Water NSW v Faulkner

[2016] NSWLEC 17

Land and Environment Court

New South Wales

Medium Neutral Citation:

Water NSW v Faulkner [2016] NSWLEC 17

Hearing dates:

8 - 10 February 2016

Date of orders:

11 March 2016

Decision date:

11 March 2016

Jurisdiction:

Class 5

Before:

Preston CJ

Decision:

Each summons is dismissed

Catchwords:

OFFENCES – prosecution – unlawful transportation and deposition of waste in catchment area – defendant pleads not guilty – whether defendant deposited waste in catchment area – whether deposition of waste by defendant in catchment area only reasonable conclusion on established facts – not established that deposition of waste by defendant in catchment area only reasonable conclusion – finding that reasonable alternative conclusion open – defendant acquitted

 

PRACTICE AND PROCEDURE – jurisdiction – whether court has jurisdiction concerning offences under repealed regulation – whether court’s jurisdiction lost by consequential amendment of Land and Environment Court Act 1979 – whether s 30(1) of Interpretation Act 1987 preserved court’s jurisdiction – finding that court has jurisdiction

 

PRACTICE AND PROCEDURE – authority to prosecute – whether prosecutor has authority to prosecute offence under Protection of the Environment Operations Act 1997 – prosecutor has authority to prosecute offences involving “relevant non-scheduled activities” – whether activity subject of offence a “relevant non-scheduled activity” – finding

  that activity was a “relevant non-scheduled activity” – finding that prosecutor has authority

Legislation Cited:

Interpretation Act 1987 s 30(1), 30(1)(c), 30(1)(e)
Land and Environment Court Act 1979 s 21(a1)
Protection of the Environment Operations Act 1997, ss 47, 47(3), 143, 143(1), 143(3C), 217, 217(1), 217(2), Sch 1 cl 39(1)
Sydney Water Catchment Management Act 1998
Water NSW Act 2014

Protection of the Environment Operations (General) Regulation 2009 cl 46
Sydney Water Catchment Management Regulation 2008 cll 12(1)(a), 15, 23, 23(1), 23(1)(a), 23(1)(f), Sch 1, Sch 2
Water NSW Regulation 2013, cll 4(1), 4(2)(a), 4(2)(c), 35

Cases Cited:

Water NSW v Faulkner [2015] NSWLEC 158

Category:

Principal judgment

Parties:

Water NSW (Prosecutor)
Mr Craig Stuart Faulkner (Defendant)

Representation:

Counsel:
Mr D Jordan SC with Mr A Isaacs (Prosecutor)
Mr T G Howard SC (Defendant)

  Solicitors:
HWL Ebsworth (Prosecutor)
Woolf Associates (Defendant)

File Number(s):

50200-50204 of 2015

Publication restriction:

No

Judgment

The criminal charges and the verdict

1. Mr Faulkner is charged with committing four offences against the Sydney Water Catchment Management Regulation 2008 (‘the SWCM Regulation 2008’) and one offence against the Protection of the Environment Operations Act 1997 (‘the POEO Act’) by unlawfully transporting and depositing waste on land in a catchment area. Mr Faulkner has pleaded not guilty to each charge. Mr Faulkner also challenged the charges on two other bases: first, the Court does not have jurisdiction to hear and determine the four charges under the SWCM Regulation 2008 and secondly, the prosecutor, Water NSW, does not have power to prosecute the charge under the POEO Act.

2. Although Mr Faulkner and the prosecutor sought to have these two challenges to the charges heard and determined prior to the trial, I ruled that they should be heard at the trial and determined at the same time as the substantive issues raised by the charges.

3. A trial has now been held. I reserved judgment on all issues. I have determined that: first, the Court does have jurisdiction to hear and determine the four charges under the SWCM Regulation 2008; second, Water NSW is empowered to prosecute the charge under the POEO Act; and third, the prosecutor has not proven beyond reasonable doubt that Mr Faulkner committed the four offences under the SWCM Regulation 2008 or the offence under the POEO Act and therefore all of the charges should be dismissed. I will deal with each of the challenges and the defence to the charges in turn.

The Court has jurisdiction

4. Mr Faulkner sought leave to re-agitate the issue of whether the Court has jurisdiction to hear and determine the four charges under the SWCM Regulation 2008. Mr Faulkner had raised this issue at the hearing of the prosecutor’s application to amend its summons to correctly identify the statutory provisions that created the offences charged in the summons. Each summons had originally referred to “the Sydney Water Catchment Management Regulation 2013 now known as the Water NSW Regulation 2013”. That Regulation was not in force at the time Mr Faulkner was alleged to have committed the offences on 14 June 2013. The applicable statutory provisions were under the SWCM Regulation 2008.

5. The prosecutor’s application to amend was granted by Moore AJ for the reasons published in Water NSW v Faulkner [2015] NSWLEC 158. Moore AJ rejected Mr Faulkner’s application that the Court did not have jurisdiction to hear and determine the amended charges. Moore AJ held that the savings provision in cl 35 of the Water NSW Regulation 2013 saved the jurisdiction of the Court.

6. Mr Faulkner contended that this was an error and sought leave to re-agitate the issue at the trial. The prosecutor opposed leave being granted but submitted, in any event, that Mr Faulkner’s contention should be rejected.

7. Mr Faulkner’s contention was based on the amendment to the Land and Environment Court Act 1979 (‘the Court Act’) consequential upon the repeal of the Sydney Water Catchment Management Act 1998 (‘SWCM Act’) and the SWCM Regulation 2008. Section 21(a1) of the Court Act had given the Court jurisdiction (in Class 5) to hear and dispose of, in a summary manner, proceedings under the SWCM Act or offences under regulations made under that Act. One such regulation was the SWCM Regulation 2008. Hence, the Court had jurisdiction, under this provision of the Court Act, to hear and dispose of the four charges against Mr Faulkner under the SWCM Regulation 2008.

