ADI Limited v Environment Protection Authority; Environment Protection... [2000] NSWCCA 333 | Case summary

Friday, 13 October, 2000 ADI LIMITED v ENVIRONMENT PROTECTION AUTHORITY JUDGMENT 1 FOSTER AJA: This is an appeal from a decision of the Land and Environment Court, exercising its summary jurisdiction. The trial judge, Talbot J, having found the relevant offence proved on 6 November 1998, convicted the appellant on 10 February 1999 of an offence against the Environmental Offences and Penalties Act 1989 in that, on 23 April 1997, at Mulwala in the State of New South Wales, it polluted waters, contrary to s. 16(1) of the Clean Waters Act 1970. The waters in question were the waters of the River Murray. Talbot J imposed a fine of $25,000. 2 In this appeal the appellant, ADI Limited ("ADI") appeals against the conviction. The Prosecutor, Environment Protection Authority ("EPA"), appeals against the fine on the ground that it was inadequate. The appeal is brought pursuant to s. 5AB of the Criminal Appeal Act 1912 and is by way of rehearing on the evidence. In determining the appeal, however, it will be convenient to refer to the aspects of his Honour's judgment which have been challenged in argument by the appellant. 3 It is convenient, at the outset, to set out certain background facts. 4 ADI, at all relevant times, carried on business as a manufacturer of military munitions at Mulwala in a large factory complex situated about 2 kilometres to the north of the north bank of the Murray River. One of the components in the manufacture of explosive propellants produced at the factory was nitrocellulose. In the production of this material a large amount of effluent was generated, the effluent being known as "white water" because the suspension in the water of small amounts of nitrocellulose gave to the effluent a "milky" appearance. 5 For a number of hours on 23 April 1997 it was observed by officers of the EPA and others that milky white liquid was discharging from pipes in a concrete head wall into a 40 metre long open trench which led to the Murray River. The outlet pipes and drain were situated at the southern end of a long storm water and effluent drain, partly open and partly piped leading from ADI's factory. Only waste material and stormwater from the factory entered this drainage complex, with the result that the discharge observed came from the factory's operations. This was not disputed before his Honour, nor in the appeal, and can be taken as established beyond reasonable doubt. 6 During the period of observation, the discharged milky liquid flowed into the trench at not inconsiderable velocity and thence into the waters of the Murray. Upon entering those waters it formed a clearly visible plume extending upstream and downstream until apparently merging with the river waters and losing its milky appearance. Samples of this discoloured water were taken by EPA officers at various positions to which reference will be made later. These samples were analysed by appropriate laboratory techniques. The results of these analyses will be referred to later. The content of the liquid so discharged was also the subject of evidence relating to the manufacturing processes of ADI, the production of effluent from those processes and its treatment within the factory. It was asserted by the EPA and found to be established by his Honour that, as a result of these procedures, the discharged material obtained its milky white appearance from the presence within it of nitrocellulose particles and that it also contained, as a by-product of the appellant's manufacturing, the substance ethanol. The evidence relating to the presence of these substances in the discharge liquid was extensive. His Honour's findings have not been disputed on appeal. They were clearly open. I am satisfied, to the relevant standard, that these substances were present in the discharged material as it flowed from ADI's pipes into the open trench which took it to the river. 7 The Legislation It is necessary to set out, at this stage, the relevant sections of the Clean Waters Act 1970 No. 78 (the Act) which applied at the time of the alleged offence: "Section 16 (1) A person shall not pollute any waters. ……. (3) A person shall not cause any waters to be polluted, whether intentionally or not. (4) A person shall not permit any waters to be polluted. ………. (6) Notwithstanding the foregoing provisions of this section it shall not be an offence arising under those provisions for a person to pollute any waters if he holds a licence…..and does not pollute the waters in contravention of any of the conditions of the licence. (7) Any person who contravenes the provisions of this section is guilty of an offence against the Environmental Offences and Penalties Act 1989 ." 