Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd

Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd - [2017] NSWLEC 64 - NSWLEC 2017 case summary — Zoe

[3]

TABLE OF CONTENTS Introduction Wastewaters and the dams The Relining Project and moving of the Transfer Pipe The defects in the maintenance regime and system design The pollution incident The polluted nature of the wastewater The consequences of the wastewater discharge The charges The maximum penalties The Statement of Agreed Facts The guilty pleas The legislation The hearing The evidence The witnesses Initial observations on the evidence The evidence of Dr Pablo and Mr Sutherland Associate Professor House's evidence The cattle deaths Introduction The Prosecutor's written submissions Associate Professor House's evidence in detail The Prosecutor's oral submissions on the death of the cattle The Company's submissions on the death of the cattle The Prosecutor's reply submissions on the death of the cattle Conclusion on causation of the cattle deaths The suffering of the cattle in dying The factors requiring analysis General introduction An aggravating factor The relevant objective and subjective factors Introduction Objective factors The maximum penalties Environmental harm Introduction Actual harm Potential harm to the environment Foreseeability of risk of harm to the environment Control over the causes of the harm Conclusion on harm/environmental harm Practical measures the Company could have taken to prevent the offences The downstream damage Financial gain Subjective factors Introduction Prior offences The Company is a good corporate citizen Likelihood of reoffending Contrition and remorse Introduction Rectification Reporting of the offence Addressing the causes of the offence Corporate apology and regret Reparation Conclusion on contrition and remorse The Company's pleas of guilty Assistance to the Prosecutor The sentencing process Other potentially relevant offences and sentences The objective seriousness of the offences Sentencing Introduction Tier 2 offences The Prosecutor's costs Fitting in a range The water pollution offence The licence offence The starting point The benefit to the Company of its guilty pleas The appropriate overall discount Accumulation and totality A publication of notice recording the Company's conviction and sentence The terms of a publication notice Publications to be included Size of the notices Positioning of the notice Provision of copies of the advertisement Conclusion Orders Annexure A

[7]

The defects in the maintenance regime and system design

Relevant to the adequacy or otherwise of the Company's maintenance regime and system design, the Statement of Agreed Facts records, at [11], [13] and [14]: 11. At all relevant times, there were no alarms or other fault-detection mechanisms connected with the Pump, Transfer Pipe or Valve, as the system was a relatively simple system based on a pump, pipes and valves, manually operated. 12. … 13. The Evaporation Sprays were regularly used prior to the installation of New Dam in 2011. The Evaporation Sprays have been rarely used since this time and, prior to the incident, had not been used for around 12 months. 14. The Valve was not part of the Premises' routine inspection and maintenance schedule, and consequently had not been inspected or maintained for at least 5 years.
However, the written submissions from Mr Howard SC, counsel for the Company, concerning the Valve failure were (footnotes omitted): 27. Secondly, the discharge would not have occurred had the valve on the transfer pipe near the Old Dam not failed. 28. The valve in question was a simple valve, manually operated to open up or close off flow of wastewater through the transfer pipe. The evidence is that: (a), on 18 February 2015, prior to the pump being activated to utilise the evaporation sprays in the Old Dam to attempt to reduce its water level, Mr Saxby closed the valve, checked it for leaks and did not see any; and (b), Mr McMahon, an employee of the contractor acting on Mr Bodnar's instructions, was requested by Mr Bodnar on Friday 20 February 2015 to turn the pump off for the weekend; and (c), Mr McMahon must have turned the pump off as he was requested to do, as it is an agreed fact that he switched the pump on again on Monday 23 February 2015, without touching the valve or changing the valve setting. 29. Thus the valve, which had been placed in the closed position by Mr Saxby on 18 February 2015, was left in the closed position throughout the whole of the relevant transaction. 30. At some stage during this period, the valve failed, evidently without any visible sign of the failure at the location of the valve. 31. It is an agreed fact that the inspection and maintenance of the valve in question was not part of the routine inspection and maintenance regime at the Warkworth Facility and consequently had not been inspected or maintained for at least 5 years. However it is also an agreed fact that "[i]nvestigations had not been able to determine conclusively what was the cause of the failure of the valve". 32. There is no evidence as to the cause of the failure of the valve or even as to the likely cause of the failure of the valve. There is thus no evidentiary foundation to support the proposition that the valve failed as a result of any maintenance failure or by reason of any fault or omission on the part of the defendant. Nor is there evidence to establish that the defendant ought reasonably to have foreseen that a simple manual valve of this type would fail, or fail when it did.
As is later discussed when dealing with the appropriate penalty for the licence breach, these factors mitigate the seriousness of this offence compared to the water pollution offence - despite the fact that the same maximum penalty applies to each.

[15]

The legislation

There are two pieces of legislation requiring consideration in these proceedings. The first is the POEO Act, whilst the second is the Sentencing Procedure Act. It is appropriate to set out the legislative elements requiring consideration on sentencing for the two offences to which the Company has entered a guilty plea. First, the objectives of the POEO Act include, in s 3, the following: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
In addition, with respect to offences committed in breach of this Act, s 241 mandates matters that are required be taken into account when sentencing for such offences. This provision is in the following terms: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
The Sentencing Procedure Act operates in parallel with the POEO Act. There are three provisions of this Act that have relevance to these proceedings. The first element is the provision, s 3A, that contains the objects of the sentencing process. This provision is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The second provision of the Sentencing Procedure Act that requires consideration, to the extent that it is engaged as dealt with in my subsequent detailed discussion, is s 21A of this Act. This provision sets out a range of topics that potentially require consideration as aggravating or mitigating circumstances in the context of the particular offence. It is unnecessary to set out the whole of the section, as a number of the elements contained in it are clearly irrelevant to the Company and to these offences. However, there are two observations to be made concerning this provision.
First, any matter said by the Prosecutor (as is here the case, as later discussed) to be an aggravating factor is required to be proved beyond reasonable doubt, whilst those factors potentially favourable to the Company are required to be demonstrated by the Company on the balance of probabilities.
Second, the various elements of s 241 of the POEO Act, as set out above, also find parallel elements of s 21A of the Sentencing Procedure Act that are to the same effect. In my subsequent analysis, it is convenient to use the framework set out by this provision of the Sentencing Procedure Act but, as I do so, I also note and have appropriate regard to the relevant element arising from s 241 of the POEO Act.
The final provision of the Sentencing Procedure Act that is relevant is s 22 of that Act. This provision requires that I make an allowance for the utilitarian value of the guilty pleas that have been entered by the Company and the timing of the entry of those pleas. This provision is in the following terms: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

[19]

The evidence of Dr Pablo and Mr Sutherland

Prior to their giving of that evidence, Mr Rushton SC, counsel for the Prosecutor, and Mr Howard had discussed the concurrent evidence process I had indicated I considered appropriate and had settled four topics to be dealt with by these two witnesses in their concurrent evidence. These topics were: 1. Harm caused, or likely to be caused, to the environment between the discharge point and the endpoint; 2. The applicability and use of the ANZECC Water Quality Guidelines; 3. The applicability of the Irrigation Guidelines; and 4. Whether the environmental harm was transient.
Dr Pablo and Mr Sutherland gave concurrent evidence. The transcript records that evidence between page 12 and page 64. Although there was a deal of interaction between the two experts, there was also extensive cross‑examination of Dr Pablo as to the adequacy of the methodology leading to the conclusions she expressed on environmental harm she posited was caused by the Company's contaminated discharge. This evidence was directed to what she had considered would have been the impact on macro‑invertebrate aquatic life downflow from the discharge point to the end of the overland flow path, some 200 metres shy of the Hunter River.
On the other hand, the Prosecutor cross-examined Mr Sutherland on his qualifications to give evidence on matters interacting with Dr Pablo and on the conclusions he drew on the matters relating to topics covered by Dr Pablo's written and oral evidence.
In my view, it is unnecessary to undertake an extensive analysis of their written and oral evidence for the purposes of resolving detailed disagreements between them (or to address the question of Mr Sutherland's qualifications). I have reached two broad conclusions that I consider are appropriate to be drawn concerning this aspect of the Prosecutor's environmental harm case (excluding, of course, the impact on the farmer's cattle, as separately dealt with). Those conclusions are: 1. I cannot be satisfied, on Dr Pablo's evidence, that there was any downflow impact on macro-invertebrate aquatic life; and 2. I am satisfied, having considered Mr Sutherland's evidence as well as relevant photographic evidence, that the Company's discharge did cause chemical scalding and resultant die-off of grass between the discharge point and the Farm Dam. However, with respect to this impact, I am not satisfied that such damage is either permanent or long-lasting so as to require me to regard this harm as exacerbating, to any relevant extent, the factor of aggravation arising from the death of the farmer's cattle.
With respect to the conclusion I have drawn concerning Dr Pablo's evidence, it is appropriate to note, at the outset, that these are criminal proceedings and, therefore, the Prosecutor is required to prove beyond reasonable doubt any contested matters.
In essence, Dr Pablo's evidence on environmental harm was that there must have been macro-invertebrates living downflow from the point where the Company's contaminated discharge took place. It was also her opinion that such macro-invertebrates as she had considered would have existed prior to the discharge would have been killed as a consequence of that discharge.
Although I accept that that Dr Pablo was appropriately scientifically qualified to express such opinion, that opinion was expressed in circumstances where there was no actual data derived by field inspection of that downflow pathway. Dr Pablo was also unable to point to any study of any similar ephemeral creek flow path that was potentially relevant to provide a baseline comparison for what might have been the nature of any macro-invertebrate lifeforms to be inferred to have been living in the ephemeral waterways that comprised the downflow pathway of the Company's discharge. The extent to which information may have been provided to her concerning the Hunter River (information not recounted in any significant detail) could not provide any appropriate basis upon which I could be satisfied that the Prosecutor had discharged its onus on this aspect of its case.