8. On 1 January 2015, the SWCM Act and the regulations made under that Act were repealed and replaced by the Water NSW Act 2014 and regulations made under that Act. From 1 January 2015, s 21(a1) of the Court Act was also amended to substitute reference to the current Act, the Water NSW Act 2014, for the reference to the repealed SWCM Act. By this amended provision, the Court has jurisdiction to hear and dispose of, in a summary manner, proceedings under the Water NSW Act 2014 and offences under regulations under that Act. There were no savings or transitional provisions regarding this amendment to s 21(a1) of the Court Act.

9. As a consequence, Mr Faulkner contended, after 1 January 2015, the Court no longer had jurisdiction to hear and dispose of proceedings for offences under the SWCM Regulation 2008, being a regulation made under the repealed SWCM Act.

10. The prosecutor contended that the Court still has jurisdiction to hear and dispose of proceedings for offences under the SWCM Regulation 2008 by dint of s 30(1) of the Interpretation Act 1987. The prosecutor submitted that Mr Faulkner’s liability for the alleged offences under the SWCM Regulation 2008 continued, pursuant to s 30(1)(c) of the Interpretation Act, and the legal proceedings in respect of such liability available to the prosecutor continued pursuant to s 30(1)(e) of the Interpretation Act.

11. As a result, Mr Faulkner’s liability to prosecution and the availability of legal proceedings in this Court were not affected by the repeal of the SWCM Act and the SWCM Regulation 2008 or by the consequential amendments to s 21(a1) of the Court Act.

12. I agree with the prosecutor. The effect of s 30(1) of the Interpretation Act is that the repeal of the SWCM Act and the SWCM Regulation 2008 made under that Act did not affect the liability of Mr Faulkner for offences that he may have committed under that Act and regulation before their repeal (s 30(1)(c)) or any legal proceeding in respect of such liability (s 30(1)(e)) and any such legal proceeding may be instituted as if that Act and regulation had not been repealed (final phrase of s 30(1)). Proceedings for offences against the SWCM Regulation 2008 could, therefore, be initiated after the repeal of the regulation in respect of liability for offences committed before the repeal took effect.

13. Section 30(1) of the Interpretation Act also operated to preserve the Court’s jurisdiction to hear and dispose of such proceedings for offences against the SWCM Regulation 2008, notwithstanding the amendment to s 21(a1) of the Court Act. Proceedings for offences against the SWCM Regulation 2008 may be instituted in the Court as if s 21(a1) of the Court Act had not been amended.

14. As s 30(1) of the Interpretation Act is sufficient to preserve the Court’s jurisdiction to hear and dispose of the proceedings against Mr Faulkner for offences under the SWCM Regulation 2008, it is not necessary to determine whether cl 35 of the Water NSW Regulation 2013 also supports the Court having jurisdiction, as Moore AJ had earlier held.

15. I would not grant leave for Mr Faulkner to re-agitate the issue of the Court’s jurisdiction, if leave be required, because the argument that the Court does not have jurisdiction must fail.

The prosecutor has authority to prosecute

16. Mr Faulkner contended that Water NSW does not have authority to prosecute for an offence against s 143 of the POEO Act. Mr Faulkner submitted that only the Environment Protection Authority (‘EPA’) has power to prosecute for that offence. Mr Faulkner’s argument depends on the activity involved in the commission of the offence being a scheduled activity under the POEO Act.

17. Section 217 of the POEO Act provides that the EPA may institute proceedings for an offence against the POEO Act or the regulations (s 217(1)) but also that any such proceedings may be instituted by “the appropriate regulatory authority … in connection with a matter for which it is the appropriate regulatory authority” (s 217(2)). The prosecutor, Water NSW, is an appropriate regulatory authority in connection with certain matters. Clause 4(1) of the Water NSW Regulation 2013 provides that:

The Regulatory Authority has the same functions as the EPA or any other regulatory authority (including the functions of the appropriate regulatory authority) under the following provisions of the Protection of the Environment Operations Act 1997 in relation to relevant non-scheduled activities and in relation to an offence set out in Part 3 of this Regulation:

…

(c)   Division 2 of Part 8.2 (Proceedings for offences).

18. A “non-scheduled activity” is defined in the Dictionary to the POEO Act as an activity “that is not a scheduled activity and is not scheduled development work”. A “scheduled activity” is defined as any activity listed in Sch 1 to the POEO Act. Amongst the activities listed in Sch 1 is waste disposal by application to land (cl 39 of Sch 1). A “scheduled development work” is work referred to in s 47(3) of the POEO Act.

19. Non-scheduled activities within the meaning of the POEO Act are “relevant non-scheduled activities” for the purposes of cl 4(1) of the Water NSW Regulation 2013 if the activities are to be carried out or proposed to be carried out, amongst other places, within a declared catchment area or within a controlled area: cl 4(2)(a) and (c) of the Water NSW Regulation 2013. Mr Faulkner accepted that the waste which was the subject of the offence charged was transported to and deposited on land within a declared catchment area or within a controlled area.

20. Mr Faulkner submitted that cl 4(1) of Water NSW Regulation 2013 gave power to Water NSW to institute proceedings for offences against the POEO Act in relation to relevant non-scheduled activities, but not any scheduled activities. Mr Faulkner submitted that an offence under s 143 of the POEO Act is in relation to a scheduled activity, being waste disposal by application to land. Although the elements of the offence in s 143(1) only concern the transportation of waste to a place that cannot lawfully be used as a waste facility, and not the deposition of waste at that place, it is a defence under s 143(3C) of the POEO Act 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.

21. Mr Faulkner noted that the charge made by the prosecutor was that Mr Faulkner transported waste to a place within a catchment area which could not lawfully be used as a waste facility for that waste and deposited it at that place. The deposition of waste at that place was a scheduled activity. Hence, Mr Faulkner submitted, the charge that Mr Faulkner committed an offence against s 143(1) of the POEO Act was in relation to a scheduled activity. Water NSW was not given, by cl 4(1) of the Water NSW Regulation 2013, the same function as the EPA to prosecute for an offence in relation to a scheduled activity.

