AJS Hotel Management Pty Ltd v Lismore City Council

Judgment 1The Appellant was found guilty in Lismore Local Court on 20 July 2012 of an offence under s 143 Protection of the Environment Operations Act 1997 (the PEO Act) of illegally dumping waste. It appeals against that conviction in this Court under s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Appeals Act). The Appellant was represented by its director in the local court proceedings. 2The charge related to the dumping of organic and other waste on the river bank of the Wilson River on 19 July 2011. The Appellant at the time operated the business known as Tommy's Tavern in Molesworth Street Lismore. The Appellant ceased operating the business on 7 August 2011. 3Section 143 of the PEO Act provides: (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000, or (b) in the case of an individual-$250,000. Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation-see section 169. (2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste. (3) Defence-owner of waste It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes: (a) that the commission of the offence was due to causes over which the owner had no control, and (b) that the owner took reasonable precautions and exercised due diligence to prevent the commission of the offence. 4Waste is defined in the PEO Act waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. 5The Court's powers on appeals against conviction are defined in s 39 of the Appeals Act and include setting aside a conviction. The conduct of the appeal is a rehearing on the basis of the evidence before the magistrate; s 47. Pursuant to s 47(2) fresh evidence may be adduced with leave of the Court but no such application was made in this case. Under s 49(2) of the Appeals Act the Court has the same functions as the magistrate in the original local court proceedings. 6The appeal grounds identified in the summons allege various errors made by the magistrate. The grounds ultimately relied on were: 1. The learned Magistrate erred: (a) In finding that the Appellant either: ... (ii) ... caused the waste to be transported, or ... (b) In finding that the Appellant was the owner of the waste. 2. The decision of the learned Magistrate below was contrary to the evidence and the weight of evidence. 7The transcript of the proceedings before the local court was tendered. The eight exhibits tendered in the local court were tendered in Court being: (a)Exhibit 1: a copy of the Penalty Infringement Notice (b)Exhibit 2: "Google Maps" showing the location of Tommy's Tavern with respect to Molesworth Street and the Wilson River; and an aerial photo showing the location of Tommy's Tavern with respect to Molesworth Street, the Wilson River and the car park between the hotel and the River. (c)Exhibit 3: photographs of the waste the subject of the offence. (d)Exhibit 4: the Council's record of "rejection stickers" (indicating the date 18 July 2011). (e)Exhibit 5: Photocopy of Stuart Thomson's Authorisation card (identifying that Mr Thomson is authorised by the Council pursuant to a range of legislation including the PEO Act). (f)Exhibit 6: Copy of notes made by Stuart Thomson on 31 August 2011. (g)Exhibit 7: A record of Interview with P J Barnes. (h)Exhibit 8: Letter from the Appellant on Tommy's Tavern letterhead, signed by A J Sidgreaves (Managing Director, AJS Hotel Management Pty Ltd) to the Council dated 7 August 2011. 8On 27 March 2012 the Appellant was charged by Court Attendance Notice (CAN) (exhibit C) in the following terms: "Owner cause permit transport waste to unlawful waste facility - Corporation" (Court Attendance Notice dated 27.03.2012) 9The particulars of the offence given in the CAN were: "WASTE: 2 WHEELIE BINS OF ORGANIC WASTE: LOCATION: KIRKLAND RIVIERA CARPARK". 10The statutory provision describing the offence was s 143(1)(b) of the PEO Act. 11Prior to being charged with the offence, the Appellant had been served with a Penalty Infringement Notice in similar terms (exhibit 1). The charge in the CAN reflects, in part, the words of section 143(1) of the PEO Act. 12A summary of the local court proceedings as contained in the Council's submissions is set out immediately following at par 13 - 53. Having read the transcript of the local court proceedings the Council's summary appears fair to me and that is why I have included it here. Those parts that were disputed by or clarified by the Appellant are also identified below. 