[22]

The Prosecutor's written submissions

The Prosecutor's written submissions on this point (omitting footnotes) were: 83. The prosecutor acknowledges that on sentence matters that are adverse to the offender must be established beyond reasonable doubt. However, that does not mean that each matter must be established by direct evidence. 84. It is submitted that the circumstantial evidence is such that the Court would be satisfied to the requisite standard that Mr Rumbel's cattle were adversely affected by the chemical laden waste water discharged by Dyno Nobel. The relevant facts and circumstances upon which the prosecutor relies are: (a) At some point between 18 and 24 February the chemical laden waste water commenced to flow along the flow path which led to the Farm Dam; (b) The concentration of nitrate which is toxic to cattle is >1,500 mg/L. (c) On 25 February 2015 the concentration of nitrate in the Farm Dam was 9,700 mg/L. This concentration was 6.5 times above the level considered toxic to cattle; (d) The measure of EC which can cause diarrhoea and loss of condition in cattle is 6,300 µS/cm. (e) On 25 February, 2015 and 31 March 2015 the EC of the water within the Farm Dam was measured as 21,120 and 18,750 µS/cm respectively. This is 3 to 3.5 higher than the standard set for livestock drinking guidelines in the ANZECC Guidelines; (f) The pH level below which there can be digestive problems, rejection of water, acidosis and reduced feed intake in cattle is 6.5; (g) On 25 February, 2015 the pH of the water within the Farm Dam was 5.7; (h) Prior to the incident the Farm Dam was used for watering the stock. The source of water in the Farm Dam was runoff. The condition of the pasture in the paddock around February 2015 was "a little bit dry but healthy and had good feed on it." The pasture consists of Lucerne and Kikuyu. (i) The paddock containing the Farm Dam is fenced. (j) Prior to 24 February, 2015 the cattle were in very good condition and health; (k) No herbicides or pesticides had been used on the paddock since 2009 when Mr Rumbel first leased the property for the purpose of running cattle; (l) On 20 February 2015 Mr Rumbel locked 60-80 cattle in the paddock containing the Farm Dam. Most were dairy cattle; (m) Whilst contained within the paddock, the water in the Farm Dam was the only source of drinking water for the cattle; (n) When the cattle were first locked in the paddock the water contained in the Farm Dam was clear; (o) On 24 February 2015 Mr Rumbel returned to the paddock to find 5 dead cattle, one having aborted a calf; (p) The dead cattle were puffed up and swollen and most had foaming salivation around their mouths and noses; (q) The remaining cattle looked hollow and appeared to be thirsty. When released from the paddock they rushed straight to water at the northern area of the Farm (r) Mr Rumble (sic) observed that the water in the Farm Dam was murky green. Later that day Mr Rumbel's agronomist, Mr Ropa, observed that the water in the Farm Dam had a greenish tinge to it with a sort of scum or alga floating on the surface. The water was clear and did not have a lot of visible sediment. (s) The affected pasture was water logged starting to turn brown. Over the next few days the pasture was dying off in the water logged area. (t) Mr Ropa inspected the paddock. He searched for poisonous weeds that may have been responsible for the cattle deaths. None were located. (u) Elevated levels of nitrate can cause cattle to perish. The prosecutor understands that this is common ground. A study conducted in 1963 in Queensland reported the death of calves and cattle through nitrate poisoning attributed to drinking water containing a concentration of nitrate of 2,200 mg/L. The study concluded that the toxic nitrate concentration for cattle is between 300 and 2,200 mg/L. (v) As has been noted, on 25 February 2015 the water in the Farm Dam contained nitrate with a concentration of 9,700 mg/L. That concentration is extreme. The water also had other harmful components/attribute which have been addressed above. (w) The prosecutor understands that it is common ground that the death of Mr Rumbel's cattle is consistent with poisoning; 85. It is submitted that the Court would be satisfied to the required standard that the death of a number of Mr Rumbel's cattle, and the adverse effects suffered by others, was the product of the offences committed by Dyno Nobel. It is a compelling circumstantial case. There is no other rational hypothesis consistent with innocence
As can be seen from what follows from the written submissions on behalf the Company, the various factual elements set out by the Prosecutor are not in contest. The conclusion on causation to be drawn from them is, however, vigorously disputed by the Company. Mr Howard's written submissions on this point were in the following terms: 35. Of a herd of 60 - 80 cattle, which Mr Rumbel left in the paddock on 20 February 2015 with access to the farm dam for water, 5 cows died in the period before Mr Rumbel returned on 24 February 2015. One of those cows had partly given birth to a calf, which was also dead when Mr Rumbel returned to the farm. 36. The defendant accepts that it is likely and, indeed, probable that those five cattle and the calf died by reason of those cows drinking from the farm dam. It is probably that, as a result of the inflow of the defendant's wastewater into the dam, those particular cows drank water containing sufficiently elevated concentrations of, relevantly, nitrate and nitrite to have caused their deaths. In other words, the defendant accepts that the commission by it of the pollution of waters probably caused the death of those five cattle and one calf. In this regard, the defendant has accepted the opinion evidence of Associate Professor John House, whose affidavit sworn 20 May 2016, the prosecutor has indicated it will rely upon on sentence. 37. The defendant's acceptance of its responsibility for probably having caused the death of these cattle is reflected in its decision to compensate Mr Rumbel in the amount of $76, 000 and in its expression of deepest regret to Mr Rumbel for having accidentally caused the incident. 38. However, the prosecutor seeks to take the matter further and submits that the Court should be satisfied beyond reasonable doubt that "the death of a number of Mr Rumbel's cattle, and the adverse effects suffered by others, was the product of the offence committed by Dyno Nobel." The prosecutor then relies on that proposition as the foundation for its submission that the harm actually caused to the environment is "substantial" and thus an aggravating circumstance within the meaning of s 21 A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 39. The position thus taken by the prosecutor is not supported by any question the prosecutor asked of Associate Professor House and is not supported by the opinion the gentleman has provided. 40. At page 6 of the report annexed to his affidavit of 20 May 2016, Associate Professor House records that the relevant question he was asked by the EPA was this: If you are able to comment, what in your opinion was the likely cause of death of the cattle? [emphasis added] 41. In addressing that question, Associate Professor House says: In this case, no definitive cause of death was determined and with the information available it is not possible to provide a definitive diagnosis. Despite this limitation, it appears likely that the contaminated water was responsible for the death of the cattle. Nitrate toxicity appears the most plausible cause however dehydration and blue green algae toxicoses cannot be ruled out. 42. In providing that opinion, Associate Professor House presumably had in mind among other things, as he expressly noted elsewhere in the body of his report, that no post mortem was conducted on the dead cows. 43. Associate Professor House goes on to record that: Alternate causes of sudden death include toxic plants which the paddock was determined to be clear of. Infectious causes are also possible however it appears unlikely and co-incidental that this should occur in a 4 day period that happened to co‑incide with exposure to contaminated water. An infectious cause would also not be expected to cause the cows to be "very hollow and thirsty". Similarly nutritionally related causes of sudden death such as bloat (associated with grazing lush lucern) or hypomagnesaemia appear unlikely. Neither would explain the behaviour of the cattle. The mixed pasture was also reportedly mature which reduced the risk of bloat. Herd level hypomagnesaemia is also less likely with the pasture composition and reproductive status of the cows. 44. Those expressions of opinion support the proposition that the commission of the offence probably caused the death of the cattle in question and, as stated, the defendant accepts that proposition. However, those expressions of opinion do not support a finding beyond reasonable doubt that the commission of the offence caused the death of the cattle. 45. The next contentious submission made by the prosecutor in relation to Mr Rumbel's cattle is the submission that the commission of the offences not only caused the death of the cows that died, but also caused "adverse effects suffered by others". If the prosecutor means by this that, by the time Mr Rumbel returned to the farm on 24 February 2015, the other cattle were thirsty by reason of having refrained from drinking the water in the dam, then so much may be accepted, although that would not take the matter any further on the question of sentence. However, it seems the prosecutor is asserting or implying, that, in addition to the cattle that died, other cattle in Mr Rumbel's herd suffered some unspecified adverse effects caused by exposure to the wastewater. 46. In rebuttal of that proposition, the defendant submits it is clear from the report of Associate Professor House that, apart from the five that died, none of the remaining cattle was sick: all of the remaining cattle were in a normal condition, save only for one cow, which Associate Professor House concluded had become sick earlier on from some infectious cause unrelated to the incident.

[23]

