Land and Environment Court New South Wales Medium Neutral Citation: AJS Hotel Management Pty Ltd v Lismore City Council [2013] NSWLEC 10 Hearing dates: 5 February 2013 Decision date: 06 February 2013 Jurisdiction: Class 6 Before: Pain J Decision: The Court makes the following orders: 1. Appeal upheld. 2. The conviction in the local court in proceedings no. 2012/00076238-001 is set aside. 3. Costs are reserved. Catchwords: APPEAL - Appeal from local court against conviction for illegal transporting of organic waste to riverbank Legislation Cited: Corporations Act 2001 (Cth) Crimes Appeal and Review Act 2001, s 31, s 39, s 47, s 49 Native Vegetation Conservation Act 1997 Protection of the Environment Operations Act 1997, s 143 Supreme Court Act 1970, s 75A Cases Cited: Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 Director-General of the Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 131 LGERA 234 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Md Abdil Halim Miah v Canterbury City Council [2012] NSWLEC 193 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 TK v R [2009] NSWCCA 151; (2009) 74 NSWLR 299 Category: Principal judgment Parties: AJS Hotel Management Pty Ltd (Appellant) Lismore City Council (Respondent) Representation: Mr A Rogers (Appellant) Mr M Young (solicitor) (Respondent) Harrington Maguire & O'Brien (Appellant) McCartney Young Lawyers (Respondent) File Number(s): 60838 of 2012 Judgment 1The Appellant was found guilty in Lismore Local Court on 20 July 2012 of an offence under s 143 Protection of the Environment Operations Act 1997 (the PEO Act) of illegally dumping waste. It appeals against that conviction in this Court under s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Appeals Act). The Appellant was represented by its director in the local court proceedings. 2The charge related to the dumping of organic and other waste on the river bank of the Wilson River on 19 July 2011. The Appellant at the time operated the business known as Tommy's Tavern in Molesworth Street Lismore. The Appellant ceased operating the business on 7 August 2011. 3Section 143 of the PEO Act provides: (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000, or (b) in the case of an individual-$250,000. Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation-see section 169. (2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste. (3) Defence-owner of waste It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes: (a) that the commission of the offence was due to causes over which the owner had no control, and (b) that the owner took reasonable precautions and exercised due diligence to prevent the commission of the offence. 4Waste is defined in the PEO Act waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. 5The Court's powers on appeals against conviction are defined in s 39 of the Appeals Act and include setting aside a conviction. The conduct of the appeal is a rehearing on the basis of the evidence before the magistrate; s 47. Pursuant to s 47(2) fresh evidence may be adduced with leave of the Court but no such application was made in this case. Under s 49(2) of the Appeals Act the Court has the same functions as the magistrate in the original local court proceedings. 6The appeal grounds identified in the summons allege various errors made by the magistrate. The grounds ultimately relied on were: 1. The learned Magistrate erred: (a) In finding that the Appellant either: ... (ii) ... caused the waste to be transported, or ... (b) In finding that the Appellant was the owner of the waste. 2. The decision of the learned Magistrate below was contrary to the evidence and the weight of evidence. 7The transcript of the proceedings before the local court was tendered. The eight exhibits tendered in the local court were tendered in Court being: (a)Exhibit 1: a copy of the Penalty Infringement Notice (b)Exhibit 2: "Google Maps" showing the location of Tommy's Tavern with respect to Molesworth Street and the Wilson River; and an aerial photo showing the location of Tommy's Tavern with respect to Molesworth Street, the Wilson River and the car park between the hotel and the River. (c)Exhibit 3: photographs of the waste the subject of the offence. (d)Exhibit 4: the Council's record of "rejection stickers" (indicating the date 18 July 2011). (e)Exhibit 5: Photocopy of Stuart Thomson's Authorisation card (identifying that Mr Thomson is authorised by the Council pursuant to a range of legislation including the PEO Act). (f)Exhibit 6: Copy of notes made by Stuart Thomson on 31 August 2011. (g)Exhibit 7: A record of Interview with P J Barnes. (h)Exhibit 8: Letter from the Appellant on Tommy's Tavern letterhead, signed by A J Sidgreaves (Managing Director, AJS Hotel Management Pty Ltd) to the Council dated 7 August 2011. 8On 27 March 2012 the Appellant was charged by Court Attendance Notice (CAN) (exhibit C) in the following terms: "Owner cause permit transport waste to unlawful waste facility - Corporation" (Court Attendance Notice dated 27.03.2012) 9The particulars of the offence given in the CAN were: "WASTE: 2 WHEELIE BINS OF ORGANIC WASTE: LOCATION: KIRKLAND RIVIERA CARPARK". 