Land and Environment Court of New South Wales CITATION : Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 APPELLANT Cliftleigh Haulage Pty Limited PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 60004 of 2005 CORAM: Talbot J Appeal :- nature of hearing and evidence to be considered on appeal from magistrate - whether objection to evidence not taken below can be raised on appeal. KEY ISSUES: Prosecution:- lack of proof of essential element of offence - whether remote act of the accused caused the offence. Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED: Protection of the Environment Operations Act 1997 Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683; CASES CITED: Empress Car Co. (Abertillery) v Natural Rivers Authority [1998] 1 All ER 481; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 DATES OF HEARING: 16/11/2005-17/11/2005 DATE OF JUDGMENT: 12/01/2005 APPELLANT Mr C J Leggat SC with Mr E Y Ozen (Barrister) SOLICITORS Stacks Forster LEGAL REPRESENTATIVES: RESPONDENT Mr M L Wright (Barrister) SOLICTORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 1 December 2005 60004 of 2005 Cliftleigh Haulage Pty Limited v Byron Shire Council JUDGMENT 1 Talbot J: This is an appeal within the Court's Class Six jurisdiction from a decision of a magistrate at Mullumbimby Local Court on 23 June 2005. The appellant was found guilty of an offence under s120 of the Protection of the Environment Operations Act 1997 ("PEO Act") and convicted. The appeal is made to this court as of right pursuant to s31 of the Crimes (Local Courts Appeal and Review) Act 2001 ("Review Act"). Under the provisions of s37 of the Review Act that are set out in full below an appeal is to be a rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings with fresh evidence to be given only by leave if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. There is no fresh evidence. 2 Mr Leggat SC appears for the appellant on appeal for the first time and seeks to raise objections to evidence accepted in the court below without objection. The appellant was represented by counsel at the hearing before the magistrate. 3 Mr Wright of counsel appears for the first time for the prosecutor on appeal. He opposes the taking of the objection at this stage as he says the appellant should be bound by the conduct of its case before the magistrate and not allowed to unpick the evidence particularly where counsel conducting the case on behalf of the appellant did not cross examine the witness who gave the evidence now objected to and led direct evidence in response during the defendant's case. 4 In order to understand the objections now raised by Mr Leggat it is critical to appreciate the particulars of the charge. Initially it was alleged that cars were crushed at Goonengerry in the Byron Bay District between 30 July and 1 August 2004 and that as a consequence oil fuel and other pollutants were discharged onto the ground. It appears that the prosecutor relied upon that part of the definition of "water pollution or pollution of waters" contained in paragraph (d) of the dictionary to the PEO Act. 5 The evidence objected to relates to written statements by investigating officers reporting on a conversation with the owner of the property who made statements to them to the effect that the principal of the defendant company, Alan Irvine, had crushed cars on the site. The owner of the property, Mr John Harrop, was not called to give direct evidence. Counsel appearing for the defendant cross examined the council officers in relation to this evidence. 6 During the course of the hearing the particulars of the charge were amended to extend the period of the alleged crushing operation to 5 August 2004. 7 Mr Irvine gave evidence. No questions were put to him in chief or cross examination that specifically required him to explain whether he did in fact crush cars between the particularised dates. His evidence concentrated on the alibi evidence that neither he nor any employees of the company were present at the site during the relevant period. 8 Mr Wright suggests that rather than seeking to unravel the evidence on appeal, the evidence in the form and to the extent received below should be dealt with according to its weight so that hearsay evidence could be properly balanced against direct evidence given orally or through the documents. 9 Setting aside the hearsay evidence by the officers relying upon the conversation with Mr Harrop, the undisputed evidence is that Mr Irvine left the site on 23 July and did not return until 4 August 2004. During that period he was in Nowra on 29, 30 and 31 July celebrating his 60th birthday with his friends and family. Nevertheless there is evidence based upon the observation of the compliance officers that some crushing activity took place between 30 July and 1 August. Crushed cars were observed on the ground at the site on 1 August 2004 whereas they were not observed there in that condition on 30 July. The evidence is that there was no employee of the defendant company at the site between 27 July and 3 August 2004. However, during that period an excavator used by the company remained on site. The keys were left in the excavator. 