22. The prosecutor submitted that the offence against s 143(1) of the POEO Act charged was not in relation to a scheduled activity or a scheduled development work. The transportation of waste to land that was within a catchment area is an “activity” (see Dictionary to the POEO Act) but not one that is either a scheduled activity (see Sch 1 to the POEO Act) or scheduled development work (see s 47 of the POEO Act and cl 46 of the Protection of the Environment Operations (General) Regulation 2009). The prosecutor accepted that deposition of waste on the land in the manner charged was a scheduled activity because it involved waste disposal by application to land within the meaning of cl 39(1) of Sch 1 to the POEO Act, so that an environment protection licence was required. However, deposition of waste is not an element of the offence against s 143(1) with which Mr Faulkner was charged. The elements of the offence against s 143(1) only concern the transportation of waste, not its subsequent deposition. The fact that it is defence under s 143(3C) that waste was not deposited, does not make the deposition of the waste an element of the offence.

23. The activity that constitutes the offence charged is the transportation of the waste to a place in the catchment area and not its deposition at that place. The transportation of waste is a non-scheduled activity and the transportation of waste to a place within a declared catchment area is a relevant non-scheduled activity. Clause 4(1) of the Water NSW Regulation 2013 gives Water NSW the same functions as the EPA in relation to that relevant non-scheduled activity, including instituting proceedings for an offence against s 143(1) of the POEO Act.

24. I agree with and adopt the prosecutor’s submissions. By cl 4(1) of the Water NSW Regulation 2013, the prosecutor had the same functions as the EPA in relation to the unlawful transportation of waste to a place within a declared catchment area, including to institute proceedings for an offence against s 143(1) of the POEO Act. The prosecutor was empowered to prosecute Mr Faulkner for the charge under s 143(1) of the POEO Act.

The defendant not proven to be guilty

25. At the heart of each of the offences with which Mr Faulkner is charged is the allegation that Mr Faulkner deposited waste in bushland off Rowlands Road at Kangaloon, which was in a catchment area. As I will explain when I summarise the salient facts, there is no contest that some of the waste found in a pile of waste in the catchment area was waste that Mr Faulkner collected from premises during his waste collection round for a waste collection company on 14 June 2013. The critical question is: did Mr Faulkner deposit it there?

26. The prosecutor’s case against Mr Faulkner is a circumstantial one. No witness saw Mr Faulkner dump the waste at that location. Instead, the prosecutor relied on the surrounding circumstances to establish that Mr Faulkner is the only person who could have deposited the waste on the land on 14 June 2013. The prosecutor submitted that, based on the whole of the evidence, there is no conclusion that can be drawn that is inconsistent with the guilt of Mr Faulkner.

27. Mr Faulkner denied that he deposited any of the waste on the land, including the items that he admitted he collected as part of his waste collection round. His case is that the truck he was driving on 14 June 2013 had a defective rear door, in that it came open about 12 inches during the waste collection round. The open rear door would have allowed some waste, particularly loose rubbish, to have fallen out of the back of the truck onto the road. The person who reported the pile of waste noticed rubbish strewn on the road not far from the pile of waste. Mr Faulkner submitted that it is possible that the person, or another person, may have collected the rubbish strewn on the road and added it to the nearby pile of waste. By this two-step process, waste collected by Mr Faulkner could have found its way onto the pile of waste in the catchment area. Mr Faulkner submitted, therefore, that there was another reasonable explanation for the facts other than that Mr Faulkner is guilty of the offences as charged.

28. I find that the prosecutor has not proven its case on each charge beyond reasonable doubt. The prosecutor has not established that the conclusion that Mr Faulkner deposited the waste on the land in the catchment area is the only reasonable conclusion that can be drawn from a consideration of all of the facts viewed as a whole. There is another reasonable conclusion open on the facts that is inconsistent with the conclusion that Mr Faulkner deposited any of the waste on the land in the catchment area. This is that the waste came to be placed on the pile of waste by the two step process suggested by Mr Faulkner.

The charges in more detail

29. The prosecutor charged Mr Faulkner with committing four offences against the SWCM Regulation 2008. The first offence was leaving waste on land in a special area, contrary to clause 12(1)(a) of the SWCM Regulation 2008. Clause 12(1) provides that:

A person must not:

(a)   bring into or leave on land in a special area or a controlled area any waste …

30. The second offence was entering land in a special area in contravention of a sign requiring persons not to enter a special area, contrary to cl 15(2) of the SWCM Regulation 2008. Clause 15 provides:

(1)   The SCA may erect a sign or notice on Crown land or SCA land that is in a special area or a controlled area requiring persons not to enter or remain on the land to which the sign relates.

(2)   A person must not enter or remain on any land in contravention of a sign or notice erected under this clause.

31. The offences contrary to clauses 12 and 15 of SWCM Regulation 2008 concern land in a “special area”. Special areas are identified in Schs 1 and 2 of the SWCM Regulation 2008. One of the special areas identified in Sch 1, being the portion of land coloured pink on the map marked “Schedule 1 Areas” deposited in the Office of Water NSW, is the Metropolitan Catchment Area as proclaimed in Gazette No 79 of 13 July 1923 and amended by proclamation published in Gazette No 79 of 26 May 1933.

32. The parties have agreed that the bushland off Rowlands Road, within a property legally described as Lot 13 in DP 1092321, on which waste was deposited, was part of a special area identified in Sch 1 of the SWCM Regulation 2008 as the Metropolitan Catchment Area.

33. The evidence established, and Mr Faulkner did not contest, that there were numerous signs along Rowlands Road, and in particular at the intersection of Rowlands Road and a track that led into the special area towards the place in the bushland on which waste was deposited, requiring persons not to enter the special area of the Metropolitan Catchment Area. The contest between the parties was whether Mr Faulkner entered the special area and deposited waste in the special area. Rowlands Road was itself not within the special area. Any waste that might have fallen out of the truck that Mr Faulkner was driving onto Rowlands Road did not involve depositing waste within the special area.

