Environment Protection Authority v Bowport All Roads Transport Pty Limited

Land and Environment Court (NSW)|2009-02-04|Before: Sheahan J

Introduction 1 His Honour: Each of these five matters involves a defended prosecution in Class 5 of the court's jurisdiction by the Environment Protection Authority for environment pollution or "smoky vehicle" offences, committed in the course of the operation of trucks in a westerly direction in the M5 East Tunnel ("M5E"), at or near a point known as "Site 9701 Earlwood" (Exhibit P1). 2 The five prosecutions were commenced on 24 December 2007 under the Protection of the Environment (Operations) Act 1997 ("the POEO Act") and the Protection of the Environment Operations (Clean Air) Regulation 2002 ("the Regulation"). They are apparently the first prosecutions in this court under the innovative regime put in place to monitor exhaust fumes in the M5E. 3 Four different trucks owned and operated by Bowport All Roads Transport Pty Limited ("Bowport") are involved, one of them (UMA803) twice. Their ownership by Bowport is admitted (Exhibit P3 and Exhibit P4); the trucks were all manufactured between 1989 and 1994 (Exhibit P3); some, if not all, have done more than 1 million kilometres; and the alleged offences were detected on or between 17 January and 7 March 2007. 4 All offences charged arise from the recording by digital video capture imaging of "smoke", being a "visual emission", seen to be coming from the relevant trucks' exhaust systems and visible for a continuous period of more than 10 seconds (T 3.2.09, p8, LL21-36). 5 The defendant Bowport pleaded not guilty to all five prosecutions on 2 May 2008, and its counsel, Mr Dennis, was constructive throughout the hearing, contesting really only the training and skill of the prosecutor's witnesses, and the alleged cause of the detected emissions. 6 The first offence charged (matter 50084) allegedly occurred at 6.37pm on 17 January 2007 at or near site 9701 when a Mercedes Benz Prime Mover, registered number VXC056, was observed emitting "smoke" from its exhaust for a continuous period of between 10 and 17 seconds; the second (matter 50085) at 5.39pm on 31 January 2007 at or near site 9701 when a Mercedes Benz Prime Mover registered number USM624, was observed emitting "smoke" from its exhaust for a continuous period of between 10 and 27 seconds; the third (matter 50086) at 5.45pm on 31 January 2007 at or near site 9701 when a Mercedes Benz Prime Mover registered number UMA803, was observed emitting "smoke" from its exhaust for a continuous period of between 10 and 18 seconds; the fourth (matter 50087) at 5.10pm on 6 February 2007 at or near site 9701 when UMA803, was again observed emitting smoke from its exhaust for a continuous period of between 10 and 24 seconds; and the fifth (matter 50088) at 8.30am on 7 March 2007 at or near site 9701 when a Mercedes Benz Prime Mover registered number QXX936, was observed emitting "smoke" from its exhaust for a continuous period of between 10 and 22 seconds. The Statutory Regime 7 Clause 9 of the Regulation provides: " 9 Motor vehicles emitting excessive air impurities (1) An owner of a motor vehicle is guilty of an offence if the vehicle emits excessive air impurities while being used. Maximum penalty: 400 penalty units in the case of a corporation, or 200 penalty units in the case of an individual. … (4) For the purposes of this clause, a motor vehicle "emits excessive air impurities" if it emits air impurities in the circumstances described in section 154(2) of the Act." 8 Section 154(2) of the POEO Act contains the following relevant definition:

"(2) For the purposes of this Part, a motor vehicle emits excessive air impurities if: (a) when in operation, it emits as determined in accordance with the regulations, air impurities in excess of the standard of concentration and the rate (or the standard of concentration or the rate) prescribed in respect of the class of motor vehicles to which the motor vehicle belongs, …" 9 Clause 8(2) of the Regulation provides: "8 Definition of excessive air impurities: section 154 … (2) A motor vehicle emits excessive air impurities as referred to in section 154(2)(a) of the Act if, when in operation, it emits air impurities in excess of such a standard of concentration that air impurities are visible for a continuous period of more than 10 seconds when determined in accordance with Test Method 31 ." (emphasis added) 10 Test Method 31 (Exhibit P2) was gazetted on 5 January 2007 (Government Gazette No.1, p63, "Appendix VII"), as an approved method for the "Sampling and Analysis of Air Pollutants in New South Wales" in the following terms (some emphasis added): "Test Method 31 - Observation procedure for excessive air impurities: visible emissions

When an observer is determining if a vehicle is being used in breach of the clause limiting visible emissions , the following principles apply: · The observer must be satisfied that the vehicle generating the visible emissions is correctly identified. · The observer must be satisfied that the emissions are visible not just because of heat or the condensation of water vapour. · The emissions must be continuously visible for more than 10 seconds.

