JUDGMENT
1 Talbot J: This is an appeal within the Court's Class Six jurisdiction from a decision of a magistrate at Mullumbimby Local Court on 23 June 2005. The appellant was found guilty of an offence under s120 of the Protection of the Environment Operations Act 1997 ("PEO Act") and convicted. The appeal is made to this court as of right pursuant to s31 of the Crimes (Local Courts Appeal and Review) Act 2001 ("Review Act"). Under the provisions of s37 of the Review Act that are set out in full below an appeal is to be a rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings with fresh evidence to be given only by leave if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. There is no fresh evidence.
2 Mr Leggat SC appears for the appellant on appeal for the first time and seeks to raise objections to evidence accepted in the court below without objection. The appellant was represented by counsel at the hearing before the magistrate.
3 Mr Wright of counsel appears for the first time for the prosecutor on appeal. He opposes the taking of the objection at this stage as he says the appellant should be bound by the conduct of its case before the magistrate and not allowed to unpick the evidence particularly where counsel conducting the case on behalf of the appellant did not cross examine the witness who gave the evidence now objected to and led direct evidence in response during the defendant's case.
4 In order to understand the objections now raised by Mr Leggat it is critical to appreciate the particulars of the charge. Initially it was alleged that cars were crushed at Goonengerry in the Byron Bay District between 30 July and 1 August 2004 and that as a consequence oil fuel and other pollutants were discharged onto the ground. It appears that the prosecutor relied upon that part of the definition of "water pollution or pollution of waters" contained in paragraph (d) of the dictionary to the PEO Act.
5 The evidence objected to relates to written statements by investigating officers reporting on a conversation with the owner of the property who made statements to them to the effect that the principal of the defendant company, Alan Irvine, had crushed cars on the site. The owner of the property, Mr John Harrop, was not called to give direct evidence. Counsel appearing for the defendant cross examined the council officers in relation to this evidence.
6 During the course of the hearing the particulars of the charge were amended to extend the period of the alleged crushing operation to 5 August 2004.
7 Mr Irvine gave evidence. No questions were put to him in chief or cross examination that specifically required him to explain whether he did in fact crush cars between the particularised dates. His evidence concentrated on the alibi evidence that neither he nor any employees of the company were present at the site during the relevant period.
8 Mr Wright suggests that rather than seeking to unravel the evidence on appeal, the evidence in the form and to the extent received below should be dealt with according to its weight so that hearsay evidence could be properly balanced against direct evidence given orally or through the documents.
9 Setting aside the hearsay evidence by the officers relying upon the conversation with Mr Harrop, the undisputed evidence is that Mr Irvine left the site on 23 July and did not return until 4 August 2004. During that period he was in Nowra on 29, 30 and 31 July celebrating his 60th birthday with his friends and family. Nevertheless there is evidence based upon the observation of the compliance officers that some crushing activity took place between 30 July and 1 August. Crushed cars were observed on the ground at the site on 1 August 2004 whereas they were not observed there in that condition on 30 July. The evidence is that there was no employee of the defendant company at the site between 27 July and 3 August 2004. However, during that period an excavator used by the company remained on site. The keys were left in the excavator.
10 When Mr Irvine returned to the site on 4 August 2004 he observed Mr Harrop and an employee of the company Mr Murray attempting to replace a track which had become displaced from the excavator. Mr Murray did not give evidence. The only other employee of the company to give evidence was Mr Miller and he was not at the site between 23 July and 3 August 2004.
11 In the light of the evidence of the compliance officer that the alleged crushing took place between 30 July and 1 August it is not readily apparent from the record why the particulars of the charge were amended to include the further period up to 5 August.
12 The appellant places important significance upon the method of operation employed by the company for crushing of cars. This is because the cars that were allegedly crushed between 30 July and 5 August were not dealt with in accordance with the usual method adopted by the company. The particular practice of the company can be briefly described as crushing cars in a sealed bin. After the car bodies are lifted into the bin using an excavator they are crushed with a heavy metal bar for the purpose of reducing the volume of the car body to facilitate transportation to the recycling company depot.
13 The inference from the evidence is that the crushing of cars that took place on the subject site between 30 July and 5 August took place on the ground. That is the way the cars were found on 1 August 2004. Mr Irvine has given evidence that no employee was authorised to crush cars on the ground. Mr Miller has also given evidence to the effect that he has never seen a car crushed on the ground except on one occasion at Coffs Harbour Tip.