31. The third offence was driving a vehicle on Schedule 1 land, contrary to cl 23(1)(a) of the SWCM Regulation 2008. The fourth offence was damaging plants on Schedule 1 land, contrary to cl 23(1)(f) of the SWCM Regulation 2008. Clause 23(1) provided so far as is relevant:

A person must not do any of the following on Schedule 1 land or Schedule 2 land:

(a)   drive, ride or be a passenger in or on any vehicle,

…

(f)   damage or remove any plant or part of a plant …

35. The offences contrary to cl 23 of the SWCM Regulation 2008 concern conduct on Schedule 1 land. Schedule 1 land is defined in cl 19 of the SWCM Regulation 2008 to mean “the special areas and controlled areas identified in Schedule 1 other than land that is private land or land that is identified in that Schedule as excluded land”. The parties have agreed that the bushland off Rowlands Road in which the waste pile was located was within a special area identified in Schedule 1 to the SWCM Regulation 2008 (being part of the Metropolitan Catchment Area) and was not private land or land that was identified in that Schedule as excluded land.

36. The evidence established, and Mr Faulkner did not contest, that a vehicle had been driven into the bushland that was within Schedule 1 land to deposit at least some of the waste in the pile and had damaged plants thereby. What was in contest between the parties was whether Mr Faulkner had driven a vehicle on that Schedule 1 land and whether it was his vehicle that had damaged the plants on that land.

37. The prosecutor charged Mr Faulkner with one offence of transporting waste to a place that could not lawfully be used as a waste facility for that waste, contrary to s 143(1) of the POEO Act. Section 143(1) provides:

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.

38. “Waste” is defined in the Dictionary of the POEO Act to include:

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

39. “Waste facility” is defined in the Dictionary of the POEO Act to mean:

any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).

40. “Premises” is defined in the Dictionary of the POEO Act to include “land or a place (whether enclosed or built on or not)”.

41. The evidence established, and Mr Faulkner did not contest, that the waste that had been disposed of in the bushland in the catchment area was waste as defined, that the bushland was premises as defined, that the bushland had been used for the disposal of waste and hence as a waste facility as defined, and that the bushland could not lawfully be used as a waste facility for that waste.

42. What was in contest was whether Mr Faulkner transported waste to the bushland in the catchment area where waste had been disposed of.

The evidence of the collection, transportation and disposal of the waste

43. Mr Faulkner was employed as a garbage truck driver by the business “Highland Tip Trips” from April 2012 until 14 August 2014. Mr Faulkner was paid by the hour for the hours that he worked. Highland Tip Trips provides the only privately owned independent waste collection service in the Wingecarribee local government area. Highland Tip Trips disposes of the waste collected at the Resource Recovery Centre at Moss Vale (known colloquially as the Moss Vale Tip).

44. On Friday 14 June 2013, Mr Faulkner drove the only garbage truck used by Highland Tip Trips on that day, a white international Acco 2350G model truck. The truck had a body with a capacity of 18m³. It had a side loading device which lifted the waste bins up and emptied them into a hopper in the body located at the front (driver’s) end. There was a compactor in the body which had a paddle which pushed and compressed the waste to the rear of the body. Once the switch for the compactor was activated, the compactor automatically operated after each bin was emptied into the hopper. The waste emptied into the body was pushed against the rear door of the truck. Because the rear door was curved, the waste was pushed against and up the rear door. The rear door lifted from the bottom and was hinged at the top. There was a hydraulic ram on either side of the rear door. The rams operated simultaneously to open the rear door. The body of the truck was also raised by a hydraulic ram so that waste fell out of the truck by the rear door.

45. The waste collection run scheduled for Friday 14 June 2014 was referred to as the Friday 1 run. This run was carried out every fortnight and the other run was the Friday 2 run, which was carried out on the alternate fortnight.

46. Mr Faulkner was provided by Mr Bonello, the owner of Highland Tip Trips, with a run sheet for the Friday 1 run that listed the names and the addresses of the customers scheduled to have their waste collected and the number of bins that they had paid to be collected. Mr Faulkner marked the run sheet as he went, recording the number of bins collected for each customer on the run sheet.

47. Mr Faulkner said that he had driven the white truck the day before (Thursday 13 June 2013) and had parked it overnight at his home in Mary Street, Mittagong. Mr Faulkner said that he commenced the run before dawn on 14 June 2013, starting with the customers closest to his home in Mittagong followed by other customers in Mittagong. Mr Faulkner said that he then drove to Bowral where, amongst other premises, he collected three bins from “The Bowral Cafe and Patisserie” (‘Bowral Cafe’) and three bins from “Gloria Jean’s Coffees” (‘Gloria Jean’s’) in the town of Bowral. Mr Faulkner said he would have collected the bins from the Bowral Cafe at about 5.00am in the morning. After Bowral, Mr Faulkner said that he drove to Berrima where, amongst other premises, he collected one bin from Mr and Mrs Cupitt’s house. In the order in which Mr Faulkner collected the waste on that day, the waste from Bowral Cafe, Gloria Jean’s and Mr and Mrs Cupitt would have been collected early in the run. This waste would therefore have been pushed by the compactor to the rear of the body against the rear door.

48. After Berrima, Mr Faulkner drove to and collected waste in Moss Vale, Burradoo, and then back in Bowral. He then collected waste in rural areas to the east of Bowral and Mittagong and drove on to Glenquarry. From Glenquarry he drove down Tourist Road, heading for East Kangaloon. Mr Faulkner collected waste along Tourist Road and various side roads off it. One of these side roads was Rowlands Road.