10The statutory provision describing the offence was s 143(1)(b) of the PEO Act. 11Prior to being charged with the offence, the Appellant had been served with a Penalty Infringement Notice in similar terms (exhibit 1). The charge in the CAN reflects, in part, the words of section 143(1) of the PEO Act. 12A summary of the local court proceedings as contained in the Council's submissions is set out immediately following at par 13 - 53. Having read the transcript of the local court proceedings the Council's summary appears fair to me and that is why I have included it here. Those parts that were disputed by or clarified by the Appellant are also identified below. 13Mr Shaun Moore, a plant operator employed by Lismore City Council, gave oral evidence for the Council. At the time of the offence he was the team leader of waste collection (transcript, p 7, line 29). Mr Moore gave oral evidence that on 2 August 2011 he received advice concerning illegal dumping on the banks of the Wilson River. Mr Moore investigated the dumping and saw waste consisting of "food material, organic food material and pieces of steel wool, a plastic spatula, beer bottles, aluminium cans and clam shells" (transcript, p 8 lines 1, 2). Mr Moore took photographs of the waste (exhibit 3) (transcript, p 7 line 50, transcript, p 8, line 13). Mr Moore, in re-examination, believed the waste to have come from a restaurant (transcript, p 15, line 30). The Appellant referred to a conversation around this time between Mr Sidgreaves and Mr Moore where Mr Sidgreaves denied knowing about the waste dumping. 14Mr Moore gave evidence with respect to the system employed by the Council for the giving of "rejection stickers" (transcript, p 9). Mr Moore confirmed that the Council had a record of two rejection stickers having been given to Tommy's Tavern on 18 July 2011 with respect to its waste collection by the Council (exhibit 4) (transcript, p 9 line 32). The Appellant submitted that a rejection sticker does not mean waste was not collected. This can be seen from the Council's records for 18 July 2011(exhibit 4) which records the reason for one bin having a rejection sticker as "must contain only organic material - emptied". The reason for the sticker for another bin is "too heavy". There is no indication whether that bin was emptied or not. 15Mr Moore gave evidence that only the Council is authorised to take organic waste and Tommy's Tavern is the only "operator" in that vicinity that produces organic waste for collection by the Council (transcript, p 10 lines 9, 19). 16Mr Moore gave evidence that only the Council operates a waste facility at which organic waste can be disposed: the banks of the Wilson River is not a place at which waste can be taken and disposed (transcript, p 10 lines 26, 33). 17Mr Moore was cross-examined by Mr Sidgreaves, director of the Appellant, who asked questions in relation to a conversation that took place with Mr Sidgreaves on 2 August 2011. It was put to Mr Moore that Mr Sidgreaves could not have been in Lismore on that date (transcript, p 11 line 50 and p 12 line 1). 18Mr Sidgreaves also asked questions in relation to the producers of organic waste in the vicinity of Tommy's Tavern. It was put to Mr Moore that other businesses in the vicinity of Tommy's Tavern produce organic waste (transcript, p 12 line 36). Mr Moore accepted that other businesses produce organic waste but Tommy's Tavern is the only business that puts its organic waste in the car park for collection (transcript, p 3 line 3). 19Mr Sidgreaves also asked questions in relation to whether Mr Moore had produced a written statement. In re-examination an attempt was made to tender the written statement but the written statement was not admitted into evidence (transcript, p 14 line 1 and p 16). 20Mr Stuart Thomson, an Environmental Compliance Officer employed by Lismore City Council, gave oral evidence. A copy of Mr Thomson's Authorisation Card was tendered and admitted into evidence (exhibit 5) (transcript, p 17 line 35). 21Mr Thomson gave evidence that on 4 August 2011 he attended the banks of the Wilson River and inspected the waste that had been "dumped" on the riverbank. Mr Thomson explained the location of the waste in relation to the River and referred to exhibit 2 (transcript, p 18 line 41). Under cross-examination he stated that at the time of the inspection the waste had been there for "quite some time" (transcript, p 30 line 30). 22Mr Thomson gave evidence that he received certain information in relation to the waste incident and then attended Tommy's Tavern where he had a conversation with "P J Barnes" and Mr Ben White (transcript, p 19 line 7, 28, 34). Mr Thomson made contemporaneous notes of those conversations and those notes became exhibit 6 (transcript, p 19 line 41 and p 20 line 32). 23Mr Thomson invited Mr Barnes and Mr White to attend the Lismore CBD office of Lismore City Council. Mr Barnes subsequently met Mr Thomson and a record of interview (ROI) was taken (transcript, p 21 line 7). That record of interview became exhibit 7 (transcript, p 21 line 34). The Appellant emphasised that Mr White denied that he and Mr Barnes had dumped rubbish. Mr White was not called by the Council so this conflict was never resolved. The Appellant referred to the ROI at length at par 3.10 of its written submissions noting that Mr Barnes refers to only one bin, does not mention another person being present and asserts that no-one else but him was involved in the incident. 