Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Warwick Ronald McInnes [2020] NSWLEC 37 Hearing dates: 18 March 2020 Date of orders: 24 April 2020 Decision date: 24 April 2020 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraphs 90 and 91 Catchwords: CRIME – environmental offences – s 7 Pesticides Act 1999 – s 10 Pesticides Act 1999 – negligent use of a pesticide in a manner that injured another person – use of a pesticide in a manner that injured another person – definition of "store" within "use" – whether defendant stored the pesticide – whether store contains an element of "future use" – was the conduct criminally negligent – where charge particularises actual injury rather than likelihood of harm – risk turns on degree of accessibility – defendant held to use the pesticide – criminal negligence not found Legislation Cited: Agricultural and Veterinary Chemical Code Regulations 1995 Agricultural and Veterinary Chemicals Code 1994 Pesticides Act 1999 Cases Cited: Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Environmental Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373 Environmental Protection Authority v Grafil Pty Ltd & Mackenzie [2019] NSWCCA 174 Environmental Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 R v Lavender (2005) 222 CLR 67 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Warwick McInnes (Defendant) Representation: Counsel: S Pritchard SC and G Lewer (Prosecutor) S Nash (Defendant) Solicitors: Office of the Environment Protection Authority (Prosecutor) Shaw Reynolds Lawyers (Defendant) File Number(s): 2018/266434 and 2018/309955 Publication restriction: No Judgment Nature of the proceedings 1. The Defendant has been charged with the following offences: 1. Proceedings 2018/309955 (the Negligence Charge) – that on or about 10 August 2017, at or near Mangrove Mountain in the State of New South Wales, the Defendant committed an offence against s 7(1)(a) of the Pesticides Act 1999 (Pesticides Act) in that he negligently used a pesticide in a manner that injured another person; and 2. Proceedings 2018/266434 (the s 10 Charge) – that on or about 10 August 2017, at or near Mangrove Mountain in the State of New South Wales, the Defendant committed an offence against s 10(1)(a) of the Pesticides Act in that he used a pesticide in a manner that injured another person. 1. The Defendant has pleaded not guilty to both charges. 2. The two offences are similar in substance as both relate to the use of pesticides causing injury to a person. The only material difference between the two charges is that the Negligence Charge requires proof beyond reasonable doubt that the Defendant acted in a manner that is capable of being characterised as criminal negligence. If the Negligence Charge is made out then the Prosecution does not press the s 10 Charge. However, if criminal negligence is not established, but the other elements of the charge have been made out, the Prosecution seeks a conviction for the s 10 Charge. Background facts 1. Both offences relate to the same series of events that gave rise to the incident on 10 August 2017. 2. Mr Warwick Ronald McInnes (the Defendant) was a volunteer with the Mountain District Sporting Association (the Sporting Association) which maintained and used the Mountain Districts Sportsground, located at Bloodtree Oval, Mangrove Mountain (the Premises). 3. As a volunteer, the Defendant was the groundsman for the Sporting Association. This role included carrying out the line marking of the soccer field and preparing the ground before games. 4. In about 2009, the amenities facilities at the Premises were renovated. The renovations included a rebuild of the toilet block facilities, including a separately accessible disabled toilet facility that included a toilet, sink and shower (the Disabled Toilet). 5. The Disabled Toilet was secured with a key lock. When not in use the Disabled Toilet was locked and could only be accessed with a key. The lock was capable of being opened with a Master Locksmiths Access Key (MLAK key). Facilities with such a lock are capable of being accessed by any MLAK key. As part of an agreement, disabled persons are able to obtain an MLAK key to gain access to disabled toilets that are fitted with an MLAK key compatible lock. 6. The Defendant had access to the Disabled Toilet with an MLAK key. There were at least one or two MLAK keys either issued to the Sporting Association or on the Premises. 7. Sometime after 12 January 2014, the Defendant decanted a product containing Paraquat and Diquat into a 600mL Coca-Cola bottle (the Coke Bottle) and placed it in the Disabled Toilet under the sink. The area under the sink was not enclosed in any way. He then discarded the original container. 8. At all times the Coke Bottle retained the identifying Coca-Cola label. 9. As agricultural chemical products, Paraquat and Diquat (collectively referred to as the Pesticide) are pesticides for the purposes of the Pesticides Act. 10. As per the Agricultural and Veterinary Chemicals Code, scheduled to the Agricultural and Veterinary Chemicals Code 1994 and the Agricultural and Veterinary Chemical Code Regulations 1995, the labels for containers of agricultural chemical products must contain appropriate signal words. The relevant ones are CAUTION, POISON, or DANGEROUS POISON. 11. On 10 August 2017, Mr Damien Terry, a 22-year-old autistic man, attended the Premises with a group known as "Life Without Barriers". Mr Terry is non-verbal and suffers from severe developmental delay. Mr Terry was very fond of Coca-Cola. 12. On 10 August 2017, Life Without Barriers carer, Mr Zeljko Tomin, opened the Disabled Toilet with an MLAK key held by Life Without Barriers, inspected the Disabled Toilet and noticed that it appeared to be a little messy and contained things like sports balls and sports bottles. He did not see any Coca-Cola bottles. 13. At some point in the afternoon, Mr Terry accessed the Disabled Toilet and consumed some of the contents of the Coke Bottle. 14. Shortly after consuming some food and water, Mr Terry began to vomit and was taken to hospital. 15. As a consequence of the ingestion of the Pesticide Mr Terry suffered injuries that included: mouth and gastrointestinal ulceration; nausea; vomiting; and diarrhoea. In addition, acute kidney injury was documented. Further, following his release from hospital, Mr Terry was placed on steroids which caused significant weight gain. It is not disputed that for the purposes of either charge Mr Terry suffered actual injury, which is an element of both offences as charged. 16. Prior to the incident Ms Megan Langford, a Life Without Barriers carer, attended the Premises every three to four weeks. On these visits she would open the Disabled Toilet and usually observe soccer balls and other sporting equipment and drink bottles, but she never noticed a chemical bottle. She once saw a can of paint. 17. After the incident, HAZMAT officers and fire fighters attended the Disabled Toilet and observed a 2-litre plastic milk container on the floor underneath a wall mounted sink which contained approximately 200mL of a bright green liquid. There was also an empty 5-litre weed sprayer bottle and hose which was taken and disposed of without testing. 