10 When Mr Irvine returned to the site on 4 August 2004 he observed Mr Harrop and an employee of the company Mr Murray attempting to replace a track which had become displaced from the excavator. Mr Murray did not give evidence. The only other employee of the company to give evidence was Mr Miller and he was not at the site between 23 July and 3 August 2004. 11 In the light of the evidence of the compliance officer that the alleged crushing took place between 30 July and 1 August it is not readily apparent from the record why the particulars of the charge were amended to include the further period up to 5 August. 12 The appellant places important significance upon the method of operation employed by the company for crushing of cars. This is because the cars that were allegedly crushed between 30 July and 5 August were not dealt with in accordance with the usual method adopted by the company. The particular practice of the company can be briefly described as crushing cars in a sealed bin. After the car bodies are lifted into the bin using an excavator they are crushed with a heavy metal bar for the purpose of reducing the volume of the car body to facilitate transportation to the recycling company depot. 13 The inference from the evidence is that the crushing of cars that took place on the subject site between 30 July and 5 August took place on the ground. That is the way the cars were found on 1 August 2004. Mr Irvine has given evidence that no employee was authorised to crush cars on the ground. Mr Miller has also given evidence to the effect that he has never seen a car crushed on the ground except on one occasion at Coffs Harbour Tip. 14 Accordingly there are two elements to the appellant's defence. Firstly that no employee of the company was present at the site during the relevant period and there is no first hand evidence of how or by whom the crushing took place on the ground. Secondly the procedure adopted for the crushing of cars on the ground was inconsistent with the adopted practice of the company. 15 If the Court is persuaded to reject the hearsay evidence of the actual crushing of cars on 31 July 2004 then the prosecution falls back on the fact that the key was left in the excavator while it was unattended during the absence of any company employee thereby facilitating the use of the excavator and the heavy metal bar which was also left on site to crush cars on the ground rather than in the sealed bin (Empress Car Co. (Abertillery) Ltd v Natural Rivers Authority [1998] 1 All ER 481). Mr Leggat rejects this submission on the basis that it was never part of the case before the magistrate and that in any case the decision in Empress Car should be distinguished. Whether an Objection not taken below can be sustained on Appeal 16 Section 37 of the Review Act provides: (1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) … 17 The nature of a rehearing provided by s5AA(3) of the Criminal Appeal Act 1912 as it then was is discussed by Kirby P as he then was in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 and held at 692 that the Court "consider the appellant's culpability upon the basis of the evidence which was tendered before the trial court" and any additional or substituted evidence adduced by the Court on appeal. 18 In Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 James J after referring to Camilleri's Stock Feeds reiterated at 678 …where…there is a challenge to correctness of the trial judge's ultimate conclusion, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. 19 In Camilleri's Stock Feeds Kirby P dealt directly with the point raised by Mr Leggat at 686 as follows: Before this Court, the appellant sought to have the evidence of prior emissions excluded from the evidence to be considered. By reason of the appellant's consenting to the admission of the evidence at the trial, it was not, in my view, open to the appellant to challenge the admissibility of the evidence before this Court. Ordinarily, a party consenting to the admission of evidence at trial cannot, unless there are exceptional circumstances, seek, upon an appeal by way of re-hearing (as distinct from an appeal by way of hearing de novo), to have such evidence excluded. To allow such a facility would be contrary to the law of evidence. 