Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd

CATCHWORDS : Land and Environment Court - questions of law for the determination of the Court of Criminal Appeal - whether questions stated were questions of law or of fact - whether questions stated were sufficiently specific - whether questions of law are required to be of general application - defence of authority of licence - defence of honest and reasonable mistake of fact - whether question (c) was a question of law arising at or in reference to the proceedings Clean Waters Act 1970 Criminal Appeal Act 1912 s5AE, s5B LEGISLATION CITED : Criminal Code 1889 (Qld) s669A(2) Pollution Control Act 1970 Protection of the Environment Operations Act 1997 s5, s43, s120(1), s122, Schedule 1, Protection of the Environment (Savings and Transitional) Regulation 1998 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 EPA v Australian Iron and Steel (1992) 28 NSWLR 502 Environment Protection Authority v Goulburn Wool Scour Pty Limited [2003] NSWLEC 200, unreported, 9 September 2003 He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 McPhee v S Bennett Ltd (1934) 52 WN(NSW) 8; [1934] WCR(NSW) 362 NSW Grains Board v Garry Ernest Davis, unreported, NSWCCA, 17 July 1997 Ostrowski v Palmer [2004] HCA 30; 206 ALR 422 CASES CITED : Proudman v Dayman [1941] HCA 28; 67 CLR 536 Proust v Blake (1989) 17 NSWLR 267 R v Lewis, ex-parte Attorney General [1991] 2 QdR 294 R v Madden (1995) 85 A Crim R 367 R v Porter [2004] NSWCCA 332; 141 A Crim R 593 R v Tolson (1889) 23 QBD 168. Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721 PARTIES : Environment Protection Authority of NSW - Applicant Goulburn Wool Scour Pty Ltd - Respondent FILE NUMBER(S) : CCA 2004/2054 COUNSEL : DA Buchanan SC with JK Kirk and TG Howard - Applicant DF Jackson QC with CJ Leggat and A Djemal - Respondent SOLICITORS : Steve Garrett - Applicant C Shaw - Respondent

LOWER COURT Land and Environment Court JURISDICTION : LOWER COURT 50003/03 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2054

SIMPSON J BELL J BUDDIN J

Friday 10 December 2004 ENVIRONMENT PROTECTION AUTHORITY OF NSW v GOULBURN WOOL SCOUR PTY LTD Judgment 1 SIMPSON J: Pursuant to s5AE of the Criminal Appeal Act 1912, Talbot J of the Land and Environment Court has submitted three questions of law for the determination of this Court. 2 S5AE is in the following terms: "5AE Point of law stated during summary proceedings

(1) At any time before the completion of proceedings before ... the Land and Environment Court in its summary jurisdiction ... the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit." 3 The proceedings in which the questions arose were commenced by summons filed in the Land and Environment Court in March 2003. The then Prosecutor, the Environmental Protection Authority of NSW ("the EPA") alleged that, on 5 February 2002, the then defendant, Goulburn Wood Scour Pty Ltd ("GWS") had committed an offence against s120(1) of the Protection of the Environment Operations Act 1997 ("the PEO Act"). S120 provides as follows:

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section: "pollute" waters includes cause or permit any waters to be polluted." 4 It was not in dispute that GWS had in fact polluted waters, and Talbot J expressly so found. It is therefore unnecessary to explore the detail of the allegations made against GWS. In defence of the charge, GWS advanced two contentions:

(i) that it acted under the authority of a licence issued to it by the EPA;

(ii) that it acted under an honest and reasonable mistake of fact. 5 If either contention were made out (I say this conscious that the onus of disproving a claim of honest and reasonable mistake of fact, once made, lies upon the prosecution), then GWS would have been exonerated and entitled to have a verdict of acquittal entered. 6 Having heard the evidence and the argument Talbot J resolved both issues in favour of GWS. Before making orders giving effect to his conclusions he was asked by the EPA to, and did, submit to this Court two of the questions of law to which I have already referred. These are in the following terms: "(a) Did I err in law in finding that [GWS] had established a defence of authority of licence pursuant to s122 Protection of the Environment Operations Act 1997 ? (b) Did I err in law in finding that [GWS] had established the defence of honest and reasonable mistake of fact?"