The following details of the observation must be recorded: · Length of time in seconds that the visible emissions were observed. · Registration number of the motor vehicle under observation. · Type of motor vehicle under observation. · Colour and darkness, in the opinion of the observer, of the air impurities emitted. · Location, date and approximate time of day that the observation was made.

In the case of observation of digital imagery produced by an Approved Vehicle Emission Recording System (AVERS):

When an observer of digital imagery produced by an AVERS is determining if a vehicle is being used in breach of the clause limiting visible emissions, the following principles apply: · The observer must be satisfied that the vehicle generating the visible emissions is correctly identified. · The observer must be satisfied that the visible emissions are visible not just because of heat or the condensation of water vapour. · The emissions must be continuously visible on any digital video imagery produced by the AVERS for more than 10 seconds.

The following details of the observation must be recorded: · Length of time in seconds that the visible emissions were observed. · Registration number of the motor vehicle depicted in the digital imagery. · Type of motor vehicle depicted in the digital imagery. · Colour and darkness, in the opinion of the observer, of the air impurities which, by reference to the digital imagery, were emitted. · Location, date and approximate time of day that the digital imagery was created.

For the purposes of this Test Method 31 the following is an Approved Vehicle Emission Recording Systems:

The hardware and software components of the systems known as the Vehicle Emission Enforcement System operated by the Roads and Traffic Authority of NSW and installed to record digital imagery of vehicles emitting visible emissions in the M5 East Tunnel, Earlwood and to enable subsequent viewing of that imagery." The detection system 11 In 2003 the RTA installed and commenced testing its AVERS (which seems to be often referred to as "AVECS") as part of its Vehicle Emission Enforcement System ("VEES"). The system became operational in the M5E (see Exhibit P1) in June 2006, and went "live" in early 2007. For a time heavy vehicles detected emitting smoke were the subject of warning letters inviting owners to have them checked. 12 The AVERS monitors a 240m length of the M5E heading west. The tunnel is approximately 4-4.5 km long and the 240m length monitored by this testing system ends approximately 300-350m short of the westerly exit (T 3.2.09, p5, L38-p6, L7). That length of tunnel has an upward grade of 4.9-7.5% (T 3.2.09, p14, L13). 13 The system was explained in detail in the unchallenged affidavit evidence of RTA officer Wayne Bron. It is designed to detect and record vehicles emitting visible emissions whilst travelling in the tunnel, and enables them to be detected and recorded for the purpose of evaluation and possible prosecution. 14 If Smoke Sensor A (positioned closest to the eastern entrance to the westbound tunnel) detects vehicle emissions of a particular density, it triggers a minimum height restriction test (measured with infra-red technology for vehicles over 2.5m, namely heavy vehicles required to have their exhaust pipes fitted so as to emit exhaust above the roof of the cabin). If both of these requirements are met, Camera A takes a still digital image of the front of the suspect vehicle, particularly focussing on its number plate, and a linked system involving four digital video imagery recording devices (or cameras) along the 240m length of the tunnel at 60m intervals is activated, recording, in particular, the exhaust stack above the cabin. The recordings by the four cameras overlap one another by a few seconds, to ensure there are no gaps in the continuous digital image of the vehicle's emissions as it travels the 240m test length of the tunnel. At the end of the 240 metres Smoke Sensor B is in place to detect emissions in the same manner as Smoke Sensor A, and Camera B takes a still digital image of the rear of the vehicle, again identifying its number plate. 15 The portfolio of still and continuous digital images collected in this way becomes a digital "potential offence file" ("POF"), which is sent electronically to the VEES server at Arncliffe, and is recorded onto a secure DVD. The system incorporates a number of checks and balances to ensure its integrity - (1) a POF is generated only when the system is operating correctly, (2) the same vehicle must be pictured over the test distance, (3) the continuity of a relevant emission must be clearly depicted, (4) the "timing" of the continuous emission must be accurately measured to ensure that the 10 second period is exceeded, (5) the storage and transmission of the material collected in the POF is secured, including its being digitally signed on creation by the "MD5 Algorithm software", designed to indicate any tampering, (6) viewing of the POF can be done only through software known as "Quality Verification Client", and (7) the POF is viewed only by approved Network Officers, who are appropriately trained for their function as "the observer" under Test Method 31. The Defendant's case 16 The defendant's case made many concessions, and casts no doubt on the technology, nor on the integrity, reliability and credibility of the process I have described. It admitted that the trucks were "smoking", but made two main submissions. The first sought to question the air quality in the M5E and create a reasonable doubt as to the cause of the suspicious emissions, by establishing that (a) vehicles would emit "smoke" or other excessive air impurities when and because there are low levels of oxygen in the tunnel, and (b) diesel engines do not efficiently burn fuel when the surrounding air has low levels of oxygen. This submission was based on the premise that the scientific basis of combustion of diesel fuel requires a particular level of "pure" oxygen (21% of normal air) to enable that fuel to combust fully and effectively. In its alternative or subsidiary submission, the defendant argued that the prosecutor had not discharged its onus of proving that the visual emissions in question were in fact "smoke", rather than water vapour or perhaps an emission of some different type. The Evidence 17 Several key officers of the RTA and the DECC/EPA gave affidavit evidence, and some of them also gave oral evidence, for the prosecution during the proceedings. Wayne Bron is Manager, Technical Systems, Camera Enforcement Branch of the RTA; Andrew John Graham is a Senior Compliance Officer at the DECC; Chris Kelly is Head of Compliance Services at the DECC; and Zaynab Kandil and Krystel Lea Smith are Network Officers in the RTA's Camera Enforcement Branch. Mr Bron, Ms Kandil and Ms Smith were closely cross-examined by Mr Dennis, counsel for the company. 18 Mr Bron was the RTA officer responsible for the implementation of the VEES system, including monitoring the project during its implementation stages and ensuring the delivery of its objectives. Mr Bron's professional background is as an electrical fitter and he is a certified network administrator. He continues to "provide technical advice and management of operations of the system to stakeholders on an ongoing basis" (Bron affidavit par 11). He meets the requirements of the Expert Witness Code of Conduct (Schedule 7, Uniform Civil Procedure Rules 2005). The court was able to view the digital POFs, relating to each of the offences, during Mr Bron's oral evidence in chief. Mr Bron played them on his laptop computer. Each disc was encrypted so that it could be opened only by Mr Bron on the RTA computer fitted with the "Quality Verification Client" software referred to above. Each disc showed one of the subject vehicles emitting a visible gaseous substance, grey or blue in colour, which resembled what would commonly be called "smoke"', from its above-cabin exhaust outlet for a continuous period longer than 10 seconds in each case. 19 Mr Bron's evidence that in each of the five relevant instances the system worked perfectly (par 69 of his affidavits in each matter, dated 18 December 2007) was not challenged. 20 Both Ms Kandil and Ms Smith are employed by the RTA as Network Officers, and have been trained to review the POFs as "observers" under Test Method 31. I am satisfied, on the evidence, that they were properly and adequately trained to perform the functions required of "observers" by Test Method 31. They were individually responsible for reviewing the actual POFs which resulted in these prosecutions, Ms Kandil in matter 50088 (Exhibit P6) and Ms Smith in the other 4 matters (Exhibit P5). They were satisfied in each case that the vehicle was properly identified, and that the emission was visible for more than 10 seconds as "light grey smoke", and was neither heat haze nor water vapour. 21 Messrs Graham and Kelly were not required for cross-examination. Mr Graham's expertise is diesel smoke emissions, which he says are caused by "many factors that can usually be rectified during routine maintenance" (par 14 of his affidavits dated 17 January 2008). He studied Bowport's maintenance records and opined (in par 33) that the company "could not have positively known that the operation of any of its vehicles would not have resulted in the emission of excessive smoke on the dates" in the charges. Mr Kelly was responsible for issuing notices to Bowport to produce information and records, and for managing the material produced, some of which was used by the prosecutor in preparing these matters for hearing. Much of the material assembled by Mr Kelly and examined by Mr Graham and by the prosecutor's expert, became, without objection, Exhibit P7 and Exhibit P8 in the prosecutor's case. The Experts

