Environment Protection Authority v Central Coast Council

Land and Environment Court (NSW)|2020-11-18|Before: Moore J, Mr J, Duggan J

TABLE OF CONTENTS Introduction The need for a voir dire hearing The voir dire hearing The relevant statutory provisions The legal representatives My ruling on the contested evidence of Inspector Folitarik The contested evidence of Inspector Folitarik Introduction The Council's objection to par 11 of the Inspector's affidavit The Prosecutor's submissions on admissibility of the challenged paragraph The Prosecutor's written submissions The Prosecutor's oral submissions The Council's submissions in reply Consideration The challenged paragraph of Mrs Terry's affidavit. Introduction The parties' common position on par 16 of Mrs Terry's affidavit Conclusion

Introduction

On 10 August 2017, Mr Damien Terry, a developmentally disabled young man, drank herbicide from a Coca-Cola bottle which had been stored in the disabled toilet at Bloodtree Oval (the Oval) at Mangrove Mountain. Mr Wayne McInnes, the person who performed the role of honorary groundsman at the Oval, was prosecuted by the Environment Protection Authority (the Prosecutor) for a breach of s 10(1)(a) of the Pesticides Act 1999 (the Pesticides Act). For present purposes, it is unnecessary to reproduce the terms of that provision.
On 24 April 2020, Mr McInnes was convicted by Duggan J of this offence (Environment Protection Authority v Warwick Ronald McInnes [2020] NSWLEC 37) and, on 30 October 2020, her Honour sentenced Mr McInnes for his offending conduct (Environment Protection Authority v Warwick Ronald McInnes (No 2) [2020] NSWLEC 147).

The need for a voir dire hearing

The trial of the Council commenced on 16 November 2020. Following short opening submissions on behalf of the Prosecutor and the Council, it was then necessary to commence dealing with a number of objections to evidence sought to be adduced by the Prosecutor.
Two aspects of that evidence and submissions as to their admissibility were the subject of the voir dire hearing, the subject of this decision. This element of the proceedings occurred on 17 November 2020, with submissions concerning this evidence concluding the following morning.
At the conclusion of those submissions, after a short adjournment, I gave my rulings on the admissibility of the contested evidence.
The proposed evidence that was subject of these rulings comprised, first, par 11 of the affidavit of Inspector Bradley Folitarik, an officer of the NSW Ambulance Service, who had attended Gosford Hospital at the time that Mr Terry had been admitted to the accident and emergency section of that hospital and, second, a paragraph of an affidavit sworn by Mr Terry's mother. The relevant paragraphs of these affidavits are later set out.
The Prosecutor and the Council had earlier agreed that I would rule on these paragraphs and later provide my reasons for the conclusions which I had reached.
It is also not in contest that if par 11 of the affidavit of Inspector Folitarik was not admitted, the relevant element of (16) of the affidavit of Mrs Terry was also no longer sought to be relied upon by the Prosecutor.

The voir dire hearing

This hearing was conducted on a hybrid basis. The legal representatives of the Prosecutor and the Council were present in court. Inspector Folitarik gave evidence by audio-visual link utilising Microsoft Teams software. Mrs Terry gave evidence in person. Each of them was cross-examined on the voir dire. The hearing was conducted in accordance with the Court's COVID-19 Pandemic Arrangements Policy.

The relevant statutory provisions

I have earlier noted that it is not necessary, for the purposes of this interlocutory decision, to set out the relevant provisions of the Pesticides Act. However, two provisions of the Evidence Act 1995 (the Evidence Act) do require consideration for the purposes of explaining the rulings which I have made. The first relevant provision of the Evidence Act is the definition of "admission". This is in the following terms: admission means a previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.
There are a number of potentially relevant substantive provisions of the Evidence Act that might warrant consideration in the context here involved. However, I have concluded that only one of them, s 87 of that Act, requires consideration. I have reached this conclusion because, as later explained, the answers to the two statutory tests posed by s 87(1)(b), relevantly engaged, operate to exclude the contested evidence as constituting an admission made by the Council. 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that - (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove - (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority.