20 The judgments of the Court of Criminal Appeal are binding on me and conclude the argument against the appellant so that the evidence remains as the record to be considered in the context of what James J said in Histollo. The Review Act contains no opportunity for evidence in substitution for the evidence given as contemplated by Kirby P in Camilleri's Stock Feeds. Nevertheless as no question of substitution arises in this case the findings in Camilleri's Stock Feeds and Histollo are applicable. Determination 21 The conversation on 1 August 2004 between Mr Harrop and Mr Hill, the compliance officer, is set out in a written statement made by Mr Hill on 21 April 2005 as follows: 7. At 10:45am, after inspecting the waste site the rangers and I approached a male person who was working on a trailer at the driveway entrance to Lot 56 Mill Road. 8. I said to the male person "my name is Andrew Hill, a Compliance Officer with Byron Shire Council and this is Council Rangers Scott Brodie and Gerry Burnage". 9. I said "what is your name". 10. He said "John Harrop". 11. I said "are you the owner of this property" and he said, "yes I own part of a Multiple Occupancy here". 12. I said, "are the dumped cars in the bush yours". 13. He said "the cars had been there for years and he was trying to clean them up". 14. I said "I am investigating the dumped cars in accordance with the Protection of the Environment Operations Act and anything you say to me could be later used as evidence in a court of law and you have the right to remain silent". 15. He said "I am worried what is happening here, am I in trouble". 16. I said "Council is concerned about the dumped cars and the potential for serious pollution and I am unsure what the consequences are until I obtain enough evidence". 17. He said "I am worried about the pollution and I am just trying to clean the cars up but I am willing to cooperate with Council and help in any way". 18. I said "who owns the excavator". 19. He said "Spike". 20. I said "who has been operating the excavator". 21. He said "Spike". 22. I said "do you know Spike's proper name". 23. Mr Harrop thought for a moment then said "Allen, Allen Irvin I think, he is crushing the cars with the excavator and taking them to Sydney on a truck" he said "the processing plant in Brisbane was broken down and had been for about 9 months and that is why the cars are being taken to Sydney". 22 The conversation is confirmed in exactly the same terms in written statements made by Council Rangers Brodie and Burnage on 18 January 2005. 23 Mr Hill answered questions during cross examination as follows: Q. In relation to the penalty notices that you caused to be issued to Mr Irvine's company, Cliftleigh Haulage, they all indicated basically, that the problem was the crushing of the cars in between when you last visited the property on 30 July to when you visited again on 1 August? A. Well what happened was that it was my - well what I noticed was that works had occurred between 30 July and 1 August. Q. That was based on your own observations wasn't it? A. That's correct yes. Q. All right and in terms of the penalty notice that was issued on 9 August, you indicated that at 10.45am on Sunday 1 August, council officers observed that cars had been crushed at a property located on the Mill Road, Goonengerry, that ring a bell? A. Yes. Q. Yes, Mr John Harrip was interviewed and admitted that Mr Allan Irvine had crushed the cars on Saturday 31 July 2004. So you're saying in a conversation that you had with Mr Harrip, he told you that Mr Irvine had been at the property the day before and crushed the car? A. Yes. 24 The reference to actual crushing of cars on the specific date of 31 July is first raised during the above cross examination. The following further question and answer were provided during the cross examination of Mr Hill: Q. And on the day that you had the conversation with Mr Harrip, being Sunday 1 August, where you say you admitted that Mr Irvine had been there on the Saturday 31st and had crushed the cars, on that day there was yourself, I think Scott Brodie and Jerry Burnage? A. That's correct. 25 The following further exchange took place during the cross examination of Mr Burnage: Q. Do you recall Mr Harrip indicating to you or Mr Hill the - or admitting that Mr Irvine had been there on Saturday 31st and crushed the cars? A. He said Spike had been there. Q. Spike had been there? A. Spike had been there. Q. On the 31st - on the Saturday-- A. --I believe so yes. 26 Consistently with his written account of the conversation with Mr Harrop Mr Brodie answered the following question in cross examination: Q. Do you recall when you were there on the Sunday in the conversation that you were present for with Mr Harrip - was Mr Harrip saying that Spike had crushed the cars the day earlier, the 31st? A. I don't think there was a date specified. 27 Mr Irvine explained the method of operation in his evidence in chief as follows: Q. How do you remove cars from properties with your operation? A. I've got a 20 tonne excavator with a grab(?) on it, I pick the cars up put them in the big bin and I've got a beam that weighs about a tonne and a half and I squash them down in the bin, the back of the bin's sealed nothing gets out it and it's all - when I go to Sims at St Marys it's all handled down there, I just tip it out and leave it there. Q. You're talking about a bin, what kind of structure are we talking about, is concrete, metal? A. It's 40 foot long and 9 foot high and it's made of 6 ml visaloy(?) steel. 