The Property is inspected on 5 October: The Report and the Certificate prepared
22Following that retainer conveyed by Mr Irwin, Mr Kariotoglou attended the Property on 5 October 2010. He understood his instruction was to prepare a soil classification report and an asbestos clearance certificate in respect of the Glendenning stockpile. He was accompanied on his inspection by Mr Irwin. Mr Bonadio was not present. The statement of agreed facts records the inspection undertaken by Mr Kariotoglou on 5 October in the following terms:
"23. Mr Con Kariotoglou walked around the Glendenning Stockpile which was located at the front of the property and estimated its size to be 200-250 cubic metres.
24. Mr Con Kariotoglou was on the Premises for approximately twenty minutes to half an hour. Mr Con Kariotoglou inspected the Glendenning Stockpile and noticed a small number of pieces of suspected asbestos fibro material. Mr Con Kariotoglou picked up those pieces and put them into thick plastic bags. After removing the two pieces Mr Con Kariotoglou performed another inspection of the Stockpile and satisfied himself the soil was free of visual contaminants. At the time, Mr Con Kariotoglou thought that those pieces looked like pieces of fibre cement sheeting that may contain asbestos.
25. Mr Con Kariotoglou then took two random soil samples from the Glendenning Stockpile and completed his inspection. The samples were sent to Sydney Diagnostic Services (SGS). No asbestos fibres were found in the soil."
23Evidence of the action taken by Mr Kariotoglou to investigate the Glendenning stockpile on 5 October was not confined to that which I have quoted from the statement of agreed facts. In his oral evidence before me, Mr Kariotoglou sought to expand upon the nature of his inspection. The passages from which I have quoted in the statement of agreed facts left open the inference that the inspection conducted at that time consisted only of a visual inspection without any significant disturbance of the surface material other than for the purpose of extracting two samples for analysis. According to the oral evidence, those two samples were taken by using a hand trowel which penetrated the surface of the stockpile to a depth of 30cm in two locations.
24However, it was upon the nature of the inspection following observation and collection of the two fibre cement pieces that the oral evidence of Mr Kariotoglou expanded. In giving evidence in chief, Mr Kariotoglou was asked whether he had undertaken "any other inspection with any implement in respect of the stockpile?" He responded to that question by saying "During my inspections I usually us a rake as well" (Tcpt 38:48). In response to a further question he stated that he had used a rake on this occasion, described as a "small rake" which was hand held. He was then asked the following question and gave the following answer (Tcpt 40:11-18):
"Q. We got to the point, I think, where we were discussing what you did. You said you used a hand-held rake to look at some material. Are you able to indicate to his Honour whereabouts did you use that hand-held rake in respect of the stockpile that you inspected?
A. Well, wherever I was walking on stuff, well, I was just raking up the surface layers of the soil so while I was walking on top of it I was just raking aside the soil. I was also kicking the soil away with my boots. As I was walking over the soil and walking around the soil I was raking the surface of the stockpile."
25The prosecutor challenges this evidence. It submits that although Mr Kariotoglou had earlier been afforded the opportunity to describe soil disturbance by raking as part of his investigation on 5 October, he had not done so until giving his evidence in the course of the hearing before me. The statement of agreed facts describes no such action, as it might have been expected to do. Moreover, so the prosecutor submits, the evidence of raking does not stand scrutiny when considered in the context of explanations given by Mr Kariotoglou when interviewed on 12 November 2010, as recorded in the record of that interview (Exhibit C). Three extracts from that interview, as recorded in Exhibit C, exemplify the prosecutor's submission.
26Having established by questions that Mr Kariotoglou first attended the Property on 5 October 2010, the interviewer then posed the following question:
"Q86 So while you're there, you meet Andy: what did you do then?"
Mr Kariotoglou gave the following answer to that question:
"A. He told me to - because he wanted to keep the stockpile on the site there, and the owner wanted to reuse that soil for his landscaping on site there, and to test the - test the soil to determine if it was suitable to remain onsite so he could reuse it for the landscaping and levelling out some areas on his property.
So I - I walked around the stockpile, I took two random samples from the stockpile, and I put them in an esky - proper procedure - or ice brick, and took them to the lab; and while I was there I also walked around just in inspection - general inspection of the stockpile as well, like I usually do."
27The following questions and answers recorded in Exhibit C are also relevant:
"Q87. Alright. And what was - what was the stockpile? A stockpile of what?
A. It was fill material.
Q88. Okay. What do you mean by that?
A. Clean soil. I mean, from what I saw it probably - I mean, looking around, the property wasn't dug up from within the property so I concluded that it must have come - it was imported fill, and I asked Andy whereabouts it came from, and he - he said it was imported from another site."
28Later in the course of the interview, Mr Kariotoglou was asked whether he noticed anything about the stockpile "like any odours or anything in the stockpile apart from soil." His response to that question (Q107.) was:
"A. No, I didn't notice any odours, I didn't notice any staining. I did notice one, two, three, four pieces of little fibro fragments. I picked those up. I bagged those and I just walked around the stockpile again, just to make sure it wasn't any other possible contaminants, visual contaminants of those stockpiles, but I just noticed those three, four - as I say, three or four little fragments of those fibro pieces.
To me it - to me it looked like asbestos pieces, little fibro asbestos cement sheeting pieces, and I just bagged those and continued walking around the site, and after that I - I couldn't see any other pieces. That's when I took my samples and ran locations, and that was it."
29After being questioned about the soil samples, the interviewer returned to the topic of the fibro fragments that had been collected by Mr Koriatoglou from the stockpile. He was asked the following question and gave the following answer:
Q154. What was your intention with the bits that you picked up and bagged? If they weren't sent off to be tested, what was your intention to pick them up for?