The legal representatives

The Prosecutor was represented by Dr S Pritchard SC and Ms G Lewer and Mr D Bhutani, barristers, whilst the Council was represented by Mr T Howard SC and Mr J Lee, barrister.

My ruling on the contested evidence of Inspector Folitarik

At the conclusion of the voir dire hearing on 18 November 2020, I indicated that I would hand down my ruling at 2.00 pm that day. I did so (providing the parties with a copy of the ruling reproduced below). My ruling was as follows: The Prosecutor's case, put at its highest is that: (a) the remarks set out by Inspector Folitarik, in par 11 of his affidavit, were made by a Council employee; (b) that employee was Mr Andrew McDermott; (c) Mr McDermott holds the position of the Defendant's Team Leader, Roads and Drainage; and (d) the remarks satisfy the definition of "admission" in the Evidence Act 1995 (NSW) (the Evidence Act). For the reasons that follow (and which I will explain in more detail in a subsequent written decision), I find that there is no proper evidentiary basis upon which I can conclude that the admission should be regarded as one: (a) that was made by Mr McDermott for the purposes of s 87(1)(b) of the Evidence Act rather than being one made by some unidentified person at first or second hand remove from Mr McDermott; or (b) that, even if it is to be taken that the words were spoken by Mr McDermott, there is no evidence before me that would permit a finding that s 87(1)(b) of the Evidence Act was satisfied either because: • Mr McDermott had authority to make the representation; or • that it was within the scope of Mr McDermott's employment to make the representation. The conversation set out in par 11 of Inspector Folitarik's affidavit is therefore rejected on these alternative bases. As a consequence, it is not necessary to address the Defendant's alternative submission, made in the context of s 137 of the Evidence Act, that any probative value which would arise from allowing par 11 of Inspector Folitarik's affidavit would be outweighed by the danger of unfair prejudice to the Council. It follows that the second sentence of par 16 of Mrs Terry's affidavit is also rejected.
I now set out my reasons for reaching the above conclusions.

