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[1998] NSWLEC 143
Land and Environment Court (NSW)
1998-08-21
Pearlman J, Mr J
Original judgment source is linked above.
CITATION : Environment Protection Authority v. Maraline Pty Ltd [1998] NSWLEC 143 PROSECUTOR Environmental Planning Authority
DEFENDANT Maraline Pty Ltd PARTIES : PROSECUTOR Environmental Planning Authority
DEFENDANT Peter Suciu FILE NUMBER(S) : 50087; 50088 of 1997 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Environmental Offences and Penalties Act 1989 ss 8DA, 10(1) Waste Minimisation and Management Act 1995 ss 68(1), 85 CASES CITED: DATES OF HEARING: 15/04/98, 16/04/98, 07/05/98, 24/06/98, 25/06/98, 26/06/98 DATE OF JUDGMENT: 08/21/1998
PROSECUTOR Mr B F Rowe, Barrister Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr J R Perrignon, Barrister Margiotta
JUDGMENT:
"68(1) The EPA may, by notice in writing, require any person to provide the EPA with such information or other data in the person's possession (or that is within the person's power to lawfully obtain) in connection with the transportation, collection, reception, treatment, re-use, reprocessing, storage and disposal of any waste created by, or in the possession or under the control of, that person.
(2) A person who neglects or fails to comply with any such requirement is guilty of an offence against the Environmental Offences and Penalties Act 1989.
(3) Any information provided by an individual under this section is not admissible in any proceedings against the person (other than for an offence referred to in section 85) if the person objected at the time of providing it to doing so on the ground that it might tend to incriminate the person."
"85 A person is guilty of an offence against the Environmental Offences and Penalties Act 1989 if the person:
(b) in complying with a requirement under section ... 68,
provides any information ... that is false or misleading in a material respect."
"6 For each load of demolition material removed from the premises state:
b. details of any payment to a landfill operator to enable the load to be deposited."
On 20 September 1996, Mr Suciu was interviewed by Mr M S Carruthers, an officer of the Environment Protection Authority ("the EPA"). Mr Suciu gave the following answer to question 6:
"(a) As above 3 loads to Enviroguard and one (1) load to Kari & Ghossayn Kemps Creek.
(b) As in docets (sic) with an open cheque from Jim Sdrolias. 3 loads at Enviroguard and one (1) load at Kari Ghossayn (no charge as he was a friend of Peter Suciu)."
Mr Suciu produced receipts from Enviroguard, and also a receipt from Kari and Ghossayn Pty Ltd numbered 31579, dated 17 April 1996, made out to "Peter Suciu", and referring to a load of mixed rubbish as well as vehicle registration number QDW 608. It was endorsed "No Charge".
The prosecutor alleges that the false or misleading information provided by Maraline was receipt 31579 and/or information from Mr Suciu that receipt 31579 was in respect of waste from the site which Mr Suciu represented was deposited at the landfill of Kari and Ghossayn Pty Ltd on 17 April 1996.
Mr Saab is employed by Kari and Ghossayn as manager of its solid waste landfill at lot 17-23 Clifton Avenue, Kemps Creek ("the Kemps Creek depot").
He said that neither Mr Suciu nor Maraline delivered any waste to the Kemps Creek depot on 17 April 1996.
Mr Saab said that on 20 September 1996, however, Mr Suciu did come to the Kemps Creek depot with a load of mixed rubbish of two tonnes or less. Mr Saab's evidence was that he told Mr Suciu that he could dump the load at the depot at no charge, given the small quantity and given the fact that Mr Suciu did contract work for Kari and Ghossayn. Mr Suciu then asked for a receipt backdated to 17 April 1996 in order to satisfy a neighbour with whom he had a problem. Mr Saab stated that he then issued receipt 31579, backdating it to 17 April 1996.
In giving oral evidence, Mr Saab explained the recording system in force at the Kemps Creek depot. On 17 April 1996, four separate records were kept as follows:
In relation to 20 September 1996, Mr Saab identified the following records:
Mr Saab explained that the preparation of the daily record sheets from the information in the docket books was carried out personally by him, or by his assistant. On 17 April 1996, Mr J Mezher filled this position.
Mr Saab also explained that, in each docket book, there are three copies of each receipt, white, pink and yellow respectively. The white receipts are given to the customer, the pink goes to head office and the yellow remains in the docket book. In relation to receipt 31579, both the pink and yellow copies remain in docket book 430, the explanation being, according to Mr Saab, that there was no need to send the pink copy to head office because no charge had been made. Furthermore, endorsed on the pink copy in blue ink (all other entries being carbon copies) are the words "Issued 20-9-96" which Mr Saab said that he wrote there himself after he had been contacted by the EPA.
Mr Mezher stated that, between December 1995 and the end of October 1996, he worked for Kari and Ghossayn as an assistant to Mr Saab.
He said that, on 20 September 1996, Mr Suciu, who was known to him, came to the depot in a truck containing some waste. Mr Mezher said he heard Mr Suciu ask for a backdated receipt, saying that he had a problem with some neighbours. Mr Mezher saw Mr Saab write out and hand receipt 31579 to Mr Suciu.
Mr Ghossayn is the managing director of Kari and Ghossayn.