13Mr Shaun Moore, a plant operator employed by Lismore City Council, gave oral evidence for the Council. At the time of the offence he was the team leader of waste collection (transcript, p 7, line 29). Mr Moore gave oral evidence that on 2 August 2011 he received advice concerning illegal dumping on the banks of the Wilson River. Mr Moore investigated the dumping and saw waste consisting of "food material, organic food material and pieces of steel wool, a plastic spatula, beer bottles, aluminium cans and clam shells" (transcript, p 8 lines 1, 2). Mr Moore took photographs of the waste (exhibit 3) (transcript, p 7 line 50, transcript, p 8, line 13). Mr Moore, in re-examination, believed the waste to have come from a restaurant (transcript, p 15, line 30). The Appellant referred to a conversation around this time between Mr Sidgreaves and Mr Moore where Mr Sidgreaves denied knowing about the waste dumping. 14Mr Moore gave evidence with respect to the system employed by the Council for the giving of "rejection stickers" (transcript, p 9). Mr Moore confirmed that the Council had a record of two rejection stickers having been given to Tommy's Tavern on 18 July 2011 with respect to its waste collection by the Council (exhibit 4) (transcript, p 9 line 32). The Appellant submitted that a rejection sticker does not mean waste was not collected. This can be seen from the Council's records for 18 July 2011(exhibit 4) which records the reason for one bin having a rejection sticker as "must contain only organic material - emptied". The reason for the sticker for another bin is "too heavy". There is no indication whether that bin was emptied or not. 15Mr Moore gave evidence that only the Council is authorised to take organic waste and Tommy's Tavern is the only "operator" in that vicinity that produces organic waste for collection by the Council (transcript, p 10 lines 9, 19). 16Mr Moore gave evidence that only the Council operates a waste facility at which organic waste can be disposed: the banks of the Wilson River is not a place at which waste can be taken and disposed (transcript, p 10 lines 26, 33). 17Mr Moore was cross-examined by Mr Sidgreaves, director of the Appellant, who asked questions in relation to a conversation that took place with Mr Sidgreaves on 2 August 2011. It was put to Mr Moore that Mr Sidgreaves could not have been in Lismore on that date (transcript, p 11 line 50 and p 12 line 1). 18Mr Sidgreaves also asked questions in relation to the producers of organic waste in the vicinity of Tommy's Tavern. It was put to Mr Moore that other businesses in the vicinity of Tommy's Tavern produce organic waste (transcript, p 12 line 36). Mr Moore accepted that other businesses produce organic waste but Tommy's Tavern is the only business that puts its organic waste in the car park for collection (transcript, p 3 line 3). 19Mr Sidgreaves also asked questions in relation to whether Mr Moore had produced a written statement. In re-examination an attempt was made to tender the written statement but the written statement was not admitted into evidence (transcript, p 14 line 1 and p 16). 20Mr Stuart Thomson, an Environmental Compliance Officer employed by Lismore City Council, gave oral evidence. A copy of Mr Thomson's Authorisation Card was tendered and admitted into evidence (exhibit 5) (transcript, p 17 line 35). 21Mr Thomson gave evidence that on 4 August 2011 he attended the banks of the Wilson River and inspected the waste that had been "dumped" on the riverbank. Mr Thomson explained the location of the waste in relation to the River and referred to exhibit 2 (transcript, p 18 line 41). Under cross-examination he stated that at the time of the inspection the waste had been there for "quite some time" (transcript, p 30 line 30). 22Mr Thomson gave evidence that he received certain information in relation to the waste incident and then attended Tommy's Tavern where he had a conversation with "P J Barnes" and Mr Ben White (transcript, p 19 line 7, 28, 34). Mr Thomson made contemporaneous notes of those conversations and those notes became exhibit 6 (transcript, p 19 line 41 and p 20 line 32). 