24Mr Thomson made further enquiries of Council's records and obtained a copy of the letter which is exhibit 8 (transcript, p 21 line 45 and p 23 line 6). This letter advises the Council that the Appellant would cease to act as operator of Tommy's Tavern from 7 August 2011. 25Mr Thomson was cross-examined in relation to his evidence. Mr Sidgreaves (on behalf of the Appellant) asked questions in relation to the investigation undertaken by Mr Thomson, including his powers of investigation under legislation, whether CCTV footage had been consulted and whether Mr Thomson had spoken to Mr Sidgreaves (transcript, p 23 line 49, p 24 lines 9, 33). Mr Thomson was asked further questions in relation to the enquiries that were made in relation to the incident (transcript, p 25 lines 39 - 50) and answers were given, including an answer that a company search was made with respect to Tommy's Tavern prior to the issue of the Penalty Infringement Notice to AJS Hotel Management (transcript, p 26 line 17 and p 29 line 2, p 34 line 47). 26At the invitation of Mr Sidgreaves (on behalf of the Appellant) Mr Thomson read onto the record a substantial part of exhibit 8 (transcript, p 27 lines 6 to 22). 27Mr Thomson was also cross-examined about the conversations with Mr Barnes and Mr White and the record of interview (transcript, p 31 line 27 to p 33 line 42). It was put to Mr Thomson that the facts as asserted in the record of interview were "uncorroborated and unsubstantiated" and Mr Thomson did not agree with that proposition (transcript, p 32 line 3). 28Mr P J Barnes, a former employee of Tommy's Tavern, gave oral evidence for the Council. Mr Barnes stated that he was an employee of the Appellant from about November 2010 until March 2012 and his duties at the hotel were cleaning and general maintenance (transcript, p 36 line 14 to 29). Mr Barnes had particular responsibilities with respect to the waste at the hotel (transcript, p 36 line 30). 29Mr Barnes gave evidence that the cleaning staff were responsible for putting out the organic waste bin (transcript, p 36 line 50). Mr Barnes gave evidence that in his experience the bins were "quite full and at some points they were overflowing" and consequently "we started getting a few rejection letters and stuff like that from the waste companies just because they would never take it" (transcript, p 37 lines 17 to 20). Mr Barnes clarified his evidence: the "rejection letter" is a sticker put on the outside of the bin (transcript, p 37 lines 40 to 42). 30Mr Barnes gave evidence as to the state of the organic bin on 18 or 19 July: the bin was "overflowing"; the smell was "quite horrendous"; maggots were hosed "out of the back laneway that leads to the kitchen from where the bins are situated" (transcript, p 38 lines 3 to 6). The waste in the bin included "seafood like scraps and stuff like that, mussel shells, prawn heads" (transcript, p 38 line 30). 31Mr Barnes gave evidence about a conversation with Mr Sidgreaves whereby Mr Barnes informed Mr Sidgreaves of the state of the bin. Mr Barnes' further evidence of the conversation was as follows: "Well, his first direction was to inform us to get rid of it and I asked where, he told me to put it in the river. I, I obviously thought he was joking about it and then he told me to go and dump on the riverbank. I wasn't too keen to do it but he informed [me] that he'd find somebody else to do it if I didn't." (transcript, page 38 lines 35 to 39). 32Mr Barnes gave further evidence about the disposal of the waste on the riverbank (transcript, p 38 lines 44 to 50). Mr Barnes was shown a photograph of the waste (exhibit 3) and he confirmed that the photograph depicted the waste deposited (transcript, p 39 lines 5 to 9). 33Mr Barnes thereafter gave evidence of his conversations with Mr Thomson and he confirmed that exhibit 7 was the record of interview he provided with Mr Thomson (transcript, p 39 line 15 to p 40 line 5). 34Mr Barnes was cross-examined in relation to his evidence. Mr Sidgreaves (on behalf of the Appellant) asked questions about the way Mr Barnes responded to certain questions in the record of interview, including questions in relation to "were any other persons involved in this incident?" (transcript, p 40 line 30). 35Mr Sidgreaves asked questions about the instructions that were given to Mr Barnes about the disposal of the waste (transcript, p 41 line 19). Mr Barnes was also asked about his experience in assisting Mr Sidgreaves with the disposal of rubbish from the hotel (transcript, p 41 line 44). 36Mr Sidgreaves asked questions about Mr Barnes' recollection of the dates on which the incident occurred and the date on which Mr Thomson spoke to him: Mr Barnes said that he believed Mr Thomson came and saw him "not many days afterwards", about three or four days afterwards" (transcript, p 42 line 37 to 42). 37Further questions were asked about the presence of Mr Sidgreaves at the hotel during July and August 2011 and the operation of the hotel by a lessee (transcript, p 43 line 20 to p 44 line 30). 38Mr Barnes denied that he was offered any inducement to give evidence against the Appellant (transcript, p 45 line 10). 39The magistrate clarified with Mr Sidgreaves that the conversation was denied (transcript, p 45 line 33). The magistrate then put to Mr Barnes the essence of the conversation "Get rid of it down the river" and Mr Barnes (indirectly) denied that he "made that up" (transcript, p 45 line 47) and then affirmed that the conversation did happen: "I've just taken the oath and under oath of - I'm not lying" (transcript, p 46 line 14). 