Introduction

As earlier noted, Inspector Folitarik attended Gosford Hospital at the time of Mr Terry's admission. The paramedics who had transported Mr Terry from the Oval to the hospital had also brought with them the Coca-Cola bottle which had contained the (at that time unidentified) substance(s) which Mr Terry had ingested.
Inspector Folitarik was concerned to ascertain the nature of the substance(s) contained in the bottle for reasons relating both to obtaining appropriate treatment for Mr Terry and to ensure that his ambulance officers had not been exposed to any harmful substance posing a risk to them. To seek information about what might be the substance(s) in the Coca-Cola bottle, Inspector Folitarik phoned a contact whose phone number came from a list of emergency management committee contacts for the Council.
It is appropriate, at this point, to interpose that the Council had been created in May 2016 by the amalgamation of the former Gosford and Wyong Councils. The fact of the amalgamation resulting in merging of the operations and staff of these two formerly separate councils plays a role in my consideration of this contested evidence (for reasons which will later become apparent).
In addition to two conversations with a council officer (said by the Prosecutor to be Mr Andrew McDermott, the Council's Team Leader, Roads and Drainage), Inspector Folitarik also spoke to Mr Terry's parents.
On 2 February 2018, Inspector Folitarik was the subject of a recorded interview with officers of the Prosecutor. The transcript of that interview was in evidence in this element of the proceedings, becoming Exhibit A on the voir dire. The transcript was 20 pages long. It is sufficient, for present purposes, to set out a limited range of the questions and answers from the transcript of that interview. The first of these relevant extracts is set out below: Q 24. … In terms of this person that you talked to, you said that they explained it wasn't their jurisdiction, what do you think they meant by that? A It wasn't, I believe from memory Mangrove Mountain is under, I believe, Wyong District Council or was via - I can't remember which way it was but the person I contacted, their particular council they worked for - - - Q 25. Was the council, that wasn't - - A - - - it was, the council that was opposite. Q 26. Okay. Yeah. A Mangrove District Mountain is under, was under the opposite council management - - - Q 27. Yeah. A - - - I guess is the best way to put it.
The second relevant extract from the Inspector's record of interview is in the following terms: Q 35. … So when they rang you back to tell you that it was Duramax, did they explain to you what enquiries they made into council? A From memory we had a conversation about it that he contacted the, his counterpart or, or, I think that was his words, his counterpart of, of the particular council looked after Wyong and that they'd contacted the - it's not a greens keeper is it, it's the, the, the grounds person or something like that, I think was the wording that looked after it and that's how they were told it was line marking. Q 36. The grounds person, would it have been someone at council that they contacted? A To be honest - - - Q 37. You don't know? A - - - I would not know.
The third relevant extract from the Inspector's record of interview is in the following terms: Q 45. Yeah. This person that made these comments, was it the first person that you contacted on the LEMC committee or was it the person that phoned you back? A I'm pretty sure - no I can't be a hundred percent sure if it was in the first phone call that I made or the second phone call I received - - - Q 46. Okay. A - - - but it was, it was during those phone conversations, yeah. Q 47. Yeah. So the second phone call that you received from council, the person that contacted you, were they from the correct part of council that deals with that sports ground? A I honestly can't recall, if I had my phone bill for the, for the incoming calls I'd be able to identify those numbers and say it definitely was - - - Q 48. Yeah. A - - - from memory I believe that the person I spoke to on, on each occasion was the, the person that I initially contacted, I believe it is. Q 49. Yeah. So you believed that the person you spoke to and the one that rang you back - - - A Back, I, I, I'd be almost a hundred percent sure that it is, it was the same person.
The final relevant element from the Inspector's record of interview is in the following terms: Q 61. Do you want to just talk us through what you did and what you found? A Okay, yea. I just went back over to the other office and made a phone call to the Executive Assistant in North Sydney Zone who looks after the entire sector, as she sends out the LEMC contact listings to the two zone managers of each, each ambulance zone hoping that she would still have a record 'cause she's quite a good record keeper of the LEMC listing for the period of concern being August 2017. However she doesn't keep a listing of that. I then did an email search of my current ambulance email as well as went into a separate section that we have through IT which is called an email archive, logged into that and went through all of that and I cannot find the LEMC contact listing for anything in 2017. After a discussion with the Executive Assistant in North Sydney, she put me onto a lady at Gosford City Council who is the person that sends out those listings, that person was Amy Walpole. I contacted her direct by telephone and just told her that I was hunting down a, an accurate LEMC listing, contact listing for the August period of 2017, unfortunately she believes that was the period of time before she started in the job, she shares it with another person. She was going to ask the other person to go through his files and if they find it, email me those, that contact listing. So I've followed that phone call up with an email to Amy requesting the LEMC contact list and giving my, my name and contact details - - - Q 62. Okay. A - - - but not telling her why.
Inspector Folitarik subsequently deposed an affidavit on 30 January 2019. The paragraph of that affidavit was in the following terms: 9. I telephoned the local council using a number listed in our local emergency management committee (LEMC) contacts list. This list contains the names and numbers of various agency stakeholders in the Central Coast Council area. I do not remember the exact words of the conversation but the male on the other end said words to the effect that: "Since the amalgamation of Gosford City Council and Wyong Local Council, Mangrove Mountain is not under our jurisdiction. I will make some enquiries with my counterpart and get back to you." 10. I have attempted to get a copy of the LEMC contacts list that I had access to at the time of the alleged poisoning. However, the LEMC contacts list at the time of the alleged poisoning is no longer available. 11. Shortly thereafter I received a telephone call from a male who identified himself as being part of the local council. While I do not remember the exact words of the conversation, we exchanged words to the following effect: Male said: "The substance in the Bottle is 'Duramax' and it is used for line-marking purposes." I said: "The substance was in a Coke Bottle." Male said: "They've previously been told not to do that."
The contested element from these paragraphs is that contained in the conversation at the end of par 11 above. The contest is whether there is any proper basis upon which this conversation can be regarded as, and adduced as, an admission by the Council.