18. Council employees also inspected the Disabled Toilet after the incident and noted that there was a ladder, drink bottles and soccer balls in the toilet. There were no liquids in the drink bottles. Legislative provisions 1. The relevant statutory provisions creating the offences are: 7 Injury to persons or damage to property resulting from pesticide use (1) A person is guilty of an offence if the person wilfully or negligently uses a pesticide in a manner that: (a) injures or is likely to injure any other person, or (b) damages or is likely to damage any property of another person. 10 Injury to persons or damage to property resulting from pesticide use (1) A person must not use a pesticide in a manner that: (a) injures or is likely to injure any other person, or (b) damages or is likely to damage any property of another person. 1. For the purposes of these charges the relevant defined terms are: 4 Definitions (1) In this Act: … use a pesticide includes: (a) apply, spray, spread or disperse the pesticide by any means (for example by hand or by the use of a machine or any type of equipment including aerial spraying equipment), or (b) store the pesticide, or (c) prepare the pesticide for use. Issues for determination 1. The Defendant has pleaded not guilty to both charges. The only issues in contention with respect to the charges are: 1. Whether the Defendant, by placing the Coke Bottle in the Disabled Toilet, did "store" the Pesticide within the s 4 definition of "use", for the purposes of the offences in ss 7 and 10. The charges particularise the "use" of the Pesticide as the storage of that Pesticide by the Defendant. The term "store" or "storage" is not defined in the Pesticides Act. The parties agreed that this term should be given its ordinary meaning. The ordinary meaning was agreed to be in accordance with the Macquarie Dictionary, relevantly defined as: 1. To supply or stock with something, as for future use. 2. Also, store up. To lay up or put away, as a supply for future use. 3. To deposit in a storehouse, warehouse, or other place, for keeping. 1. If the Defendant did "use" the Pesticide, whether such use constitutes negligence based on a criminal negligence standard for the purposes of s 7(1)(a). The criminally negligent activity is characterised by the Prosecution as a sequential series of acts, namely: 1. the act of decanting the Pesticide into the Coke Bottle with no label suggesting its content was harmful; 2. placing that decanted Coke Bottle into the Disabled Toilet; and 3. leaving the Coke Bottle in the Disabled Toilet. 1. If the Defendant did not "use" the Pesticide as per [24(1)], then there is no need to determine the second question in [24(2)]. Was the Pesticide "stored" in the toilet? 1. In order for the guilt of the Defendant to be established on either charge the Prosecutor is required to establish beyond reasonable doubt that the largely undisputed actions of the Defendant comprised the storage of the Pesticide as that term is used in the definition of "use" in the Pesticides Act. 2. As identified at [24(1)], the parties agreed on the terms of the appropriate definition to give the term "store". However, there was dispute as to whether the term required the storage to be for future use (as an element of the charge) and the application of this term, however defined, to the circumstances of the case. Evidence relevant to the issue of the storage of the Pesticide 1. Relevant to the determination of this issue is whether the Defendant's actions amounted to the storage of the Pesticide. The evidence, in addition to the facts outlined above, was adduced by way of a Statement of Agreed Facts and affidavit evidence, read without objection and upon which there was no cross examination. 2. The uncontested evidence disclosed: 1. The Sporting Association had a shipping container located on the Premises that was used for storage of equipment and supplies. The shipping container was secured by a padlock. The shipping container had been broken into on a number of occasions and was not considered by the Defendant to be secure; 2. The Defendant, and apparently others, had from time to time used the Disabled Toilet to place sporting equipment and equipment and supplies for maintenance and grounds keeping, such as line marking paint, ladders and the like; 3. The Defendant had custody of a key to the Disabled Toilet and locked it after he used those facilities. There is evidence that there was a second key to the Disabled Toilet that was held in the canteen of the Premises and given to people, upon request, to access the Disabled Toilet; 4. Material placed in the Disabled Toilet, unconnected with its use as a toilet facility, remained in that location for extended periods of time - in some cases, years; 5. The Coke Bottle remained in the Disabled Toilet from some time after January 2014 until the events that occurred in 2017. The precise date that the Coke Bottle containing the Pesticide was placed in the Disabled Toilet is unknown. However, the type of bottle that contained the Pesticide was not manufactured before January 2014; 6. In the past, chemicals such as the Pesticide had been utilised for line marking the sporting field. The original container that held the Pesticide was likely used for this practice. This practice had ceased around five years before 2017. The Sporting Association was aware that the use of pesticides for line marking was no longer an acceptable practice as: 1. The Local Council had a Sportsground Information Booklet that indicated that the use of pesticides on sportsgrounds was not permitted; 2. In 2011, whilst the Defendant was groundsman, the Council issued a warning about the use of pesticides at the Premises; and 3. In 2012, the Defendant was fined for using a prohibited substance to mark the lines at the Premises; 1. The evidence does disclose that from the unknown date the Coke Bottle containing the Pesticide was placed in the Disabled Toilet, it remained there and was observed by the Defendant over the years. It was not removed at any time from the Disabled Toilet nor was it actually utilised for any grounds keeping purpose during that period. The placement of items not related to the use of the Disabled Toilet as a toilet facility had been observed by members of the Sporting Association and the Defendant had been directed not to place such items in that facility. However, there is no evidence that any person expressly raised the issue of the storage of pesticides or the risk from the use of the Disabled Toilet for that purpose; 2. Further, the Defendant in his various statements to the Prosecutor and other investigating bodies indicated that he had not intended to use the substance in the Coke Bottle as a pesticide such as for the purposes of line marking; and 3. The Defendant variously stated that the purpose of decanting the Pesticide into the Coke Bottle and its placement in the Disabled Toilet was: because the original container was corroded; he probably should have put it in the shipping container but he was probably just "slack" because the toilet was closer; and that he intended to dispose of the substance. 