22 The prosecutor relied on Mr John Joseph McCaffrey, an acknowledged expert mechanical engineer, with specific expertise and experience in diesel engines, diesel fuel combustion, and associated emissions. He has worked in relevant fields since 1956, and his academic and professional qualifications and experience are detailed in a CV included in the affidavit in which he put before the court his report on the subject matter of these prosecutions, dated 17 July 2008. He began his working life as a diesel engine fitter, had some experience in the fields of chemical engineering and combustion (T 3.2.09, pp29-30), and joined what is now UTS in 1970, ultimately spending 20 years, 1978-98, as its Senior Engineer, Research & Development, in the School of Mechanical Engineering. He has consulted in relevant fields (apparently through "access:UTS") since 1999. 23 Among the material briefed to Mr McCaffrey by the prosecutor was the respondent's expert report prepared by Dr Robert Auchterlonie Creelman, and dated 30 May 2008. Dr Creelman's is the only evidence in the defence case. He described himself in his covering affidavit and CV as "a qualified Geoscientist", having "Engineering Training and experience in the area of combustion for a wide range of fuel types", often in furnaces, and including "coal, liquid fuels and biomass" (see T 4.2.09, p4, LL1-2). He is or has been an Adjunct Associate Professor in the School of Natural Sciences at the University of Western Sydney. His expertise and extensive research background is clearly more in coal, minerals, geology, metallurgy, and chemical engineering, than diesel engines. He admitted he had commenced, but not completed any, formal engineering qualifications, but claimed to have "very strong informal" credentials in chemical engineering (T 4.2.09, p1, LL25-40). He asserted that he is an expert "in the area of flame" (see T 4.2.09, p1, LL 40-45) and has over "30 years experience in consulting the mining and coal industries" (T 4.2.09, p2). (See generally Mr Rushton's cross-examination of him at T 4.2.09, pp1-3). 24 The respective reports of Mr McCaffrey and Dr Creelman were verified by affidavit and both gave extensive oral evidence. Both employ consistent definitions of "smoke". Further, it is common ground between them that, in the undisputed circumstances of these truck movements, the visual emissions in the five POFs underpinning these prosecutions could not be water vapour (see T 3.2.09, pp21-22), albeit that "superheated steam", which is not visible, could be emitted as part of the gaseous "cocktail" comprising truck exhaust gas (T 3.2.09, p36, LL10-45). Mr McCaffrey's Evidence 25 Mr McCaffrey concluded that the defendant company's vehicles were emitting smoke on each of the 5 occasions in question. He observed that they would be struggling on the incline at site 9701 if heavily laden (p11, L185; p17, L320). He opined (p4 LL 33-35) that:

" exhaust smoke is a visual measure of large particles in the exhaust and can be of many shades including grey/black (unburnt fuel), blue (burnt oil - worn engine), or white (water condensation). Under normal conditions vehicles should not emit any visible smoke" . and (p4, LL 24-31) that:

" The emission of smoke from a heavy vehicle diesel engine is not necessarily due to just one cause. Even if one were to accept Dr Creelman's measurement of oxygen in the tunnel, this is very unlikely to be the sole cause. Much more likely causes are: · The age of the vehicles; · Their maintenance; and · The fact that the vehicles appeared to be heavily laden and that therefore the engines were being required to work very hard resulting in them being over fuelled and consequently blowing smoke."

26 His oral evidence in chief included the following (T 3.2.09, p21, LL24-45): "Q. Can you tell his Honour what is meant by the stoichiometric air-fuel ratio? A. It means that every atom of the fuel is burnt.

Q. So it's the optimum-- A. It's the optimum.

Q. You have noted the fact I think that Dr Creelman has used an air-fuel ratio of 14:1, correct? A. No I think he says fourteen point--

Q. Fourteen point something to one anyway. A. Yes, I think 14.6.

Q. And you ultimately have concluded that these vehicles were operating at an air-fuel ratio of 15.2:1? A. Yes.

Q. In lay terms does that mean that they were running at a leaner-- A. At a leaner, yes.

Q. Leaner rate than the optimum level. A. Yes, and they should not have been smoking." 27 Later he made the following observations in response to Mr Dennis's cross-examination (at T 3.2.09, p28, L48- p29, L26): "Q. What I want to suggest to you is that your assertion in your report at line 320 and following that it was apparent that the vehicles were on full load or beyond, I want to suggest to you that that assertion is not sound given the material you had available to you. What do you say to that? A. Well based upon the smoke coming from the vehicle, it indicated that the engine was struggling or there was combustion problems; something was wrong. It should not have been blowing smoke out if it was not fully loaded. Q. Is it what you're saying is-- A. There was something wrong with the vehicle.

Q. You've come at it from the other direction, in other words, would that be a fair assertion? That where there's smoke there's-- A. There's fire.

Q. --there's fire, figuratively, being of some sort of obvious mechanical deficiency? A. Yeah.

Q. In the vehicle? A. Or it could be fully loaded and the engine needed repair to the combustion--

Q. So it might not be fully loaded it might be a mechanical problem? A. Could be, yes.

Q. You make that assertion based upon your knowledge, training and experience as a mechanical engineer? A. As a heavy vehicle mechanic." 28 Later again, during Mr Rushton's re-examination (at T 3.2.09, p43, L41-p44, L15), the following exchange occurred: "Q. Mr Dennis asked you a moment ago about the situation where one might have observed one vehicle blowing smoke and another vehicle not blowing smoke. I want you to consider that in the context of both vehicles being in the same tunnel and the oxygen conditions being the same, do you understand that? Just think about that? A. Yeah.

Q. Does that tell you anything about whether the oxygen conditions are causing smoke? A. Well, the vehicle that's blowing the smoke, there's another thing that has to be considered and this is the load.