40Mr Sidgreaves gave evidence as the director of the Appellant (transcript, p 48 line 10). 41The magistrate established that Mr Sidgreaves is the director of the Appellant and (although the transcript is not entirely clear) the company"(AJS Hotel Management Pty Ltd) was responsible for the operation of Tommy's Tavern (being evidence consistent with exhibit 8) (transcript, p 48 line 9 to 15). 42The magistrate put to Mr Sidgreaves the substance of the evidence: that on behalf of the Appellant he asked Mr Barnes to dump rubbish down by the riverbank. Mr Sidgreaves was asked to respond to that by giving his account of what happened. Mr Sidgreaves gave the following evidence, being his evidence in chief: There is just no way anybody with half a modicum of intelligence cognisant of the fact that place is swimming in security cameras would instruct anybody to dump rubbish in an area in close proximity to my venue. I am a ratepayer in Lismore. I understand the ramifications of what dumping does, additional costs. I am gobsmacked. I have spent the majority of my life enforcing laws. I, I have never been convicted of a criminal offence. I have been held to account through numerous tribunals, royal commissions, god knows what else. Dumping rubbish 40 metres from where your venue is, is nonsensical. I would never do it. I would never instruct my staff to break the law. I have obligations under the Corporations Act as a director and I have obligations to my staff. There is just no way I will subject anybody or anything to the potential ramifications of appearing before a tribunal of fact to justify their actions. (transcript, p 48 lines 21 to 34) 43In cross-examination Mr Sidgreaves was asked about his experience in the management of hotels and indicated that he had been involved in the management of hotels since 2000 (transcript, p 49 line 7). Tommy's Tavern was the first hotel in which Mr Sidgreaves was responsible for the day to day operation of the hotel, commencing this role in 17 September 2005 (transcript, p 49 lines 35 to 42). 44A restaurant is operated from the hotel (transcript, p 50 lines 22 to 23). 45Mr Sidgreaves also gave evidence about an illness suffered by his father that resulted in his hospitalisation. Mr Sidgreaves' father died on 16 December (transcript, p 56 line 3) and Mr Sidgreaves "wasn't in Lismore much" for the six months before he passed away (transcript, p 44 line 12 to 15), giving a date range of about mid-June to mid December 2011. Mr Sidgreaves gave further evidence about the need for him to be in Sydney to be with his father during the course of that illness while at the same time being the licensee and operator of the hotel (transcript, p 49 line 43 to p 50 line 6). 46The operation of the hotel required management of the waste at the hotel. Mr Sidgreaves gave evidence that staff were given responsibilities and were obliged to "follow the chain of command" (transcript, p 51 line 26). Nevertheless Mr Sidgreaves conceded that there was a problem with the collection of the organic waste from the hotel because rejection stickers were issued in relation to that waste (transcript, p 51 lines 39 to 44). 47After questioning by the magistrate on this point, Mr Sidgreaves said that he "misinterpreted" the question and said that "it wasn't brought to my attention that there was problems per se but with the waste" (transcript, p 52 lines 33 to 35). 48Mr Sidgreaves was asked the following questions in cross-examination and gave the answers (as indicated): "Q. Was your evidence just then that matters were not brought to your attention or is it your evidence now that you don't recall whether matters were brought to your attention? A. I, I don't have the time to worry about a waste sticker on my garbage can. That's why I employ other people to deal with issues. If there's a waste sticker on a garbage can, they would have taken it up with somebody in the chain of command and it would have been addressed. To me, having a waste sticker affixed to a bin was not the most pressing issue affecting Tommy's Tavern in 2011, in July 2011. Q. I understand what you're saying to me. Can I put this to you? That when you say that there are other more pressing issues, is it fair to say then that your attention wasn't on the waste? It wasn't on it being collected? A. I can't answer that, I, I don't know. I can't give you the answer to the question because that - the waste was not my area of responsibility." (transcript, p 52 line 39 to p 53 line 9). 49Certain questions were asked of Mr Sidgreaves about the preparation of the case on behalf of the corporation and in particular the facts and circumstances relevant to the waste stream from the hotel on 18 and 19 July (transcript, p 53 line 27 to p 55 line 28). 50Having regard to Mr Sidgreaves' recollection of events the following exchange took place during cross-examination: Q. He [Barnes] was told by you to go and put the waste in the river and then he said, "I'm not doing that" and you said, "Put it on the riverbank." That's the guts of the case, isn't it? A. If I asked Mr Barnes to jump off the Harbour Bridge, would he? Q. That's not responsive, Mr Sidgreaves, with respect. You asked me what I'm putting to you. I've told you. A. I've stated before, Mr Young, that there are that many cameras, CCTV. I'm a ratepayer of Lismore. I have a duty of care to my employees. I'm accountable to the Corporations Act. I'm accountable to the criminal Act. I would never, ever, ever instruct a person to break the law. (transcript, p 54 line 44 to p 55 line 4). 