Associate Professor House's evidence in detail

As earlier noted, Associate Professor House was engaged by the Prosecutor to provide an expert report concerning the death of the cattle. Although a little lengthy, it is necessary to set out the totality of his evidence in the expert report appended to his affidavit. It is to be observed that his affidavit was read without objection, and Associate Professor House was not required for cross‑examination. His report was in the following terms (footnoted citations omitted) (Affidavit of John Kimberley House, read 13 March 2017, pages 1 to 7): Response to questions posed by Michelle Bragg 1. "In relation to the concentration of nitrate in the water sample identified as 'Cow Dam 1' (CD1) in Eurofins Certificate of Analysis 448914-W (Tab6): a. What effect/s would you expect to see if cattle ingested such water? - The reported concentration of nitrate in the dam water sampled on the 25th of February was 9746 49 mg/L (Eurofins Certificate of Analysis 448914-W) which is considered toxic for cattle. There is a range of signs that may be observed when cattle ingest feed or water containing high levels of nitrates. The speed of onset and severity of signs will be influenced by the amount ingested and the animal's prior exposure to nitrates. Death may occur within 1 hour or up to a day following acute intoxication. Besides sudden death without struggling, clinical signs in live animals include increased salivation, abdominal pain, diarrhoea, constant dribbling of urine, muscle tremor, weakness, inco-ordination or staggering gait, severe dyspnoea (often mouth breathing), rapid but weak pulse, cyanosis, collapse, convulsions, muddy-brown mucous membranes and brown discolouration of the blood. The temperature is usually subnormal (38°C). Fatally affected animals become recumbent, showing severe depression and convulsions, with death occurring from a few minutes to an hour after onset.(2,3) b. What effect/s would you expect to see in pregnant cattle if they ingested such water? - In addition to the signs described for non-pregnant cattle, cows in the latter stages of pregnancy may abort. c. What volume of such water would need to be ingested to cause the death of cattle? Cattle normally drink approximately 8 and 20% of their body weight per day which for a 400kg beef cow equates to between 35 and 80 litres.(4) The amount of water consumed depends on numerous variables including age, environmental conditions, pasture composition, activity, and lactation status. The volume of nitrate contaminated water that cattle would need to ingest to cause death will vary according to the time frame over which the contaminated water is consumed, the concentration of nitrate in the water, and according to the cattle's diet and prior consumption of nitrate. "Nitrate concentrations less than 400 mg/L in livestock drinking water should not be harmful to animal health. Stock may tolerate higher nitrate concentrations in drinking water, provided nitrate concentrations in feed are not high. Water containing more than 1500 mg/L nitrate is likely to be toxic to animals and should be avoided." Nitrate is converted into the toxic nitrite in the rumen by the rumen microflora. There are also nitrite detoxification pathways in the rumen. If the rate of nitrate reduction to nitrite exceeds the rate of detoxification of nitrite then toxic levels of nitrite build up and cause toxicity. Animals that have previously had moderate exposure to nitrate develop increased capacity to detoxify nitrite and are therefore more tolerant of nitrate exposure. Cattle that have not had prior exposure to moderate levels of nitrate will be more susceptible to toxicity. The toxic dose for cattle that may result in mortality is subsequently variable with a reported range of 169- 500 mg/kg.(2) In regards to toxicity, nitrate in water is additive with nitrate in feed so the amount of water required to cause toxicity will also depend on how much nitrate is consumed in the feed. The toxicity of contaminated water is considered somewhat more potent than in feed because it is consumed more rapidly. Assuming negligible feed nitrate intake, a wa ter nitrate concentration of 500 mg/L is reported to deliver a dose of 100 mg/kg Body weight.(2) Given that a 400 kg non lactating cow is likely to drink approximately 40 litres of water (10% of body weight) per day. Forty litres would provide 40 x 500 = 20,000 mg of nitrate which equates to 50 mg/kg of body weight. However, assuming the access to water continues and clearance of the nitrate takes 24-36 hours there will be accumulation of nitrate over time. Given that the concentration of nitrate in the dam was 9746 mg/L a 400 kg cow consuming 40 litres of water would consume 40x9746 = 389,840 mg. This equates to a daily ingested dose of 389,840/400 = 974.6 mg/kg this dose is approximately double the high end dose that is reported to be toxic for cattle. Given the time taken for excretion of nitrate there would be potential for the cumulative dose to significantly exceed the calculated daily dose. This level of nitrate exposure exceeds numerous reports of nitrate toxicity and mortality in cattle associated with consumption of contaminated water. In regards to the dose of nitrate consumed it is likely that there was variation in the amount consumed by different cattle due to variability in the concentration of nitrate in the dam and run off water available in the paddock. This is indicated by the test results on the 24th of February the nitrate concentration on the inflow to the dam was 8860 mg/L and the concentration of nitrate in the channel below the dam was 5759 mg/L. On the 11th of March three water samples were collected from the farm dam the concentration of nitrate in the dam water ranged from 5700 to 12000 mg/L. All levels of nitrate measured in the dam water were at toxic levels. The large range in nitrate concentration in the farm dam water indicates that the nitrate was not evenly distributed in the farm dam. The observation by Mr Rumbel that the cows were "very thirsty and very hollow" also suggests that the palatability of the water was compromised and that some cattle choose not to drink or drank less water than others. 2. In relation to the concentration of cyanophytes in the water sample identified as "Farm Dam (OSD) on p.20 of the EnviroRisk Report (Tab 10): a. What effect/s would you expect to see in cattle if they ingested such water? - The number of cyanobacteria reported in the dam water was 12,600 cells/ml which is in excess of the trigger level of 11500 cells/ml indicating potential for toxicity. Many cyanobacterial blooms are non-toxic to animals but all should be considered potentially toxic. Animals that have consumed the toxin will appear unwell very quickly. They may initially appear depressed and weak, show signs of tremors, have a staggering gait, and then become recumbent, convulse and die. Acutely affected animals will often die within 24 hours of ingesting the toxin. In many cases affected animals are found dead near a pond or waterhole containing an algal bloom.(3,5) b. What effects would you expect to see in pregnant cattle if they ingested such water? Similar signs to non-pregnant cattle. c. What volume of such water would need to be ingested to cause death of cattle? Variable, this would depend on the species and number of cyanophytes present in the water. Depending on the toxicity of the bloom and the concentration of the toxin, between a few mouthfuls and many litres of water may be ingested before livestock show signs of poisoning.(5) The level of cyanophytes present in the water was above the trigger level for potential toxicity. There is not a direct correlation between the number of cyanophytes present in the water and the amount of toxin in the water as it depends on the specific species present. Hence it is not possible with the data available to know if the high level of cyanophytes present rendered the water toxic. Despite this given the information available the recommendation would be to prevent stock accessing the dam. 3 If you are able to comment, what in your opinion was the likely cause of death of the cattle? - In this case no definitive cause of death was determined and with the information available it is not possible to provide a definitive diagnosis. Despite this limitation it appears likely that the contaminated water was responsible for the death of the cattle. Nitrate toxicity appears the most plausible cause however dehydration and blue green algae toxicosis cannot be ruled out. When I initially considered this question I queried the link between contamination of the water and the mortality of 5 cows from a group of 60 to 80. It was unclear to me why more cows had not died if the water was responsible as it was the only water source in the paddock. The data provided revealed that the level of contamination present in the water was generally very high however it was also variable. This finding is logical when one considers that the water in the dam was likely to have been clean prior to the spill. When the contaminated water ran into the dam, clean and contaminated water would have mixed leading to variable concentrations in the dam. The initial overflow from the dam had lower contamination than that found in the in-flow from the culvert. Different cattle would have consumed water from different areas (dam, overflow) which would have contained different levels of contamination. The concentration of nitrates in the water is also likely to have changed/increased over time. As previously indicated when cattle consume nitrate the microflora in the rumen convert the nitrate to nitrite which is absorbed into the body and is toxic to the cow. The contaminated water entering the farm dam was also contaminated with nitrite. The nitrite in the water would have been additive to the nitrite produced in the rumen from nitrate contributing to the toxicity of the water. Mr Rumbel's observation that the cows were hollow and ran to the water source in the new paddock indicates the water in the contaminated dam and dam outflow was not palatable. The water sample collected from the dam by Kyle Ropa on the 24th of February had an electrical conductivity of 21120 uS/cm and pH of 5.1, findings that support Mr Rumbel's observation. The conversion factor for electrical conductivity (uS/cm) to total dissolved solids (mg/L) is 0.67. Therefore an electrical conductivity of 21120 uS/cm equates to 21120x0.67 = 14150 mg/L total dissolved solids. The maximum concentration of total dissolved solids that may be safe for beef cattle for limited periods is 5,000-10,000 mg/L.(7) Water for livestock use should be in the pH range of 6.5 to 8.5. Water rejection and depressed appetite are observed when the pH of water is less than 6.5. Animals may die, even when they apparently have adequate water.(7) Poor palatability is likely to have contributed to the survival and death of cattle. Those cows that had reduced water consumption would have been protected, conversely if some cows initially did not drink the water and then were overcome by thirst and drank a larger volume of water toxicosis and death would be a likely outcome. Conversely failure to drink and dehydration is also a possible cause of death. Alternate causes of sudden death include toxic plants which the paddock was determined to be clear of. Infectious causes are also possible however it appears unlikely and coincidental that this should occur in a 4 day period that happened to coincide with exposure to contaminated water. An infectious cause would also not be expected to cause the cows to be "very hollow and thirsty". Similarly nutritionally related causes of sudden death such as bloat (associated with grazing lush lucern) or hypomagnesaemia appear unlikely. Neither would explain the behaviour of the cattle. The mixed pasture was also reportedly mature which reduces risk of bloat. Herd level hypomagnesaemia is also less likely with the pasture composition and reproductive status of the cows. 4. If you are able to comment, what is your opinion on the health of the surviving cattle that were examined by Mr Prichard? - The description provided by Mr Prichard suggests that the surviving cattle were normal. The blood test from the "sick" cow suggested that this cow had an inflammatory disease process that may have preceded entry to the paddock. In my opinion the normal level of nitrates observed in the six cows tested does not rule out the possibility of nitrate toxicity in other cattle within the group. The amount of nitrate consumed by the different cattle in the group is likely to have been variable and variable responses to nitrate ingestion are common. The cattle were also tested the day following removal from the affected paddock providing time for nitrate to be excreted. The biologic half-life of nitrate in beef cattle is 7.7 hrs, increased nitrate concentrations from excessive nitrate exposure diminish to normal expected values in 24 to 36 hours.(6)

[24]