1. It was noted by the parties that the Defendant in various statements used the terms "store" or "storage". Whilst it was said that this was an indication of the Defendant's understanding of the term as he used it, it was not tendered as an admission. Rather, the parties accepted that it was for the Court to determine whether the actions of the Defendant fit the meaning appropriately ascribed to that term as used in the statutory language. Prosecutor's submissions 1. The Prosecutor submitted that it primarily relied upon that part of the agreed usual meaning of "store" relating to the deposit in a storehouse, warehouse, or other place, for keeping, as the relevant characterisation of the Defendant's conduct. It was further submitted that characterisation of "store" did not contain the element of being for "future use" as was common with the other defined meanings. 2. The Defendant's conduct amounted to storing the Pesticide as: 1. The Disabled Toilet was used by him to place items, other than those associated with the use as a Disabled Toilet, for periods of time thereby evidencing the use of the Disabled Toilet as a location where goods were retained (or kept); 2. The Defendant believed that the area was secure for that purpose because it was lockable and he had a key; 3. The decanting into the Coke Bottle and not disposing of it at the same time the original container was disposed of, evidenced some form of retention of the Pesticide; and 4. The retention of the Coke Bottle for a significant period of time in a location accessible by the Defendant indicated a keeping of it. 1. The Prosecutor also submitted that it did not abandon the proposition that the Defendant was storing the Pesticide for future use. It submitted that the only available inference, on the evidence, was that the Pesticide was not disposed of with the original container as the Defendant intended to use it in the future - there being no other reasonable explanation for the decanting or the retention of the Pesticide whilst disposing of the original container. 2. The Prosecutor also submitted that where the Defendant had provided statements to investigating authorities (which formed part of the evidence adduced by the Prosecutor), the Court would not accept the Defendant's evidence as it was: self-serving statements made after the event; inconsistent with the unchallenged evidence of other witnesses who had provided sworn affidavit evidence; or, if the evidence were accepted, it would not be sufficient to create a reasonable doubt. 3. The Defendant's conduct was sufficiently similar to the conduct addressed in authorities such as: Environmental Protection Authority v Grafil Pty Ltd & Mackenzie [2019] NSWCCA 174; Environmental Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373 that by direct application or sufficient analogy, the Court would similarly find the conduct of the Defendant comprised the storing of the Pesticide for the purposes of the sections under which he has been charged. Defendant's submissions 1. The Defendant submitted that the characterisation of "store" required an intention that the substance was being retained for future use as a pesticide. The requirement of future use was derived both from the ordinary meaning of the word, where that requirement is expressly used in two of the defined meanings, and to be implied from the text and context of the Pesticides Act. 2. As to the context of the Pesticides Act the Defendant submitted that the legislative language distinguished between a number of concepts and where there was such a distinction it demonstrated that the legislature intended that the concepts would be independent of each other and not overlap in their meaning. The use of the terms "use" and "store" was contrasted with the defined term "possession" which provided: Possession of a pesticide or thing includes any case in which a person: has custody or control of the pesticide or thing, or has the pesticide or thing in the custody of another person, or has the pesticide or thing in or on any premises, whether or not belonging to or occupied by the person. 1. The Defendant submitted that the concept of "store" must contain the requirement of being for future use as, otherwise, the Pesticide would be in the "possession" of the person rather than being "stored" by them. Offences relating to the possession of pesticides were provided for in ss 12, 17 and 39 of the Pesticides Act and therefore reinforced the distinction between possession and storage of pesticides. 2. The Defendant suggested that he had retained the Pesticide in the Coke Bottle in the course of disposing of it and that such an action falls within the meaning of possession and not storage of the Pesticide. In the alternative, the Prosecutor had not established beyond reasonable doubt that the Defendant had stored the Pesticide as it had not established that the Defendant had retained or possessed it for future use. Findings on whether the Defendant stored the Pesticide 1. The ordinary meaning of the word "store" is of a broad scope and has varying meanings, depending on context. The elements of the agreed definition of the term "store" does not require that, in all circumstances, the item be retained for future use. As the dictionary definition makes plain, in some instances future use is an element of storage, however, in others, intention for future use is not a necessary element of such a characterisation. By way of example, the Macquarie Dictionary definition that both parties relied upon contained some definitions that related to future use and another that did not. It is apparent from a consideration of the dictionary definition that the term "store" does not require, as an essential element, that the substance stored is intended to be used for a purpose consistent with the nature of the substance. Accordingly, the dictionary definition, alone, does not require that the substance stored be retained for a future use consistent with the usual purpose of that substance. 2. The dictionary definition does indicate that the retention of the item must be something more than fleeting or in a manner not inconsistent with its retention for a period of time. That is, the notion of "store" requires more than storage in a place for a nominal period of time. The item must be intended to remain in the place for a more than nominal period of time before it is removed to some other place. 3. The ordinary meaning to be given to the term "store" is assisted by the dictionary definition but is not determined by it. To give the term "store" its meaning, it must, fundamentally, be derived from the legislative context. This requires the dictionary definition to be considered in the legislative context and only applied (or applied only in such manner) as is consistent with the intention derived from the statutory language. The question is, having regard to the statutory language and context, is the ordinary meaning as informed by the dictionary definition, altered or constrained such that the usual meaning of the term "store" should only include storage for future use as a pesticide. 