51At the conclusion of the cross-examination the magistrate asked Mr Sidgreaves about the "possibility it did happen" (presumably the possibility the waste from the hotel was dumped by the river: the transcript is not clear). Mr Sidgreaves gave the following answer: "No. There's just no way. Look, what I would respectfully submit might have occurred is that my staff - and look, PJ Barnes - Mr Barnes - I consider him a friend. I try to do as much as I can for all my people so that, you know, you get the best of them. I really believe that he took it upon his own self to, to do it and when he got caught, felt the pressure and decided to blame somebody that wasn't in Lismore, namely me, because I had gone. I wasn't there." (transcript, p 56 lines 44 to 50). 52The magistrate did not invite the Council to make submissions but rather to respond to a question put from the bench (transcript, p 57 line 6). 53Mr Sidgreaves was invited to make a final submission and he did so (transcript, p 57 line 27 and following). Offence the subject of appeal limited to that before local court 54An issue to be determined at the outset in light of submissions from the Council is the basis for the offence the subject of this appeal. The conviction of the Appellant in the local court was on the basis that the Appellant, (a person can also be a company) who was also the owner of the waste, caused (by instructing an employee Mr Barnes) waste to be transported to a place that could not be used as a waste facility for that waste (the riverbank of the Wilson River). The Council recently gave notice to the Appellant that it intended to seek an alternative basis for conviction in this appeal relying solely on s 143(1)(b) of the PEO Act that the Appellant was owner of the waste. An offence committed on that basis does not require a finding that the Appellant caused the waste to be transported to a place not able to be used as a waste facility. This alternative basis was not the basis of the Council's case in the local court and was not the charge as particularised before the magistrate for which the Appellant was found guilty. The Council relied on the terms of the CAN referring to s 143(1)(b) as permitting this course in this rehearing of the matter. 55The Appellant submitted that such an alternative basis for conviction could not be raised in this appeal as a matter of fairness to the Appellant and in accordance with authority. I agree with the Appellant's submissions based on Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 at [14] - [15] that where a matter could have been raised in the lower court and evidence could have been given which could have prevented the point from succeeding it cannot be raised on appeal. That decision was made in the context of s 75A of the Supreme Court Act 1970 which also provides that appeals are by way of rehearing. Had the Council pursued that alternative basis for conviction in the local court the Appellant would have been justified in calling evidence to establish the due diligence defence available to it in s 143(3) of the PEO Act. The Appellant did not seek to rely on such evidence or on the defence specified in s 143(3) at trial in the local court. The fact that the CAN refers to s 143(1)(b) does not overcome the unfairness to the Appellant if this alternative basis is allowed to be pursued in this appeal. 56The alternative basis for conviction which the Council wished to press during this appeal cannot be and those parts of the written submissions which consider this are disregarded, being paragraphs 74 - 91. The appeal therefore proceeded on the basis of the offence as considered in the local court. Appellant's submissions 57The Council did not establish the Appellant's guilt beyond reasonable doubt based on the evidence before the local court. The crucial conflict in evidence was between Mr Barnes stating that he was instructed by Mr Sidgreaves, director of the Appellant, to dump the organic waste on the river bank and Mr Sidgreaves' evidence that he did not give such an instruction. The magistrate stated that as far as she could judge Mr Barnes was an honest witness. She also stated that she could see no reason to disbelieve Mr Sidgreaves. Where evidence is word against word and the local court magistrate could find no reason to disbelieve a defendant the only available finding is an acquittal. 58Further, Mr Barnes was not a reliable witness. He gave differing evidence about the presence of another employee, Mr White, when the dumping occurred. At trial he claimed Mr White and he took the waste to the riverbank. His statement to Mr Thomson, Council employee, on 31 August 2011 stated that no other person was involved. His explanation for this inconsistency was not credible as he was aware that Mr White had denied the allegations made to Mr Thomson. 59Mr Barnes' evidence about the number of bins was not consistent. The CAN refers to two bins. Mr Barnes referred to one bin and later to taking bins back to the back of Tommy's Tavern after dumping the waste. 