The Council's objection to par 11 of the Inspector's affidavit

Mr Howard provided a document entitled Defendant's speaking note of opening address at the commencement of his opening remarks. This document dealt with the Council's response to the Prosecutor's case at a comparatively high level of generality. It did not, expressly, address the tests in s 87(1)(b) of the Evidence Act. This is not to be taken as a criticism - Mr Howard did address the requirements of this provision during the course of his oral submissions at the conclusion of the voir dire concerning par 11 of Inspector Folitarik's affidavit. The position advanced by him on behalf of the Council can be summarised as follows:

The evidence of Inspector Folitarik was inadmissible as at least second‑hand hearsay. The male in question was not identified in the affidavit, but was later confirmed as being said by the Prosecutor to be Mr Andrew McDermott (Transcript 17 November 2020; page 123, lines 16 to 34).
One of the principal exceptions to the hearsay rule related to evidence of an admission, pursuant to s 81(1) of the Evidence Act. That provision does not apply to Inspector Folitarik as he is a step removed, at the least, as he gave evidence which constituted second-hand hearsay. The hearsay rule continued to apply and the impugned paragraphs should therefore have been excluded (Transcript 17 November 2020; page 124, lines 10 to 28).
The statements made in Inspector Folitarik's affidavit, taken at their highest, were not adverse to the Council's interest in the outcome of the proceedings. The statements identified the substance as Duramax, which was presumably not a pesticide. Even when one disregards the ambiguity of the statements, they remain irrelevant and could not have served as an admission (Transcript 17 November 2020, page 125, lines 1 to 12).
It was not possible to presume that the representations made were representations made by the Council. It may have been the case that a person made representations, but that was not the same as that person making representations on behalf of the party. The representation in question, for the purposes of s 87, is the representation made by the person to Mr McDermott. (Transcript 17 November 2020, page 125, lines 14 to 28).
There was no material available to demonstrate that that person was an employee of the Council. It could not be said that that person therefore was acting for the Council, and that the representation was made within the scope of their employment (Transcript 17 November 2020, page 125, lines 35 to 39).
Mr Howard summarised the Council's overall position on this point as being (Transcript 17 November 2020, page 126, lines 5 to 9): So, we are in the realm here - we would respectfully submit - that you could not conclude that this is an admission, under the evidence act, you could not conclude it is adverse to the party - that is the second component of the definition of admission - you could not conclude - even if it were adverse to the Council - that it was an admission made by the council.

The Prosecutor's submissions on admissibility of the challenged paragraph

The Prosecutor's written submissions

The Prosecutor provided written submissions on the issues arising on the voir dire concerning par 11 of Inspector Folitarik's affidavit. The element of these written submissions concerning s 87(1)(b) of the Evidence Act were in the following terms: 17 As outlined in its schedule to objections, the prosecution relies on s. 87(1)(b) for the Court to conclude that the admission by Mr McDermott was an admission by the defendant. 18 Again, the question for the Court at this stage is not definitely conclude whether Mr McDermott had authority to make the admission on behalf of the defendant but whether it is "reasonably open to find" that he did. 19 Mr Folitarik's evidence is that he spoke to a person by telephone after calling "a number listed in our local emergency management committee (LEMC) contacts list" (Folitarik affidavit at [9]). There was no challenge to his evidence in cross-examination that he spoke to "a male who identified himself as being part of the local council" (Folitarik affidavit at [11]). 20 It is clearly reasonably open to conclude that the maker of the presentation was, at the time he spoke to Mr Folitarik, an employee of the defendant, and (given he was answering a number contained on an LEMC contact list) the statements made by him related to a matter within the scope of his employment.