23Mr Thomson invited Mr Barnes and Mr White to attend the Lismore CBD office of Lismore City Council. Mr Barnes subsequently met Mr Thomson and a record of interview (ROI) was taken (transcript, p 21 line 7). That record of interview became exhibit 7 (transcript, p 21 line 34). The Appellant emphasised that Mr White denied that he and Mr Barnes had dumped rubbish. Mr White was not called by the Council so this conflict was never resolved. The Appellant referred to the ROI at length at par 3.10 of its written submissions noting that Mr Barnes refers to only one bin, does not mention another person being present and asserts that no-one else but him was involved in the incident. 24Mr Thomson made further enquiries of Council's records and obtained a copy of the letter which is exhibit 8 (transcript, p 21 line 45 and p 23 line 6). This letter advises the Council that the Appellant would cease to act as operator of Tommy's Tavern from 7 August 2011. 25Mr Thomson was cross-examined in relation to his evidence. Mr Sidgreaves (on behalf of the Appellant) asked questions in relation to the investigation undertaken by Mr Thomson, including his powers of investigation under legislation, whether CCTV footage had been consulted and whether Mr Thomson had spoken to Mr Sidgreaves (transcript, p 23 line 49, p 24 lines 9, 33). Mr Thomson was asked further questions in relation to the enquiries that were made in relation to the incident (transcript, p 25 lines 39 - 50) and answers were given, including an answer that a company search was made with respect to Tommy's Tavern prior to the issue of the Penalty Infringement Notice to AJS Hotel Management (transcript, p 26 line 17 and p 29 line 2, p 34 line 47). 26At the invitation of Mr Sidgreaves (on behalf of the Appellant) Mr Thomson read onto the record a substantial part of exhibit 8 (transcript, p 27 lines 6 to 22). 27Mr Thomson was also cross-examined about the conversations with Mr Barnes and Mr White and the record of interview (transcript, p 31 line 27 to p 33 line 42). It was put to Mr Thomson that the facts as asserted in the record of interview were "uncorroborated and unsubstantiated" and Mr Thomson did not agree with that proposition (transcript, p 32 line 3). 28Mr P J Barnes, a former employee of Tommy's Tavern, gave oral evidence for the Council. Mr Barnes stated that he was an employee of the Appellant from about November 2010 until March 2012 and his duties at the hotel were cleaning and general maintenance (transcript, p 36 line 14 to 29). Mr Barnes had particular responsibilities with respect to the waste at the hotel (transcript, p 36 line 30). 29Mr Barnes gave evidence that the cleaning staff were responsible for putting out the organic waste bin (transcript, p 36 line 50). Mr Barnes gave evidence that in his experience the bins were "quite full and at some points they were overflowing" and consequently "we started getting a few rejection letters and stuff like that from the waste companies just because they would never take it" (transcript, p 37 lines 17 to 20). Mr Barnes clarified his evidence: the "rejection letter" is a sticker put on the outside of the bin (transcript, p 37 lines 40 to 42). 30Mr Barnes gave evidence as to the state of the organic bin on 18 or 19 July: the bin was "overflowing"; the smell was "quite horrendous"; maggots were hosed "out of the back laneway that leads to the kitchen from where the bins are situated" (transcript, p 38 lines 3 to 6). The waste in the bin included "seafood like scraps and stuff like that, mussel shells, prawn heads" (transcript, p 38 line 30). 31Mr Barnes gave evidence about a conversation with Mr Sidgreaves whereby Mr Barnes informed Mr Sidgreaves of the state of the bin. Mr Barnes' further evidence of the conversation was as follows: "Well, his first direction was to inform us to get rid of it and I asked where, he told me to put it in the river. I, I obviously thought he was joking about it and then he told me to go and dump on the riverbank. I wasn't too keen to do it but he informed [me] that he'd find somebody else to do it if I didn't." (transcript, page 38 lines 35 to 39). 