8 Section 5 contains the following relevant definitions:- " pollute, in relation to any waters, means: (a) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, ……." and pollutant and pollution have corresponding interpretations. wastes means any solid, gas or liquid, with or without matter in suspension or solution in it, which is or may be discharged from premises: (a) in the course of any process or operation carried on in connection with ….industry.. . waters means any river …." 9 It is to be observed that the definition of "pollute" is very wide. There could be no realistic dispute that the introduction of the milky white liquid into the waters of the Murray was, relevantly, a pollution of those waters. 10 The major point of dispute in the case, however, involved the reliance of ADI upon s. 16(6) of the Act. ADI held a licence and relied upon its terms. Accordingly, it is necessary to set out, at this stage, the relevant parts of that licence, which was issued under the Pollution Control Act 1970 and modified by notice given by the E.P.A. under s. 17D(3) of that Act on 20 December 1996. " Pollution of waters S1. The licensee must not pollute waters except as expressly permitted by this licence. (That is, the defence in section 16(6) of the Clean Waters Act 1970 is available only if the licensee pollutes waters as expressly permitted by this licence. In this condition, the terms " pollute " and "waters" have the same meaning as in the Clean Waters Act 1970." " Further conditions with respect to the Clean Waters Act 1970 Licence Number: 004848 In Force Until: 17 August 1997 A total of 1 point(s) of discharge, the locations of which are specified individually hereafter, are authorised by this licence. The licensee may discharge in accordance with the conditions of this licence the volume, concentration or type of pollutants described below. Location of authorised discharge point: Open drain leaving site at Bayly Street, Mulwala. E 406770, N 6015750. Code number of authorised discharge point: 001 Discharge Classification: DRAIN, WITH DISCHARGE OF MORE THAN 500 BUT NOT MORE THAN 2,000 KILOLITRES/DAY. LIMIT CONDITIONS W1. The volume of wastes discharged must not exceed 2000 kilolitres on any day. W2. The wastes that are permissible to be discharged must not:- W2.1. contain more than 45 milligrams per litre of non-filtrable residue. W2.2. contain any visible grease or oil, nor contain more than 10 milligrams per litre (in total) of grease and oil. W2.3 have a pH value below 6.5 or greater than 8.5 pH units. 3. The following monitoring and recording of the wastes discharged must be carried out: 3.1 volume of waste waters discharged daily, in kilolitres. 4. Representative samples must be collected at 30 day intervals from the waste water discharge and analysed for the following elements and/or compounds. The analysis must be conducted by a NATA approved laboratory and appropriate record(s) kept:- 4.0.1 chemical oxygen demand (milligrams per litre) 4.0.2 non-filtrable residue (milligrams per litre) 4.0.3 grease and oil (milligrams per litre) 4.0.4 nitrogen (total) (milligrams per litre) 4.0.5 nitrogen (kjeldahl) (milligrams per litre) 4.0.6 Nitrogen (ammonia) (milligrams per litre) 4.0.7 nitrogen (nitrate and nitrite) (milligrams per litre) 4.0.8 conductivity (microSiemens per centimetre) 4.0.9 sulphate (milligrams per litre) 4.0.10 pH " 11 Both the construction of s. 16 of the Act and the terms of the licence were significant subjects of dispute in the case and in this appeal. 12 The learned primary judge held that, as a matter of construction, the onus of establishing the matters in s.16(6) of the Act, namely the existence of the licence and its compliance with its terms, fell upon ADI. In the appeal, ADI submits that in so doing his Honour erred, asserting that the proper construction of s.16 required that the onus of establishing ADI's non-compliance with the terms of its licence fell upon the EPA, in which case, of course, proof beyond reasonable doubt would be required. 13 His Honour undertook a most comprehensive survey of the authorities bearing upon this topic. I do not propose to repeat that exercise. I find it sufficient to refer to the statement of principle in two decisions of the High Court. The first is in the judgment of Brennan, Dawson and Gaudron JJ in Director of Public Prosecutions v United Telecasters Sydney Ltd (1989-1990) 168 CLR 594 at 600-601. Their Honours stated: "The rule laid down in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be 'subject to…the defence of insanity and subject also to any statutory exception'. It is made clear in Reg. v Edwards [1975] QB 27, and Reg. v Hunt [1987] AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see, e.g., Crimes Act 1900 (NSW), s. 417), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg. v Edwards [1975] QB at 40, viewed the statutory exceptions as limited to: 'offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.' In Reg. v Hunt [1987] AC at 375, even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment." 14 The question received further consideration in Chugg v Pacific Dunlop Limited (1990) 170 CLR 249. In the judgment of Dawson, Toohey and Gaudron JJ (at 257-259), the following statements appear:- "For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch {1955) 91 CLR 512 at 519-520. The distinction does not depend on the rules of formal logic: Dowling v Bowie (1952) 86 CLR 136 at 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 599-601. The intention may be discerned from express words or by implication. See Reg. v Edwards [1975] QB 27 and Reg. v Hunt [1987] AC 352…………. Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v Bowie (1952) 86 CLR at 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s. 168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception "whether it does or does not accompany the description of the offence". One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring & Lighterage Co. Ltd. V Jacobsen (1945) 70 CLR 635 at 644, per Dixon J. Such is ordinarily the case where, in the terms used in Reg. v. Edwards [1975] QB at 40 there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". See Reg. v Hunt [1987] AC at 375, where Lord Griffiths considered the statement from Reg. v Edwards [1975] QB at 39-40, "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof." 15 The question being one of statutory construction it is necessary to have regard to the general statutory setting in which the relevant provision arises. The stated object of the Act is "to make provisions with respect to the prevention or the reduction of pollution of certain waters; and for purposes connected therewith." I have already referred to the width of the definition of "pollute". The subsections of s. 16, set out above, prohibit the pollution of waters by persons in a most comprehensive and definite manner. They clearly lay down a general rule or prescribe a general obligation. A person can escape the operation of the rule or the imposition of the obligation if he holds a relevant licence and does not pollute waters in contravention of any of its conditions. Thus the Act contemplates that limited and conditional permission to pollute may be granted by licence, to the terms of which strict adherence is required. If a person is to gain the protection of s. 16(6) he must ensure that he complies with the licence conditions. 16 In these circumstances, in my opinion, the person contemplated by s. 16(6) of the Act falls within the category of persons referred to in the passage cited above from Reg. v Edwards. Also, whether or not a person has complied with the terms of a licence granted to him would be a matter peculiarly within his own knowledge. This points to his bearing the onus of proof of such compliance, as appears from the passage cited above. 17 A further submission was made by ADI to the effect that the legislature would not have contemplated, as a matter of policy, placing upon the licence holder the burden of proving compliance. It was contended that the difficulties of maintaining daily controls over the concentration of pollutants in industrial wastes and maintaining a regime of measurement to ensure compliance would be so heavy as to lead to the conclusion that the intention was that the EPA should bear the onus. It was asserted that it would necessarily be far easier for the EPA to prove non-compliance, in any particular instance, than for the licence holder to prove compliance. In support of this argument reference was made to the licence requirements that mandatory monitoring should occur only at thirty day intervals. Quite apart from the difficulty of using the terms of an individual licence in aid of the construction of the statute, I am satisfied that this licence condition could have no such effect. There is a clear statutory prohibition against the pollution of waters, which is repeated in the licence. The primary obligation of the licence holder is so to conduct its affairs that pollution, outside the terms of the licence, does not occur. The provision for mandatory monitoring cannot, in my view, be read as cutting down, in any way the primary obligation. It should be seen merely as a minimum requirement in aid of but not in substitution for the overall requirement of compliance with the legislative mandate. 18 I am satisfied that, as a matter of construction, a person seeking to rely upon s. 16(6) of the Act bears the onus of establishing, on the balance of probabilities, that any pollution of waters by him occurred pursuant to a licence and in strict conformity with it. 19 In my opinion, therefore, the onus of establishing that the admitted pollution occurring on the 23 April 1997 was permitted by the terms of its licence fell upon the appellant, ADI. 20 I turn then to consider the extent to which ADI's licence entitled it to pollute the waters of the River Murray. This depends upon the proper construction of "further conditions" set out above. 