The Prosecutor's oral submissions on the death of the cattle

It is also appropriate to reproduce, in their entirety, the submissions made by the Prosecutor, both as to the factual interpretation to be made of the evidence and the proper approach, at law, to be taken in doing so. The transcript (Transcript 13 March 2017, page 67, line 25 to page 72, line 13) relevantly reads: In para 36 of the defendant's submissions, it accepts that it is likely that, and indeed probable, that those five cattle and the calf died by reason of the cows drinking from the farm dam. It's probable that as a result of the inflow of the defendant's waste water, those particular cows drank water containing sufficiently elevated concentrations of relevantly nitrate and nitrite to have caused their deaths. In other words, the defendant accepts that the commission by it of the pollution of waters offence probably caused the death of those five cattle and one calf. But the submissions go on to say, and in particular para 44, that because nobody says, in effect, that you can be satisfied to a level of scientific certainty that the cattle died through nitrate toxicity, that that's the end of the matter and your Honour couldn't be satisfied beyond reasonable doubt. Can I suggest your Honour, that is the wrong way to look at issues of circumstantial evidence. And in order to make that point good, I'd like to take your Honour just briefly to the decision of the High Court in Barker v R. Can I hand up a copy of that to your Honour. Now, before I take you to particular paragraphs and explain the facts in that case to your Honour, can I say this; that one practical way of looking at the way that circumstantial evidence is handled within the context of a criminal trial, is to consider what a jury might make of circumstantial evidence. And my primary submission is this; that the mere fact that people say highly probable, probable, but don't actually say it definitely did, wouldn't mean in a jury trial that the matter was taken away from the jury. It would be up to the jury to assess that opinion in the light of the other evidence, and it would be up to the jury, or in this case your Honour, to decide whether you are satisfied beyond reasonable doubt taking into account all the circumstances. Professor Hauser's report, which I'll go to in a minute, is just one aspect of that, and it's very important, in my respectful submission, to understand it. One has to draw inferences from the entire facts, which I'll go through in one moment. In Barker [sic - should be Barca], the High Court was dealing with a murder, and the accused was a Calabrian and it was alleged that he had engaged in an honour killing. That is, he had murdered his brother‑in‑law for engaging in behaviour which was dishonourable to the accused's sister. One of the hypotheses that was put forward at the trial was that in Calabrian culture if an honour killing was to take place in respect of the dishonour of a woman the murder would be carried out by the father: that is, the father of the person who had been dishonoured, so to speak. Counsel for the accused put that hypothesis to the jury, and the trial judge instructed the jury to reject it. It was something they couldn't take into account. The High Court granted special leave and allowed the appeal primarily on the basis that it should never have been put on those terms and that the jury were entitled to consider all the evidence and decide whether that hypothesis was reasonably open, and there were a number of aspects of the evidence which suggested that it was open. At para 95 just after line 45, Gibbs, Stephen and Mason JJ had this to say, "When the case...of the accused" - and then they refer to Peacock v The King, which is the case where Dr Peacock murdered a young woman - "to enable the...them to draw." Then their Honours refer to Plomp v The Queen, which is a case which involved a conviction of a man for murdering his wife where they could not establish on recovering the body that he'd actually done it, but there were a number of circumstantial facts that suggested he had: The body was recovered from the surf, and the accused's explanation was that she had been pulled out in a rip, but there was evidence to suggest that he was having a relationship with another woman, he said that he'd marry the other woman et cetera. They then go on to say something which is very important: "However, an inference...facts in evidence." What their Honours are really saying there is that a hypothesis consistence with innocence will - if all of the evidence puts forward a hypothesis consistent with innocence then your Honour couldn't be satisfied beyond reasonable doubt. But nevertheless, it has to be a rational and reasonable inference taking into account all the circumstances of the case. What I wanted to do, your Honour, is just to draw your Honour's attention again to the matters that we rely upon as set out in our outline of submission and expand on a few of them. They are contained in para 84 and following. The first point of course is a fairly obvious one, that at some point, and we don't know when - and this is para 84 page 14 - between 18 and 24 February that chemical‑laden waste commenced to flow along the flow path. The concentration of nitrate which is toxic to cattle is 1,500 milligrams per litre. Pausing there, your Honour, might I ask your Honour to also have at hand the affidavit of Associate Professor House. HIS HONOUR: Could I observe at this time I think I have Mr Howard's submissions electronically. I'm not sure that I've got yours. RUSHTON: I'm sorry, your Honour. I'll make sure‑‑ HIS HONOUR: No, I'm not saying I haven't. I know I've got them. I'm not sure if I've got them electronically. RUSHTON: I can tell your Honour you haven't gotten them electronically, but I'll make sure this afternoon that you do get them. HOWARD: And I'll provide mine in Word, if it please the Court. I've only provided a PDF version. RUSHTON: That's the affidavit of Mr House of 20 May 2016, and I'll be coming back to aspects of that as I go through. I'll draw attention to the fact that the concentration of nitrate which is toxic to cattle is above 1,500 milligrams per litre. That is a standard that is set out in the water quality guidelines of which my learned friend has been critical. That is, there is a suggestion they shouldn't have been used. But I can I draw your attention, your Honour, to p 4 of Associate Professor House's affidavit and the last paragraph on p 4, which commences with the words, "Nitrate is converted into toxic nitrite." Can I ask your Honour just to read to the end of that paragraph. HOWARD: None of which has ever been disputed, your Honour, by us. RUSHTON: Would you mind allowing me to address the Court, and then I'll give you a fair go. So rude. HOWARD: My learned friend - no, with respect, Mr Rushton - your Honour, Mr Rushton attributed a submission to me or to the defendant that the defendant took issue with the proposition about nitrate being toxic at greater than 1,500, and that is not correct. What we've taken issue with is an unqualified use of the trigger values in relation to the toxic chemicals. So I regret that I've caused my learned friend concern in putting the position, but what I wanted to ensure is that the Court is not confused about our position in respect of the guidelines. We don't dispute the position that water containing more than 1,500 milligrams per litre of nitrate is likely to be toxic to the cattle. We've only taken issue with the very definite and unqualified use of the water quality guidelines in relation to the trigger values for nitrate and ammonium, if it please the Court. RUSHTON: Things must have changed over the last couple of years. When I last appeared up here I had an opportunity to address first and then counsel for the defendant addressed second. HOWARD: I'm sorry to have interrupted. I'll just‑‑ RUSHTON: It's quite rude. Can I just remind your Honour that in Associate Professor House's report he confirms as an expert that the toxic dose to cattle that may result in mortality is subsequently variable, with a reported range of 169 to 500 milligrams per kilogram. Now, a litre of water weighs a kilogram as I understand it, so the reported range he gives, I think it works out to 169 to 500. If that's so, then I have to say it's not really apparent why there is such concern about using the trigger values when one has in mind just how excessive the nitrate concentrations were in this case. But be that as it may, on 25 February we say in para C, "The concentration of nitrate on the farm was 9,700 milligrams per litre." On any view, your Honour, that is off the planet in terms of toxicity. We then set out - and these are all facts from which I'm going to ask you to draw an inference in due course - the measure of electrical connectivity which can cause diarrhoea and loss of condition in cattle is 6,300 microsiemens per centimetre, and we note that on 25 February - that's the day after Mr Rumble discovered his dead latter, the EC in the water was measured at 21,120 and 18,750 microsiemens per centimetre respectively. Again, those measurements are just off the planet. The pH level at which there can be digestive problems, rejection of water, acidosis and reduced feed intake is 6.5. On 25 February, the pH was 5.7, well below that. Next in terms of important facts, prior to the incident, the farm dam was used for watering the stock. The source of water in the farm was runoff. The condition of the pasture in the paddock around February 2015 was a little bit dry but healthy and had good feed on it, and the pasture consisted of Lucerne and kikuyu. The paddock was fenced and as we point out in sub‑para J, prior to 24 February 2015 the cattle were in good condition and healthy. In fact, I think Mr Rumble in para 13 of his affidavit goes so far as to say they were very healthy - if I recall. HIS HONOUR: Very good condition and in good health. RUSHTON: Yes. So here we have a fenced paddock with a dam in it which fills from runoff, including no doubt, these waste waters that came over the hill some time prior to 24 February. His cattle is put in there, it's fenced, they're in good condition, no herbicides or pesticides have been used in the paddock since 2009. Paragraph M, "Whilst they were contained within the paddock, the water in the dam was the only source of drinking water for the cattle." Importantly too, when the cattle were first locked in the paddock, the water contained in the farm dam was clear. And on 24 February, he returns to find five dead cattle, one having aborted a calf. Importantly too, "They were puffed and swollen, most had foaming salivation around their mouths and noses." Pausing there, can I ask your Honour to go back to Associate Professor House's report. And you'll see, your Honour, again on p 4 at para 1(a), second paragraph, that the Associate Professor gives a description of the symptoms or the clinical signs of nitrate poisoning, which include increased salivation, abdominal pain, diarrhoea, constant dribbling of urine, muscle tremors, weakness, incoordination. Now, none of those factors were observed except for salivation, and it's common ground that most had foaming salivation around their mouths and noses. So that's a clinical sign which is consistent with nitrate poisoning. When you go on to read some of the other possibilities - pretty remote possibilities, might I say - one being dehydration and the other being poisoning through blue green algae, your Honour will see that when he describes the symptoms of exposure to blue green algae. That the symptoms are, "they appear depressed and weak, show signs of tremor, have a staggering gate and then become recumbent, convulse and die." One of the symptoms of poisoning from blue green algae is not salivation around the mouth as was observed with these particular animals. It's also relevant, can I say, when considering the evidence to note that there's no suggestion that the water in the dam had ever caused Mr Rumble's cattle to become sick in the past. As I said, when the cattle were first locked in the paddock, the water contained in the farm dam was clear, and it was only on 24 February that an observation was made that there was a sort of scum or algae floating on the surface. That observation was made by Mr Roper, who was Mr Rumble's agronomist when he turned up on the 24th. But the evidence suggest that prior to that time, there was no such observation. It's agreed that on 31 March 2015, some time after the event, EnviroRisk found cyanobacteria in one sample, and that's referred to in Associate Professor House's report in para 2(a). Most cyanobacteria are non‑toxic, your Honour. As you'll see from para 2(a), the measure of cells here was only marginally above the trigger value. And of course, unlike being marginally over the trigger value here, the toxicity of the nitrate was off the scale. As we've noted, the affected pasture was water‑logged, starting to turn brown. Over the next few days, the pasture was dying off in the waterlogged area. Mr Roper inspected the paddock, he searched for poisonous weeds that may have been responsible for the cattle deaths. None were located. We know that elevated levels of nitrate can cause cattle to perish, indeed, I've taken your Honour to the observations made by Associate Professor House in relation to the levels which will be toxic. Dr Pablo also refers to a study from Queensland which concluded that the toxic nitrate concentration for cattle was between 300 and 2,200 milligrams per litre. It is accepted that Associate Professor House has said in his report that no definitive cause of death was determined and therefore, it's not possible to provide a definitive diagnosis. What the standard of beyond reasonable doubt doesn't require is absolute science or scientific certainty. It never has, it never will. What must be decided is whether putting all the facts together, you are satisfied beyond reasonable doubt that the cattle perished as a consequence of the waste water. He says it's the most plausible cause. Your Honour has to decide, is there in those circumstances, an inference, a reasonable and rational inference, which is consistent with innocence, not just some speculative possibility about blue green algae, or indeed, dehydration is another possibility he puts forward. Nitrate poisoning, most plausible, my learned friend accepts it's the probable cause. The blue green algae has reached a level of marginal toxicity, and you can discount straight away, your Honour, death by dehydration, because if they died through dehydration, it was a consequence of refusing to drink this toxic water. So the defendant's responsible on that basis in any event. So in circumstances where the expert says it's the most plausible explanation, my learned friend says it's probable, and you put all those facts and circumstances together, the ones I've listed about the animals being in good condition, locked in, only source of water and the like. In my respectful submission, your Honour would be satisfied beyond reasonable doubt that the defendant's crimes caused Mr Rumble's cattle to perish. But the alternative submission of course is that in circumstances where it's plausible - and in the words of my learned friend probable - your Honour would certainly be satisfied that it had a likelihood of harm and certainly it was potentially deadly to those cattle.