49. Rowlands Road runs roughly north-south off Tourist Road. To the east of Rowlands Road lies the special area of the Metropolitan Catchment Area. Ten signs are located along the eastern side of Rowlands Road prohibiting entry into the catchment area. Rowlands Road continues for about 1.4 kms to a Y-intersection, where it branches to give access to three private properties. About 300m before this Y-intersection there is a track running off Rowlands Road to the east. There is a sign at the intersection of the track with Rowlands Road (the 8th sign along the road coming from Tourist Road) prohibiting entry into the catchment area. The place in which waste was deposited was in bushland about 50m up this track running off Rowlands Road.

50. The customers along Rowlands Road only had their waste collected on the Friday 1 run. On 14 June 2013, Mr Faulkner drove down Rowlands Road to the Y-intersection where there were bins for the three customers who lived down Rowlands Road. He collected three bins from this locaton. He turned the truck around and drove back along Rowlands Road where he collected one more bin from another customer along the road. Mr Faulkner drove back to and turned right onto Tourist Road.

51. Mr Faulkner drove along to the intersection of Tourist Road and Kirkland Road, collected one bin there, and then turned onto Kirkland Road. He collected two more bins from customers along Kirkland Road before he stopped to collect the bin of another customer on Kirkland Road, Mr Yabsley. Mr Faulkner said that he accidentally knocked the bin over when he was trying to lift it. Mr Faulkner stepped out of the truck and righted the bin which was then able to be emptied into the truck. Mr Faulkner said that this was when he noticed that the rear door of the truck had opened about 12 inches. Mr Faulkner saw that there was cardboard and other material sticking out of the back of the truck.

52. Mr Faulkner drove to a nearby dairy farmer (Mr Whatman) on Kirkland Road to seek assistance in closing the rear door of the truck. Mr Faulkner did not collect any further bins along the way. Mr Faulkner drove into Mr Whatman’s property about 11.30am.

53. Mr Whatman observed that the rear door of the truck was ajar (about 12 inches) and some rubbish was caught hanging between the door jams. Mr Faulkner asked Mr Whatman for assistance in closing the rear door of the truck. They decided to use Mr Whatman’s tractor with a front end loader to push the bottom of the door while Mr Faulkner operated the controls of the truck to close the door. Mr Faulkner said to Mr Whatman that “the door must have come apart whilst I was driving along the road”. They tried a couple of times to get the rear door closed using the tractor. Mr Whatman noticed that the rear door appeared to be moving but they could not get the door to lock. They were able to close the gap, however, to one to two inches (Mr Faulkner) or two to three inches (Mr Whatman). Mr Faulkner said to Mr Whatman that he would tell his employer (Mr Bonello) and “nurse the truck back to the tip”. Mr Whatman observed that when Mr Faulkner drove off the rear door remained ajar, with rubbish still caught and hanging out near the door jams.

54. Mr Faulkner drove out of Mr Whatman’s property and turned right onto Kirkland Road and headed south towards East Kangaloon. Mr Faulkner said that he needed to drive to a location where he would have mobile phone reception so that he could ring Mr Bonello.

55. Mr Faulkner collected a few bins along Kirkland Road. He then turned right onto Kangaloon Road and headed west. He stopped the truck near Hawthorn Lane where he rang Mr Bonello. Mr Bonello recalled the conversation to be to the following effect:

He said: Hi Vince, I’m out near Kangaloon and I’ve noticed that the back door of the truck has popped open. I have tried to close it but it won’t close. I’ve called into Mr Whatman’s property and he helped me try to push the door closed with the bucket of his tractor but we couldn’t close it.

I said: Where exactly are you?

He said: At the corner of Kirkland Road and Kangaloon Road.

I said: Where did it come open?

He said: I’m not sure.

I said: Is there a trail of rubbish behind you? Has any rubbish escaped?

He said: I can’t see any rubbish trail on the road behind me.

I said: Try to close the door again and check if there isn’t a leaking oil valve causing the rams to creep and open the back door. If it’s creeping then we will get it seen to but if not then we may not be able to fix it. For now drive slowly to Moss Vale Tip and unload the truck there. Keep an eye out in your mirrors for any rubbish escaping. If there is you will need to pull over and get back to me. If you are able to unload do that and then see if you can close the door. If you can, then go and finish the run but check the back door so it’s not creeping open.

He said: Okay.

56. Mr Faulkner’s recollection of the conversation with Mr Bonello was to a similar effect.

57. After this conversation, Mr Faulkner drove directly to the Moss Vale Tip on the road between Moss Vale and Berrima. Mr Faulkner emptied the truck at the tip. He was recorded at the tip as having deposited 4.48 tonnes of waste. Mr Faulkner recorded on the Friday 1 run sheet that he had collected 245 bins. Mr Faulkner said that the amount of waste was average for the Friday 1 run, perhaps a little less because a few bins had not been put out.

58. Mr Faulkner said that he then drove back to Kirkland Road to collect the bins that he had not collected after he had discovered that the rear door had partially opened. Mr Faulkner resumed the Friday 1 run from Mr Yabsley’s place, collecting waste along Moresby Hill Road, Kirkland Road, Kangaloon Road and then on to Chevalier College in Bowral.

59. Mr Bonello recorded that he spoke later in the day with Mr Faulkner to the following effect:

I said: Hi Craig, how did you get on today with the truck?

He said: I emptied the truck at the Tip and the door closed okay and I went back and finished the usual run. Actually from when I rang you I emptied the bins up to Hawthorn Lane before I went to the Tip.

I said: Okay. So did you get the run finished?

He said: Yes.

60. Mr Faulkner said that he did not go back to Moss Vale Tip with the extra waste that he had collected but instead left it in the truck over the weekend.

61. The waste in the bushland in the catchment area off Rowlands Road was reported by a resident of a rural property on Rowlands Road (Ms Dunn). Ms Dunn’s property is beyond the Y-intersection on Rowlands Road. Ms Dunn gave a written statement to the prosecutor but was not called to give evidence at the trial.

