 5(5)(b) and (c), the relevant purpose in burning will ordinarily be readily inferred from the circumstances of the fire.
Mr Tonks submitted that the decision of the New South Wales Court of Criminal Appeal in Department of Land & Water Conservation v Bailey (Bailey)[18] supported the submission that the prosecution bore the onus of disproving that an accused fell within cl 5(5)(b) of the Policy beyond reasonable doubt. In that case the defendant was charged with two counts of clearing native vegetation contrary to s 21(2) of the Native Vegetation Conservation Act 1997 (NSW) (NVCA). Section 12(f) of the NVCA provided:
This Act does not apply to the following types of clearing:
…
(f)any clearing that is, of that is part of, designated development within the meaning of the Act,
[18] (2003) 136 LGERA 242.
Shaw J, with whom Mason P and Hidden J agreed, said:[19]
The exception pursuant to s 12(f) of the NVC Act is, in my opinion, a qualification on the first element because s 12 states that “th[e] Act” does not apply to clearing of a kind described in the subsections. Accordingly, it would be for the prosecutor to establish that the Act did apply by satisfying the trial judge that the clearing was not “clearing that is, or that is part of, designated development within the meaning of the EPA Act”. However, as I have noted earlier in these reasons, whether some activity is, or is not, designated development, is a question of law. Issues of fact would, accordingly, have little impact on the judicial assessment of whether a defendant was capable of being convicted pursuant to s 17 of the NVC Act whenever issues under s 12(f) are raised.
[19] Department of Land & Water Conservation v Bailey (2003) 136 LGERA 242 at [30].

From my reading of Bailey it does not appear that the question of who bore the onus of proof in relation to s 12(f) of the NVCA and the related standard they had to meet was in issue. In any event, I do not think the construction adopted by Shaw J can be transposed to the Policy. Applying that approach would mean that cl 5(5) of the Policy would perform, in effect, a definitional function for the purposes of cl 5(3) and (4). When one has regard to the content of cl 5(4), the disconnect between that content and, for example, cl 5(5)(c) and (d) makes plain that cl 5(5) cannot perform the function that Shaw J considered s 12(f) of the NVCA did.
In my view cl 5(5) of the Policy operates as an exception to cl 5(3) within the meaning of s 56 SPA. In arriving at this conclusion I am particularly influenced by the fact that each of cl 5(5)(a) – (d) require proof of additional facts. Unlike Bailey, cl 5(5)(a) – (d) could not be considered to introduce issues of fact of “little impact on the judicial assessment of whether a defendant was capable of being convicted”.[20] Consider, for example, cl 5(5)(d)(i).
[20] Department of Land & Water Conservation v Bailey (2003) 136 LGERA 242 at [30] (Shaw J, Mason P and Hidden J agreeing).
If the appellant’s contention in this case were accepted, in every case liability under s 34(1) or (2) of the EPA and cl 5(3) of the Policy would depend upon proof beyond reasonable doubt of the elements of the offence created by the section and clause in addition to proof beyond reasonable doubt that none of cl 5(5)(a) – (d) apply. That would require the prosecution to prove a series of negatives because a fire in the open or in a domestic incinerator would be defined in no small part by what it is not. That would be unusual to say the least.
I do not think that cl 5(5) of the Policy could be construed as placing a conditional burden upon the prosecution, one that only applies if the defence satisfy the evidential burden. Nothing in the language of the Policy suggests such construction as being within Parliament’s contemplation. Further, cl 5(5) is distinguishable from the likes of the common law defences of self-defence and provocation precisely because they are common law defences which, unlike the offences created by the EPA and the Policy, are not caught by s 56 SPA.
In dealing with the argument I have not separated out cl 5(5)(b) of the Policy for analysis separate to the balance of cl 5(5). It seems to me that if cl 5(5) performs a definitional function then it applies to cl 5(3) as a whole and is not capable of a construction suggesting that with respect to some sub-clauses it has a definitional function but not in relation to others.
I would dismiss the first ground of appeal.
The rejection of Ms Warren’s evidence (ground two)
With respect to the fire of 17 May 2015 the Judge rejected the entirety of Ms Warren’s evidence as a fabrication.[21] She gave the following reason for doing so – Ms Warren “clearly asserted that she remembered that day, and she clearly asserted that the fire was lit at night.” It is to be recalled that it was an agreed fact that this fire was lit and burning between noon and 1.00 pm and that Mr Howard attended at about 1.00 pm.