[25]

The Company's submissions on the death of the cattle

On the other hand, the oral submissions on this point on behalf of the Company were in the following terms (Transcript 14 March 2017, page 91, line 22 to page 93, line 38): HOWARD: Now, I'll come back ultimately to the question of whether it's open to your Honour to find there's substantial harm. You won't be hearing me submit to the Court that it's not open to the Court to find that there was substantial harm, and really, I must say that our submissions were oversimplified insofar as they were referred to and addressed by the prosecutor yesterday. But let's deal with the question of whether it has been proved beyond reasonable doubt that the commission of the offences actually caused the death of those six cattle. We've addressed that matter in our written submissions at paras 35 and following. I don't propose to read them all out, but one of the matters of considerable importance is that there was a herd of 60 to 80 cattle here, only five of which, plus the calf, died. Now, your Honour knows what happened, and let me preface this by saying that in putting this I am not in any way suggesting any criticism whatsoever of Mr Rumble. But your Honour knows that what happened was that Mr Rumble put his cattle, a herd of 60 to 80 cattle, into the paddock adjoining that farm dam where the water source was that farm dam, and then he went away from the property for a number of days, returning on the 24th, so about four days. When he returned five cows were dead plus the calf and he noticed that the others looked hollow and thirsty. Your Honour is probably well familiar with what a bushman means when he says cattle looked hollow. They obviously appeared to him to be in need of a drink and as soon as he opened the gate, they rushed off to find some good water but the remainder of the herd was neither dead nor sick, with one exception. There was one cow that appeared poorly and I'll take your Honour to the evidence about it which is not insignificant. Your Honour, if I could take you right now to the evidence of Mr House, we say it will put the matter beyond any real disputation. Again, let me say what is agreed. There's no doubt that these cattle had - insofar as one could discern symptoms after they were dead, those symptoms were consistent with the ingestion of this wastewater. We accept that but look at what the associate professor was asked, if you wouldn't mind, your Honour, on p 6 of his report. Your Honour is well alive to this. He was only asked what in his opinion was the likely cause of the death of the cattle. He has never been asked whether having regard to circumstances that have been identified to him or not that he can take the matter further, but may I say that what we are dealing with here is a matter ultimately that will come to the Court. We embrace the prosecutor's submission that it's up to the Court to determine whether it is satisfied beyond reasonable doubt as a tribunal of fact and that is not a matter as to which the Court delegates its role to any expert, but having said that, this is a case in which the issue is the causation of the death of those cattle and that is very much a matter within the domain of a forensic vet. That is exactly what we see here in the report of the associate professor who says, "In this case…be ruled out." Your Honour, if the cause of death was blue-green algae toxicosis, there's no doubt that that was contributed to by the discharge, but one needs to look a little more closely at what Associate Professor House says in the discussion that then follows. He said, "When I initially…increased over time." He goes on to make some further observations about that. Clearly he has considered the matter, with respect to him in his absence, in quite an appropriate careful manner. He goes on to say in the last paragraph under this head of consideration, namely, "What is your opinion was the likely cause of death of the cattle?" to say this, "Alternative causes of…hollow and thirsty." Your Honour can see the rest of that paragraph. Then if you go forward to s 4 he was asked about the health of the surviving cattle, Associate Professor House indicated that the description that had been provided by Mr Pritchard, a veterinary surgeon that had been brought on by the farmer, your Honour, suggests that the surviving cattle were normal, "The blood test…within the group." So your Honour, what you'll see earlier on in this is discussion of the circumstance that there were of these cattle - if I can take your Honour back to p 3 of the report of the associate professor, you'll see that he indicates in the second paragraph under the Clinical Case Summary that Mr Rumble called a Singleton vet surgery, that's Dr Pritchard - "visited the property…blood magnesium concentration." Your Honour, the prosecutor has taken you to a number of circumstances and says that notwithstanding the qualified expression of opinion by Associate Professor House, the Court should be satisfied beyond reasonable doubt that the cattle were killed by ingesting this wastewater. Those factors that the prosecutor refers to are set out in its written submissions at 84. He has taken you today, the prosecutor, to some aspects of Associate Professor House's report. The point I would like to make to your Honour is that all of the circumstances on which the prosecutor relies were circumstances which were made known to Associate Professor House. There is nothing, we say, that the prosecutor relies upon that he can characterise as something that's probative of the issue of the cause of death of the cattle that was not taken into account by Associate Professor House. Thus your Honour will be, we say, principally informed by a responsible opinion expressed by the associate professor in which taking into account all of the relevant circumstances, he expresses an opinion which can be paraphrased accurately by stating he can't be sure but it's probable that these cows died because of ingesting these wastewaters. We say that in those circumstances, the Court should not find that the prosecutor has satisfied its burden of establishing to the criminal onus that the discharge actually caused the death of those cattle. Your Honour, as to the difference that that might make at the end of the day, there may be more dispute here than really matters a great deal to sentence, because this is put in support of the prosecutor's position, that there is an aggravating factor under s 21A(2)(g). Your Honour will have gleaned from my submissions, my written submissions, that we say a commonsense approach is taken to environmental harm on a spectrum, so we say that the fact that this discharge probably caused the death of those cattle is a matter that the Court will take into account as a significant matter against the interests of my client. We don't seek to derive a massive amount from a difference between it being established that it was a probable cause of the death of these cattle or it being proved beyond reasonable doubt but we fight this issue because the prosecutor seems to be saying that by making a finding of substantial harm under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act, that would somewhat ratchet up the penalty and we don't accept that proposition. I would like your Honour to understand that we say that the Court can and will, we expect, make the defendant answer by way of the imposition of this penalty if the Court is satisfied, as we admit, that this probably caused the death of those cattle. That doesn't really leave your Honour, in our submission, in much of a quandary about this, although your Honour is presumably going to have to make a finding as to whether the prosecutor has made out its onus of proving that it actually killed these cattle.

[26]

The Prosecutor's reply submissions on the death of the cattle

The Prosecutor made brief reply submissions on this point in response to those set out above advanced on behalf the Company. The relevant portion of the transcript on this point is in the following terms (Transcript 14 March 2017, page 118, line 34 to page 119, line 41): RUSHTON: Just briefly, your Honour, there's only two matters I wish to address: the first concerns the cows again. My learned friend quite properly and sensibly made a concession that if there was blue‑green algae in the farm water then the waste that had been discharged contributed to that, but what he then suggested - and it's the only suggestion he's put forward - is that there is a reasonable hypothesis consistent with innocence, namely that these cows may have been suffering from infection. HOWARD: Sorry, I just have to interrupt and say it's not a proposition put consistent with innocence. The defendant maintains its plea of guilty, your Honour. RUSHTON: An explanation consistent with some other cause. That cause was the possibility that the five cattle that died had picked up an infection. Can I just briefly take your Honour to what Associate Professor House says about that, and it's on p 7 of his report. My friend took you to that, but I just want you to concentrate, if your Honour wouldn't mind, on the words that he uses, "Infectious causes are also possible, however it appears unlikely and coincidental that this should occur in a four day period that happened to coincide with exposure with contaminated water." Pausing there, your Honour, I took your Honour to the decision of the High Court and Barca v The Queen. Does your Honour still have a copy of that? HIS HONOUR: I do. RUSHTON: Can I take your Honour again to the passage that I drew your Honour's attention to yesterday, that's at p 95 commencing under line 46. I'll just have your Honour read that particular paragraph and over the page, then there is something I want to draw to your Honour's attention. What their Honours said, referring to Plomp, and Thomas v The Queen was, "An inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence." At its highest Professor House says - and I'll use his words, "Infectious causes are also possible, however it appears unlikely and coincidental that this should occur." My learned friend put to your Honour the proposition that an unlikely and improbable hypothesis can still be a rational hypothesis. In my respectful submission the High Court suggests otherwise, and if it is no more than a bare possibility, particularly if it's unlikely, improbable, then that would not prevent your Honour being satisfied beyond reasonable doubt that the cause of the deaths of the cows and one calf was as we said it is. The second matter I wanted to draw to your attention briefly, your Honour, was that the prosecutor was criticised for not taking your Honour to various comparable cases. Can I say this to your Honour, and your Honour is probably aware that for decades - for many decades, in fact - it was practice for crown prosecutors to bring to the attention of the judge - in fact, any trial judge, as it would have been up here - various comparable cases for the purpose of setting a range. Judges often found it quite helpful. HIS HONOUR: I understand that, and we're in a post‑Barbaro world, Mr Rushton. RUSHTON: Correct, so I can't do that anymore, so the usual practice is just to hand them up and allow a defendant to address. Thank you, your Honour. They're the only submissions I wish to put in reply.