32Mr Barnes gave further evidence about the disposal of the waste on the riverbank (transcript, p 38 lines 44 to 50). Mr Barnes was shown a photograph of the waste (exhibit 3) and he confirmed that the photograph depicted the waste deposited (transcript, p 39 lines 5 to 9). 33Mr Barnes thereafter gave evidence of his conversations with Mr Thomson and he confirmed that exhibit 7 was the record of interview he provided with Mr Thomson (transcript, p 39 line 15 to p 40 line 5). 34Mr Barnes was cross-examined in relation to his evidence. Mr Sidgreaves (on behalf of the Appellant) asked questions about the way Mr Barnes responded to certain questions in the record of interview, including questions in relation to "were any other persons involved in this incident?" (transcript, p 40 line 30). 35Mr Sidgreaves asked questions about the instructions that were given to Mr Barnes about the disposal of the waste (transcript, p 41 line 19). Mr Barnes was also asked about his experience in assisting Mr Sidgreaves with the disposal of rubbish from the hotel (transcript, p 41 line 44). 36Mr Sidgreaves asked questions about Mr Barnes' recollection of the dates on which the incident occurred and the date on which Mr Thomson spoke to him: Mr Barnes said that he believed Mr Thomson came and saw him "not many days afterwards", about three or four days afterwards" (transcript, p 42 line 37 to 42). 37Further questions were asked about the presence of Mr Sidgreaves at the hotel during July and August 2011 and the operation of the hotel by a lessee (transcript, p 43 line 20 to p 44 line 30). 38Mr Barnes denied that he was offered any inducement to give evidence against the Appellant (transcript, p 45 line 10). 39The magistrate clarified with Mr Sidgreaves that the conversation was denied (transcript, p 45 line 33). The magistrate then put to Mr Barnes the essence of the conversation "Get rid of it down the river" and Mr Barnes (indirectly) denied that he "made that up" (transcript, p 45 line 47) and then affirmed that the conversation did happen: "I've just taken the oath and under oath of - I'm not lying" (transcript, p 46 line 14). 40Mr Sidgreaves gave evidence as the director of the Appellant (transcript, p 48 line 10). 41The magistrate established that Mr Sidgreaves is the director of the Appellant and (although the transcript is not entirely clear) the company"(AJS Hotel Management Pty Ltd) was responsible for the operation of Tommy's Tavern (being evidence consistent with exhibit 8) (transcript, p 48 line 9 to 15). 42The magistrate put to Mr Sidgreaves the substance of the evidence: that on behalf of the Appellant he asked Mr Barnes to dump rubbish down by the riverbank. Mr Sidgreaves was asked to respond to that by giving his account of what happened. Mr Sidgreaves gave the following evidence, being his evidence in chief: There is just no way anybody with half a modicum of intelligence cognisant of the fact that place is swimming in security cameras would instruct anybody to dump rubbish in an area in close proximity to my venue. I am a ratepayer in Lismore. I understand the ramifications of what dumping does, additional costs. I am gobsmacked. I have spent the majority of my life enforcing laws. I, I have never been convicted of a criminal offence. I have been held to account through numerous tribunals, royal commissions, god knows what else. Dumping rubbish 40 metres from where your venue is, is nonsensical. I would never do it. I would never instruct my staff to break the law. I have obligations under the Corporations Act as a director and I have obligations to my staff. There is just no way I will subject anybody or anything to the potential ramifications of appearing before a tribunal of fact to justify their actions. (transcript, p 48 lines 21 to 34) 43In cross-examination Mr Sidgreaves was asked about his experience in the management of hotels and indicated that he had been involved in the management of hotels since 2000 (transcript, p 49 line 7). Tommy's Tavern was the first hotel in which Mr Sidgreaves was responsible for the day to day operation of the hotel, commencing this role in 17 September 2005 (transcript, p 49 lines 35 to 42). 44A restaurant is operated from the hotel (transcript, p 50 lines 22 to 23). 