At the request of GWS, his Honour added a third question:

"(c) Whether the Court of Criminal Appeal should decline to answer the questions posed in ... (a) and (b) by reference to the contentions in paragraphs 63, 71 and 76 in circumstances where - (i) the [EPA] made no submissions to me in relation to pollution of waters occurring by a leak from the effluent evaporation pit, and (ii) my relevant findings were those set out in paragraphs 20 and 21 above." 7 The references to paragraph numbers are references to a document entitled "Stated Case" in which his Honour outlined the facts as he found them, the contentions of the parties, his conclusions, and his reasons therefor. He annexed to the stated case a series of documents, including a judgment (Environment Protection Authority v Goulburn Wool Scour Pty Ltimited [2003] NSWLEC 200, unreported, 9 September 2003) containing his findings of fact, resolution of the issues between the parties, and his reasons (much of which has been distilled in the stated case), and other documents to which reference will be made in due course. It was agreed between the parties that, since his Honour's reasons for judgment were annexed to the stated case, it was open to this Court to have regard to that judgment if it saw fit to do so.

facts 8 Given the issues that arise in the current proceeding the facts may be stated with some economy. 9 GWS carries on business in the Goulburn area as a wool scourer. From 1993 it held successive licences issued pursuant to Chapter 3 of the PEO Act, or its predecessor legislation, the Pollution Control Act 1970. 10 As at 5 February 2002, the licence GWS held was one issued on 20 April 2001 under s43 of the PEO Act. S43 provides for four types of licences (environment protection licences) including, pursuant to sub-para (b), a licence authorising: "the carrying out of scheduled activities at any premises ..."

By s5 and Schedule 1, certain activities are listed as scheduled activities. Wool scouring is one such activity. 11 The licence issued to GWS on 20 April 2001 replaced one issued earlier, on 5 February 2001, with amendments. It is unnecessary further to mention the February 2001 licence. I will refer to the 20 April licence as "the EPL". Under the heading "Administrative Conditions" in the EPL, it was stated: "A1.2 This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2 ..."

The only "scheduled activity" identified was: "Livestock Processing - Scour"

In A2.1 the premises specified were identified as: "GOULBURN WOOL SCOUR MAZAMETT ROAD GOULBURN NSW" 12 The EPL contained a number of conditions, of which the following should be noted: " A4 Information supplied to the EPA A4.1 Works and activities must be carried out in accordance with the proposal contained in the licence application, except as expressly provided by a condition of this licence. In this condition the reference to 'the licence application' includes a reference to: (a) the applications for any licences (including former pollution control approval) which this licence replaces under the Protection of the Environment (Savings and Transitional) Regulation 1998 and

(b) the licence information form provided by the licensee to the EPA to assist the EPA in connection with the issuing of this licence. L1 Pollution of waters L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997 . O3 Effluent application O3.1 Effluent application must not occur in a manner which causes surface runoff to receiving waterways. O3.5 Stormwater runoff must be diverted from the irrigation areas." 13 Condition A4.1 requires reference back to GWS's application for the EPL. This was dated 10 December 1999, completed by Mr Kneebone, the General Manager of GWS, and entitled "Licence Information Form - premises" I will refer to this document as "the LIF". The LIF comprised a pro-forma containing provision for the insertion of information in answer to the directions or questions contained therein. Information inserted into the LIF showed the street address of the relevant premises as Mazamett Road Goulburn. 14 The pro-forma made provision for information under a number of questions or headings to which I will refer as clauses. Under clause 5, headed "Scheduled activities conducted at premises", requiring a description of the scheduled activities conducted or proposed to be conducted at the premises, GWS identified "wool scouring". Clause 7 was headed "Water licence". Immediately following the heading was the instruction: "If you answered YES in Question 5, do not answer this question , go to Question 8."