[27]

Conclusion on causation of the cattle deaths

Although this matter occupied a deal of attention during the sentencing hearing, the point to be determined is quite confined. It can be dealt with, I am satisfied, as a matter of fact, comparatively shortly. There are two quite separate bases that lead to the conclusion that I should be satisfied, beyond reasonable doubt, that the death of the cattle, and the partial aborting of a calf from one of them, was caused by the Company's discharge of polluted water from the Site.
First, although the approach taken by Associate Professor House was characteristically scientifically cautious, there is one distinct difference that stands out starkly between the effluent causation scenario and the blue-green algae causation one. This arises in the context of the second question that Associate Professor House was asked to address for each of the potential causal hypotheses. It is appropriate to reproduce, again, this question and the response given for each scenario.
First, this question and answer for the effluent causation hypothesis was in the following terms: What effect/s would you expect to see in pregnant cattle if they ingested such water? - In addition to the signs described for non-pregnant cattle, cows in the latter stages of pregnancy may abort.
On the other hand, that for the blue-green algae hypothesis was: What effects would you expect to see in pregnant cattle if they ingested such water? Similar signs to non-pregnant cattle.
The factual evidence that one of the cows had, in its death throes, suffered a partial abortion of its calf must mean, in light of the unequivocal distinction in Associate Professor House's evidence between the two potential causation factors, that the deaths were caused, beyond reasonable doubt, by the effluent discharge. For the reasons that can be seen from the totality of Associate Professor House's evidence, such a conclusion is not in any fashion, whatsoever, inconsistent with the other evidentiary elements available for my weighing.
The second factor requiring consideration in determining whether or not I can conclude, beyond reasonable doubt, that the Company's pollutant discharge caused the death of the cattle addresses the possibility, discussed by Associate Professor House, that the deaths were caused by blue-green algae poisoning. The first matter to be noted in this context is the fact that it is the uncontested position that, at that time, the cattle were placed in the paddock that had the Farm Dam as its sole source of drinking water, the water in that dam was completely clear. The second element relevant on this point was the concession made by Mr Howard, in the course of his submissions, that if there had been an algal bloom, the Company's discharge would have contributed to its causation. Specifically, he said (Transcript 14 March 2017, page 92, line 21 to line 22): Mr Howard: … Your Honour, if the cause of death was blue-green algae toxicosis, there's no doubt that that was contributed to by the discharge …
If there were to have been such an algal bloom that had caused the death of the cattle, there is no evidence of any triggering factor whatsoever for such a bloom other than the pollutants from the Company's discharge flowing into the dam. On that basis, even on what Associate Professor House considered to be improbability of such an algal bloom causing the death of the cattle, it would be appropriate to conclude that such a bloom would have been triggered by the incident of pollution for which the Company is charged.
The Prosecutor's earlier reference to "Barca" is to Barca v R (1975) 133 CLR 82; [1975] HCA 42, where the plurality (Gibbs, Stephen and Mason JJ) said (citations omitted): [11] When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused". To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw. However, "an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence".
Viewed in this fashion, it is unnecessary to resolve the tension between the two potential causes of the death of these cattle in circumstances where Associate Professor House's evidence, as earlier set out, effectively removes the possibility of any further potential cause of death (such as some conventional bovine disease). Such a conclusion (excluding the possibility of some conventional bovine disease) is entirely appropriate in these circumstances and consistent with the approach approved in Barca.
It therefore follows that the only realistic potential causes of death arose from the Company's act of pollution. Viewed in this fashion, having had appropriate regard to Associate Professor House's evidence, it is clear that there can be no reasonable doubt that the Company's discharge caused the death of the cattle.
I am therefore satisfied, to the extent necessary, that that is what had occurred and that this acts as a factor of aggravation.

[28]

The suffering of the cattle in dying

As well as this conclusion as to the certainty of causation of the death of the cattle, it is also appropriate to have regard to the likely manner of their deaths and the suffering that would have been occasioned to them.
Mr Howard cautioned against any emotive consideration of this, saying (Transcript 14 March 2017, page 94, lines 10 to 31): Your Honour, I put this submission respectfully. It's entirely a matter for your Honour. We suggest that there is an understandable risk on the part of any tribunal of fact, and we say that unapologetically in addressing your Honour, as obviously it would be a matter that would sound far more loudly if there were a jury, but we do ask your Honour to be alive to an understandable risk that the death of domestic stock, and indeed the manner of their death, may engender an emotive response. That's not to traverse what your Honour just put to me, which I accept, that the manner of their death was clearly unpleasant, assuming that they died from this, and we accept that's probably the case. One might also say that the death of livestock to varying degrees, although we're becoming a humane society, when they're slaughtered can have a degree of unpleasantness about it as well. The only point I'm trying to make here is that, yes, your Honour will take into account the probability that this caused the death of those cattle. Yes, your Honour is quite right in alerting me to the symptoms that they probably suffered at that paragraph of Associate Prof House's report but if one is looking at a higher level at what occurred here, what one is looking at is the mortality of five cows and a calf out of a herd of herd of 60 to 80. These are simply balancing factors, in my submission, without seeking to in any way suggest that it's not significant that this discharge probably caused the death of those cattle.
It is appropriate to repeat Associate Professor House's evidence concerning the nature of the pre-mortem effects on the cattle. Associate Professor House said (Affidavit of John Kimberley House, read 13 March 2017, page 4 to page 5): 1. "In relation to the concentration of nitrate in the water sample identified as 'Cow Dam 1' (CD1) in Eurofins Certificate of Analysis 448914-W (Tab6): a. What effect/s would you expect to see if cattle ingested such water? … Death may occur within 1 hour or up to a day following acute intoxication. Besides sudden death without struggling, clinical signs in live animals include increased salivation, abdominal pain, diarrhoea, constant dribbling of urine, muscle tremor, weakness, inco-ordination or staggering gait, severe dyspnoea (often mouth breathing), rapid but weak pulse, cyanosis, collapse, convulsions, muddy-brown mucous membranes and brown discolouration of the blood. The temperature is usually subnormal (38°C). Fatally affected animals become recumbent, showing severe depression and convulsions, with death occurring from a few minutes to an hour after onset.(2,3) … 2. In relation to the concentration of cyanophytes in the water sample identified as "Farm Dam (OSD) on p.20 of the EnviroRisk Report (Tab 10): a. What effect/s would you expect to see in cattle if they ingested such water? … Animals that have consumed the toxin will appear unwell very quickly. They may initially appear depressed and weak, show signs of tremors, have a staggering gait, and then become recumbent, convulse and die. Acutely affected animals will often die within 24 hours of ingesting the toxin. In many cases affected animals are found dead near a pond or waterhole containing an algal bloom.(3,5) Besides sudden death without struggling, clinical signs in live animals include increased salivation, abdominal pain, diarrhoea, constant dribbling of urine, muscle tremor, weakness, inco-ordination or staggering gait, severe dyspnoea (often mouth breathing), rapid but weak pulse, cyanosis, collapse, convulsions, muddy-brown mucous membranes and brown discolouration of the blood. The temperature is usually subnormal (38°C). Fatally affected animals become recumbent, showing severe depression and convulsions, with death occurring from a few minutes to an hour after onset.(2,3).
Considering the nature of the cows' deaths, as described above, does not involve any emotional assessment - merely a dispassionate noting of the suffering undergone pre-mortem by those cattle.
This, in my view, can also be added to the mix of factors to be weighed in determining whether or not the harm caused by the Company's discharge should be regarded as substantial for both the purposes of the necessary assessment pursuant to s 21A(2)(g) of the Sentencing Procedure Act and s 241(1)(a) of the POEO Act. For each of these provisions, I am satisfied that the nature of the suffering of the cattle before they died does require to be taken into account in reaching that conclusion. The manner of their death, and the suffering experienced by them in their dying (as earlier discussed), provides sufficient basis for the conclusion to be drawn the environmental harm was substantial.
It therefore follows that the fact that the harm must be regarded as substantial constitutes a factor of aggravation when it comes to my consideration of whereabouts in the range of seriousness the Company's offence should be assessed. This factor of aggravation provides a significant basis for distinguishing these factual circumstances from other water pollution offences that have been prosecuted and punished when there has been an absence, in those cases, of any factor of aggravation.

[44]

The Company is a good corporate citizen

The second relevant factor is that in s 21A(3)(f) of the Sentencing Procedure Act as to whether the Company is "of good character".
To permit me to assess whether or not I should regard the Company as being of "good character", for the purposes of s 21A(3)(f) of the Sentencing Procedure Act, the Company was permitted to file and serve, after the hearing, a second affidavit from Mr Gardner to address this point. The arrangement for this was that the Company was to file and serve such an affidavit and, after it had done so, the Prosecutor would advise me whether it wished to cross-examine Mr Gardner or to make any further submissions concerning this issue. In the event that the affidavit was filed, and the Prosecutor did not wish to be heard further, in any fashion, concerning the material contained in it, I would regard myself as reserving my decision from the date of the filing of the material. This was what in fact occurred.
Mr Gardner's further affidavit sets out a number of activities or matters of community engagement undertaken both by the Company or, primarily, Incitec Pivot Limited, the Company's parent company. The most major of these is Incitec Pivot Limited's commitment to the promotion of indigenous employment, a matter described by Mr Gardner in his second affidavit in the following terms (affidavit of Andrew Gardiner, filed 24 March 2017, page 4): In 2011, IPL signed the Australian Employment Covenant, a national industry-led initiative aimed at securing the commitment of 50,000 sustainable jobs for Indigenous Australians. As part of this commitment, the IPL Group has established the Indigenous Employment Program aimed at increasing the number of opportunities for Indigenous Australians by providing access to employment, education and training as well as focusing on developing cultural understanding within its workforce. As an example of initiatives undertaken pursuant to the Indigenous Employment Program, since 2013 the IPL Group, in consultation with the Indigenous Community and Traditional Owners of the land in which it operates, has developed and implemented a cultural capability training for its management and staff in Australia to raise awareness of Indigenous culture.
There are two aspects of the remainder of the material appended to Mr Gardner's second affidavit to be noted.
First, there are a number of aspirational documents concerning social and environmental responsibility. There is nothing out of the ordinary contained in them. All this material reflects the nature of what would ordinarily be expected of a major corporate entity in Australia in the 21st century. Second, with respect to the range of other community activities and contributions made, they are of a comparatively modest dimension and are certainly not ones which warrant specific comment and commendation by me.
However, in totality, there is nothing that should cause me to conclude that the parent company is not a good corporate citizen and that, derivatively, the Company is entitled to a similar finding which I make and take into account in this sentencing process.