60Mr Barnes insisted on several occasions that he was interviewed by Mr Thomson three or four days after the dumping event occurred. The evidence of Mr Thomson is that the Council became aware of the waste being dumped in mid July 2011. Council officers went to the dumping site on 2 and 4 August 2011. Mr Barnes was interviewed by Mr Thomson on 31 August 2011 some six weeks after the dumping occurred. If Mr Barnes was correct in relation to the interview dates then the dumping occurred in mid to late August, after the Appellant had ceased to be in charge of the tavern on about 7 August 2011. Alternatively Mr Barnes was making up the incident. Mr Barnes was not told that he would be charged and his evidence was that he was never in danger of prosecution. (I note that Mr Barnes was cautioned in the record of interview with Mr Thomson that anything he said could be used in court.) 61The other person whom Mr Barnes attempted to inculpate, Mr White, was not called as a witness by the Council. The Council has a duty to call all persons who have or may have knowledge of a matter: R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. In the absence of Mr White an inference should have been drawn against the Council's case based on Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that Mr White would not have assisted the Council. 62The CAN specifies two bins but the evidence from the Council concerning the placement of rejection stickers is that one bin was nevertheless emptied. Waste from two bins from Tommy's Tavern could not have been placed on the riverbank. 63The only evidence that the waste on the riverbank belonged to Tommy's Tavern came from Mr Barnes. If there is doubt about his evidence there is no evidence that the waste was from there. 64Dumping of waste was inconsistent with Mr Sidgreaves previous behaviour. Mr Barnes conceded that Mr Sidgreaves had previously taken rubbish to Lismore tip. As Mr Sidgreaves stated in the local court he would have been foolish to tell the staff to dump the material as there were security cameras which could catch what was being done. 65Mr Sidgreaves consistently denied giving any instructions to Mr Barnes about the dumping of waste including to Mr Moore, Council contractor, on 2 or 4 August 2011 Council's submissions 66A consideration of the evidence in the local court demonstrates that the Council successfully established the necessary elements of the charge under section 143 of the PEO Act with respect to the transport of waste: (a)The Appellant through its employee Mr P J Barnes, transported a substance to a place, that is, to the banks of the Wilson River. The Council relied on the admissions made by Mr P J Barnes to Mr Thomson in the initial conversation and in the record of interview. The Council also relied on the circumstantial evidence that the organic waste bins at Tommy's Tavern received two "rejection stickers" on or about 18 July. One of the bins was rejected because it was "too heavy". That circumstantial evidence is consistent with the answers given by Mr Barnes in his record of interview (Q. 22 and answer, exhibit 7); and oral evidence (transcript, p 37 lines 9 to 20). (b)The substance was waste within the meaning of the PEO Act. The waste was the organic (or putrescible) waste from the hotel. It was "any discarded, rejected, unwanted, surplus or abandoned substance". It was part of the waste stream at the hotel and contained waste that is entirely consistent with kitchen or restaurant waste. Once again, the Council relied on the admissions made by Mr P J Barnes to Mr Thomson in the initial conversation and in the record of interview. Indeed there does not appear to be any suggestion that the substance was not waste. (c)The banks of the Wilson River cannot lawfully be used as a "waste facility". The Council relied on the evidence of Mr Moore and the concessions made by the Appellant that the only lawful facility available for the deposition of organic or putrescible waste is the facility owned and operated by Lismore City Council (transcript, p 23 line 35). 67The magistrate determined the matter on the basis that the Appellant was vicariously liable for the acts undertaken by its "servants or agents", in this case, its employee Mr P J Barnes (transcript, p 57 line 42). (I note that the magistrate did not use the term vicariously liable to describe the basis of liability of the Appellant). In coming to a decision that the Appellant was guilty, the magistrate had to determine the conflicting evidence between Mr Barnes and Mr Sidgreaves (transcript, p 58). 68The determination of liability of the Appellant was not based solely on the preference of the evidence of Mr Barnes over that of Mr Sidgreaves (par 58 and 68(a) of the written submissions was referred to which quote from the magistrate's finding that Mr Barnes attended the ROI with Mr Thomson voluntarily where he was cautioned, that ownership of the waste as Tommy's Tavern was made out as the circumstantial evidence was consistent with Mr Barnes' answers in the ROI). However, insofar as the magistrate, who determined both the facts and the law in the proceedings, preferred the evidence of Mr Barnes, that is a finding that this Court should be reluctant to disturb even in circumstances where the appeal is a rehearing. The magistrate had the advantage of observing the witnesses give their evidence in court, which is a relevant consideration. Was the offence of illegal transporting of waste proved beyond reasonable doubt? 