4. The Pesticides Act, read as a whole, creates a regime that is intended to "cover the field" in protecting persons and the environment from the risk of harm caused by the inappropriate use of pesticides. This objective can be gleaned from the stated object of the Act in s 3 as: The objects of this Act are as follows: a) to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991, b) to minimise risks to human health, the environment, property and trade… 1. The structure of the Act is thereafter crafted to formulate offences identifying inappropriate dealings with pesticides from the major to the minor. This approach seeks to identify the potential risks and manage them. By adopting this regime the conduct defined and the terms utilised are, in some cases, overlapping (such as the terms like "use" and "possession"). The adoption of different terms does not appear to evidence a legislative intent to isolate those terms so that there is no overlap, but rather to permit overlapping to ensure the field is covered. Therefore, I do not accept the Defendant's submission that the term "store" in the definition of "use" must be for future use in order to distinguish it from the defined term "possession". 2. The construction identified is also consistent with the meaning ascribed to the concept of "store" in other legislative contexts, such as the Clean Air Act 1961 where the Court considered the concept of an item being stored in Environmental Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373 where it was held in that legislative context that: …there are other meanings of the word which do not necessarily include the element of future use. For example, the definitions in the Macquarie Dictionary include "to deposit in a storehouse, warehouse, or other place for keeping". I do not see that it offends the ordinary meaning of the word "stores" to encompass the facts of this case. It seems to me that, as at the date of the alleged offence, the oil was being stored in the pond at the dump site - so was the miscellaneous rubbish in the tip. They were "stored" at the dump site until disposed of and, in the case of the oil in the pond, until filled in by the waste materials in the tip face. Whether the oil or other waste materials may cease to be stored at some future point of time is irrelevant to the question of whether they were being so stored on 16 May 1990, the day of the alleged offence. 1. Whilst I accept that the legislative context is different, both legislative regimes have the object and purpose of protection of the environment and the health of that environment. Adopting a meaning that best meets that object requires a consideration of the harm that the legislative context is intended to prevent. The similarities of the legislative objects do not indicate a different approach to the construction of the term "store". 2. To adopt too narrow or constrained an approach to the notion of "use" where it in turn identifies "store" as a component of the defined term would be to undermine the broad reach of the intended protections to be afforded by the Act as stated in the objects. For those reasons, the term "store", as used in the defined "use" in the Pesticides Act, is not limited only to cases where the storage is to allow a future use of the Pesticide as a pesticide. 3. Accordingly, for the reason outlined I find that in this case, the statutory language and the ordinary meaning of the word in that context indicate that in order for a pesticide to be stored (as that term is used as part of the defined term "use") the retention of the item must be in a place where items are habitually retained for more than a nominal period of time, for a purpose, not necessarily related to the future use of that item. On that construction, I need not determine whether the Defendant in this case stored the Pesticide for future use. 4. The question then arises as to whether the conduct of the Defendant amounted to "storage" as that concept has been characterised at [48] above. 5. First, I find on the evidence that the Disabled Toilet was a place where items were habitually retained. The evidence is clear that items, not associated with the use of the toilet, were placed in the Disabled Toilet. These items included sporting equipment as well as maintenance equipment. This placement of items occurred notwithstanding that an alternate dedicated storage area was provided by way of the shipping container. The Disabled Toilet, on the evidence, was considered, at least by the Defendant, as a more secure place to keep items. The placement of items in the Disabled Toilet occurred for a more than nominal period of time and continued after the Defendant had been requested to cease the practice. 6. Second, the items were placed in the Disabled Toilet for a purpose. Each of the items may have had a different purpose for being placed in the Disabled Toilet but the primary purpose appeared to be to permit the items to be retained securely, that is, to be kept in a place where access was restricted. I accept the evidence from the statements of the Defendant tendered that the Coke Bottle was, in particular, retained for the purpose of keeping it secure until it was disposed of. The evidence of the keeping for this purpose is the fact that the Pesticide was decanted from the original container and that container was disposed of. If there was not an intention to keep the Pesticide it would not have been decanted into another container and/or the Coke Bottle would have been disposed of at the same time as the original container. These events indicate a desire to retain and its placement in the Disabled Toilet indicates the desire to retain it in a secure location that was otherwise being used for the storage of goods. 7. Whilst the Defendant may have retained it for longer than he first anticipated, he observed it over the years, and had not disposed of the contents of the Coke Bottle over those years. The fact that he did not fulfil his intention to dispose of the Coke Bottle at an earlier time does not alter the finding that he retained the Coke Bottle in the Disabled Toilet and therefore stored the Pesticide. 8. For the reasons outlined above, I find that the Defendant stored the Pesticide in the Coke Bottle in the Disabled Toilet. Accordingly, I find that, on the relevant date, the Prosecutor has established beyond reasonable doubt that the Defendant used the Pesticide by storing it in the Disabled Toilet. 9. As it was admitted that there was injury to a person from the use of the Pesticide, the finding that the Defendant used the Pesticide is sufficient to find the offence set out in the s 10 Charge proven and to find the Defendant guilty of that offence. However, the Prosecutor has submitted that it would not press for a conviction on the s 10 Charge if the conduct also amounted to a finding of guilt that the Defendant's conduct was criminally negligent in accordance with the required elements of the Negligence Charge. Was the Defendant criminally negligent? 