45Mr Sidgreaves also gave evidence about an illness suffered by his father that resulted in his hospitalisation. Mr Sidgreaves' father died on 16 December (transcript, p 56 line 3) and Mr Sidgreaves "wasn't in Lismore much" for the six months before he passed away (transcript, p 44 line 12 to 15), giving a date range of about mid-June to mid December 2011. Mr Sidgreaves gave further evidence about the need for him to be in Sydney to be with his father during the course of that illness while at the same time being the licensee and operator of the hotel (transcript, p 49 line 43 to p 50 line 6). 46The operation of the hotel required management of the waste at the hotel. Mr Sidgreaves gave evidence that staff were given responsibilities and were obliged to "follow the chain of command" (transcript, p 51 line 26). Nevertheless Mr Sidgreaves conceded that there was a problem with the collection of the organic waste from the hotel because rejection stickers were issued in relation to that waste (transcript, p 51 lines 39 to 44). 47After questioning by the magistrate on this point, Mr Sidgreaves said that he "misinterpreted" the question and said that "it wasn't brought to my attention that there was problems per se but with the waste" (transcript, p 52 lines 33 to 35). 48Mr Sidgreaves was asked the following questions in cross-examination and gave the answers (as indicated): "Q. Was your evidence just then that matters were not brought to your attention or is it your evidence now that you don't recall whether matters were brought to your attention? A. I, I don't have the time to worry about a waste sticker on my garbage can. That's why I employ other people to deal with issues. If there's a waste sticker on a garbage can, they would have taken it up with somebody in the chain of command and it would have been addressed. To me, having a waste sticker affixed to a bin was not the most pressing issue affecting Tommy's Tavern in 2011, in July 2011. Q. I understand what you're saying to me. Can I put this to you? That when you say that there are other more pressing issues, is it fair to say then that your attention wasn't on the waste? It wasn't on it being collected? A. I can't answer that, I, I don't know. I can't give you the answer to the question because that - the waste was not my area of responsibility." (transcript, p 52 line 39 to p 53 line 9). 49Certain questions were asked of Mr Sidgreaves about the preparation of the case on behalf of the corporation and in particular the facts and circumstances relevant to the waste stream from the hotel on 18 and 19 July (transcript, p 53 line 27 to p 55 line 28). 50Having regard to Mr Sidgreaves' recollection of events the following exchange took place during cross-examination: Q. He [Barnes] was told by you to go and put the waste in the river and then he said, "I'm not doing that" and you said, "Put it on the riverbank." That's the guts of the case, isn't it? A. If I asked Mr Barnes to jump off the Harbour Bridge, would he? Q. That's not responsive, Mr Sidgreaves, with respect. You asked me what I'm putting to you. I've told you. A. I've stated before, Mr Young, that there are that many cameras, CCTV. I'm a ratepayer of Lismore. I have a duty of care to my employees. I'm accountable to the Corporations Act. I'm accountable to the criminal Act. I would never, ever, ever instruct a person to break the law. (transcript, p 54 line 44 to p 55 line 4). 51At the conclusion of the cross-examination the magistrate asked Mr Sidgreaves about the "possibility it did happen" (presumably the possibility the waste from the hotel was dumped by the river: the transcript is not clear). Mr Sidgreaves gave the following answer: "No. There's just no way. Look, what I would respectfully submit might have occurred is that my staff - and look, PJ Barnes - Mr Barnes - I consider him a friend. I try to do as much as I can for all my people so that, you know, you get the best of them. I really believe that he took it upon his own self to, to do it and when he got caught, felt the pressure and decided to blame somebody that wasn't in Lismore, namely me, because I had gone. I wasn't there." (transcript, p 56 lines 44 to 50). 52The magistrate did not invite the Council to make submissions but rather to respond to a question put from the bench (transcript, p 57 line 6). 53Mr Sidgreaves was invited to make a final submission and he did so (transcript, p 57 line 27 and following).