62. Ms Dunn said that she regularly walked on Rowlands Road with her dog and that she was doing so on Tuesday 18 June 2018. Ms Dunn said:

On passing the last entrance of the fire trail toward my home, I noticed rubbish strewn over the forest path and on the road. My dog headed in, returning with a mouthful of waste, I walked in to inspect and noticed a large pile of rubbish. On returning home, I rang Wingecarribee Council to report the dumping.

63. The fire trail referred to by Ms Dunn is the track leading east off Rowlands Road into the catchment area that is about 300m from the Y-intersection on Rowlands Road.

64. Mr McCrae, a Council ranger with Wingecarribee Council, went out to inspect the site on the morning of Wednesday 19 June 2013. He marked the entrance to the track with red/white tape. As the pile of rubbish was located in a catchment area, Mr McCrae contacted Water NSW. Mr Muldoon, a compliance officer of Water NSW, visited the site after being contacted by Mr McCrae in the afternoon of 19 June 2013.

65. Mr Muldoon observed that the entrance to the track off Rowlands Road was marked with red/white flagging tape. Mr Muldoon said in cross-examination that he did not observe any rubbish strewn over Rowlands Road or the track, unlike Ms Dunn.

66. Mr Muldoon said that he drove his vehicle approximately 50m down the track whereupon he arrived at a pile of waste approximately 5m off the right hand side of the track in an area of native bushland. He alighted from his vehicle. He observed that low growing vegetation was damaged and trampled down. He observed what he considered to be two dual wheel impressions within the topsoil and damage to vegetation. He observed that there was damage to a eucalypt sapling, being scraping of the bark on the trunk of the tree in a downward motion.

67. Mr Muldoon observed a pile of waste which appeared to be approximately 5-6m³. Upon inspection of the pile of waste, it appeared to consist of commercial and domestic waste which included food scraps, domestic household waste and cooking oil drums. Mr Muldoon could identify from the waste a number of owners of the waste including:

1. a quantity of disposable coffee cups from Gloria Jean’s;

2. cash register receipts belonging to Bowral Cafe; and

3. documents addressed to Mr and Mrs Cupitt.

68. Mr Muldoon did not inspect all of the waste in the pile. Mr Muldoon said that the waste was putrid and smelly. He inspected just a small proportion of the waste in the pile. He said that he may have looked inside a plastic bag in the pile. Mr Muldoon collected only some items of waste. These items were tendered in evidence and comprised about 50 cash register receipts from Bowral Cafe (many dated 13 June 2013) and four documents with Mr or Mrs Cupitt’s name on them. Mr Muldoon accepted in cross-examination that he did not know whether all of the waste in the pile was deposited at the same time; he merely assumed that it had been. Mr Muldoon arranged for contractors to remove the pile of waste and dispose of it at a tip. There was no inspection of what was in the waste that was removed.

69. Mr Muldoon accepted in cross-examination that the rubbish which Ms Dunn had seen on her walk on 18 June 2013 strewn over the track and on Rowlands Road was no longer there when he went in the afternoon of the next day, 19 June 2013. He said, when asked how the rubbish could no longer be there, that he assumed that someone may have picked it up. Mr Muldoon said that people may not have liked seeing litter in their surroundings and the environment in which they live and would have wanted to clean it up. Ms Dunn certainly wanted the rubbish cleaned up because she rang the Council to report the rubbish and ask for it to be removed.

70. Mr Faulkner said that he was aware of the track leading off Rowlands Road, however, he said that he did not drive off Rowlands Road and up the track on 14 June 2013 and that at no time during the period he had been driving trucks for Highland Tip Trips had he ever driven up the track. Mr Faulkner said that he did not deposit the pile of waste in the bushland off the track in the catchment area. He did not know how that pile of waste came to be in the bushland. He could not explain how dockets and waste from Bowral Cafe or from Mr and Mrs Cupitt came to be in that pile of waste.

The circumstantial case of the prosecutor

71. The prosecutor submitted that Mr Faulkner is the only person that could have deposited the waste in the catchment area on 14 June 2013 because:

1. Mr Faulkner accepted that he was the driver of the truck collecting waste and the only person in the truck on 14 June 2013;

2. Mr Faulkner drove the only truck being used by Highland Tip Trips on 14 June 2013;

3. Mr Faulkner accepted that on 14 June 2013 he had difficulty with the rear door of the truck while carrying out his waste collection run;

4. Mr Faulkner travelled to Rowlands Road on 14 June 2013 as part of his waste collection route;

5. Rowlands Road was the closest part of the route taken by Mr Faulkner on 14 June 2013 to where the waste was located;

6. the waste collection route on 14 June 2013 was known as the Friday 1 run and was carried out every fortnight;

7. the collection of waste from customers of Highland Tip Trips located on Rowlands Road occurs only as part of the Friday 1 run;

8. material was recovered from the pile of waste by Mr Muldoon;

9. amongst the material recovered from the pile of waste by Mr Muldoon were a large number of receipts produced by Bowral Cafe;

10. many of the receipts from Bowral Cafe show a visible date of 13 June 2013 on the receipt;

11. Bowral Cafe had only two waste collections between 14 and 18 June 2013, being on 14 June and 17 June 2013;

12. Mr Faulkner confirmed that he collected waste from Bowral Cafe on 14 June 2013;

13. also amongst the pile of waste that Mr Muldoon seized were documents and other correspondence addressed to Mr and Mrs Cupitt;

14. Mr and Mrs Cupitt had their waste collected on a fortnightly basis on the Friday 1 run;

15. Mr Faulkner confirmed that he collected waste from Mr and Mrs Cupitt on 14 June 2013;

16. in light of the above circumstances, 14 June 2013 was the only date when waste, including receipts dated 13 June 2013, was collected in Bowral from the Bowral Cafe, waste was collected from Mr and Mrs Cupitt in Berrima, and the waste collection route taken by Mr Faulkner involved the collection of waste from Bowral and Berrima en route to the collection of waste from Rowlands Road in very close vicinity to the dumped waste; and

17. the volume and appearance of the dumped waste is consistent with it being part of the waste collected and transported in the course of the waste collection run driven by Mr Faulkner on 14 June 2013.