28 He gave unequivocal evidence confirmed by log book entries that he first visited Mr Harrop's property on 21 July 2004 and left on 23 July 2004 after which he did not return until lunchtime on 4 August 2004. When he left on 23 July he and employee Rodney Miller respectively took a truck and crushing bin with them. The excavator remained on site. Mr Irvine returned on 4 August 2004 and explained what he observed in oral evidence: Q. On 4 August, you returned to the property? A. Yes. Q. At that stage was there any employee present at the property, any employee of yours? A. Yes there was, Neil Murray was his name. Q. Do you remember or do you know when he got to the property? A. He got there the afternoon before and the track was off the excavator and Neil Murray's got a very bad back and he couldn't get it on, on his own and - well the next morning when I got there, the next day when I got there Mr Harrip was helping Neil Murray put the track back on the tractor and neither of them were having much luck and it's a pretty simple operation if you know how to do it and I put the track back on yeah. Q. That was on the excavator? A. Yes. Q. And at some stage - well had you commenced work in terms of loading up your truck or loading up a truck that was there being Neil Murray's truck, by the time the council arrived? A. I think I did yes, I'm sure I did, yes. 29 Mr Irvine produced his mobile phone bill that confirmed calls were made from Nowra on 31 July. Mr Hill gave evidence that on 1 August 2004 he rang a person who he understood to be Mr Irvine on a mobile phone number given to him by Mr Harrop. 30 When asked about any authority for an employee to crush cars at the subject property between 27 July and 2 August Mr Irvine gave the following answers: Q. As far as you are aware, was any employee of your company authorised to crush cars at Mr Harrip's property in between say 27 July through to 2 August? A. No, there was nobody there until Neil Murray arrived there on the 3rd. Q. And I think on the Saturday being 31 July, you were still in Nowra? A. I was. … Q. On the day that the council arrived, 4 August, you said that you'd arrived in your ute, Neil Murray was there in a truck - did that truck have a spin attached to it? A. Yes. Q. What about the other driver where was he, Mr Miller? A. Mr Miller was on his way from Taree to the job. Q. Right, so he hadn't arrived as yet? A. Hadn't arrived. Q. Was his truck, or did his truck also contain a bin? A. Yes. Q. Did you authorise anyone over that period that you were away from Mr Harrip's property to use your excavator? A. No I didn't. Q. Mr Harrip's property is fairly isolated? A. Yes. Q. When you left what did you do, where did you leave the excavator? A. Just parked it near his house. Q. With the keys in it? A. Yes. 31 He was also cross examined in relation to the question of authority and activities on the site between 23 July and 4 August as follows: Q. You say that you didn't authorise anybody to crush any cars on site? A. I didn't. Q. You didn't authorise any employee of Cliftleigh Haulage to crush cars on site? A. No. Q. And you didn't crush any cars on site? A. I didn't. … Q. You say that you weren't on the site until sometime around 4 August, is that right? A. That's dead right. Q. You left the site about 23 July? A. Yes. Q. And there was another employee of yours who arrived at the site but he didn't get there until 3 August? A. That's right. Q. So when you turned up at the site on 4 August, what did you see in respect to these cars? A. I seen cars squashed there yeah. Q. They were all squashed weren't they and they were all piled up weren't they? A. Yes. Q. And you just don't know how that happened? A. I don't know how that happened. … Q. Somebody came along got into the excavator, went off and crushed the cars that you had the job of removing? A. Exactly. Q. And you don't know who it is? A. No I don't. Q. Did you speak to Mr Harrip? A. I did. Q. And what did he say? A. He didn't say nothing at all, I was there about ten minutes and Mr Harrip left. Q. Did you put it to him? A. Yes. Q. You did put it to him? A. Yes. Q. And did you say, well if you didn't do it do you know who did? A. He wouldn't answer the question. Q. Wouldn't answer the question-- A. --And didn't answer the question, no. … Q. Well you're blaming somebody else for driving your excavator? A. I, I - I know the excavator was moved, I know the cars were crushed and I honestly don't know who done it, Mr Harrip hasn't spoken to me since. 32 Mr Miller is able to account for his whereabouts at places other than at the subject property between 23 July and 4 August 2004. 