GWS had answered "yes" to question 5 and, accordingly, did not insert any answers or information in the boxes provided in clause 7. 15 Clause 8 was headed "Discharge points" and asked if any of the activities on the premises discharged pollutants to air, water or land. GWS ticked the "YES" box. This question was followed by four sub-clauses, headed, respectively: "8.1 Map of discharge points"; "8.2 Discharges to air"; "8.3 Discharges to water"; "8.4 Discharges to land". 16 Under clause 8.1 GWS ticked the box indicating that a map of discharge points was attached. It left blank the boxes under clauses 8.2 and 8.3, requiring information about proposed discharges to air and water; it filled in the boxes to clause 8.4, concerning proposed discharges to land. 17 Until 1998 the licences issued to GWS contained a further relevant condition, identified as condition W8. The precise terms of condition W8 did not appear in the materials provided to this Court, but were paraphrased by Talbot J in the stated case (para 28) as follows: "... there shall be no discharge from the irrigation area to 'waters' except following storm events of a one in 10 year 72 hour duration." 18 From 1 January 1998 the licence was amended by the deletion of this condition and it never reappeared. It was not part of the EPL current on 5 February 2002. 19 On 5 February 2002 a discharge of pollution to waters took place from GWS's premises. That this was so was not in dispute. As indicated above, GWS defended the charge on a dual basis: firstly, that the discharge of pollutants to water was authorised by the EPL; and secondly, that, in discharging the pollutants, it acted under a mistake of fact. Talbot J accepted both contentions. They are the subject of the first two questions submitted to this Court. 20 It will be necessary to deal with each question in turn. Before coming to the substance of the questions, however, one other issue needs to be disposed of. 21 GWS raised, as a preliminary matter to determination of the questions submitted, issues concerning the nature of questions (a) and (b). It argued that the Court should, in the exercise of the wide powers conferred by subs(2) of s5AE, decline to answer either question. This was because, on GWS's argument, the questions: (i) are not questions of law but of fact; (ii) lack sufficient specificity, or are general inquiries; and (iii) do not involve a principle of general application.

(i) questions of fact, not law: 22 Counsel for GWS argued that questions framed with the introduction "Did I err in law in finding ..." are a device aimed at converting questions of fact into questions of law. To support this contention, they invoked one sentence from the well-known decision of the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. Glass JA wrote: "A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof." 23 Two short points may be made in disposing of this submission. Firstly, Azzopardi was a case in which the relevant ground of appeal was that: "It was not open to [the trial judge] to find that the applicant had not suffered an injury to his right knee"

(in circumstances where appeal lay only on a question of law). It was in that context that Glass JA made the remark upon which reliance was placed in the present case. The statement of the ground of appeal alone demonstrates clearly that, in that case, the ground as framed masked an attack on the factual findings of the trial judge, an attack not open to be made in circumstances where an appeal was permitted only on a question of law. Secondly, the remark was preceded by the following: "A finding of fact ... may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself i.e. has defined otherwise than in accordance with law the question of fact which he has to answer... ... Alleged insufficiency of evidence to prove a fact always raises the question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted." (emphasis added) 24 Earlier still, Glass JA had quoted a decision of McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8, itself quoting Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 as follows: "The question whether there is any evidence of a particular fact is also a question of law." 25 GWS's reliance on the single sentence in Azzopardi is misplaced. Nothing in Azzopardi, when the whole of the judgment is read, supports the proposition that the questions as submitted are questions of fact and not of law. 26 It is true that, as in Azzopardi, what is properly characterised as a question of fact may be so clothed as to masquerade as a question of law. Where the gist of the attack made by the appellant in a stated case is directed to a finding of fact, the question may be framed so as to appear, wrongly, to be one of law. But that is not this case. As will be seen when I come to consider the merits of the case, the substance of each question is truly one of law.

(ii) specificity/general inquiry 27 GWS relied upon authority in this Court for support for the proposition that the questions lack sufficient specificity, or, put another way, are general enquiries. The first authority cited was R v Porter [2004] NSWCCA 332, unreported, 20 February 2004. That involved a stated case by the District Court to this Court pursuant to s5B of the Criminal Appeal Act. Although s5B is framed in terms different from s5AE, its substance, for present purposes, is the same. 28 At [29] - [31] Spigelman CJ, with whom Barr and Kirby JJ agreed, said: "[29] Nevertheless, the question set out above as the fourth issue is of wide ranging character and does not identify with sufficient particularity the legal issue now sought to be agitated. ...

[30] It is, in my view, strongly arguable that the question posed by issue 4 is of the character rejected by this court in R v Madden (1996) 95 A Crim R 367 at 370, i.e. it amounts in substance to an appeal from the determination, rather than the proposing of a specific legal question. ...