14 Accordingly there are two elements to the appellant's defence. Firstly that no employee of the company was present at the site during the relevant period and there is no first hand evidence of how or by whom the crushing took place on the ground. Secondly the procedure adopted for the crushing of cars on the ground was inconsistent with the adopted practice of the company.
15 If the Court is persuaded to reject the hearsay evidence of the actual crushing of cars on 31 July 2004 then the prosecution falls back on the fact that the key was left in the excavator while it was unattended during the absence of any company employee thereby facilitating the use of the excavator and the heavy metal bar which was also left on site to crush cars on the ground rather than in the sealed bin (Empress Car Co. (Abertillery) Ltd v Natural Rivers Authority [1998] 1 All ER 481). Mr Leggat rejects this submission on the basis that it was never part of the case before the magistrate and that in any case the decision in Empress Car should be distinguished.
Whether an Objection not taken below can be sustained on Appeal
16 Section 37 of the Review Act provides:
(1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38.
(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
(3) …
17 The nature of a rehearing provided by s5AA(3) of the Criminal Appeal Act 1912 as it then was is discussed by Kirby P as he then was in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 and held at 692 that the Court "consider the appellant's culpability upon the basis of the evidence which was tendered before the trial court" and any additional or substituted evidence adduced by the Court on appeal.
18 In Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 James J after referring to Camilleri's Stock Feeds reiterated at 678
…where…there is a challenge to correctness of the trial judge's ultimate conclusion, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor.
19 In Camilleri's Stock Feeds Kirby P dealt directly with the point raised by Mr Leggat at 686 as follows:
Before this Court, the appellant sought to have the evidence of prior emissions excluded from the evidence to be considered. By reason of the appellant's consenting to the admission of the evidence at the trial, it was not, in my view, open to the appellant to challenge the admissibility of the evidence before this Court. Ordinarily, a party consenting to the admission of evidence at trial cannot, unless there are exceptional circumstances, seek, upon an appeal by way of re-hearing (as distinct from an appeal by way of hearing de novo), to have such evidence excluded. To allow such a facility would be contrary to the law of evidence.
20 The judgments of the Court of Criminal Appeal are binding on me and conclude the argument against the appellant so that the evidence remains as the record to be considered in the context of what James J said in Histollo. The Review Act contains no opportunity for evidence in substitution for the evidence given as contemplated by Kirby P in Camilleri's Stock Feeds. Nevertheless as no question of substitution arises in this case the findings in Camilleri's Stock Feeds and Histollo are applicable.
Determination
21 The conversation on 1 August 2004 between Mr Harrop and Mr Hill, the compliance officer, is set out in a written statement made by Mr Hill on 21 April 2005 as follows:
7. At 10:45am, after inspecting the waste site the rangers and I approached a male person who was working on a trailer at the driveway entrance to Lot 56 Mill Road.
8. I said to the male person "my name is Andrew Hill, a Compliance Officer with Byron Shire Council and this is Council Rangers Scott Brodie and Gerry Burnage".
9. I said "what is your name".
10. He said "John Harrop".
11. I said "are you the owner of this property" and he said, "yes I own part of a Multiple Occupancy here".
12. I said, "are the dumped cars in the bush yours".
13. He said "the cars had been there for years and he was trying to clean them up".
14. I said "I am investigating the dumped cars in accordance with the Protection of the Environment Operations Act and anything you say to me could be later used as evidence in a court of law and you have the right to remain silent".
15. He said "I am worried what is happening here, am I in trouble".
16. I said "Council is concerned about the dumped cars and the potential for serious pollution and I am unsure what the consequences are until I obtain enough evidence".
17. He said "I am worried about the pollution and I am just trying to clean the cars up but I am willing to cooperate with Council and help in any way".
18. I said "who owns the excavator".
19. He said "Spike".
20. I said "who has been operating the excavator".
21. He said "Spike".
22. I said "do you know Spike's proper name".
23. Mr Harrop thought for a moment then said "Allen, Allen Irvin I think, he is crushing the cars with the excavator and taking them to Sydney on a truck" he said "the processing plant in Brisbane was broken down and had been for about 9 months and that is why the cars are being taken to Sydney".
22 The conversation is confirmed in exactly the same terms in written statements made by Council Rangers Brodie and Burnage on 18 January 2005.
23 Mr Hill answered questions during cross examination as follows:
Q. In relation to the penalty notices that you caused to be issued to Mr Irvine's company, Cliftleigh Haulage, they all indicated basically, that the problem was the crushing of the cars in between when you last visited the property on 30 July to when you visited again on 1 August?
A. Well what happened was that it was my - well what I noticed was that works had occurred between 30 July and 1 August.