Q. Yes? A. Are you assuming that both have the same load?

Q. Let's assume that? A. Well, one is being over fuelled or its got problems with the injection system, the fuel pump or it's blowing past the piston rings, it's losing its compression so it's not burning the fuel correctly.

Q. You were asked some questions about whether the vehicles were fully loaded or not. If the vehicles were not fully loaded, what if any effect would that have on the amount of oxygen being used? A. Well, they're using less oxygen because they're using less fuel so in fact they're using less air and they've got cleaner exhausts." 29 Mr McCaffrey noted (p16, LL 290-300) that pre-1996 trucks are "intrinsically … heavy emitters of nitrous oxides, hydrocarbons and particulate matter … and … do not meet current requirements". Newer diesel engines with better combustion technology have been on the market since 1996, and are better equipped to satisfy Test Method 31, but there is no evidence that any of the offending vehicles in these matters have been retrofitted with the new technology (p8; Exhibit P8, tab 1; p20 LL399-405; T 3.2.09, pp23-25). He concluded (p8, LL 113-115): "However, all that said, there is no reason that an older vehicle cannot comply with the 10 second visible emission test established by Test Method 31 if it is properly maintained and driven; it is simply that even greater care is required to ensure that it does comply". 30 He accepted (p5) that the vehicles concerned were properly maintained and serviced, and was prepared to assume those tasks were properly carried out. However, if the trucks were to malfunction due to lack of maintenance, lower airflow will cause "over-fuelling" and a smoky exhaust (p14, LL260-5). 31 He also acknowledged that the vehicles underwent appropriate testing, but observed that such testing does not always replicate normal road conditions, including heavy loading. He opined that such testing should have identified vehicles likely to offend (p16, L315-p17, L318). He calculated that on the M5E gradient at the test point the trucks would be at "full engine power", and his studies (at p20, table A1 & LL 390ff) show that if pressed to operate at or above their normal power rating they are likely to over-fuel and emit heavy smoke. He was asked about this by Mr Dennis (T 3.2.09, p27, LL17-45): "Q. Can I take you to page 17 of your report. You say on 319 and following that based on your viewing of the videos it was apparent that the vehicles were on full load or beyond. What do you mean by the term, "full load or beyond"? A. The accelerator was fully down and the engine was getting the maximum fuel that the fuel injection pump could deliver.

Q. What is it that you see in the videos that - you can't physically see the accelerator pedal can you in any of the videos? A. Well I presume they were coming up a gradient. They were loaded. There were vehicles passing them so they were travelling slightly slower than the stream of traffic and then you could - the - you know it was obvious coming from the stack.

Q. By full load do you mean that they were fully laden to their capacity weight? A. Sorry?

Q. What do you mean by the term, "on full load or beyond" - what do you mean by the words, "full bale"? A. For those vehicles 42.5 tonnes.

Q. So you're referring to the weight? A. Yeah, yeah.

Q. 42.5 tonnes being the weight of the vehicle, the weight of the container and the weight of the contents? A. It's the GVT, yeah.