69The Council bears the onus of proving beyond reasonable doubt the offence of causing the illegal transporting of waste under s 143 of the PEO Act by the Appellant. As this is a rehearing of the matter it is not necessary that I find error in the approach of the magistrate in discharging the appeal per Md Abdul Halim Miah v Canterbury City Council [2012] NSWLEC 193 at [7]. It is not therefore necessary that I canvas the magistrate's reasons in any detail except that one matter of importance to the conclusion of guilt by the magistrate was the acceptance of Mr Barnes, employee of the Appellant, as an honest witness "as much as one could judge". The magistrate also stated that she had no reason to disbelieve Mr Sidgreaves, director of the Appellant, who denied that he had given any instruction to Mr Barnes to dump rubbish, noting his evidence that he would be stupid to ask someone to dump rubbish in front of a camera not far away from the premises. The magistrate noted that Mr Sidgreaves relied on his character, was a former police officer and was well aware of his responsibilities under the Corporations Act 2001 (Cth). The magistrate appeared to conclude that as she had accepted Mr Barnes' evidence and was satisfied that the dumped waste belonged to Tommy's Tavern that discharged the onus of proof of the Council in relation to the element of causing transport of waste. I do not have the benefit in this appeal of observing these witnesses and assessing their credit, an advantage the magistrate enjoyed. The Council relied on TK v R [2009] NSWCCA 151; (2009) 74 NSWLR 299 at [6]: ...The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act. The most significant advantage is assumed to be that of observing the witness as they give their evidence... 70As will become clear in my reasoning I take a different view to the magistrate concerning the discharge of the onus of proof in the circumstance that she considered both witnesses were credible. I accept the magistrate's assessment of both witnesses in doing so. 71The appeal is a rehearing on the evidence before the local court as found in the transcript and the documents tendered. The evidence includes the oral evidence of Mr Moore, plant operator employed by Lismore Council, Mr Thomson, environmental compliance officer with the Council, Mr Barnes an employee of Tommy's Tavern at the time the offence was committed, and Mr Sidgreaves director of the Appellant. I have set out above the summary of the transcript provided by the Council as I consider that fairly reflected the evidence as it unfolded before the magistrate. In terms of the elements of the offence under s 143(1), there is no dispute that the organic and other waste found on the riverbank was waste as defined in the PEO Act and that the riverbank is not a place that can be lawfully used as a waste facility. 72The Appellant submits that the elements of the offence not established beyond reasonable doubt are that the waste was from Tommy's Tavern, the business was run by the Appellant at the time of the offence, and that Mr Sidgreaves gave instructions to Mr Barnes to dump the waste from the wheelie bin, thereby causing the transport of the waste. 73The Appellant has sought to cast doubt on the reliability of Mr Barnes' evidence because of discrepancies in the evidence in relation to the number of bins of organic waste dumped, whether Mr White, another employee, was present and the timing of any possible dumping by Mr Barnes given his insistence that Mr Thomson interviewed him only a few days after he admitted he wheeled a bin of waste to the riverbank. 74The Penalty Infringement Notice identifies the date of the waste dumping as 19 July 2011. Whether the dumped organic waste was from Tommy's Tavern relies in part on the admission of Mr Barnes that he took organic waste from the business premises to the riverbank. His evidence on the likely date that he did this is unclear given his insistence in his oral evidence that the initial interview with Mr Thomson was shortly after he did this, a matter of three or four days. The Council records in evidence are that the initial interview and subsequent ROI of Mr Barnes was on 31 August 2011, some six weeks after the dumping in mid-July 2011 became known to the Council. The circumstantial evidence that the waste is from Tommy's Tavern is otherwise highly probative given the nature of the complaint received by the Council in mid-July 2011, the close proximity of Tommy's Tavern to the dumping site on the riverbank, as identified in the Google map tendered in the local court, and the nature of the waste matching the description of organic waste but for a few bottles identified in photographs taken by Council staff. The Council's records as organic waste collector for 18 July 2011 show the placement of two rejection stickers on two wheelie bins belonging to Tommy's Tavern gives rise to the inference that at least one bin from Tommy's Tavern was not collected as it was too heavy. That the Council did not establish all the particulars identified in the CAN, two bins are specified and that Mr Barnes' recollection of dates of the ROI varies from this, does not prevent proof of this element of the offence being established. The Council records demonstrate the timing of a complaint to the Council, investigation of the incident and the interview of Mr Barnes. 