21 In the first place ADI is permitted to "discharge in accordance with the conditions of this licence the volume, concentration or type of pollutants described below". It is to be observed that no pollutant is named in the licence. There is, for instance, no reference to nitrocellulose or ethanol by name. The pollutants are described as "wastes". The definition of "wastes" in the Act indicates that they are also "pollutants". 22 The limitations imposed by the licence are set out in paragraphs W1 and W2. No more than 2,000 kilolitres of wastes may be discharged on any day. Nor must the wastes contain more than 45 milligrams per litre of non-filterable residue ("NFR"). The other limitations in W2 are not relevant in this case. 23 Two observations may be made immediately: (a) 45 milligrams is a very small weight: as pointed out in argument, it is not unusual for a small pharmaceutical capsule to contain 300 milligrams; and (b) ethanol is not excluded by W2, it being conceded that it mixes with waste water, leaving no residue. 24 What is the effect of W2? Is the licence infringed if any one litre of wastes discharged contains more than 45 milligrams of NFR or is it contemplated that an "averaging" approach is permitted? I am satisfied the words "per litre" sufficiently indicate that averaging of NFR content may take place in determining whether a licence infringement has occurred. However, this leaves open the question over what volume of wastes is averaging to take place. For ADI it is contended that the appropriate volume to be considered is the actual volume of wastes discharged on any day (not exceeding 2,000 kilolitres) with the result that, for instance, if 1,000 kilolitres of wastes were discharged in a morning, containing no NFRs and, later in the day there was a separate discharge of 1,000 kilolitres containing 90 milligrams of NFR per litre, there would be no infringement because the daily average would not exceed 45 milligrams per litre. I do not accept this submission. In my view the wording of W1 does not, in this fashion, control the operation of W2. W2 is not concerned with the total volume of waste discharged per day. It is concerned with the concentration of NFR per litre in any single continuous discharge. It is clear, from evidence in the case, that the concentration of NFRs such as nitrocellulose has a bearing upon the harmful effects upon the waters of any one discharge of wastes. In the example given, the second discharge would be an infringement. In my view, it is also clear from the terms of licence that the determination of whether the discharge contains an infringing concentration of NFRs is to be determined by the taking of "representative samples". In my view, this indicates that sampling should relate to a volume of wastes comprised in a particular reasonably identifiable discharge. 25 ADI bears the onus of establishing that on 23 April 1997 it did not exceed these licence requirements. Has it succeeded in doing so? 26 The first problem confronted by ADI is that, as is conceded, it had no instrument established in its premises, by which it could measure the "volume of waste waters discharged daily, in kilolitres", as required by its licence. It, therefore, has not been able to provide evidence of the volume of wastes in fact discharged on that day or on any part of that day. 27 In the trial, the EPA undertook the onus of establishing that ADI had failed to comply with the terms of its licence. It did so, in the context of maintaining a submission that, notwithstanding this, the onus of proving compliance ultimately should be borne by ADI. It may be noted that the learned primary judge had in a previous case given a judgment in which he had accepted that the EPA bore this onus. A later judgment in the Court had been to the contrary. His Honour, in deciding the present case, followed the later judgment rather than his earlier one. In these circumstances, the EPA produced, in its case, all its evidence bearing upon the breach of the licence conditions. There was, accordingly, a contest as to whether this evidence in fact established such a breach. As aspects of the evidence are relied upon by ADI as indicating that no breach occurred, it is necessary to consider these areas of dispute. 28 As I have said, there was no dispute that the waste materials discharged from ADI's premises were a pollutant within the meaning of the Act. The description, in the evidence, of the discharge and the series of photographs taken of it at the time clearly demonstrate this fact. The waste fluid was significantly milky white in colour. It was "colloidal" in appearance. It moved quickly along the fairly narrow and shallow channel connecting the point of discharge to the point of entry into the river. It maintained a uniformly milky white appearance whilst it proceeded along the channel and, as I have already said, continued to maintain it in the form of an extensive plume into the waters of the river. The area of its contamination of the river flow was clearly visible and, apparently, resulted in the matter being brought to the attention of the EPA that morning, by way of complaint 29 Officers of the EPA, Messrs Gardiner and Chubb, attended the scene and took samples of contaminated water for laboratory analysis. It was alleged in the trial and in this appeal that the sampling procedures were flawed, with the consequence that the results of the analyses were unreliable. These results, in fact, indicated the presence of NFRs at levels significantly higher than those permitted by the licence. 