The Prosecutor's oral submissions

The oral submissions on this point were made by Ms Lewer on behalf of the Prosecutor. These oral submissions can be summarised as being:

The words contained within par 11 of Inspector Folitarik's affidavit were spoken by Mr Andrew McDermott. The Prosecutor relied on the meaning of those words, which is what the speaker of those words intended to assert. It was accepted that the statements were hearsay and therefore captured by s 59 of the Evidence Act. However, the Prosecutor asserted that ss 81 and 87(1)(b) could be used as gateways to admissibility (Transcript 18 November 2020, page 135, lines 14 to 23).
The question that must first be asked, pursuant to s 88 of the Evidence Act, was whether it was reasonably open to the Court to find that Mr McDermott said those words (Transcript 18 November 2020, page 135, lines 27 to 34).
Mr McDermott's statement, which was made immediately after Inspector Folitarik said that "[t]he substance was in a Coke bottle" was a matter which was adverse to the Council's interest in the proceedings (Transcript 18 November 2020, page 135, lines 38 to 43).
The issue at hand is not whether the Council knew that there were pesticides in the Coke bottle, but rather that the Council knew that substances were being stored in bottles. This fact would not be determinative of the Prosecutor's case, but would have been of assistance (Transcript 18 November 2020, page 136, line 45 to page 137, line 29).
With regard to s 66 of the Evidence Act, Ms Lewer submitted (Transcript 18 November 2020, page 136, lines 42 to 48): But that's got nothing to do with the first-hand nature of the admission for the purposes of admissions. So admissions - there's no requirement for Mr McDermott's statement to be based on his personal knowledge. His admission can be based on what somebody told him. And it is admissible under the Evidence Act on that basis. So it would be, in our submission, clear error to exclude the admission on the basis that the evidence does not disclose that Mr McDermott had personal knowledge of the contents of the admission.
The manner in which Mr McDermott came to have knowledge of the facts within the representation was irrelevant for the present purposes. Inspector Folitarik heard it, so s 82 of the Evidence Act was satisfied. Therefore, s 81 was satisfied (Transcript 18 November 2020, page 137, lines 36 to 42).
It was not in contention that Mr McDermott was an employee of the Council. The only outstanding issue was whether the representation had been made within the scope of his employment (Transcript 18 November 2020, page 138, lines 4 to 13).
The fact that Mr McDermott was called during the incident in question, through his placement on the relevant local emergency committee contacts list. His involvement and representations made were due to his placement on that list, by virtue of his employment with the Council. It therefore follows that the statements made were made in the course of his employment (Transcript 18 November 2020, page 138, lines 13 to 41).
The terminology, "relates to a matter within the scope of the person's employment", was broad and captures the actions of Mr McDermott, despite his official function at Council (Transcript 18 November 2020; page 138, line 43 to page 139, line 13).
It did not matter how far removed the hearsay was for the purpose of the admission. It may have had relevance, however, for s 137 of the Evidence Act. Section 137 may be relevant due to the acknowledged frailties of the evidence given by Inspector Folitarik (Transcript 18 November 2020, page 139, lines 20 to 46).
It was conceded that the evidence was not centrally probative (Transcript 18 November 2020, page 140, line 30).
There was little risk in unfair prejudice arising from the admission of the evidence as the judge was capable of attributing appropriate weight to the evidence (Transcript 18 November 2020, page 140, lines 34 to 43).
Any exclusion of evidence that might have been made should have been confined to the hearsay element of par 11 (Transcript 18 November 2020, page 141 lines 20 to 22).