72. The prosecutor submitted that the only person that could have any reason to be associated with the waste from Mr and Mrs Cupitt and the Bowral Cafe (once it had been put out for collection) was Mr Faulkner when he picked it up on 14 June 2013. The only person with any practical opportunity to dump this waste was Mr Faulkner given the combination of the waste coming from Mr and Mrs Cupitt and the Bowral Cafe, and the location of the waste near Mr Faulkner’s run on Rowlands Road.

73. The prosecutor submitted that, on Mr Faulkner’s description of the route taken and the relevant events, the waste collected from Berrima (including the waste of Mr and Mrs Cupitt) and Bowral (including the waste of Bowral Cafe) would have been disposed of at the Moss Vale Tip and not amongst other rubbish in bushland off Rowlands Road.

74. The prosecutor submitted that it is improbable that two customers of Highland Tip Trips had their waste collected by some other person who then dumped it in bushland located off a track near Rowlands Road, or that any person in Rowlands Road or any other individual randomly dumping waste would have in their possession waste that was collected on the morning of 14 June 2013 from customers of Highland Tip Trips.

75. The prosecutor therefore submitted that there is no rational conclusion inconsistent with the guilt of Mr Faulkner that can explain how customers that had their waste collected on the same waste collection run on 14 June 2013 by Highland Tip Trips would have had their waste dumped in bushland a considerable distance from their premises.

76. The prosecutor submitted that the waste was located in one pile and its appearance suggested that it had been deposited on one occasion. The prosecutor submitted that the dual wheel tyre tracks that Mr Muldoon observed near the pile were consistent with the type of truck driven by Mr Faulkner. The prosecutor submitted that the damage done to the eucalypt sapling was consistent with having been caused by the rear door of the truck.

Mr Faulkner’s defence and other reasonable explanation

77. Mr Faulkner submitted that the prosecutor had not excluded the reasonable explanation that the waste collected by Mr Muldoon from the pile of waste could have fallen out of the truck whilst Mr Faulkner was driving along Rowlands Road near the intersection with the track leading into the catchment area and that a person may have collected that waste and put it on the pile of waste which was already there.

78. Mr Faulkner submitted that it was reasonable to conclude that the waste fell out of the truck along Rowlands Road because:

1. the items of waste sampled by Mr Muldoon that came from Bowral Cafe and from Mr and Mrs Cupitt were collected in the early part of the waste collection run by Mr Faulkner. Early collected waste would have been pushed to the rear of the truck up against the rear door;

2. the compactor would have continued to push waste to the rear of the truck each time bins were emptied into the body of the truck;

3. there was a problem with the rear door of the truck partially opening. The likely explanation was valve creep: leaking oil causing the hydraulic rams on either side of the rear door to creep and open the rear door;

4. Mr Faulkner first noticed that the rear door had partially opened at Mr Yabsley’s property on Kirkland Road. This was only a few properties after Mr Faulkner had been driving on Rowlands Road. The fact that Mr Faulkner first noticed that the rear door had opened only at Kirkland Road does not mean that it had not opened earlier. Mr Faulkner had noticed cardboard and other materials sticking out of the back of the truck. This is consistent with some material being pushed out by the compactor or otherwise falling out of the truck;

5. Mr Faulkner picked up three bins at the Y-intersection on Rowlands Road. The compactor would have operated afterwards and pushed the waste in the body of the truck to the rear. If the rear door had opened by this time, the compactor could have pushed waste closest to the rear out of the truck. The timing may coincide with when Mr Faulkner was returning along Rowlands Road near the intersection with the track;

6. the waste from Bowral Cafe and Mr and Mrs Cupitt, having been collected earlier in the run, would have been at the rear of the body of the truck and hence more likely to fall out through the partial opening of the rear door; and

7. as a matter of fact, rubbish was observed by Ms Dunn on 18 June 2013, strewn over the track and on Rowlands Road.

79. Mr Faulkner submitted that it was reasonable to conclude that any rubbish that did fall out of the truck was moved by someone onto the pile of waste in the bushland off the track in the catchment area. The rubbish that Ms Dunn saw on the track and the road on 18 June 2013 was no longer there when Mr Muldoon came on the afternoon of the following day, 19 June 2013. It had been picked up by someone. The prosecutor did not call Ms Dunn or Mr McCrae to give evidence. Mr Muldoon accepted that it is reasonable to assume that persons may not like seeing litter in their surroundings and the environment in which they live and would want to clean it up. One logical location to place rubbish collected from the track and the road would be onto an existing pile of waste. Mr Faulkner submitted that the waste that fell out of the truck on the road could therefore have been collected and placed on the nearby pile of waste in the bushland off the track in the catchment area.

80. Mr Faulkner also submitted that the prosecutor’s case that he dumped waste in the catchment area is not the only rational conclusion to be drawn because:

1. Mr Faulkner collected waste along most of the Friday 1 run route until he noticed the problem with the partial opening of the rear door at Kirkland Road. After he was unsuccessful in closing the rear door, Mr Faulkner drove to Moss Vale Tip where he dumped 4.48 tonnes of waste (comprising 245 bins). This was about an average load for that run. There was no noticeable reduction in the amount of waste dumped at the tip on the day by Mr Faulkner. This speaks against Mr Faulkner having dumped 5-6m³ of waste in the bushland before he went to the Moss Vale Tip;

2. if Mr Faulkner was going to, and did in fact go, to the Moss Vale Tip, why would he illegally dump only part of the load he had in the truck in the bushland? He would not save himself from having to undertake the journey to the tip;

3. Mr Faulkner was paid by the hour. There was no incentive for him to reduce the time he took in completing the whole of the waste collection run;

4. Mr Faulkner was an employee of Highland Tip Trips and had no responsibility to pay the costs of tipping the waste at Moss Vale Tip; Mr Bonello had to pay the tip costs; and

5. Mr Falkner did not hide the fact that the rear door of the truck that he was driving had partially opened. He went to a stranger’s place to report the problem and to seek assistance in solving it. Mr Faulkner said that he would, and he did in fact, report the problem to his employer, Mr Bonello. Mr Faulkner did as Mr Bonello directed and drove the truck to the tip to dispose of the waste that he had collected to that point in the run. It is not reasonable to infer that Mr Faulkner dumped the waste in the bushland to overcome any problem with the rear door of the truck partially opening.