[21] See above at [24].
Mr Tonks complains that the rejection of Ms Warren’s evidence on the basis of the sole reason provided was unreasonable and not open to the Judge absent consideration of the possibility of Ms Warren being mistaken and it not being put to Ms Warren that the fire was lit and burned during daylight hours. As to the possibility of Ms Warren being mistaken, Mr Tonks referred to the fact that the second fire was, on anyone’s case, lit and burning at night which would then give rise to possible grounds for confusion.
Early in her examination-in-chief Ms Warren gave the following evidence:[22]
[22] T98-99.
Q.So, when Mr Tonks went outside, did you see what he was doing outside.
A.I can't see, no, because it was dark and he was way down the back so, and I was inside, but yeah.
Q.What was the weather like on this day.
A.It was freezing.
HER HONOUR
Q.What time was it.
A.It would have been maybe around 6 o'clock, I'm not 100% -
Q.On 17 May.
A.Yes. To be honest I'm guessing it would probably around that time, it was dark, I remember.
Q.You remember clearly that it was dark.
A.Yes.
Q.This is on the first occasion.
A.Yes.
A little later in her evidence Ms Warren confirmed, again at the invitation of the Judge, that the sun had set as at that time that she stood by the backdoor listening to Mr Tonks’ conversation with Mr Howard.[23] She said that by the time the food was ready that “it was night, it was definitely night time and dark”.[24] In cross-examination she added that she was able to observe the two men as they were in conversation in the pergola area from her position inside because of the light shed upon them by the kitchen light.[25]
[23] T101.
[24] T105.
[25] T110.
It is obvious that the Judge was alive to the inconsistency between Ms Warren’s evidence and the agreed facts as to the time at which the fire was burning and so, without cross-examining Ms Warren, gave her the opportunity to reflect on the issue. Ms Warren clearly remembered that the fire of 17 May 2015 was burning after it was dark. The unequivocal nature of the response suggested no room for mistake. It is true that the contrary proposition not being put to Ms Warren, the Judge did not have the benefit of expressly hearing from her as to whether she could be mistaken or, indeed, considered others to be mistaken. But the Judge’s question necessarily invited Ms Warren to assess the possibility that she might be wrong. She purported to undertake that assessment and responded that she had a clear memory.
Subsequently the Judge gave Ms Warren a second opportunity to consider the time of day at which the relevant events occurred. Ms Warren confirmed that the sun had set by then.
The Judge was in the best position to assess what to make of Ms Warren’s responses to the two opportunities to consider her evidence as to the time of day at which the fire was burning. The certainty with which Ms Warren responded would have been important to an assessment as to whether her error undermined her reliability or her credibility and reliability. In making that assessment, which the Judge undertook (“she clearly asserted that she remembered that day, and she clearly asserted that the fire was lit at night”), the Judge enjoyed the obvious advantage of seeing and hearing Ms Warren.
In my view it was open to the Judge to conclude that the certainty or conviction with which Ms Warren gave her evidence as to the time of day at which the first fire was burning undermined her credibility.
It is true that the Judge provided only one reason for rejecting Ms Warren’s evidence in relation to the fire of 17 May 2015 in that portion of her reasons dealing with that fire. However, that was not the sole reason. Later in her judgment the Judge referred to the improbability of Ms Warren being unable to recollect how to make damper if she had, in fact, made it twice in addition to her unconvincing account of the conversation she overheard between Mr Tonks and Mr Howard as also affecting her credibility and reliability concerning the circumstances surrounding the first fire.[26]
[26] Hourigan v Tonks [2017] SAERDC 8 at [35].
In rejecting Ms Warren as a witness of truth on count one there is nothing to indicate that the Judge “has failed to use or has palpably misused” her advantage in seeing and hearing Ms Warren or “has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”.[27] I would dismiss the second ground of appeal.
[27] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ). See also Fox v Percy (2003) 214 CLR 118 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ).