1. The parties agreed that the relevant test for determining whether the Defendant's actions amount to criminal negligence is identified in Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 where Preston CJ at [114] stated that: For conduct to be criminally negligent, there needs to be not merely a breach of a duty of care or a failure to take relevant precautions, but also that the circumstances of the breach of duty or failure to take precautions involved a sufficient degree of carelessness, disregard of the objects of relevant statutes, or indifference to the obvious risks as would warrant criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 438-439; Cittadini v The Queen [2009] NSWCCA 302 [38]-[40]; and Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81], [82]. 1. In Environmental Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Pepper J identified the degree of negligence in the following terms at [186]-[188]: …I do not accept that the test for criminal negligence in the context of environmental crime stated in cases such as Fish is wrong, let alone plainly wrong, having regard to the test expounded in Nydam [1977] VR 430 which has been picked up and applied in subsequent High Court authority. There is nothing in the statutory scheme contained in the POEOA or the CSPA that alters this view. Having said this, care must be taken when reciting and relying upon the epithet 'indifference to an obvious risk' in its application to the evidence before the Court for without more it may be apt to mislead and suggest that something less is necessary than the stringent test that criminal negligence demands. As almost all of the cases deploying this language are at pains to emphasise, mere inadvertence to a risk of harm is not enough. In my view, a preferable recitation of the test for criminal negligence in the context of environmental crime is to ask whether there has been such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that harm would follow that the doing of the act or the omission merits criminal punishment. 1. I consider these formulations of the relevant test to be apposite. 2. Further, the assessment of whether a Defendant's conduct amounts to criminal negligence turns upon an objective test. The test is whether a reasonable person, in the position of the Defendant, would have realised that their actions exposed others to an appreciable risk of injury: R v Lavender (2005) 222 CLR 67 at 83. 3. In storing the Pesticide, the Defendant owed a duty of care to persons who were at risk from such storage. The retention in a public space, regardless of the availability of access to that area, breached that duty of care. However, as observed above, there must be more than the breach of the duty of care to warrant a finding of criminal negligence. 4. The conduct upon which the Prosecutor relies to establish the Negligence Charge is outlined at [24(2)] above. Considering those events in the context of criminal negligence, it is necessary that such conduct be found beyond reasonable doubt to comprise a sufficient indifference to an obvious high risk of consequential harm that the conduct warrants a criminal sanction. As the Pesticides Act makes apparent, actual harm to a person is not sufficient, of itself, to demonstrate criminal negligence. There is a distinction drawn between the two charges in this case, both involving actual harm. The distinction is the conduct that gives rise to the injury (not the injury itself) and whether the conduct was criminally negligent. 5. The consequence of the Defendant's conduct was the injury to Mr Terry. There is no dispute that Mr Terry's injuries were severe and that they arose by the ingestion of the Pesticide left by the Defendant in the Coke Bottle in the Disabled Toilet. Whilst the fact of the injury to Mr Terry is an element of this offence, the extent of that injury is not a matter that I can take into account in determining whether the Defendant was criminally negligent. In the event that the Defendant is found guilty of either offence, the factors relating to the nature and extent of Mr Terry's injuries are relevant to sentence, not to criminal liability. Prosecutor's submissions 1. The Prosecutor submitted that the conduct gave rise to the real and appreciable risk that a person with a disability would use the Disabled Toilet facility and potentially consume the substance in the Coke Bottle with injury as an obvious and expected consequence. This factor was heightened by the inherent nature of the Disabled Toilet Facility being used by persons with intellectual as well as physical disabilities. 2. The Prosecutor identified the following evidence as the matters that it relied upon to establish criminal negligence (references to court book omitted): 1. The Pesticide was placed in a regular drink bottle; 2. No label was affixed to the Coke Bottle warning as to its contents; 3. The defendant decanted the Pesticide from a bottle labelled: 1. DO NOT PUT IN DRINK BOTTLES 2. CAN KILL IF SWALLOWED 3. KEEP LOCKED UP 1. The Pesticide was not stored in any cupboard or locked cabinet; 2. The Disabled Toilet was in a sports ground that was open to the public. It was used for: 1. sporting matches; and 2. access by people of all areas, including children (note the presence of play equipment close by); 1. By their nature, toilets are places people enter on their own. For children and persons with disabilities there will not necessarily be supervision in those spaces; 2. The toilets were specifically for the use of persons with a disability, including, as in the present case, persons with developmental disabilities. They are clearly an entirely inappropriate place to store a pesticide; and 3. The toilets were able to be accessed at any time by any person with an MLAK key. 1. The Prosecutor further contended that on the following evidence the Court would reject the Defendant's suggestion that the Disabled Toilet was secure in that he had in his possession the only key. It was submitted that the evidence disclosed that the Defendant could not have reasonably held that opinion as: 1. The Sporting Association had two keys to the Disabled Toilet, one held by the Defendant, and one kept at the canteen for use by the public on days when there were sporting events; 2. The Disabled Toilet was fitted with an MLAK key system which allowed all key holders (entitlement to a key includes all persons with a disability) the capacity to access the Disabled Toilet in all circumstances and at any time. It was submitted that the evidence disclosed that the Defendant was aware of this feature of the key system as it applied to the Disabled Toilet; 3. The facilities at the Premises (including the Disabled Toilet) were being regularly used at least by the Sporting Association; 4. There are numerous other documents describing keys circulating within the Sporting Association and Council of which the defendant was either aware, or it was information which was available to a reasonable person acting as the groundskeeper at the Premises; 5. In 2012, the defendant was present at a meeting of the Sporting Association when there was discussion about use of the Disabled Toilet by the women of the "Sport Ass"; and 6. In 2013, it was clear someone from the Sporting Association must have had access to the Disabled Toilet because they complained about the need to clean it and for a letter to be sent to "Sports Ass in regards of the toilet". 