30 It should be said that evidence of investigations made that day by EPA officers at the premises of ADI and of discussions with relevant employees makes it quite clear that the milky white quality of the discharged wastes was the result of the presence in them of particles of nitrocellulose. It was also made clear that the nitrocellulose had entered the wastes as a result of overflow from a treatment plant, the function of which was to separate nitrocellulose from waste waters, with a view to its reuse in the manufacturing processes of the factory. Considerable detail was provided as to how this occurred. There is no need to repeat it here. Ethanol had also entered the wastes as a result of manufacturing processes, but, as I have already found, its presence involved no breach of the licence. 31 The evidence traced in detail the way in which the overflow of waste water, impregnated with nitrocellulose, reached the point of discharge into the channel leading to the river bank. The licence referred to the "authorised discharge point" described as "open drain leaving site at Bayly Street, Mulwala." This particular drain had not, received effluent for many years. ADI had replaced it with a concrete underground pipeline commencing inside the boundaries of the plant near the head of the open drain. This pipeline performed the same function as the drain in receiving the combined flow from the appellant's plant of effluent waste and stormwater. This underground pipe connected with a further pipeline commencing about 1 kilometre south of the end of the old open drain which led to the outfall at the Murray River. Nothing entered this drainage system other than wastes from ADI's plant. Accordingly, it was possible by taking samples of the effluent emerging from the outfall to determine the nature and content of the effluent leaving the Plant at its southern boundary. This was the approach his Honour adopted. Its correctness has not been disputed and may be, therefore, accepted for the purpose of this appeal. 32 The evidence does not establish, with precision, when the relevant discharge commenced on 23 April 1997. ADI, itself, had taken a sample of the effluent being discharged from the outfall at 8.00 am on that day. That sample contained 65 milligrams per litre of NFR. It appears that the effluent was described, at that time, as being "murky". When the officers of the EPA arrived, in response to a complaint, at 11.30 am, the effluent was, as already indicated, flowing from the discharge pipes into the channel and thence to the river at a noticeably fast rate and was consistently milky white in character. Several samples were then taken, to two of which I shall make a reference. The two men returned to the site after conducting an inspection at the factory premises. It was, by then, after 2.00 pm. The flow was diminishing and the milky discolouration in the river, although still visible, was less intense and extensive. 33 It may be assumed, therefore, that the relevant discharge of wastes occurred from sometime before 8.00 am until mid-afternoon on 23 April 1997. There is, however, no evidence as to the precise volume of wastes discharged during this period of discharge. It may be accepted, however, that the concentration of NFR in the discharge was at its highest during the period when the samples were taken by the EPA officers. In argument the whole discharge was referred to as a "slug" passing through the disposal system and the high concentration of NFRs as "spikes". 34 The two most significant samples were taken by Mr. Chubb around 11.00 am. The first was taken in the channel about five metres from its junction with the water of the river. The second was taken in the river itself, in the white plume, a few metres from the point of entry of the channel to the river. The first sample yielded a reading of 330 milligrams per litre of NFR and the second 410 milligrams per litre. 