A. My intention was because Andy asked me to provide him with a visual clearance on the stockpile as well, and he asked me to provide him with a clearance certificate, with a clearance certificate for asbestos, and that's why I walked around the stockpile and had a look, hence finding those two - three pieces. I noted to him that there was a couple of pieces there, and hence I picked those pieces up. I bagged those, continued with my inspection, and once I was pretty sure there wasn't any more asbestos pieces visually on the stockpile, then I told Andy that it looks - I'll give him a visual clearance on the stockpile."
30As will shortly become apparent, some weeks after the inspection by Mr Kariotoglou, numerous pieces of suspected asbestos fibro material were found in the Glendenning stockpile. The extent of and manner in which the investigation carried out by Mr Kariotoglou would therefore appear relevant, having regard to the statements that are made in both the Report and the Certificate. Thus the challenge by the prosecutor to the evidence given by Mr Kariotoglou in the course of the sentence hearing that his investigation on 5 October had included surface raking.
31Having regard to the contents of the record of interview with Mr Kariotoglou together with the description of his actions recorded in the statement of agreed facts, I am not persuaded that he did rake the surface of the Glendenning stockpile as he claims to have done. In the course of his interview with officers of the prosecutor, conducted only five weeks after his inspection on 5 October, he had ample opportunity to detail what he did as part of his inspection. The length of his answers to questions posed to him do not suggest any reticence on his part in describing his actions.
32He was told at the outset of the record of interview that the prosecutor was investigating the contents of the Report and Certificate prepared in respect of the Property (Exhibit C, Q7.). It may be that the passage of time has dimmed any clear recollection and that his evidence in the course of the hearing before me was the product of applying his "usual" practice of raking during inspections (see [24] above) rather than any clear recollection of what occurred on 5 October 2010.
33Although the prosecutor submitted that I should not accept that part of Mr Kariotoglou's evidence claiming that his investigation included raking the surface of the stockpile, for reasons that follow I do not need finally to determine that issue. The defendants expressly accept that statements in each of the Report and the Certificate, to the effect that no fibro pieces or asbestos materials were seen in the Glendenning stockpile, when two pieces of such material were observed and collected by Mr Kariotoglou, was evidence that properly founds the offences with which they were charged. However, they contend that the manner in which Mr Kariotoglou assessed the stockpiled material was sufficient to justify so much of the Certificate as asserted that no asbestos materials were currently present.
34If the evidence of Mr Kariotoglou as to the manner in which he carried out a surface inspection of the stockpiled material was the totality of evidence directed to that topic, there would be substance in the submission of the prosecutor that a statement to the effect that no asbestos materials are currently present within the stockpile was misleading when a wholly insufficient investigation had been conducted in order to make such a statement. However, the evidence of Mr Kariotoglou does not represent the totality of the evidence upon the topic.
35The defendants read an affidavit of Stephen Smith sworn 3 October 2012. Mr Smith is an environmental consultant specialising in environmental management, site contamination assessment and water and waste treatment. He was asked to express an opinion, as an expert, as to whether the assessment made by Mr Kariotoglou of the stockpiled material assessed on 5 October 2010 followed industry standards "in relation to his visual assessment of the stockpile". For the purpose of expressing an opinion, Mr Smith was provided with the record of interview conducted between officers of the prosecutor and Mr Kariotoglou (Exhibit C) together with the Report and the Certificate. He was also provided with a history pertaining to inspection and sampling of materials from the site, substantially in accordance with the statement of agreed facts. None of the material provided to Mr Smith indicated that Mr Koriatoglou had raked the surface of the Glendenning stockpile at the time of his inspection on 5 October.
36In the report annexed to his affidavit, Mr Smith described the process that would ordinarily be undertaken to inspect a soil stockpile for the purpose of classification and the nature of the inspection that would be undertaken when "fibre cement sheeting suspected of containing asbestos (bonded asbestos) is suspected of being present".
37Having regard to the material with which he was provided, Mr Smith expressed his conclusion as follows:
"Based on the time spent by Con [Mr Koriatoglou] performing the inspection, the small size of the stockpile, the fact that he has taken two samples from the stockpile, which have been tested for a variety of analytes including asbestos fibres, I say that he has satisfactory [sic] and competently performed the sampling and inspection of the stockpile."
Mr Smith was not required by the prosecutor to attend for cross-examination upon his affidavit evidence. No reference to that evidence was made in the prosecutor's final submissions.
38On the state of the evidence before me, I cannot be satisfied to the requisite standard that Mr Kariotoglou's visual inspection of the Glendenning stockpile on 5 October 2010 was so inadequate that the statement in the Certificate to the effect that no asbestos materials were currently present within the stockpile was false or misleading. My intuitive doubts must yield to the evidence as it stands and as a consequence the defendants given the benefit of any doubt that I entertain on this issue.
39Following his inspection of the Property on 5 October 2010, Mr Koriatoglou received from Mr Irwin a report that had been prepared in July 2009 involving a preliminary contamination and salinity assessment of the soil at the Glendenning site which was the source of soil material transported to the Property. The 2009 Report was prepared by GeoEnviro Consultancy Pty Ltd.
40The GeoEnviro Consultancy report indicates that soil sampling of the Glendenning site had been undertaken and tested for a number of analytes. The report makes no mention of either testing for or the identification of asbestos on that site. That report was read by Mr Kariotoglou prior to preparing the Report and the Certificate. He states that although he considered its contents as confirming his own observations on 5 October, he did not rely upon that report for the purpose of forming his own conclusions.
41As I have earlier indicated, the Report and the Certificate were provided to Mr Bonadio and a copy also provided to Mr Irwin. Both documents were thereafter provided by Mr Irwin to the Council who, in turn, provided them to the prosecutor.