81. Mr Faulkner also submitted that the prosecutor had not established the other circumstances on which the prosecutor’s circumstantial case relied. The prosecutor had not proven that all of the waste in the pile in the bushland off Rowlands Road was deposited at the same time. Mr Muldoon accepted that he had only inspected a small portion of the pile and that there was no inspection of the pile when it was subsequently removed and disposed of. Mr Muldoon merely assumed that all of the waste had been deposited at the same time. If the waste was not deposited at the same time, Mr Faulkner could not have deposited it all on 14 June 2013.

82. Mr Faulkner submitted that the prosecutor had not proven that the vehicle tyre impressions that Mr Muldoon observed were only consistent with the white truck driven by Mr Faulkner on 14 June 2013 and not by any other vehicle or by a number of vehicles. Mr Faulkner submitted that the prosecutor had not proven that the scrape mark on the eucalypt sapling was only consistent with having been caused by the opening or closing of the rear door of the truck that Mr Faulkner was driving on 14 June 2013.

The prosecutor’s case not proven beyond reasonable doubt

83. I agree with Mr Faulkner that the prosecutor has not established that the only reasonable conclusion that can be drawn from a consideration of all of the facts, viewed as a whole, is that Mr Faulkner drove the truck off Rowlands Road and down the track and dumped waste in the bushland in the catchment area.

84. I have earlier set out the facts that I have found established on the evidence. Considering all of these facts as a whole, I am not satisfied that they establish beyond reasonable doubt Mr Faulkner’s guilt of the offences with which he is charged.

85. It has not been established that the pile of waste in the bushland was dumped on the one occasion on 14 June 2013 and from the one truck. In particular, it has not been established that all of the waste in the pile came out of the truck that Mr Faulkner was driving on 14 June 2013. At best, only a small portion of the waste (comprising the items of waste originating from Bowral Cafe and from Mr and Mrs Cupitt that were collected by Mr Muldoon) has been established to be from the truck that Mr Faulkner was driving on 14 June 2013.

86. It has not been established that the tyre impressions near the pile of rubbish or the damage to the eucalypt sapling next to the pile of rubbish were caused by the truck that Mr Faulkner was driving on 14 June 2013. Mr Muldoon’s evidence about these matters was not persuasive. He only observed tyre marks on trampled vegetation and not on the clearer surface of the dirt track. Mr Muldoon did say that he observed dual wheel tyre tracks, however, he gave no evidence of the width of the tyres or the tread or other distinguishing characteristics which could be matched with the tyres of the truck which Mr Faulkner was driving on 14 June 2013. Mr Muldoon made no attempt to make such a match. Mr Muldoon did not examine whether there was evidence of more than one vehicle having driven to the pile of waste or of a vehicle having driven to the pile of waste on more than one occasion.

87. Similarly, Mr Muldoon did not measure the height and length of the damage to the sapling and match these to where, if the truck had been parked with its wheels at the location of the tyre marks that Mr Muldoon observed, the arc of the rear door when opening or closing might impact the sapling, or otherwise examine the damage to the sapling and match it to the rear door to ascertain whether the rear door could cause the damage observed. Mr Muldoon simply made assumptions about these matters but he did not establish them.

88. Other facts also point against Mr Faulkner having driven into the bushland and dumped some of the load of waste that he was carrying in his truck in the bushland. These are the facts that Mr Faulkner referred to in his submissions and that I have set out earlier concerning Mr Faulkner’s employment and lack of any incentive to illegally dump waste, Mr Faulkner’s conduct in trying to fix and in reporting the problem with the partially opened rear door of the truck and his conduct in taking an average load of the waste that he had collected on 14 June 2013 to the Moss Vale Tip. It makes little sense in the circumstances for Mr Faulkner to have dumped only a small portion of all of the waste that he had collected to that point in the bushland of the catchment area but to have then proceeded to the Moss Vale Tip an hour or so later to dump the remaining vast bulk of the waste that he had collected.

89. However, even if the conclusion that Mr Faulkner drove into and dumped the waste in the bushland could be found to be a reasonable one to draw on all of the facts (which I do not find), it is not the only reasonable conclusion that can be drawn from those facts. For the reasons Mr Faulkner has submitted that I have set out earlier, a reasonable inference to be drawn from the facts is that some of the waste from the truck was pushed out by the compactor or otherwise fell out through the partially opened rear door of the truck onto Rowlands Road near the intersection with the track leading east into the catchment area. That waste was likely to include waste from Bowral Cafe and Mr and Mrs Cupitt, as that waste had been collected early in the run and would have been pushed up against the rear door. Rubbish was in fact seen on the road and track at this location by Ms Dunn on 18 June 2013. By the next day, the rubbish was no longer there. It is reasonable to infer that someone moved the rubbish that had been on the road and track to the pile of waste in the bushland. This provides a reasonable alternative explanation of how waste from Bowral Cafe and Mr and Mrs Cupitt might have found its way onto the pile of waste in the bushland.

90. The existence of another reasonable conclusion open on the facts that is inconsistent with the conclusion that Mr Faulkner drove the truck into the catchment area and dumped the waste in a pile in the bushland means that the prosecutor’s circumstantial case must fail.

The proceedings are dismissed

91. The prosecution has failed to prove beyond reasonable doubt that Mr Faulkner committed each of the five offences with which he is charged. Mr Faulkner is, therefore, acquitted of each charge.

92. I order that each summons is dismissed.

**********

Decision last updated: 11 March 2016