35 These significantly high readings were attacked on the basis of flaws in the sampling technique. It was asserted that the samples should have been taken at the point of emission from the outlet pipes, before any prospect of contamination from material in the channel could occur. It is clear that the samples were not taken at this point, it being considered that greater significance should be attributed to the concentration of NFR at the point where the river waters themselves were contaminated. Both Mr Gardiner and Mr Chubb were cross-examined on the basis that both the method of taking the samples and the positions in which they were taken would necessarily lead to their being unrepresentative samples of the wastes being discharged. These suggestions were stoutly resisted. Both the EPA officers were suitably experienced, Mr Gardiner having appropriate scientific qualifications. I am satisfied, as was his Honour, that they took a proper professional approach to the obtaining of representative samples of the impugned effluent. 36 Their approach was attacked on two bases. Firstly, it was contended that, in its passage along the channel, the waste would necessarily pick up and mix within it contaminants from the bed and sides of the channel, the existence of which would compromise the subsequent analyses. This suggestion was supported by some expert evidence called by ADI and was denied by an expert witness called by the EPA. A reading of the evidence shows that it was given in general terms only, there having been no experimental work done to determine whether contamination from the channel could occur. His Honour did not find that any such contamination was present and, for my part, I can see no reason from departing from this finding. It was also asserted that the second sample, taken out in the waters of the river, would necessarily be contaminated by sediments stirred up by Mr Chubb when he moved into the river and adopted the position from which he took the sample. It was also contended that his use of a measuring stick would have had a similar effect. He asserted that he was most careful to avoid any contamination from these sources. His Honour was obviously satisfied to accept the evidence of Mr Chubb. The only evidence suggesting the possibility of such contamination came from an expert witness who saw the site under different conditions, after flooding and consequent silting had occurred. I would not be prepared to depart from his Honour's findings that these considerations did not require a conclusion that the samples were unrepresentative. 37 The second attack was based upon the way in which the sampling jars were handled. It was asserted that they should have been fully submerged in the water at the point of sampling. They were in fact operated in such a way as to leave a gap between the top of the opening of the jar and the level of the water, at the time the sample was taken. Messrs. Gardiner and Chubb were quite satisfied that the technique used was appropriate. The discolouration of the water and its extent and depth from the surface were quite obvious and the jars were operated in such a way as to get samples of the pollutant which reasonably showed the concentration. His Honour, after consideration of the evidence, was not prepared to find any flaw in the sampling. I can see no reason to depart from his finding. 38 The result is that for a significant time there was discharged into the waters of the River Murray pollutants from the manufacturing processes conducted by ADI. Reliable measurements indicated those pollutants contained concentrations of NFR most significantly higher than those permitted by ADI's licence at the time and place where the samples were taken. In these circumstances, I can find nothing in the case which would satisfy the onus cast upon ADI of proving on the balance of probabilities that it had complied with the terms of the licence in relation to the discharge of the wastes. 39 In the circumstances, I am satisfied that his Honour was correct in finding the offences proved. The appeal consequently, should be dismissed. 40 I turn then to the cross-appeal on penalty. 41 His Honour, in a separate judgment, provided detailed reasons for the imposition upon ADI of a fine of $25,000. It is this fine which is said to be manifestly inadequate. The appeal against this penalty is brought pursuant to s. 5D(1A) and (2A). These sections, so far as relevant, provide as follows:- "5D(1A) The Environment Protection Authority may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or the Land and Environment Court in any proceedings for an environmental offence (otherwise than on an appeal), if those proceedings have been instituted or carried on by, or on behalf of, the Environment Protection Authority. The Court of Criminal Appeal may impose such sentence as it may seem proper. …………… (2A) In this section, a reference to an environmental offence is a reference to an offence against the environment protection legislation as defined in the Protection of the Environment Administration Act 1991." 42 There is no dispute that the offence in respect of which ADI stands convicted is relevantly "an environmental offence." 