Citation: Environmental & Earth Sciences Pty Ltd v Environment Protection Authority [1999] NSWCCA 192
Court: Court of Criminal Appeal, New South Wales
Date: 2 August 1999
Judge(s): Wood CJ at CL, Bell J, Carruthers AJ
Background
The appellant, a company experienced in decommissioning and remediating former service station sites, was engaged by Shell Australia Limited to remediate a contaminated site at Yass, New South Wales. The site had been used as a busy service station for decades, and leaking underground storage tanks had left hydrocarbon contamination in the sub-surface soil. The appellant arranged for contaminated soil to be excavated and moved to an adjacent remediation pad, where bio-remediation was to treat the hydrocarbons.
The site drained westward toward Bango Creek via a network of channels and a culvert. During remediation works, including excavation that altered the site's drainage, contaminated water made its way through or around sediment-control measures (bunds, hay bales, and silt fences) and into the downstream water channels.
The appellant was convicted in the Land and Environment Court before Talbot J of polluting waters contrary to section 16(1) of the Clean Waters Act 1970. It was fined $6,000 and ordered to pay costs. The appellant brought this appeal to the Court of Criminal Appeal, which conducted a rehearing of the matter.
Legal Issues
- Whether guilt of the water pollution offence was proved beyond reasonable doubt by the prosecutor
- Whether the appellant could rely on a "Proudman v Dayman" defence (a due diligence or honest and reasonable mistake defence available for strict liability offences)
- Whether the pollutant was relevantly "placed into or on to" or "otherwise introduced into" the waters within the meaning of section 16(1) of the Clean Waters Act 1970
- Whether the drainage channels on and below the site constituted "waters" within the statutory definition
Decision
The Court confirmed that this appeal was to be conducted as a rehearing, following the approach set out in Histollo Pty Limited v Director-General of National Parks and Wildlife Service. The operative question was whether, on reviewing the evidence, the Court harboured a reasonable doubt as to the appellant's guilt. The Court was not so persuaded.
On the Proudman v Dayman defence, the Court found that no sufficient factual basis existed for the appellant to raise it. Photographic evidence demonstrated that contaminated water was bypassing the sediment controls. A hay bale placed at the eastern entrance to the culvert had been removed in unexplained circumstances. Those failures, in the Court's view, showed that the works had not been properly executed and that adequate supervision had not been maintained.
On the question of whether the pollutant was introduced into "waters" as defined in the Act, the Court observed that the definition is extremely wide. It was clearly open to the trial judge to find that the drainage line from at least the eastern end of the culvert through to Bango Creek constituted a water channel within the definition, both before and after the appellant's excavation works. The trial judge's finding that "waters" commenced only at the final confluence with the main channel was, in the Court's view, an extremely favourable finding for the appellant, yet it was still sufficient to sustain the conviction.
The Court also noted that even if the relevant water channels had not existed before the excavations, the appellant's own excavation works created the water channel that facilitated the movement of contaminants downstream to Bango Creek. The appeal was dismissed and the convictions confirmed.
Orders Made
- Appeal dismissed
- Determinations made by the Land and Environment Court confirmed
Key Takeaways
- The Court of Criminal Appeal confirmed that appeals from the Land and Environment Court in summary criminal matters proceed by way of full rehearing, with the operative question being whether the appellate court itself has a reasonable doubt as to guilt.
- A Proudman v Dayman defence (requiring honest and reasonable belief in a state of facts that, if true, would make the conduct innocent) was unavailable where the evidence positively demonstrated that sediment controls had failed and supervision was inadequate.
- Under section 16(1) of the Clean Waters Act 1970, the definition of "waters" is wide enough to encompass drainage channels flowing toward a creek, including channels created or altered by the defendant's own excavation activities.
- Where an accused's own site works create or modify a drainage channel through which contaminated water reaches a watercourse, that may be sufficient to establish that the pollutant was "introduced into" the waters for the purposes of the offence.
- In dismissing the appeal, the Court indicated that the trial judge's finding as to where "waters" commenced was notably favourable to the appellant and that a broader finding would also have been open on the evidence.
Legislation and Cases Referenced
Legislation:
- Clean Waters Act 1970 (NSW), ss 5, 16
- Clean Waters Regulations 1972 (NSW), reg 2(b)(iii)
- Environmental Offences and Penalties Act 1989 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AB
- Land and Environment Court Act 1979 (NSW), Division 5
Cases:
- Histollo Pty Limited v Director-General of National Parks and Wildlife Service (CCA, unreported, 10 December 1998)
- Proudman v Dayman (1941) 67 CLR 536
- Council of the City of Shoalhaven v The State Pollution Control Commission (1991) 52 A Crim R 291
- Knezovic v Shire of Swan-Guildford (1967) 118 CLR 468
- Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659
- Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350