Q. And the weight of the content? A. Yeah, all of that." 32 In his report (at p14, LL249-264) Mr McCaffrey explains the importance of turbocharging truck engines - if turbocharged they will always operate with excess air, at least an excess of 15%, at all load conditions, to protect the engine from the damage that can flow from the creation of very high pressures (see also p23, LL448-450, and T 3.2.09, pp20-22). He opined and demonstrated that such turbocharging would more than compensate for any oxygen depletion hypothesised by Dr Creelman. 33 I accept Mr McCaffrey as a knowledgeable and truthful witness, who has particular skill and experience in the analysis and operation of diesel engines, and in the science of diesel fuel combustion. His evidence was not at all shaken by Mr Dennis's searching cross-examination. 34 I accept his opinion that the defendant's vehicles were smoking, and that the likely causes were their age and mileage, and/or their mechanical condition, and/or their loading (T 3.2.09, pp23-29). Dr Creelman's Evidence 35 Dr Creelman acknowledged, in his report and his oral evidence, that the prosecution documents had been prepared "competently", that the RTA's detection equipment is "state of the art", and that the vehicles involved were "positively identified" (p3, LL1-5), but he put forward the hypothesis that consideration (and presumably analysis) of the air quality of the M5E was required in order to determine whether the emissions of the vehicles in these cases were the responsibility of the defendant. 36 He contends that the smoky emissions in evidence resulted from oxygen depletion caused in the tunnel by the ambient air conditions, especially temperature. If oxygen levels are reduced below normal, diesel engines will act as though "over-fuelled" and emit, as a grey smoke, unburnt fuel (pp5-6, LL84-93). Oxygen levels depend on "stoichiometric balance", ambient conditions, and "ventilation design and operation, related to traffic flow" (p6, LL92-8). He asserts that the defendant's vehicles were in good mechanical condition and reacted to low oxygen conditions beyond the control of their operators (p6, LL103-5). 37 Dr Creelman opined (p3 L7-27): " Smoke in its various forms is indicative of a number of conditions pertaining the incorrect running of a diesel engine. Blue smoke is the product of burning oil; the oil is finding its way into the combustion chambers. White smoke is unburnt fuel; often the product of poor timing control. Black smoke is partially burnt diesel. Grey smoke is the mix of white and black smoke and is the result of three situations. a. Over-fuelling the engine. Air/fuel ratio is low : Cause is poor maintenance b. Under aspirating the engine. Air/fuel ratio is again low : Cause is poor maintenance c. The air is not delivering the required oxygen to the engine. Air/fuel ratio is correct, but the active component O2 is insufficient for complete fuel burn : Cause is not related to maintenance but to the quality of the intake air. The [prosecutor's] affidavits are issued on the premise that either case a and/or b is the cause of the smoke from the diesel engine, and that case a and case b is the product of poor maintenance, therefore the Company is negligent. …. There is no consideration of case c which requires measurements of the air quality in the M5 Tunnel under a variety of operating conditions. In order to demonstrate that case c was at the least a possibility a number of gas measurements in the tunnel were made." and then said (p4, L50-58): " In summary there are four situations that change density, and therefore O2 fugacity (the available O2 for a reaction, in this case combustion). 1. Higher ambient temperatures plus high humidity gives lowest O2 fugacity: Lowest air density 2. Higher ambient temperature plus low humidity gives low O2 fugacity: low to Intermediate air density 3. Low Temperature and high humidity gives good O2 fugacity: high air density 4. Low temperature and low humidity gives highest O2 fugacity: highest air density." 38 To prove his hypothesis, Dr Creelman and two associates (unnamed in his report) travelled in a passenger vehicle, through the M5E some time in March 2008 (date and time unspecified) - with a checking trip made, but not by him, on 20 April 2008 - taking with them a "Coda 5 Gas Analyser" (p4) to determine the stoichiometric air-fuel ratio in the tunnel, as a factor relevant to determining optimal engine performance in that tunnel environment (p5). 39 The Coda 5 Gas Analyser (Exhibit P10) is a computer based diagnostic device, principally designed for use in motor mechanic workshops or garages to test fumes in the exhaust pipes of engines which use petrol/gasoline, LPG or diesel fuel, to determine their chemical make-up. The user inserts its thin metal probe into the exhaust pipe of a running vehicle for a required period of time, and obtains a reading of the chemical variants of the exhaust fumes (T 4.2.09, p20, LL15-25). This information appears on the LED computer screen to which the thin metal probe is attached and informs the user of the average levels of carbon monoxide, oxygen, nitrous oxides, hydrocarbons, and of the engine temperature, and air/fuel ratios during the test period (p9, and Exhibit P10). 40 In their test trips either Dr Creelman or one of his associates (now identified as Matt Derrick and Derrick Watkins - T 4.2.09, p12, LL30-1) stuck the probe out of a window of the vehicle as it passed through the tunnel at an unspecified speed. Dr Creelman admitted in cross-examination that he did no research or training in preparation for conducting these "tests", and he does not know if the device can be used at all to measure air quality (T 4.2.09, p27, LL22-25). I asked him a question at the very end of his evidence and found his answer curious (T 4.2.09, p27, LL36-42): "Q. Can I ask a question, Dr Creelman? Is it a fair summary of your evidence in this part of the report that a machine that is usually used by being pushed up an exhaust pipe-- A. Yes. Q. --was driven through the M5 at some speed sticking out the window? A. That's correct which is reproducing the gas flow in an exhaust pipe." 41 While his report admits to no shortcomings in his choice of equipment or the methodology he employed, the results displayed by the analyser formed the substantive basis of his expert evidence in favour of the defendant. 