1. It was contended that these factors elevated the conduct of the Defendant to criminal negligence as any reasonable person in the position of the Defendant, with the knowledge the Defendant had, would have been aware of: the real and significant risk posed by exposure to pesticides, particularly the ingestion of pesticides; that the Disabled Toilet was accessed by members of the public whether or not the Sportsground was in use; and, as a consequence, there was a real risk of ingestion of the Pesticide contained in the Coke Bottle and placed unsecured in the Disabled Toilet. Defendant's submissions 1. The Defendant submitted that there is insufficient evidence for the Prosecutor to establish beyond reasonable doubt that the Defendant's conduct satisfies the relevant test for criminal negligence, in particular, having regard to the following matters: 1. The pesticide was a residue that was placed in the Coke Bottle because the original container had deteriorated and was itself no longer safe; 2. The Disabled Toilet was kept locked by the Defendant, being a volunteer groundskeeper at the relevant time; 3. The Defendant honestly believed that he had the only key to the facility; 4. The Disabled toilet was not listed as a public facility; and 5. There is no evidence that the Sporting Association, the Defendant or the Central Coast Council had any knowledge that Life Without Barriers was visiting the sports ground or using the Disabled Toilet generally or on the date of the alleged offence. 1. The Defendant's submissions emphasised that he had taken precautions, by placing the Coke Bottle in a secure location, as he assumed that by locking the Disabled Toilet it would preclude the risk of ingestion of the Pesticide. He was of the opinion that he held the only key to the Disabled Toilet and was unaware that it was capable of being accessed by other persons using the MLAK key system. He relies on these factors as a demonstration of the objective knowledge that would be held by a reasonable person in his position. Without a reasonable person being aware that other persons could use the Disabled Toilet it was not reasonably foreseeable that there was a risk of the Pesticide causing injury. 2. The Defendant also rejects the characterisation by the Prosecutor of the evidence outlined at [63]-[64] above. It is contended that such evidence does not demonstrate criminal negligence as: 1. There is no evidence that the label on the original container was legible or that the Defendant had seen the container when the label was legible; 2. The references to a booklet, the knowledge of the committee of the Sporting Association and past penalty infringement notices as to use of pesticides or fertiliser is mischaracterised as it does not relate to the associated risks of pesticide storage; there is no evidence he was aware of all of these factors (or that the reasonable person in his position would have been so aware); there is no evidence that pesticides were being used at the Sportsground at the relevant time; and 3. The past complaints as to storage in the Disabled Toilet did not specifically relate to pesticides but was a general complaint about the use of the Disabled Toilet for storage of any material generally. This was an issue unrelated to risk. Findings on whether the Defendant was criminally negligent 1. Having regard to the conduct of the Defendant in this matter it is apparent that the placement of the Pesticide into a Coke Bottle was extremely imprudent and contrary to the recommendations for the storage of pesticides and basic common sense. The Defendant has been prosecuted for those actions and, for the reasons outlined above, the offence of using (in this case by storing) pesticides so as to cause actual injury has been established. The question is whether such conduct displays such disregard for an objectively high risk that it warrants a finding of criminal negligence. 2. The Prosecutor relies, in terms, upon the historic availability of access to the Disabled Toilet, spanning a period both before and after the placement of the Coke Bottle in the Disabled Toilet. The Negligence Charge, however, does not charge the Defendant for conduct relating to that historic period, or with there being a likelihood of injury to a person, which is available under s 7. Rather, the Prosecutor has charged the Defendant with causing actual harm to a nominated person on a nominated day, whose injury occurred due to the storage of the Pesticide in the Disabled Toilet. This tension has to be resolved as the Charge requires a determination as to whether the Defendant's conduct on the relevant date was criminally negligent by reference to whether the risk of injury to a person by ingestion would be reasonably foreseeable to a reasonable person. This requires an analysis of the date the harm occurred, albeit informed by past circumstances. 3. This tension is further illustrated by the Prosecutor's identification of the criminally negligent conduct. The Prosecutor has particularised that conduct as relating to use of the Disabled Toilet generally (example, by reference to the proximity to the children's playground) rather than the specific circumstances charged in this case, namely, access by a person using an MLAK key for use of the Disabled Toilet by a disabled person at a time when the Sportsground was not in use. 4. In light of the manner in which the Charge is formulated, the focus must be on the elements of the specific conduct to which the Negligence Charge relates and not some broader or more general conduct for which the Defendant has not been charged. In that context, the accumulation of past knowledge and the use of the Disabled Toilet and pesticides may inform a consideration as to whether, objectively, the actual conduct for which the Defendant has been charged amounts to the criminal negligence. 5. Therefore, in this case, the issue for determination is whether a reasonable person in the position of the Defendant on the relevant day would have reasonably foreseen that there was an objectively high risk that a person would have accessed the Disabled Toilet using an MLAK key, on a day when the Sportsground was not being used for sport and ingested the Pesticide, and the Defendant's conduct disclosed such a disregard of the high risk that the conduct amounts to criminal negligence. 6. The fact that the Pesticide was stored in a Coke Bottle that still bore the original Coca-Cola label and that such Coke Bottle was placed in a manner that did not preclude access or visibility does objectively give rise to a reasonable foreseeability of ingestion by a person who has access to the Disabled Toilet. A reasonable person would have known that the placement of the Pesticide in a drink bottle would give rise to an obvious risk of harm of the type particularised in this case. The foreseeability of harm is well known and reinforced by the common understanding (and inferred from the regulatory requirement) that pesticides should not be stored in drink bottles. This fact was also understood by the Defendant who stated in his interview with the Prosecutor's investigators: I've got all sorts of chemicals at home in all sorts of containers and I don't let my grand children in the shed alone. I wasn't there at the time and they shouldn't have left the boy in the toilet alone. I wouldn't let the kids near it at my place. 