The Council's submissions in reply

Mr Howard's submissions in reply, on this point, were succinct. I mean no disrespect to him by merely quoting one aspect of what he said - as it informs what I am satisfied I need to address here - (Transcript 18 November 2020, page 142, lines 36 to 41): He [Mr McDermott] then makes enquiry - and if this conversation is to be taken on its face, it is someone else's representation that would be the admission. It's not suggested that Mr McDermott told them not to do that. That's the additional extension of the hearsay chain that the prosecutor, we submit, is not grappling with here. That is necessarily seeking to adduce through Mr Folitarik some representation was made to Mr McDermott.

Consideration

In [14], I have set out the Prosecutor's case at its highest concerning the conversation set out in par 11 of Inspector Folitarik's affidavit.
I am satisfied that, on the basis of accepting the Prosecutor's case in this regard at its highest as being valid, testing of the conversation against s 87(1)(b) of the Evidence Act, and the inability of the admission to satisfy this provision by going through either of the two potential gates available for it, is necessarily fatal to permitting this element of the Inspector's evidence to be admitted. Both the gates in the provision are closed.
There is, for the reasons I explain below, no evidence before me that would demonstrate that it was reasonably open for me to find that Mr McDermott had authority to speak on behalf of the Council concerning the matters that are contained in the contested conversation.
It is appropriate, for the purposes of this analysis, to list those matters in the causal chain relating to Mr McDermott and the conversations between him and Inspector Folitarik, together with the basis for each item's inclusion. These are:

Mr McDermott is an employee of the Council (agreed);
Mr McDermott's employment with the Council is as Team Leader, Roads and Drainage (agreed);
Mr McDermott was the person telephoned by Inspector Folitarik on a telephone number on a list of contacts for the local emergency management committee (Prosecutor's position);
Inspector Folitarik could not provide the list of local emergency management committee contacts to the Prosecutor or explain why he chose to call Mr McDermott from that list (Inspector Folitarik's record of interview at Q/A 61 and 62)
Inspector Folitarik enquired of Mr McDermott what might be the substance ingested by Mr Terry at the Oval and contained in a drink bottle (Prosecutor's position);
Mr McDermott did not know and needed to make an enquiry of another council officer (Inspector Folitarik's record of interview at Q/A 35);
By doing so, it is to be inferred that Mr McDermott had no personal knowledge relevant to Inspector Folitarik's enquiry;
The enquiry made of another Council employee was necessary because, following the amalgamation in May 2016 creating the Council, responsibility for managing the Oval was with staff of what had been "the other council" (Inspector Folitarik's record of interview Q/A 24 to 27);
The employee of "the other council" of whom Mr McDermott made an enquiry also did not know any relevant information and needed to make a separate enquiry of a third person (Inspector Folitarik's record of interview Q/A 35);
It is not known who was the person employed by "the other council" or what was that person's position with the Council (Inspector Folitarik's record of interview Q/A 36 and 37);
The person from "the other council" made an enquiry of a person described as a "grounds person" (Inspector Folitarik's record of interview Q/A 35);
The name of this person is not known, nor is the status of their relationship with the Council (source as for the previous point);
Information given by the "grounds person" to the (role and name unidentified) person by the "grounds person" was conveyed to Mr McDermott (necessary inference);
The same person (Mr McDermott) to whom Inspector Folitarik had made the original telephone call conveyed this information to the Inspector (Inspector Folitarik's record of interview Q/A 45 to 49); and
Mr McDermott, then had the conversation with Inspector Folitarik recorded at par 11 of Inspector Folitarik's affidavit.