42 After originally denying in cross-examination that he drew on Wikipedia for some of the material in his report (notably Table 3 on p5), stating that he considered that website "unreliable", he admitted that he did so, and was seemingly unaware, and unconcerned, that some of the figures published on it were compiled no later than 1952 (T 4.2.09, pp7-10, and see Exhibit P9). Dr Creelman agreed with the prosecutor that he "confirmed these figures with other people because he did not consider himself properly qualified to put forward his own figures without first checking" (T 4.2.09, p11, L35). He also said he checked other websites, but he could not name any of those "other people" or websites (see T 4.2.09, pp10-11). He accepted that "a lot had changed" in the field of combustion science since 1952 (T 4.2.09, pp10-11), but would not accept that the information he relied upon is "hopelessly out of date" (T 4.2.09, p12, LL1-4). 43 Clearly Wikipedia is not a reliable source of expert information to be given as "first-hand" evidence. 44 Apart from its reliance on Wikipedia and its author's ignorance of, or lack of concern beyond "lip service", for his statutory obligations under the Expert Witness Code of Conduct under Schedule 7 of the Uniform Civil Procedure Rules 2005 (see T 4.2.09, pp14-16), Dr Creelman's expert report had many deficiencies, only some of which were rectified to any extent by his oral evidence: · It did not indicate that Dr Creelman had not seen the "videos" but only stills or hard copy (T 4.2.09, p22), yet he was prepared to conclude that the trucks were reacting solely to "low oxygen" conditions in the tunnel. · It did not indicate in which direction he was travelling when he did the Coda test, by whom he was accompanied, the roles played by all the participants, or even the date and time. In his oral evidence (T 3.2.09, p53, L50) Dr Creelman confirmed it was westerly, and identified two persons and part of their contribution, but not their expertise. · It did not indicate if the instrument was calibrated at a relevant time prior to the test. In his oral evidence Dr Creelman said there were calibration certificates, but none were produced (T 4.2.09, pp21-2). · It did not point out that the Coda 5 device has a published error rate of "+/- 5%" (Exhibit P10, p8), and, when confronted with that, Dr Creelman calculated 5% of 20 to be only 0.1, which he said was effectively zero (T 4.2.09, pp20 & 24). 5% of 20 = 1.0! · It did not point out that the figures Dr Creelman advanced could be regarded as only "indicative", and not "precise and reliable" (T 4.2.09, p21). · In asserting (at p6, LL100-3) that the defendant's vehicles were in good mechanical condition, it refers to an appendix which was not, in fact, included in the report. I assume Dr Creelman would be happy to rely, as Mr McCaffrey and the prosecutor were, on the extensive documentation in Exhibit P7 and Exhibit P8. · It did not make clear that Dr Creelman himself played no role in the 20 April "check run", that he was simply reporting the results of it as his own, that he was unable to specify where they were obtained, and that he should disclaim any suggestion that his results replicated the conditions in which the offences were committed. He admitted to these failures during his oral evidence (T 4.2.09, p14). 45 During his cross-examination by Mr Rushton, Dr Creelman also claimed that the Coda 5 test was undertaken as a "pilot study" of some sort (T 4.2.09, p17), but there was no reference to that in the report. He also disavowed any awareness of the availability to the defence of M5E air quality records produced on subpoena (T 4.2.09, p1ff). The court also found it odd that he consistently answered Mr Rushton's questions with a "we …". Findings 46 In a succinct summary of his position, Mr McCaffrey concluded (p12, LL196-211) that Dr Creelman's "02 depletion levels in the tunnel … [were] not the cause of the adverse exhaust emissions in either the tunnel or on the open road", and that "even if one accepts that Dr Creelman's measurements are accurate, he fails to properly assess the findings in the context of modern diesel engine technology". 47 I accept Mr McCaffrey's evidence, opinions and conclusions, and reject Dr Creelman's. Consideration 48 Clause 9(1) creates a strict liability offence. It requires proof beyond reasonable doubt of all the elements of the offence - the emission of excessive air impurities (as defined), for a defined period, from a heavy vehicle while it is being used. 49 Test Method 31 is designed to ensure that only vehicles which are "smoking" are prosecuted, and that vehicles emitting only water vapour, are not (T submissions 4.2.09, pp4 & 10). Clause 8(2) requires those emitted air impurities be of such a concentration that they are "visible", continuously, for more than 10 seconds. 50 In the case of each of the five offences here, the appointed and appropriately trained "observers" were satisfied of these prescribed matters and of the identity of the heavy vehicle involved in each case. 51 The reference to "heat" in Test Method 31 is clearly a reference to the impact of engine heat, rather than to a high ambient temperature of the air in the tunnel in the vicinity of the engine and the exhaust, with or without humidity, and I reject the defendant's submission to the contrary. 52 The defendant has not succeeded in establishing any reasonable doubt about any elements of the offence charged in any of these five cases.