33 There is no issue that the crushing of the cars between 30 July and 1 August 2004 however it occurred, caused pollution to be released in a way contrary to s120 of the PEO Act. The reference to 31 July was raised in the context of an alibi defence for the presence of Mr Irvine on the site on that day and cannot lead to a conclusion that he was in fact there beyond reasonable doubt. 34 It has not been proved beyond reasonable doubt that any person acting with authority of the company was at the property between the dates 30 July and 3 August. The evidence relying on the conversation with Mr Harrop on 1 August 2004 is unreliable in the context of proving that Mr Irvine or any other person acting for the company crushed cars on the site between the relevant dates. The specific suggestion that Mr Irvine was there on 31 July only comes from the defendant's counsel in the course of cross examination of prosecution witnesses whereas their evidence in chief is equivocal in that respect. One of the council witnesses expressly doubted that a date was specified by Mr Harrop. 35 In the face of express denials by Mr Miller and Mr Irvine that either of them were present during the relevant time and Mr Irvine's consistent claim that no one was authorised to crush cars on behalf of the company between those dates the evidence does not establish that the cars observed by council officers on 1 August were crushed by any person acting on behalf of the company. The case against the company in that respect is circumstantial. The prosecutor has not eliminated all of the plausible explanations for the crushing of the cars in the period between the visits by Mr Hill. 36 Mr Harrop was not directly asked the relevant question about crushing of cars between 30 July and 1 August in any of the reported conversations with him and he was not called to give evidence by either party. Accordingly the Court has no evidence to confirm or refute whether he or any other person on his behalf crushed the cars in that period. Nor has the prospect of the intervention or action of any other third person been discounted. Therefore guilt as a consequence of any person crushing cars on the site between the relevant period by anyone acting on behalf of or authorised by the defendant company is not proved to the necessary standard. 37 That leaves the question of whether the company should be held liable solely as a consequence of leaving the keys in the excavator while it was unattended. For the reasons already explained in regard to rejection of the appellant's attempt to raise objections to evidence for the first time on appeal it is equally not within the concept of a rehearing for the prosecutor to change the nature of its own case on appeal. For this reason alone but further in the interests of justice and fairness to the defendant/appellant the submission based on Empress Car is rejected. 38 Nevertheless if that not be the correct approach I am not satisfied that the leaving of a key in an ignition of a piece of heavy machinery that requires some professional skill to be operated can be equated to a tap for a tank containing dangerous materials being left unattended as was the case in Empress Car. Not only does the starting of the excavator require some special expertise but it is obvious that managing a piece of equipment and using it to manoeuvre and lift a heavy bar and then to manipulate the bar so that it can be used effectively to crush a motor car requires a degree of skill and intent beyond that of the casual and unauthorised or even malicious user of the excavator. Such overt acts are not such that I regard them as reasonably within the contemplation of an owner who leaves such a piece of machinery at a remote location. The relatively remote act of leaving the key in the machine allegedly leading to a third party using the excavator for such an extraordinary purpose cannot be regarded as being in the general run of things. As I have indicated far more was required from the action of the third party than simply starting the engine of the machine. Moreover the evidence does not disclose how the cars in question were crushed. There is no proof of any person taking advantage of the key to operate the machinery in the absence of the defendant. Without proof of that essential element of the offence it is not proved. 39 Accordingly, the appeal is upheld and the charge is dismissed. The Registrar of this Court is now required to take the action prescribed by section 73 of the Review Act. 40 None of the matters about which the Court must be satisfied before making a costs order against the respondent under s 70 of the Review Act have been raised by the appellant. Accordingly no order as to costs will be made unless a Notice of Motion seeking an order to the contrary is filed within seven (7) days. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.