It is this causal chain which needs to be tested to see whether it demonstrates that either (or both) of the gates in s 87(1)(b) of the Evidence Act are open for the purposes of rendering that which was said by Mr McDermott to Inspector Folitarik, as recorded in par 11, an admission able to be relied upon by the Prosecutor as part of the evidentiary chain advanced by it as requiring me to conclude that the necessary elements of ss 10(1)(a) and 111(1) of the Pesticides Act are satisfied and thus the Council is guilty as charged.
The first gate in s 87(1)(b) requiring to be examined is whether or not Mr McDermott had authority to make an admission on behalf of the Council concerning line-marking substance use and storage at the Oval. For present purposes, it is not necessary that I be satisfied on this point beyond reasonable doubt - that matter would require to be demonstrated in the trial proper rather than on the voir dire. This is because s 87(1) of the Evidence Act merely requires that I be satisfied that such a conclusion was reasonably open to be found. This, for present purposes, is a lower threshold to permit admissibility of the admission.
Relevantly, only two matters are known about Mr McDermott's employment with the Council. The first is that the title of the position he holds in his employment is as Team Leader, Roads and Drainage. The second is that he is a nominated contact person for the Council for the local emergency management committee (but not the sole contact person for the Council on the list - Inspector Folitarik's record of interview Q/A at 61 - as Inspector Folitarik no longer had access to that list as at the time of his record of interview).
There is nothing in Mr McDermott's job title that provides any basis to conclude that he had some broad authority on behalf of the Council to make any admissions outside the scope of what could reasonably be inferred to be his responsibilities in his nominated role with the Council. His nominated role provides no basis upon which I could conclude that he had such authority.
Indeed, the uncontested necessity of Mr McDermott making a further enquiry of another council officer who, in turn, needed to make a further enquiry of some other person (the "grounds person") supports the inference that he did not have such authority.
Equally, there is no evidence upon which I could draw the inference that whatever authority Mr McDermott might have had to make admissions on behalf of the Council as a consequence of his membership of the local emergency management committee (assuming that he had some such authority), that Mr McDermott's role on the committee would encompass park/oval management generally, let alone storage and management of line‑marking chemicals at the Oval specifically.
None of the above matters provide any support to an inference that Mr McDermott had authority to make the admission said to be embodied in par 11 of Inspector Folitarik's affidavit.
This leads to the conclusion that the first gate is shut.

Introduction

Mrs Terry swore an affidavit on 7 November 2018. Mrs Terry and her husband were also jointly interviewed by officers of the Prosecutor but a copy of the transcript of that interview had not, as at the time of Mrs Terry's oral evidence, been provided to the legal representatives of the Council.
The contested paragraph, par 16, in Mrs Terry's affidavit also related to the conversation had by Inspector Folitarik in seeking information concerning the substance(s) which had been decanted into the Coca-Cola bottle. The contested paragraph was in the following terms: 16 The two paramedics who brought Damien to A&E, Lee and Jo, asked another paramedic at the time to call his friend at the council to find out what was stored in the Coke bottle. I was standing close by when the other paramedic rang his friend and I heard the paramedic say 'so you've told them not to put it into those containers.' The council officer then rang back later to say that the substance was water-based line marking paint.
Mrs Terry was questioned concerning the contents of this paragraph of her affidavit and the relevant element in the photocopied extract of her diary notes concerning the incident.

The parties' common position on par 16 of Mrs Terry's affidavit

It was the parties' common position that, if I rejected par 11 of the Inspector's affidavit, it necessarily followed that the Prosecutor would no longer seek to rely upon the contested sentence in par 16 of Mrs Terry's affidavit. As I have rejected the relevant paragraph in Inspector Folitarik's affidavit, it is unnecessary to address, further, that contested element of Mrs Terry's affidavit.

Conclusion

For the reasons explained above, the conclusions I have set out at [14] and provided to the parties on 18 November 2020 were appropriate to be drawn thus resulting in my ruling that par 11 of Inspector Folitarik's affidavit did not constitute evidence of an admission made by the Council.

Amendments 19 November 2020 - Amendment to the initial of Mr Lee, barrister. 24 November 2020 - Correction of the spelling of Dr Pritchard's surname. 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. Decision last updated: 24 November 2020

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