Conclusion 53 In each case, therefore, I find the offence proven, and I stand all five matters over for argument on the questions of conviction, penalty, costs, and possible application of Part 8.3 of the POEO Act. 54 In this regard the parties are directed to attend upon the Registrar within seven days from today for the appointment of a date(s) for further hearing, and the giving of any necessary directions regarding the filing of further evidence. In the meantime, all the exhibits will remain with the court files. Postscript 55 It remains only for me to make some further comment regarding Dr Creelman's evidence. 56 Mr Rushton SC, put to him at the end of his cross-examination that his evidence was "nothing short of junk science" (T 4.2.09, p27, LL18-19), and subsequently made the following submission (T submissions 4.2.09, pp1-3): "Your Honour, of course, has to take into account both the report of Dr Creelman and the evidence he gave. We respectfully submit that he had no proper qualifications to express the opinions which he did. He failed to inform the court that he was not qualified to use the apparatus that he used. He failed to inform the court that he had used others with unknown expertise, if any. He was a witness who failed to inform the court that his results were obtained by use of a device which was never designed - and he admitted this - to measure air quality, rather it being a device designed to measure emissions from diesel and petrol vehicles. He was a witness, we say, who clearly gave untruthful evidence about the source and reliability of his fuel/air ratios, at one point claiming that he had not used Wikipedia because it was unreliable and then ultimately acknowledging that in fact that was the source of his figures. He was a witness who, we respectfully submit, intentionally invented the so-called Hottel theory to bamboozle the court and to unfairly discredit Mr McCaffery. But ultimately he was, I suppose, a witness who readily conceded that his measurements so-called, such as they were, did not or could not replicate conditions on the days in question.