The admissibility and use of Mr Tonks’ failure to protest his innocence (grounds three and four)
In Petty v The Queen; Maiden v The Queen Gaudron J said:[28]
As a matter of ordinary experience, the failure to advance an innocent explanation when an opportunity arises may, of itself, support an inference that no such explanation is available. So too, as a matter of ordinary experience, it may support an inference that a subsequent explanation is false. And, of course, an inference to the same effect may be drawn if different explanations are given on different occasions.
[28] (1991) 173 CLR 95 at 125-126.
Above I have reproduced passages from the Judge’s reasons in which she rejects Mr Tonks’ evidence that the fires of 17 May 2015 and 7 June 2015 were used principally for the cooking of potatoes and damper.[29] Important to her Honour’s reasoning in each instance is the improbability that Mr Tonks would not have taken the opportunity to disabuse Mr Howard of any unlawfulness on his part when, if as he says, he knew that what he was doing was lawful and, in any event, when informed that it was lawful to use an open fire for the preparation of food. In short, the Judge reasons that Mr Tonks’ failure to profess his innocence, in circumstances where the ordinary person could be expected to do so, has the consequence that it is more likely that he was not truthful when later in court he said that on each occasion the fire was used principally for the preparation of food. Such reasoning falls within the second of the two modes of reasoning referred to by Gaudron J and quoted above.
[29] Above at [24]-[25].
On appeal Mr Tonks argued that evidence of his silence was inadmissible and that it was not open to the Judge to reason in the way that she did. In each respect, this was because to do otherwise would impermissibly undermine the right of silence.
In CFMEU v Boral Resources (Vic) Pty Ltd French CJ, Kiefel, Bell, Gageler and Keane JJ said:[30]
It is well established that the accusatorial nature of a criminal trial means that, under the common law, the onus of proof is upon the prosecution to prove its case. As a corollary, under the common law, the prosecution cannot compel the accused to assist it to discharge its onus. In Do Young Lee v The Queen, this Court said:
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.
(footnotes omitted).
[30] (2015) 256 CLR 375 at [36]; see also at [61]-[64] (Nettle J); see further, Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 527 (Deane, Dawson and Gaudron JJ).
In Petty v the Queen; Maiden v The Queen Mason CJ, Deane, Toohey and McHugh JJ said:[31]
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. …
That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
[31] (1991) 173 CLR 95 at 99; see also at 107 (Brennan J). See further, RPS v The Queen (2000) 199 CLR 620; Weissensteiner v The Queen (1993) 178 CLR 217.
In my view Mr Tonks’ case is distinguishable from the sorts of case contemplated in the authorities just mentioned. If I am right in my conclusion that cl 5(5)(b) of the Policy is an exception within the meaning of s 56 SPA, with the consequence that proof of the elements of the defence created by cl 5(5)(b) form no part of the prosecution case, the process of reasoning engaged in by the trial Judge cannot have undermined the right of silence. As the authorities quoted above make plain, the right of silence reflects the onus of proof. That is why in Petty v the Queen; Maiden v The Queen Gaudron J expressly excludes from her treatment of the use that may be made of an accused’s silence upon their prosecution cases where insanity is the defence.[32] At common law an accused who said he or she was not guilty by reason of insanity bore the onus of proving as much on the balance of probabilities.[33]
[32] (1991) 173 CLR 95 at 128-129.
[33] Woolmington v Director of Public Prosecutions [1935] AC 462 at 481 (Viscount Sankey LC); R v McNaughten (1843) 8 ER 718 at 722 (Tindal LCJ, Lord Brougham, Lord Campbell, Lord Cottenham, Lord Wynford).
Here the use made by the Judge of Mr Tonks’ silence was not a step in the process of reasoning to guilt. The prosecution case had, in effect, been agreed. The purpose in burning was irrelevant to the prosecution case. Rather, the use made by the Judge of Mr Tonks’ silence was a step in the process of determining whether Mr Tonks had discharged the onus he bore of proving on the balance of probabilities that he was using the fire principally for the purpose of preparing food.
I would dismiss the third and fourth grounds of appeal.