[47]

Rectification

I have earlier noted that the Company has compensated the farmer and taken remedial action on his land concerning soils and pasture. Mr O'Brien's affidavit records the following concerning remedial activities on the farm: 30 … a) Engaging an agronomist to advise on lime applications and pasture health; b) Applying lime to ameliorate soil acidity; and c) Slashing of impacted pastures to encourage regrowth and removal off site of the organic matter.
On the question of the immediate action undertaken by the Company, Mr O'Brien's affidavit records the following: 25 The site received a complaint directly from the neighbouring farmer on 25 February 2015. Staff at the site immediately started to investigate the site for any releases and observed that water leaked from the discharge end of the transfer pipe. 26 Immediate actions taken by the Company as soon as the discharge became known, comprised the following: a) Stopping the evaporation's spray's pump and isolating the valve to prevent any further releases; b) Suspending all work on the site transferring water; c) Immediate reporting of the release to the EPA's pollution hotline; d) Immediate contact with the affected neighbouring farmer; e) Immediately informing the Company's management, Andrew Gardner, Vice President - Eastern Region, to ensure the incident response was appropriately resourced; and f) Collection of surface samples which were then submitted for analysis at NATA-accredited lab.
Mr O'Brien's affidavit also set out the Company's long-term responses to the incident. He described them in the following terms: 27 The longer term actions and structural responses taken by the Company since the release became known, comprise the following: a) The erection of high fencing to prevent cattle accessing the area of the new dam; b) Cooperation with the Prosecutor, including: i. Facilitating on-site investigations by the Prosecutor; ii. Responding to information requests; and iii. Arranging personnel and contractor interviews for the Prosecutor at the site; c) Commissioning an independent consultant (EnviroRisk Management Pty Ltd) (EnviroRisk) to undertake site investigations to comply with the Prosecutor's clean-up notice dated 19 March 2015; and d) The ongoing continued engagement of EnviroRisk to undertake the following work: i. Preparation of sampling and analysis quality plans (including the identification of acceptable concentrations for contaminants of concern); ii. Sampling and analysis of surface waters after the incident; iii. Additional surface water sampling after rainfall; iv. Soil sampling; v. Groundwater-level monitoring, sampling and analysis; vi. Plant tissue sampling and analysis; and vii. Identification of requisite remedial options and actions.

[49]

Addressing the causes of the offence

Mr O'Brien's affidavit also set out what he described as a series of practical responses that have been implemented to prevent the possibility of a recurrence. His affidavit describes these as: 27 … a) The revision of the site-based Environmental Management Plan in September 2015 (a copy of which was annexed to his affidavit); b) The commencement of a new method of reporting incidents to a risk-based focus which facilitated the collection of potential impact incidents; c) A companywide (throughout all the Company's operations) update of valve and temporary pipeline inspection procedures to include scheduled manufacturer recommended maintenance in the system, applications and products (SAP) system; d) The removal and replacement, where appropriate, of pipe and valve infrastructure at the location of the incident; e) Decommissioning the evaporation spray system; f) Designing and installing new infrastructure to eliminate the risk of recurrence; g) The implementation of each of the remedial actions recommended by EnviroRisk and required by the EPA's Notice of Clean-Up dated 20 July 2015; and h) Reviewing fencing on the site to prevent access by cattle. Corporate apology and regret
I have earlier noted that two affidavits from Mr Andrew Gardner were read on behalf of the Company. Mr Gardner was in Court on behalf of the Company throughout the proceedings. Mr Gardner's first affidavit acknowledged that he had read and understood the Statement of Agreed Facts that had been tendered. He noted that he was authorised by the Board of the Company to make "this affidavit of contrition and remorse on its behalf". The affidavit had, annexed to it, the minutes of a meeting of the Board of Directors of the Company held on 2 February 2017. The minutes record the acknowledgement of the Board of the offences with which it has been charged and that the Company accepted responsibility and had entered a plea of guilty to both charges. The Board resolved to authorise Mr Gardner to prepare an affidavit in the Court proceedings, expressing the remorse and contrition of the Company.
Mr Gardner's first affidavit outlined his awareness of the relevant material facts concerning these offences and expressed the Company's sincere regret that the incident had occurred.
I am satisfied that the Company has appropriately expressed its contrition and remorse for the event which has given rise to prosecution for these offences.
Mr Gardner also records that the Company has also expressed its deepest regret to the farmer, as well as compensating him for his loss and providing practical assistance to him after the incident.

[55]

Other potentially relevant offences and sentences

The Prosecutor provided a comparative table of pollution convictions and Mr Howard made submissions based on the Judicial Commission's JIRS database information about sentencing for water pollution offences. An examination of all of that material discloses that none of them involved a factor of aggravation comparable to that which is here engaged (for the reasons earlier set out). Under these circumstances, I do not propose to undertake a detailed analysis of all of this material from either the Prosecutor or Mr Howard.
As a consequence, most of this material is of very little assistance to me (except to disclose that, even without such an aggravating factor, water pollution offences can be regarded as of a degree of seriousness greater than that advocated on behalf of the Company in these proceedings).
However, it is necessary to deal with a specific submission Mr Howard made concerning characterisation of the seriousness of the Company's offending conduct. The proposition advanced can be shown from the relevant extract from Mr Howard's outline of submissions on sentence where he wrote: 83. The prosecutor has submitted that the defendant's offending conduct "falls within the moderate to high range of objective seriousness for offences of this kind". 84. The assertion by the prosecutor that the offending conduct extends, or possibly extends, into the high range of objective seriousness for offences of this kind will not withstand an objective assessment of the facts of this case, nor any well considered assessment of where this case falls in the spectrum of cases for offences of this kind which have come before this Court. 85. The objective gravity of the offence has two principal components: the precise acts or omissions of the offender and the consequences of those acts or omissions: R v Carroll [2008] NSWCCA 218 at [39]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 at [137]; Environment Protection Authority v Baiada Poultry Pty Limited (2008) 163 LGERA 71 at [22]. When those principal components are examined, and for the reasons outlined above, it may be seen that this matter does not even come close to approaching a high range of objective seriousness. 86. The prosecutor's submission that this is, or may be, a matter involving a high degree of objective seriousness is based on a skewed characterisation of the degree of environmental harm and is not supported by any reasoned assessment of where this offence falls within the spectrum of offences of this kind coming before this Court. 87. The prosecutor's written submissions make reference to an appended schedule of cases which may assist the Court, but that schedule had not been provided to the defendant at the time these submissions were prepared. Assuming that schedule of cases is reasonably representative, it will not support the position taken by the prosecutor here in relation to the objective seriousness of the defendant's offending conduct. 88. Deferring a more detailed discussion of comparable cases, one need go back no further than one of the most recent decisions of this Court in a water pollution case to seriously call into question the prosecutor's submission concerning the objective seriousness of this matter. 89. The decision in question is Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146, a case in which the offender carried on a business of purchasing, storing, mixing, diluting and repackaging chemicals for resale at premises located adjacent to a pond flowing into a creek which enters wetlands leading to the Hunter River. The chemicals included highly concentrated acids and alkalis, some of which were dangerous goods. 90. In that case, the offender polluted waters (the pond and the creek) by deliberately and repeatedly pumping liquid containing a chemical mixture from a holding tank on the premises into the pond, the commission of the offence not being limited to a specific discharge event or even a few discharge events in a short period of time, causing pollution of waters, but rather involving numerous and repeated discharges throughout the entirety of the offence period of around one year. The offence was found to be an offence is of medium objective seriousness. 91. Given the facts of this case, it is not tenable to suggest that the offending conduct in this case is of a higher degree of objective seriousness than the conduct of the offender in the Custom Chemicals case.
I am unable to agree with the proposition advanced by Mr Howard. To understand why, it is necessary to undertake an examination of the judgment of Preston CJ in Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146.
First, relevantly, his Honour dealt with actual environmental harm at [39] and [43], where he said: 39 The discharge of pollutants from the premises on 17 June 2015 resulted in significant actual harm to the environment of the pond and the downstream creek up to Tomago Road. The pollutants were extremely toxic to aquatic life. and 43 The discharges into the pond on 17 June 2015 caused degradation of the aquatic environment with sufficient intensity that the pond waters were extremely toxic to a range of aquatic organisms. The toxicity of the downstream creek waters decreased with increasing distance from the premises.
On the question of likely environmental harm, relevantly, his Honour said, at [44], [47] and [48]: 44 On the basis of the documented cocktail of chemicals discharged into the pond over the offence period, it is most likely that any aquatic organisms present in the affected pond and creek waters over the offence period would have been adversely affected by exposure to the inorganic chemicals in the pollutants discharged from the premises over that period. 45 … 46 … 47 The water quality in the pond and downstream creek was degraded to a point that it would have likely adversely affected any exposed aquatic organisms. 48 The spill of 10-12 litres of concentrated phosphoric acid on the week commencing 8 June 2015 would have caused the pH of pond waters to drastically and abruptly drop to well below the ANZECC Guidelines' site-specific acceptable pH range of 5-8. This would have caused severe adverse effects on any exposed organisms, including death to any organisms in the pond. This would also have triggered the mobilisation of, and increased the toxicity of, aluminium, copper and zinc.
I have earlier explained why I have not accepted Dr Pablo's evidence in which she hypothesised what might have been the downflow impact on potential macro-invertabrate life. However, as can be seen from the above extracts from Environment Protection Authority v Custom Chemicals, the matter of harm and likely harm in that case were not comparable with the extent and nature of the actual harm caused by the Company's polluted water discharge here involved.
Even so, in Custom Chemicals, the total monetary penalty equivalent that fell on that company in those proceedings was $360,000 - an amount not disproportionate to the amount I later set as the appropriate total penalty to be imposed for the two offences under consideration in these two matters.