[31] In my view the question in the Stated Case should be answered 'inappropriate to answer' ..." 29 The question to which his Honour was there specifically referring was referred to as "issue 4" and framed as follows: "4) Whether, on the facts before the District Court the goods may reasonably be suspected of being stolen or otherwise unlawfully obtained." 30 The reference by his Honour the Chief Justice to Madden was a reference to another judgment of this Court involving a case stated by the District Court pursuant to s5B of the Criminal Appeal Act. Hunt CJ at CL (with whom Allen and Dunford JJ agreed), wrote: "The question which is posed for this Court's determination is whether the judge's finding that the offence had been proved was erroneous in law. It is not an appropriate question to be asked in a stated case. The procedure provided by s5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the District Court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s122 of the Justices Act [1902]. The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge on that appeal to the District Court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more than an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated." 31 Counsel also extracted a passage from the judgment of Samuels JA in Proust v Blake (1989) 17 NSWLR 267, criticising the case stated, again under s5B of the Criminal Appeal Act, on the basis that it did not: "... submit any fully formulated question of law but merely recite[d] the learned judge's decision and the respects in which the parties contend[ed] that that decision was wrong; and end[ed] by presenting the general inquiry whether the judge's determinations were erroneous in point of law."

The following two sentences might also be noted. They are: "There is no question specifically asked in terms which enable a direct answer. I think it would be better if these cases were stated by formulating the question or questions of law which have arisen in a fully interrogative form."

That case was decided, in the result, on a different basis, that the appeal in which the questions arose had been filed out of time. The Court did not set out the question or questions it criticised and the criticism was made by way of a supplementary observation by his Honour. Whatever the deficiencies of the question or question there submitted, I am of the view that no such deficiencies affect the present questions. 32 The final decision to which reference was made was NSW Grains Board v Garry Ernest Davis, unreported, NSWCCA, 17 July 1997, in which Gleeson CJ, with the concurrence of Handley JA and Grove J, (in an ex tempore decision) held that the form of the stated case was unsatisfactory in two respects, relevantly because: "... the questions of law raised in the stated case appear to be questions concerning the particular steps in the process of reasoning of [the District Court judge] rather than a formulation of the ultimate question or questions of law arising for decision in the case."

Only one of five questions there submitted is set out in the judgment. That question was: "Was I in error in my construction of [the legislation there under consideration]?

No asserted error of law was identified. This Court gave a partial or limited answer to that question, and held that the remaining questions did not arise. 33 In my opinion, none of the criticisms of the questions contained in the various stated cases that gave rise to these decisions translates to either of the questions submitted to this Court in the present case. The questions, in the context of the present stated case, are sufficiently specific and are not general inquiries.

(iii) principle of general application 34 On this contention counsel for GWS cited the decision of the Queensland Court of Criminal Appeal in R v Lewis, ex-parte Attorney General [1991] 2 QdR 294, and in particular, a passage in the judgment of Macrossan CJ in the following terms: "Accordingly, I think that s669A requires the Court to express an opinion on a point of law said to be contained in a reference or at least requires the Court in expressing its opinion to answer the question said to be raised, only if the point is of the character to which it can be assumed the sub-section intends to refer. It is concerned with a point involving a principle capable of some general application as opposed to rulings which are dependent upon the manner in which an assessment is made of the particular factual situations which are not readily capable of wider application in other situations."

In reliance on this passage, counsel contended that the question of law submitted to the Court under s5AE must involve "a principle of general application". 35 The answer to this argument lies in the construction of the statutory provisions which authorise the referral of the questions of law to the court. S669A(2) of the Queensland Criminal Code permitted the Attorney-General to refer any point of law that had arisen at a trial on indictment if the person on trial had been acquitted of the charge, or, had, as a result of the determination of the court on that point of law, been discharged after the Crown had decided not further to proceed upon indictment. Proper appreciation of the statute enables an appreciation of why Macrossan CJ held that the point of law for the reference to the court had to be of general application. It was a prerequisite to the exercise of the jurisdiction conferred by the section that the defendant had been acquitted, or discharged. Accordingly, there remained no point in those proceedings for determination. The stated case procedure for which s669A(2) provided was for clarification or determination of legal principle which had general application and might, therefore, affect the subsequent determination of the same point by other courts. 36 That is not the case in respect of s5AE of the Criminal Appeal Act. As with s5B (see the passage from Madden earlier quoted) s5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. S5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law. The passage in Lewis to which reference was made does not avail GWS. There is no need for the question of law to have general application. 37 Counsel for the EPA put submissions to this Court to the effect that the Court might reformulate the questions or determine the real issues that arise, even if some flaw were found in the questions as submitted. I find no such flaw and it is therefore not necessary to embark upon a consideration of the appropriateness of taking that course. 38 I am satisfied that questions (a) and (b) are questions of law and do not suffer from the defects attributed to them on behalf of GWS. In my opinion, this Court should proceed to answer those questions.