In my respectful submission the court would readily accept Mr McCaffery as a well-qualified, truthful and reliable witness. As to Dr Creelman, the court really should deprecate in no uncertain terms his conduct. The courts, your Honour would be well aware, are all too often plagued by these self-professed witch doctors and this court being a specialist tribunal which often calls on expert assistance should be particularly careful that it rids its courtrooms of witnesses of this type because they really are, in my submission, a menace. I can't go beyond, your Honour, the way in which Justice Jagot who was then of this court dealt with the evidence of a Mr Stephenson in Environment Protection Authority v Shoalhaven Starches Pty Limited [2006] NSWLEC 496. Mr Rushton at this point quoted most of par [89] of Her Honour's judgment, in which she said (and I quote the paragraph in full): "As Mr Stephenson's evidence addressed numerous issues, it is appropriate that I make my findings with respect to his evidence overall at this point. Given the nature of that evidence, I must confront the submissions the prosecutor made about Mr Stephenson's evidence - in effect, that it was wholly unreliable, being a 'partisan tract' (Cala Homes (South) Limited and Others v Alfred McAlpine Homes East Limited [1995] FSR 818 at 844 per Laddie J) , by an expert who had paid 'lip service' to his obligations under the Expert Witness Code of Conduct". Mr Rushton then continued (at p2, L48):

Now pausing there I made that submission in that case and I make it again here. Dr Creelman really did no more than act as an advocate for his client. I can't go beyond, your Honour, the way in which Justice Jagot who was then of this court dealt with the evidence of a Mr Stephenson in Environment Protection Authority v Shoalhaven Starches Pty Limited [2006] NSWLEC 496. … He was not qualified to do so and his understanding of the important obligations imposed upon him both in terms of his duty to the court and the contents of his report, were non-existent. Her Honour went on to say [at [90]]: "So many aspects of Mr Stephenson's oral evidence in cross-examination caused me such significant disquiet and cast such doubt on the reliability of the whole of his oral evidence-in-chief and written evidence that I have exceeded as a prosecution of submission that I should not accept any of Mr Stephenson's evidence except to the extent that it is corroborated by other evidence and then only as to matters of fact arising out Mr Stephenson's lengthy involvement with the defendant".

Now we would make the same submission here. Your Honour couldn't safely accept anything Dr Creelman said unless it was independently corroborated by some other source and your Honour it is important I submit to make findings such as that in relation to witnesses of this type because they come up all too frequently. Now even if however, contrary to my submission, the court was to accept Dr Creelman's oxygen depletion theory, it matters not because as Dr Creelman clearly acknowledged in his evidence, smoke was in fact emitted from these vehicles on the days in question and visible admissions of smoke, even if caused by oxygen depletion, is just no defence."

57 I accept and endorse this submission. Despite the vehemence of its attack on his expert, Mr Dennis did not seek to defend Dr Creelman and his evidence, asserting simplistically (T submissions 4.2.09, p8, L20-p9, L28) that there were difficulties with the "assumptions" made by Mr McCaffrey on the basis of the "video" evidence. 58 At least Mr McCaffrey, unlike Dr Creelman, examined that crucial evidence when preparing his expert report.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Environment Protection Authority v Bowport All Roads Transport Pty Limited [2009] NSWLEC 103

CASES CITED: Cala Homes (South) Limited and Others v Alfred McAlpine Homes East Limited [1995] FSR 818; Environment Protection Authority v Shoalhaven Starches Pty Limited [2006] NSWLEC 496

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