1. The risk of ingestion is also higher when the facility in which the Pesticide was stored was a facility specifically for use by disabled persons that included those with developmental delays, such as Mr Terry. 2. The foreseeability of this identified risk of ingestion as particularised by the Negligence Charge, however, depends on whether there was capacity to access the Coke Bottle on the relevant date. The Defendant contends that on the day in question he believed the Disabled Toilet was secure and that access was only available to him as he possessed the only key to the door and that the door was locked. There is no dispute on the evidence that on the day in question the Disabled Toilet was locked and access was only facilitated by the use of an MLAK key held by Mr Terry's carer. The question then arises as to whether a reasonable person in the position of the Defendant would have believed that the Disabled Toilet was secure in that no person other than himself was able to access the toilet. If it was so secure then the Defendant has not acted in a manner that would be criminally negligent, as access to permit ingestion would have been unlikely. If access to the Disabled Toilet was available then the Defendant's conduct would amount to criminal negligence, as access to the Coke Bottle and ingestion of its contents was reasonably foreseeable. 3. Dealing first with the MLAK key I find that a reasonable person, in the position of the Defendant, would not have been aware that access to the Disabled Toilet was generally available to all disabled persons who have been provided with an MLAK key. The Prosecutor has called no evidence to establish the extent of knowledge of a person in the Defendant's position, that is, a member of the public who is also a groundskeeper and member of the Sporting Association of the MLAK key system. Accordingly, I am unable to find beyond reasonable doubt that a reasonable person in the Defendant's position would have had such general knowledge of the MLAK key system. 4. My view is further reinforced by the evidence adduced from the Information Services Officer of Spinal Cord Injuries Australia (SCIA) who attested as to her knowledge and use of the MLAK key system. She makes no contention as to the system being general knowledge in the community. She also deposes that at the relevant charge date the SCIA maintained a directory of MLAK key system enabled toilets and the Premises was not listed on that directory. At that time the Master Locksmiths Association website directed people to the SCIA directory for a list of MLAK key compatible available toilets. 5. Further, neither the Sporting Association nor the Council had been made aware that disabled persons had been using the Premises and the Disabled Toilet on a regular basis. Despite a number of the Sporting Association members and volunteers giving evidence in this matter, none attested to a specific (or even general) knowledge of the use of MLAK keys or the use of the Disabled Toilet by persons other than at sporting events. 6. The Prosecutor does contend that the Defendant (or a reasonable person in his position) would be a person who had particular knowledge of the use of MLAK keys from a conversation had in his presence between Mr Rodger of the Sporting Association and a Council officer in about 2009. The evidence of Mr Rodger is as follows: 11. At the time of the renovations, and during a meeting between Jodi Clark of Council, Mr McInnes and myself, Jodi indicated that the Council did not want to provide a disabled toilet key to the Association. I had a conversation with Jodi and while I do not remember the exact words used, we said words to the following effect: Jodi said: "We are not going to provide you with a key for the disabled toilets because every disabled person has a key." I said: "Well what happens if someone turns up who does not have a key?" Jodi said: "No, everyone has a key." I said: "My mother-in-law is disabled and lives in Victoria. What happens if she's up here staying and wants to use the toilet? She would not have a key". 12. The Council reluctantly gave the Association a Master Lock Access Key after this conversation. I am aware that this key was kept in the canteen for use by the public including the Football Club. 1. This conversation is insufficient to establish beyond a reasonable doubt that at the relevant offence date a reasonable person would have been aware that disabled persons were capable of accessing the Disabled Toilet by the MLAK key system as: 1. The conversation was some 8 or 9 years prior to the offence and the deponent is unsure of the words spoken; 2. The Council officer who is said to have had this conversation with the Sporting Association does not depose to the conversation and notes in her Record of Interview: MS RYAN: Q37 I understand from notices that we have served on council that you maintain a register of keys for sports grounds? A Correct Q38 Do you maintain a register of keys for Mountain Districts Sports Ground? A No, I don't. Q39 Do you know who does contain a register of keys for Mangrove--- A I--- Q40 ---Districts Sports Ground? A I could only assume it's the actual club themselves so they always had their own keys, they had, then they asked if they could go under a council key because they had a lot of uncontrolled copies and the keys that we had were restricted so we had a key put in the system and they maintained that allocation. So that was just on, assisted council if there was significant issue like with the sewer stuff up there, sorry I don't know, they've got a funny sewerage system up there --- Q41 Yes ok. A ---so and if we needed to get in there, it had the council key on it and then it had the club key on it so it was only to help with that side of things and, and then that gave them a restricted key that if you left the club, then you couldn't find a copy of that key, you couldn't go and get it cut and then just go and access it so it restricted the access. Q42 Do you know when abouts that key would have been given to council – I mean given to the MD, the Sports Association? A Okay. So it was a couple of years ago, I couldn't give you an exact date I'm sorry, it is a good, I would say at least five, six years ago and I believe in that time that they have since had it changed again but still kept it on the council. Because it's on the council's system, doesn't mean we control it, it just means we, our staff, if they need to access it with the sewerage stuff then they can get into what they need to, that's, that's it. And like the electricians with the lighting but that's about all, yeah we don't, I don't know how many keys they have because they pay for it, they pay for it with the locksmiths. If it was a council managed one, we pay for the keys, we don't pay for the keys. 1. The