question (a): authority of licence 39 S122 of the PEO Act provides: " 122 Defence of authority conferred by licence It is a defence in proceedings against a person for an offence under this Part if the person establishes that:

(a) the pollution was regulated by an environment protection licence held by the person or another person, and

(b) the conditions to which that licence was subject relating to the pollution of waters were not contravened." 40 In paragraphs 44 and following of the Stated Case Talbot J said: "44. I was satisfied that the pollution was regulated by the licence within the meaning of s122 [PEO Act]. I found that the pollution was regulated by the design of the system expressly adopted by the [EPA] when it issued the licence to carry out the works and activities at Yarra in accordance with the existing proposal the particulars of which were already known to the [EPA] but nevertheless confirmed and reiterated in [the LIF] dated 10 December 1999. 45. I was satisfied on the balance of probability that [GWS's] authority to pollute the waters as it did on 5 February 2002 arose from condition A4.1 of the licence for the reasons outlined in par. 44 above. Another reason was the drainage system at the Yarra irrigation area functioned at least since 10 December 1999 as a first flush system in accordance with the design the subject of the [LIF] so that the works and activities on 5 February 2002 were carried out in accordance with the proposal contained in the licence application within the meaning of condition A4.1. I held that it was reasonable to construe the information provided in [GWS's LIF] on the basis that the current stormwater diversion system operating at the date the form was completed comprised the proposal. I held that the pollution was regulated by the design of the system expressly adopted by the [EPA] when it issued the licence to [GWS] to carry out the works and activities at Yarra in accordance with the existing proposal the particulars of which were already known to the [EPA] but nevertheless confirmed and reiterated in [the LIF] dated 10 December 1999. All of the works in place on that day functioned in accordance with their design and no breach of a licence condition was detected. 46. I did not accept that the deletion of condition W8 of the licence as from 1 January 1998 had the effect that a discharge of pollutants from the waters was no longer regulated by the licence. The system operating at the time the [LIF] was lodged was a system that was designed only to contain the first flush of stormwater runoff from the irrigation areas. I found that, having regard to the effect of condition A4.1 following the provision of information in [GWS's LIF] completed on 10 December 1999, the deletion of the condition W8 effectively did no more than remove the parameters for permissible discharge." 41 His Honour's reasons for finding that the s122 defence was made out were distilled by GWS, in its written submissions, into four. They are: "(a) Condition A4.1 of the licence permitted [GWS] to pollute waters as it did on 5 February 2002 (the pollution); (b) the works and activities carried out in accordance with the proposal contained in [the LIF] within the meaning of condition A4.1 (was regulated); (c) the pollution that occurred was regulated by the design of the system expressly adopted by the [EPA] when it issued the licence (was regulated); and (d) all of the works in place on that day functioned in accordance with their design and no breach of licence condition was detected (conditions of that licence were not contravened)." 42 The substance of the first question submitted to this Court for determination is whether it was open to his Honour so to find. In my opinion it was not. The question turns on whether the water pollution of 5 February 2002 was "regulated" (or authorised) by the EPL held by GWS. If it were, a subsidiary question, whether GWS had shown that the conditions to which the EPL was subject relating to the pollution of waters were not contravened might have arisen. (By referring to the subsidiary question, I do not mean to give the impression that contravention of any licence condition was a live issue in the proceedings; the issue in the Land and Environment Court, and in this Court, was whether the EPL held by GWS "regulated" or authorised water pollution by it. Contravention of any condition did not arise. I mention the possibility because there are two limbs to the defence provided by s122.) 43 In written submissions on behalf of the EPA it was proposed that the phrase "was regulated by an environment protection licence" should be construed as meaning: "... permitted by such a licence with controls or within parameters." 44 This proposed paraphrase was, in part, drawn from the judgment of Gleeson CJ in EPA v Australian Iron and Steel (1992) 28 NSWLR 502 at 505B, and reference to reference to various dictionary definitions of the words "regulate" and "licence". 45 A contrary submission, put on behalf of GWS, was that the expression, in its context, merely means "dealt with by , in one fashion or another, a licence", or "the subject of a licence". 46 Although I prefer the contention advanced on behalf of the EPA, it is not necessary to reach a final conclusion, because, for reasons that immediately follow, it is my view that the EPL neither dealt with nor permitted (with or without controls or parameters) water pollution; water pollution was not "the subject of the licence" to adopt senior counsel's terminology. 47 Examination of the EPL discloses nothing that could be classified as "regulation" or authorisation of water pollution, or as permission, with or without controls or parameters, to pollute waters. There is, indeed, no mention of water pollution, either in the information inserted by GWS in the LIF, or in the EPL. The first of his Honour's reasons for holding that the defence of authority of licence has been established, and extracted on behalf of GWS, cannot be sustained. 48 The remaining reasons effectively incorporated into the EPL not only the information contained in the LIF, (which was expressly authorised by condition A4.1), but also the history of GWS's dealings with the EPA, its previous licences, and the EPA's accumulated knowledge of GWS's operations. None of these was expressly authorised by any condition in the EPL or any statutory provision, and none was, in my opinion, authorised by implication. 49 Although, as I have said above, condition A4.1 expressly incorporated into the EPL the proposal contained in the LIF, what Talbot J took into account was much more than was contained in the LIF. What he took into account included:

(a) the design of the system expressly adopted by the EPA when it issued the EPC (para 44);

(b) the drainage system at the Yarra irrigation area (para 45);

(c) the design of the system used by GWS and adopted by the EPA when it issued the EPL (para 54);

(d) the system operating at GWS at the time the LIF was lodged (para 46). 50 In my view, this goes far beyond what was contemplated by condition A4.1. Most significantly, in clause 8 of the LIF, where GWS was asked to provide information about proposed discharge points, the box that specifically related to discharges to water was left blank. There is nothing in the LIF that supplements what is in the EPL to incorporate authorisation or regulation of water pollution. 51 Talbot J referred, on a number of occasions, to information already, or previously, in the possession of the EPA, resulting from the history of licences issued to GWS (set out in para 26 of the stated case). It cannot, in my opinion, be the case that a licence can incorporate accumulated knowledge in the minds of past or present officers of the EPA, and thereby authorise or regulate a form of pollution. 52 Talbot J's reasoning also involved consideration of the effect of the deletion of condition W8.

There was nothing in condition W8, as paraphrased by his Honour that expressly authorised or permitted water pollution. Whether anything else in the previous licences did so, or whether anything else was contained in GWS's previous applications would have given authority to pollute waters, did not emerge in the facts set out in the stated case. Condition W8, as paraphrased, should be read as by implication permitting, in limited and specified circumstances, the discharge of pollution into waters. Water pollution was, in other than those circumstances, prohibited both by the opening words of condition W8, and by s120. In conformity with the accepted construction of "regulated by an environment protection licence", condition W8, so long as it remained in the licence, authorised and regulated water pollution by GWS within the controls or parameters specified in the condition. Once condition W8 was deleted from the licence, (and not replaced by any other authority or permission to pollute waters) the EPL contained nothing that regulated water pollution. S120 operated to prohibit water pollution. 53 The last sentence of para 46 of the stated case reads: "I found that ... the deletion of condition of W8 effectively did no more than remove the parameters for permissible discharge."