75While the Appellant submitted that it is also possible that no waste was dumped from Tommy's Tavern at all as the only evidence that it was is from Mr Barnes, Mr Barnes' admission on this aspect of the offence was not directly challenged by Mr Sidgreaves' evidence. Nor is Mr Barnes' evidence the only evidence. Given the circumstantial evidence available, the Council has established beyond reasonable doubt that the organic waste dumped on the riverbank on or about 19 July 2011 was from Tommy's Tavern. 76The remaining issue in the appeal is the further element of the offence the Council must prove beyond reasonable doubt, namely that Mr Sidgreaves as director of the Appellant instructed Mr Barnes the Appellant's employee to dump the organic waste from Tommy's Tavern on the riverbank in mid- July 2011. That is the only basis in this appeal on which the Appellant can be found guilty. The Appellant cannot be found guilty solely on the basis of ownership of the waste for the reasons I have given above at par 55 - 56. 77I agree with the Appellant's submission that the Council wrongly submitted that the finding of guilt of the Appellant by the magistrate was on the basis of vicarious liability. As already noted the magistrate did not use the term vicarious liability in her findings. The Council submitted that there is ample authority for the proposition that a defendant company charged with a pollution offence can be found liable for that offence based on vicarious liability for the conduct of its employees: Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715. The issue of vicarious liability was recently considered by the Court of Criminal Appeal in the context of a prosecution under the Native Vegetation Conservation Act 1997: But as has been pointed out in many cases a company can only act through the agency of persons whether those persons be regarded as effectively the mind of the company or, alternatively, the agents of the company in performing the act. (Director-General of the Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 131 LGERA 234 at [84]). While I can agree that vicarious liability is a possible basis for a finding of guilt of a corporate defendant, that is not the crucial aspect of the case before me. There is no dispute that Mr Sidgreaves was the mind of the corporate Appellant and it may be possible to describe the Appellant as vicariously liable for Mr Sidgreaves' actions. The fundamental aspect of the prosecution case however is based on direct liability, being the instruction of an employee Mr Barnes, by Mr Sidgreaves, director of the Appellant. The Council must establish beyond reasonable doubt that Mr Sidgreave did so instruct Mr Barnes. 78Given the completely contradictory evidence of Mr Barnes and Mr Sidgreaves about the giving of instructions to dump waste, other discrepancies or absences in the prosecution case do assume importance in my view. Most tellingly is the absence of a statement from Mr White as another potential witness and possible participant in the events. Mr Thomson's evidence in his written notes on an inspection record sheet (exhibit 6 in the local court) is that when he visited Tommy's Tavern on 31 August 2011 he stated that two young male persons wearing clothes similar to what they were wearing were seen emptying two wheelie bins of rubbish onto the riverbank. Mr White denied any involvement. Mr Barnes stated that we did it under instruction from our boss. An ROI was conducted with Mr Barnes only at the Council offices later on 31 August 2011 by Mr Thomson. Mr Barnes was cautioned but also told he had to answer questions under the PEO Act. Mr Barnes admitted that he was responsible for placing the waste on the riverbank as seen in photographs shown to him. He said he did this about 8.15 am in July or August as directed by his employer Mr Sidgreaves. Mr Barnes stated that no other person was involved. 79An obvious omission in the Council's case is a statement or an ROI with Mr White who appears to be a potentially material witness in these circumstances. It appears that Mr Barnes attended for an ROI voluntarily but Mr White did not. In the absence of further evidence in the prosecution case I do not consider this element of the offence has been proved beyond reasonable doubt. At least one other plausible explanation for Mr Barnes' behaviour can arise. For example, during the local court hearing Mr Sidgreaves stated that he thought Mr Barnes dumped the waste and needed someone to blame so named him as he was no longer in Lismore (having ceased to manage the business from 7 August 2011). I am not seeking to resolve whether there is any truth in that explanation. The point is simply that reasonable doubt remains that Mr Sidgreaves did give the instruction attributed to him by Mr Barnes where the evidence of both can be accepted. 80I consider that the Appellant is successful in this appeal. The appeal is upheld and the conviction in the local court in the local court is set aside Orders 81The Court makes the following orders: (1)Appeal upheld. (2)The conviction in the local court in proceedings no. 2012/00076238-001 is set aside. (3)Costs are reserved. ********** 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. Decision last updated: 14 February 2013