[67]

The terms of a publication notice

The Court is given the power, pursuant to s 250(1) of the POEO Act, to require a person or company convicted of an offence or offences against the Act to publish a notice in a specified media publication or publications with such notice reporting the prosecution, its circumstances, the conviction and the penalty imposed.
It is, by now, frequently the position that the terms of such a notice, and the journals in which it is to be published, will be settled between the Prosecutor and the Defendant. However, it is to be observed that, even in the event of such agreement, this Court is not obliged merely to give effect to that agreement. The terms of the notice, and the publications in which it is to appear, are matters to be determined by the sentencing judge.
The publication of such a notice is, in my view (as discussed in Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Limited [2017] NSWLEC 2 at [120] to [133]) to be regarded as an additional penalty. However, in addition to the punitive aspect of such notices, they also serve a significant aspect of the general deterrence function that sentencing for offences such as these fulfil by bringing to broader attention the consequences of acts such as those here giving rise to the matters for which this sentencing is taking place.
In Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, I observed, inter alia, at [167], that such notices are "an aspect of the general deterrence from proceedings such as these".
In a similar vein, in Environment Protection Authority v Waste Recycling and Processing Corporation, Preston CJ commented, at [242]: Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent.
In these proceedings, there is no agreement between the Prosecutor and the Defendant as to the terms of the notice that should be published (although the Defendant clearly accepts the appropriateness of such a notice being published).
There is, however, agreement between the Prosecutor and the Defendant that the notice should be published in the Singleton Argus and in the Newcastle Herald. For reasons which I later discussed, I do not consider that publication should be restricted in this fashion.
However, before turning to the question of publications, it is necessary to address what should be the terms of such a notice. It is, first, appropriate to set out the terms of the notice proposed by the Prosecutor. The Prosecutor's proposed notice would read: DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner. The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were discharged and flowed to a neighbouring farm. The waste waters contained high levels of nitrate and other contaminants. Dyno Nobel had caused the operation of a pump connected to evaporation sprays in the dam, but as a result of a valve on a transfer pipe failing, the waste waters discharged from the pipe. The waste waters flowed downhill through a gully on the premises, to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm. The offence caused significant harm to the waters and would have affected aquatic life in the flow path. The resulting levels of pollutants including nitrate in the farm dam exceeded livestock drinking water guidelines. Five cattle on the farm were found dead following the incident. The soil and pasture in the paddock was also affected by the pollutant.
On the other hand, the Company proposes a notice that would have the substantive portions read: DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner. The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were accidentally discharged through a suspected faulty butterfly valve during pumping operations and flowed to a neighbouring farm. The waste waters contained elevated levels of nitrate, nitrite and ammonia. The waste waters flowed downhill through a gully on the premises, to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm. Dyno Nobel cooperated fully with the EPA and accepted responsibility for the incident at the earliest opportunity. Dyno Nobel has remediated the impacted land and provided compensation to the adjacent landholder. [THE DEFENDANT PROPOSES THAT A SHORT SUMMARY PARAGRAPH IN LIEU OF THE PRECEDING PARAGRAPH BE SETTLED WHEN THE COURT MAKES FINDINGS IN RELATION TO THE HARM CAUSED OR LIKELY TO BE CAUSED TO THE ENVIRONMENT BY THE COMMISSION OF THE OFFENCES].
A much more limited contest concerning the wording of such a notice faced Sheahan J in Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125. In circumstances where the dispute was over the wording of a single sentence, his Honour resolved the dilemma with which he was faced by concluding that it was appropriate to adopt the Prosecutor's proposed words (at [164] to [168]).
In this instance, I am not satisfied that the totality of the wording proposed by the Prosecutor is appropriate to be adopted for the purposes of the publication. The words "would have affected aquatic life in the flow path" are not appropriate in light of my earlier conclusion that such a finding would be entirely speculative on the basis of the evidence before me. That aspect of the Prosecutor's proposed wording is therefore rejected.
On the other hand, the wording proposed by the Company is somewhat softer. The Company's proposal for a subsequently-to-be-inserted paragraph is rendered otiose by the nature of my earlier finding that the Company had caused the death of the farmer's cattle.
My conclusion as to causation of the death of the cattle, and my resultant conclusion as to the seriousness of the offending conduct (that it constitutes significant environmental harm) as a result, means that the general tenor of notice to be published is to be reflective, generally, of the version formulated by the Prosecutor. In addition, the notice should refer specifically to the death of the cattle and the partial abortion of a calf. It is not appropriate to soften or sanitise the description of what took place.
However, some elements of the Company's proposed reformulation should be adopted.
As a result, I have concluded that the appropriate wording of the substantive element of the notice should be: DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner. The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were discharged and flowed to a neighbouring farm. The waste waters contained high levels of nitrate, nitrite and ammonia. Dyno Nobel had caused the operation of a pump connected to evaporation sprays in the dam but, as a result of a valve on a transfer pipe failing, the waste waters discharged from the pipe. The waste waters flowed downhill through a gully on the premises to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm. Dyno Nobel cooperated fully with the EPA and accepted responsibility for the incident at the earliest opportunity. Dyno Nobel has remediated the impacted land and provided compensation to the adjacent landholder. The offence caused substantial environmental harm. The waste water discharge resulted in high levels of pollutants in the farm dam. Five cattle on the farm were found dead following the incident. One cow had partially aborted its calf. The soil and pasture in the paddock were also affected by the pollutants.
The parties are in agreement as to the formal aspects of the recording of dates and amounts at the conclusion of the descriptive text and I see no need to intervene with that agreed formulation. As a consequence, the terms of the notice are to be those set out in Annexure A to this decision.

[72]

Conclusion

In summary, I have concluded: 1. The proved environmental harm was confined, primarily, to the deaths of the farmer's cattle; 2. The manner of the death of the cattle is appropriate to be taken into account when assessing the extent of the environmental harm caused by the Company's discharge of polluted waters; 3. In the relevant statutory context, the environmental harm caused by the discharge of the polluted waters was substantial and, therefore, to be taken into account as a factor of aggravation in the sentencing process for the water pollution offence; 4. As a consequence, the breach of s 120(1) of the POEO Act is to be regarded as significantly above the midpoint of the range of seriousness for such offences; 5. On the other hand, for the reasons set out, the breach of s 64(1) of the POEO Act by failing to comply with a condition of the Company's EPL is to be regarded as somewhat below the midrange of seriousness of offences of this type; 6. After applying a one-third discount, having had regard to the relevant objective and subjective circumstances and, after having done so, making further adjustments to address accumulation and totality, the appropriate penalties are a fine of $400,000 for the water pollution offence and $60,000 for the licence breach offence; 7. The versions of a publication notice proposed by the Prosecutor and by the Company are, in general context, acceptable. However, I have adopted a version, modified by me and set out in Annexure A, which I consider more correctly reflects what should be said concerning my findings and the outcome of the proceedings; 8. The proposal of the parties that such notice should be published in the Singleton Argus and the Newcastle Herald would provide insufficient public denunciation of the Company's offending conduct for the purposes of general deterrence. As a consequence, I have determined that the notice should also be published in the Australian Financial Review and I have specified, for each of the three publications, the size and positioning of the notice; and 9. I have also ordered the Company to pay the Prosecutor's legal and investigation expenses in the sums agreed to by the parties.

[74]

ANNEXURE A DYNO NOBEL ASIA PACIFIC PTY LTD CONVICTED OF POLLUTING WATERS AT WARKWORTH Dyno Nobel Asia Pacific Pty Ltd (ACN 003 269 010) (Dyno Nobel) has been convicted by the Land and Environment Court of New South Wales of two offences under the Protection of the Environment Operations Act 1997. Dyno Nobel was prosecuted by the Environment Protection Authority (EPA) and pleaded guilty to one offence of water pollution and one offence of contravening its Environment Protection Licence by failing to carry out its licensed activities in a competent manner. The offences resulted from an incident in 2015 when waste waters from a dam on its licensed premises in Warkworth were discharged and flowed to a neighbouring farm. The waste waters contained high levels of nitrate, nitrite and ammonia. Dyno Nobel had caused the operation of a pump connected to evaporation sprays in the dam but, as a result of a valve on a transfer pipe failing, the waste waters discharged from the pipe. The waste waters flowed downhill through a gully on the premises to a culvert under Gouldsville Road, into a dam on a neighbouring farm, across a paddock and into another gully on the farm. Dyno Nobel cooperated fully with the EPA and accepted responsibility for the incident at the earliest opportunity. Dyno Nobel has remediated the impacted land and provided compensation to the adjacent landholder. The offence caused substantial environmental harm. The waste water discharge resulted in high levels of pollutants in the farm dam. Five cattle on the farm were found dead following the incident. One cow had partially aborted its calf. The soil and pasture in the paddock were also affected by the pollutants. On 31 May 2017, Dyno Nobel was convicted and ordered by the Land and Environment Court to:

pay fines totalling $460,000;
pay the EPA's legal costs of $72,000;
pay the EPA's investigation costs of $750; and
place and pay for this publication notice in the Australian Financial Review, the Singleton Argus and the Newcastle Herald. 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: 31 May 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (74 paragraphs)

Parties

Cases Cited (22)

Cited By (20)