His Honour does not explain what authority or permission to pollute waters was in existence on the deletion of condition W8. His reasoning demands the questions: what regulation of water pollution was effected by the EPL? What was "permissible discharge"? The answer is that there was no authorisation, no regulation, and no permissible discharge. 54 In my opinion, Talbot J misdirected himself, and fell into error. The EPL in no way authorised, permitted, or regulated water pollution by GWS. It was not open to the judge to find otherwise. None of the reasons given for concluding otherwise can be sustained. I would, accordingly, answer question (a): yes.

question (b): mistake of fact 55 The defence of honest and reasonable mistake of fact goes back at least to 1889: see R v Tolson (1889) 23 QBD 168. It has been considered by the High Court of Australia in (inter alia) Proudman v Dayman [1941] HCA 28; 67 CLR 536 and He Kaw Teh v The Queen (1985) 157 CLR 523. 56 It is unnecessary to go in detail to those cases. The defence has more recently been considered by this Court in the context of an appeal in relation to a prosecution under the Clean Waters Act 1990 in SRA (NSW) v Hunter Water Board (1992) 28 NSWLR 721. Reiterating what had been said by Dixon J (as he then was) in Proudman v Dayman, Gleeson CJ outlined the defence as: " ... that the defendant had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment, and that on those grounds he did so believe." 57 The onus lies upon the prosecution to negative the defence, once raised and to do so beyond reasonable doubt: SRA, p 726. 58 Mistake, even if honest and reasonable, as to a matter of law will not establish the defence or otherwise exonerate a person from the criminal consequences of conduct that otherwise would give rise to criminal liability. 59 It is not easy to determine the path which led Talbot J to his finding that, by reason of honest and reasonable mistake of fact, GWS was not guilty of the offence (in so putting the issue, I do not overlook the onus of proof). One thing which is not clear is the "fact" or "facts" as to which GWS claimed to have been mistaken. It is convenient to go to his Honour's reasons for judgment in this respect. At [104] he identified seven "mistakes of fact" upon which, he said, GWS relied. These included: "(1) That the existing and operating first flush system was the subject of a licence application considered and approved by the EPA. (2) If GWS catches the first 10mm of rain at Goulburn via a pipe and contour banks then GWS can divert the rest off site and if GWS catches the first 23mm of rain at Yarra via a pipe and contour banks then GWS can divert the rest off site. (3) If GWS's systems operate as designed and installed then it can discharge in accordance with the design operating perameters." 60 I do not propose to restate all of the seven purported "facts". In the stated case, these seven "facts" were restated, but in the following context: "[GWS] contended on the basis that its primary defence was not established - ..." [his Honour then set out the seven "facts"] 61 It does not appear, in the way the stated case is framed, that those "facts" were put forward as being matters as to which GWS was mistaken. Rather, as the stated case reads, these seven matters were put as matters of actual fact, not as facts GWS mistakenly believed to be true. However, returning to the reasons for judgment, his Honour went on to say: "113 The belief claimed to be held by GWS was that the EPL was not breached because the licence authorised the continued operation of a system which was already in place and functioned as a first flush system thereby incorporating the potential for the discharge of stormwater runoff off site. If, contrary to the court's finding, the licence did not allow for a discharge off the site then that is a matter to be determined by a proper construction of the licence. [GWS] must show that its interpretation of the effect of the licence is a conclusion of fact that has the consequence of [GWS] making a mistake in relation to the regulation of the site and thereby creating a belief or assumption that the acts in question were lawful under the PEO Act. 114 In Collector of Customs v Agfa-Gevaert Ltd (1995 - 1996) 186 CLR 359 at 395 [[1996] HCA 36] the High Court appears to have embraced the proposition that when words are used according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words the question as to whether they do or do not is one of fact . The mistake of [GWS], if there was one, amounted to a misunderstanding of the effect of condition A4.1 and O3.5 of the EPL. The issue relates only to the ordinary meaning of the words. The High Court in Agfa-Gevaert raised a serious doubt that the effect or construction of a term whose meaning and interpretation is established is a question of law." (emphasis added) 62 At para 55 of the stated case, his Honour said: " I found that the mistake of [GWS], if there was one, amounted to a misunderstanding of the effect of conditions A4.1 and possibly O3.5 of the amended EPL . On the basis that its primary defence was not established, I was of the opinion that [GWS] would have held a mistaken belief as to the fact of how the licence operated including conditions A4.1 and possibly O3.5 of the EPL." (emphasis added) 63 In coming to the conclusion he did, his Honour relied upon evidence given by Mr Kneebone, and it appears to have been Mr Kneebone's evidence that provided the foundation for the seven "facts" set out in [104] of the reasons for judgment. 64 Since Talbot J made his findings and gave his reasons, the High Court of Australia has delivered judgment in Ostrowski v Palmer [2004] HCA 30; 206 ALR 442. There, the respondent held a fishing licence under Western Australian fisheries legislation. Acting on incorrect information given to him by a WA fisheries officer, he fished in an area in which he was not, in law, entitled to fish. On the basis of the information given to him, he held an honest but mistaken belief that the licence authorised him to fish in that area. The High Court unanimously held that his mistake was a mistake of law and therefore did not afford him the defence that is the Western Australian statutory equivalent of the defence here under consideration. At [12] Gleeson CJ and Kirby J held that the only mistake that the respondent had made was a mistake that resulted from his ignorance of the law; at [48] McHugh J held that the mistake was one of law, not fact. The joint judgment of Callinan and Heydon JJ is to the same effect. 65 In my opinion the present case is indistinguishable. The series of facts set out at para 50 of the stated case and [104] of the judgment, are not facts, which, if true, would have taken GWS's act outside the operation of s120 of the PEO Act. The relevant mistaken belief only hypothesised and not expressly found by Talbot J, was as to "how the licence operated". That, as in Ostrowski, was (or would have been) a mistake of law. It follows that the question (b) should also be answered "yes". * * *