43 The principles governing this appeal are the same as those appropriate to a Crown appeal against sentence. The appeal is not a rehearing but depends upon the establishment of error in the sentencing by the trial judge. Even if such error be established, the Court of Criminal Appeal retains a discretion whether to intervene to correct the sentence in a particular case. 44 His Honour took into account, in sentencing, that the relevant discharge into the waters of the River Murray contained not only the high content of NFRs referred to but also significant amounts of ethanol. For reasons already given, the presence of ethanol cannot be regarded as a breach of the relevant licence conditions. Indeed, this may be a matter which should be rectified by an appropriate notice changing the conditions of the licence. However, to the extent that his Honour took this into account error has been established, although it is one which operated in favour of the prosecution. 45 Penalties for offences under the Clean Waters Act 1970 are provided by s. 8B of the Environmental Offences and Penalties Act 1989 No. 150. The section provides, so far as relevant, as follows:- "(1) Any person who (by virtue of any provision of the Clean Waters Act 1970 ) is guilty of an offence against this Act is liable: (a) in the case of a corporation - to a penalty not exceeding $125,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues." 46 Section 9 of that Act provides for matters to be taken into consideration in relation to the imposition of penalty. It provides as follows:- " 9 Matters to be considered in imposing penalty In imposing a penalty for an offence against this Act, the court is to take into consideration (in addition to any other matter the court considers relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, and (b) the practical measures which may be taken to prevent, control, abate or mitigate that harm, and (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, and (d) the extent to which the person who committed the offence had control over the causes which gave rise to the offence, and (e) whether, in committing the offence, the person was complying with orders from an employer or a supervising employee." 47 It is clear that his Honour had regard to these sections when considering the imposition of an appropriate penalty. 48 In his judgment he refers to the evidence of a witness, Dr Ross Hyne, the principal research ecotoxicologist at the EPA's Centre for Ecotoxigology who expressed the view that the concentration of pollutants was sufficient to cause harm to biota in the river but, however, was not able to say that actual harm had been caused. Mr Gardiner, in his evidence, established that the Murray River in the vicinity of the discharge was used extensively for recreational purposes and that the river water in the area was generally of a high quality suitable for irrigation and for drinking by stock. 49 His Honour, in relation to the question of "harm" made the following finding:- "There is no evidence of actual harm caused to the environment by the commission of the offence. However the test results demonstrate that the effluent collected from the discharge channel or in the mixing zone two metres from the river bank caused death to test animals at a concentration of fifty per cent. In contrast, river water collected seventy-five metres up stream of the discharge was not toxic at any concentration tested. Although the extent of likely harm cannot be accurately measured, the potential for harm was nevertheless real. In addition there was an impact upon the physical visual appearance of the river by the introduction of the milky coloured substance." 50 The trial judge, also, had before him evidence, obtained from ADIs own monitoring records, that there had been a pattern of discharges into the river, both before and after the day of the offence, of wastes containing more than the permissible limit of 45 milligrams per litre. The measurements involved were considerably less than those demonstrated on the day of the offence but they were, nevertheless, indicative of a failure by ADI to control the discharge of wastes in compliance with its licence conditions. His Honour had before him a report from ADI, as required by the EPA, explaining how the offence had been committed. This indicated that an unusual combination of events on the day before and on the day of the commission of the offence had produced a significantly high level of pollution. 51 His Honour, quite properly in my view, was not prepared, however, to regard the pollution on the day in question as an isolated event. He said: "It is …apparent from the evidence that the company was aware that the discharges were occurring on a regular basis over a period of time extending through several years and the position was not remedied."

ADI Limited v Environment Protection Authority; Environment Protection Authority v ADI Limited

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