Council record for 2009 indicates that four "master keys" and four "lower level" keys were provided to Mr Rodger of the Sporting Association. That record notes that the keys were to be returned at the end of the 2009 winter season. There is no evidence as to the allocation of keys in later seasons nor was the Council officer questioned about this in her Record of Interview which is appended to her affidavit; 2. The state of knowledge of the use of an MLAK key being available to all disabled persons using the Premises is inconsistent with the evidence of the Sporting Association's canteen manager (and Committee member) that deposes that the Sporting Association did not have a key to the Disabled Toilet until 2011. After that date the key was hung in the canteen for use during sporting events by disabled persons seeking access to the Disabled Toilet. From time to time the key from the canteen went missing and was ultimately returned, albeit she did not know who had the key at these times. She was further aware that the President of the Sporting Association also had a key to the Disabled Toilet. There is no evidence that any person accessed the Disabled Toilet using their own MLAK key at sporting events, but evidence is that access to the Disabled Toilet was effected by using the Sporting Association key. The inference being that the Disabled Toilet was otherwise locked, even at sporting events. 3. The Defendant in the interview conducted with him by Detective Senior Constable Fadi stated: 6. Over the years there were two keys for the disabled toilet but one of them got stolen, so we had to change the locks about a year ago. Since then we only ever had this one key which is in my possession all the time. The only time I open the disabled toilet is when I'm getting some marking fluid out. It is locked throughout the week and the weekend, even when the games are on. 7. In this disabled toilet I stored some of the line marking fluid, weed killer and the soccer club use it as a store room for their balls and other bits. 1. He stated in his interview with the Prosecutor's investigators: I thought I had the only key. Those people shouldn't have been in there with the Triquat. The coke bottle was away under the sink. They didn't ring us and ask to use the park or the toilets. We book out the park to groups. 1. The Council, after the incident, replaced all MLAK key accessible locks on premises not managed by them. 1. Together this evidence indicates that the knowledge of the MLAK key system and its availability at the Premises was, at best, unclear. The conversation with the Council officer relied upon by the Prosecutor does not state with particularity how the MLAK key system worked. The use of a physical key held in the canteen by persons with a disability appears to contradict the Prosecutor's assertion that the conversation would have put a reasonable person on notice of the use and operation of the MLAK key system. If a reasonable person should have known of that system then there would have been no need for the key to be maintained in the canteen. There has been no evidence adduced that it was for a group of disabled persons who did not have an MLAK key (such as was suggested in the conversation at [80]) or any other explanation as to the nature of use of the canteen key that would satisfactorily explain the need for this key. 2. For those reasons, I find that the Prosecutor has not established to the relevant standard that a reasonable person in the Defendant's position would have known that the Disabled Toilet was able to be accessed using the MLAK key system. 3. The Prosecutor also contends that the Defendant's belief that he held the only key was unreasonable in the circumstances. This submission is a reference to the evidence that the Sporting Association had (at least in 2009) been provided with four master keys, or, on other evidence, had two keys that opened the Disabled Toilet. As outlined above, the Charge is specific in that it relates to the actual event when Mr Terry ingested the Pesticide. Access to the Pesticide on that day was by way of the MLAK key held by his carer. 4. The evidence does not establish that such a master key would have opened the Disabled Toilets. In fact, the evidence of Mr Rodgers is that a specific request for a key to the Disabled Toilet had to be made to Council and that the Council was disinclined to provide such a key. The Council officer's evidence is that it had provided the eight keys without concern. The inference is that the master key did not access the Disabled Toilet. 5. Further, the statements made by the Defendant that at the relevant date he held the only key to the Disabled Toilet was not disputed in any other evidence adduced by the Prosecutor. The Prosecutor contended that the statements of the Defendant should not be accepted as truth where they are inconsistent with other evidence adduced. There is no contradictory evidence adduced on dealing with the custody of the Sporting Association's key at the relevant charge date, or whether there was more than one key held by the Sporting Association at that date. 6. The key held at the canteen was not always returned. There is no evidence that the canteen key was in the possession of the Sporting Association at the relevant date, other than the evidence of the Defendant that it had been stolen. On the basis of the totality of the evidence before me I find, on balance, that it was likely the canteen key had been lost. Accordingly, I find on the evidence that the Defendant's belief that on the relevant day he held the only key to open the Disabled Toilet was not unreasonable. 7. Accordingly, the Prosecutor has failed to establish to the proper standard that a reasonable person in the position of the Defendant would have known or believed that there was another key that accessed the Disabled Toilet such that his belief that he held the only key was unreasonable in the circumstances. Absent available access to the Disabled Toilet I cannot find that the Defendant's conduct has risen to such a standard that it could be established that, objectively, the Defendant's conduct disclosed a sufficient degree of carelessness or disregard of the obvious risk as would warrant criminal sanction. 8. For those reasons, I dismiss the Charge that the Defendant did negligently use a pesticide in a manner that caused harm in contravention of s 7(1)(a) of the Pesticides Act. Conclusion and orders 1. In proceedings 266434 of 2018 the Court orders that: 1. The Defendant is convicted of the Charge that on or about 10 August 2017 he committed an offence against s 10(1)(a) of the Pesticides Act 1999 in that he used a pesticide in a manner that injured another person; and 2. The proceedings be listed for mention before the List Judge on Friday, 8 May 2020 to fix the matter for a hearing on sentence. 1. In proceedings 309955 of 2018 I do not enter the orders but I adjourn the matter for mention before me on Friday, 22 May 2020 at 9:30am. ********** Amendments 21 May 2020 - In proceedings 309955 of 2018 orders entered on Thursday, 21 May 2020. 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: 21 May 2020