(iii) question (c): should this Court decline to answer questions (a) or (b)? 66 The third question was submitted at the request of GWS. 67 The written submissions on behalf of the EPA contain the following: "146 This question was stated at the request of [GWS]. However, in the settling of the stated case, [GWS] declined to contribute any contentions in support of its request and his Honour did not identify such contention. Accordingly while the [EPA] makes submissions below it also reserves the right to add to these submissions in response to [GWS's] submissions on the question."

No issue was taken with the assertions contained in the first two sentences of this paragraph in the written submissions. 68 Counsel for the EPA went on to argue that the question is not a proper one to submit to this Court under s5AE of the Criminal Appeal Act. This is because it is not a: "... question of law arising at or in reference to the proceedings"

in the Land and Environment Court, but is, rather, a question as to how this Court should exercise its powers under that section. In my opinion that submission is plainly correct. That view is reinforced by the approach taken by counsel for GWS, who, in their written submissions, said only: "35 Assuming that the [EPA] is correct in its submission that question (c) does not raise a question of law within the meaning of s5AE, [GWS] submits that question (c) should be treated as a submission from [GWS] regarding the proper resolution of the Stated Case by this Court. 36 If the Court accepts that question (c) can be properly stated, it should be answered 'yes' because: (a) the judge did not make a finding of fact that there was pollution of waters caused by the leaking evaporation tubes; (b) to answer questions (a) and (b) in relation to the leaking evaporation tubes is to provide answers to questions posed in the abstract and without a satisfactory factual context." 69 It is inappropriate to answer the question. If this Court were to accede to the submission that the substance of the question ought to be treated as a submission with respect to the determination of questions (a) and (b), it would not assist GWS. Those questions may be, and have been, answered without the need for recourse to the manner or circumstances of the pollution. It was not in dispute that there had been pollution: I have concluded that no form of water pollution was authorised by the licence; accordingly, whether it was caused by leaking evaporation valves, or as a result of some other circumstance is, for present purposes, immaterial. 70 In my opinion this Court should decline to answer question (c). 71 I propose that the Court answers the questions submitted as follows: (a) Did I err in law in finding that [GWS] had established a defence of authority of licence pursuant to s122 Protection of the Environment Operations Act 1997 ? Yes (b) Did I err in law in finding that [GWS] had established the defence of honest and reasonable mistake of fact? Yes (c) Whether the Court of Criminal Appeal should decline to answer the questions posed in ... (a) and (b) by reference to the contentions in paragraphs 63, 71 and 76 in circumstances where - (i) the [EPA] made no submissions to me in relation to pollution of waters occurring by a leak from the effluent evaporation pit, and (ii) my relevant findings were those set out in paragraphs 20 and 21 above. Decline to answer.

72 BELL J: I agree with Simpson J. 73 BUDDIN J: I agree with Simpson J.

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