Was the Judge right to reason that if food was cooking in the fire in all probability those nearby could smell it? (Ground five)
In the course of rejecting Mr Tonks’ evidence that his purpose in burning on 17 May 2015 and again on 7 June 2015 was to cook damper and potatoes the Judge reasoned that because neither Mr Howard nor Mr Ritorto could smell food cooking it was improbable that Mr Tonks was in fact cooking food.[34] Mr Tonks contends that there was no evidence capable of supporting this chain of reasoning. Additionally, he contends that any odour emitted would have to compete with that of the smoke generated by the burning wood. Accordingly, Mr Tonks submits that the Judge erred in reasoning as she did and that such error fatally infects her conclusion that Mr Tonks’ failed to prove on the balance of probabilities that he was cooking food.
[34] Hourigan v Tonks [2017] SAERDC 8 at [23], [34].
The respondent did not seek to positively defend the Judge’s chain of reasoning but contended that, if she had erred, such error was not central to her overall finding against Mr Tonks. The respondent submitted that the critical finding of fact was found in the penultimate paragraph of her Honour’s reasons:[35]
In fact, the defendant himself indicated to Mr Howard on both occasions that he was burning the wood from the “chook shed”, implying that this was the purpose of each fire.
[35] Hourigan v Tonks [2017] SAERDC 8 at [38].
The chain of reasoning engaged in by the Judge and conclusion arrived at is predicated on the acceptance of two intermediate facts. First, that potatoes and damper wrapped in alfoil and placed in the coals of a fire to cook would, in the course of cooking, emit an odour. Second, that Mr Howard and Mr Ritorto could detect that odour if emitted. I agree with counsel for Mr Tonks that there was no evidence of either intermediate fact. It appears that the Judge has relied upon her own knowledge and experience.
In Coombes v Roads and Traffic Authority Beazley JA said:[36]
… A judge, as part of the fact finding process, is entitled and often required to make a value judgment in respect of matters of fact adduced in evidence. Such evaluation will be based on many factors, including the judge's life experiences as an individual in society and the judge's training and experience as a lawyer or judge. The evaluation, however, must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge.
[36] [2006] NSWCA 229 at [68].
In Holland v Jones Isaacs J, with whom Barton ACJ agreed, in the course of discussing when judicial notice could be taken of a fact, said:[37]
The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not “general” but “particular” facts. As to “particular” facts, even the Judge’s own personal knowledge is not to be imported into the case: Hurpurshad v. Sheo Dyal and Meethun Bebee v Busheer Khan. To import knowledge of a particular fact in issue would be to import evidence in the strict sense regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.
(footnotes omitted).
[37] (1917) 23 CLR 149 at 153.
In my view it was not open to the Judge to reason as she did absent any evidence capable of supporting the two intermediate facts to which I have referred. The highest the evidence rises is that Mr Howard could not smell food cooking and neither could Mr Ritorto. Each of those facts is a piece of circumstantial evidence that may be taken into account with all the other evidence in determining whether Mr Tonks had proven on the balance that he was burning a fire for the purposes of preparing food. To use the evidence of Mr Howard and Mr Ritorto in this way is to engage in a different process of reasoning to that undertaken by the Judge.
Once the Judge concluded that it was improbable that potatoes and damper were cooking in the coals without Mr Ritorto and Mr Howard smelling them, she had, in effect, concluded that it was more likely than not that potatoes and damper were not cooking. Bearing in mind the onus of proof borne by the appellant, such finding was enough to foreclose his reliance upon cl 5(5)(b) of the Policy. It also destroyed his credibility.
That it was improbable that potatoes and damper were cooking in the coals without Mr Ritorto and Mr Howard smelling them was one of the two primary reasons the Judge gave for rejecting the appellant’s evidence in relation to each fire (the other being the likelihood that if he was cooking food he would have said as much when informed by Mr Howard that it was lawful to burn for such purpose). In the circumstances it cannot be said that the reasoning error was insignificant to the ultimate conclusion.

I appreciate that the finding that Ms Warren’s evidence was a fabrication is not expressed as in anyway dependent upon the conclusion that it was improbable that food would have been cooking and Mr Howard and Mr Ritorto not smelled it, and that if Ms Warren had fabricated her evidence then it must follow that the appellant had done likewise, but no doubt the finding that it was improbable that food would have been cooking and Mr Howard and Mr Ritorto not smelled it lent greater comfort to such conclusion that Ms Warren had lied.
I would allow the fifth ground of appeal.
Conclusion
I would allow the appeal, set aside the convictions and remit the matter to be tried afresh.