He said that some time in October or November 1996, Mr Saab told him of the "incident" with Mr Suciu on 20 September 1996 as described in Mr Saab's evidence. Mr Ghossayn said that the next day he saw Mr Suciu in the office of the Kemps Creek depot, and Mr Suciu said: "Elias is upset with me. I've offered him some beer but he won't accept it". Mr Ghossayn said that he said to Mr Suciu: "Elias is right to be upset. You cried on his shoulder with some story about a neighbour, only to trick him into giving you a false receipt".
Mr Sdrolias stated that truck loads of waste from the Terrey Hills site on 17 April 1996 were all scheduled to be delivered to the Enviroguard landfill at Erskine Park.
The arrangement which Mr Sdrolias made with Enviroguard at the relevant time was to deliver with the first load a cheque made out to Enviroguard for an unspecified amount. At the end of the day, Enviroguard would calculate the total landfill fees and complete the cheque.
In relation to the Terrey Hills site, Mr Sdrolias paid Enviroguard $1200, comprising three loads carried by Maraline calculated at $360 per load, and one load carried by Mr Fred Sdrolias.
Mr Sdrolias said that late in the day on 17 April 1996, he had a conversation with Mr Suciu regarding trouble which Mr Suciu was having with the differential on his truck. According to Mr Sdrolias, Mr Suciu said words to the following effect:
"Load up the truck anyway. I won't have time today to get this load to Enviroguard before the landfill closes, so just add to my carting fee the landfill fee for the last load. That way I can pay the landfill fee when I take it to landfill tomorrow."
Mr Sdrolias agreed with this request, and added $360 to the docket which Mr Suciu handed him (that is, the invoice to Mr Sdrolias' firm for the loads which Maraline had contracted to take). Mr Sdrolias then gave Mr Suciu a cheque in favour of Maraline for payment for work on the Terrey Hills site, which included the amount of $360.
Mr Sdrolias stated that, when he left the Terrey Hills site in his utility, he passed Mr Suciu in his truck which was crawling very slowly along the side of Mona Vale Road.
Mr Carruthers is a senior environment protection officer employed by the EPA.
Mr Carruthers testified to the fact that in August 1996, he had two telephone conversations with Mr Suciu in regard to the carting of waste from the Terrey Hills site. In his affidavit, Mr Carruthers outlined the second of those conversations as follows:
I said "What were their registration numbers and who was driving them?'
He said `I was driving QDW 608 and a guy I employed, John Back was driving QKW 070'.
He said `No. I paid cash to John Morris of Windsor Turf'.
He said `No. No loads from Terrey Hills went to Enviroguard. They all went to Windsor Turf'.
Mr Carruthers testified to the fact that he was called to the counter of the EPA offices at Bankstown on 20 September 1996 where Mr Suciu and a person who said she was Ms Ottilia Stanciu had asked to see him. In giving oral evidence, Mr Carruthers said that he had not made an appointment for this meeting. However, all three went to a conference room at the EPA offices.
Mr Carruthers said that Ms Stanciu gave to Mr Carruthers the original s 68 notice, and in relation to each numbered point in the s 68 notice, Ms Stanciu translated Mr Suciu's answers. Mr Carruthers recorded the answers, and Ms Stanciu translated that record of conversation to Mr Suciu, after which all three persons signed the document.
Mr Suciu stated that Maraline had been engaged by Mr Sdrolias to remove demolition waste from the Terrey Hills site. For that purpose, Mr Suciu had two trucks, a Volvo registered number QDW 608 and a Kenworth registered number QKW 070. Mr Suciu drove the Volvo, and he employed another person to drive the Kenworth.
On 17 April 1996, Mr Suciu was involved in the prospective sale of either one of the trucks. He met the prospective buyer, Mr Toader Stan, at about 6 am at Homebush where the trucks were parked. They drove together in the Volvo, and Mr Stan remained with Mr Suciu for the rest of the day, during which time Mr Stan tried out both trucks.
They arrived at the Terrey Hills site at about 7am. Two loads were taken in the morning, one in the Kenworth and one in the Volvo. They left with their first load in the Volvo at about 10 am and took it to the Enviroguard landfill site.
Mr Suciu estimated that he and Mr Stan returned in the Volvo to the Terrey Hills site after 2:30pm, because they also had lunch on the way back. During that return trip, Mr Suciu had stopped at a phone box in Terrey Hills to ring Mr Saab and arrange for Mr Saab to stay at the Kemps Creek depot to receive the second load. Mr Suciu stated that he had made that call because, having waited for a considerable time for the truck to be loaded with the first load, he anticipated that he would be late in delivering the second load. He said that he had chosen to ring Mr Saab at the Kemps Creek depot for two reasons - first, because he knew Mr Saab well and he had kept the Kemps Creek depot open for him on previous occasions, and, secondly, because Enviroguard's weighbridge computer shut down at 5pm but the Kemps Creek depot did not have a weighbridge.
According to Mr Suciu, the second loading of the Volvo at the Terrey Hills site was not completed until about 5pm. It was not a large load, Mr Suciu said, and Mr Sdrolias filled the load up with some soil. Mr Suciu and Mr Stan then left the Terrey Hills site. On Mona Vale Road, Mr Suciu stopped the truck (he estimated for about 5 minutes) in order to buy a bottle of drink which he drank in the truck after they drove off. Mr Suciu estimated that they reached the Kemps Creek site at about 6pm.
Mr Suciu acknowledged that, in order to reach the Kemps Creek depot by 6pm, he had driven very fast, perhaps sometimes above the speed limit, but he said that the Volvo was a faster truck than the Kenworth (its motor had 35 hp more than the Kenworth).
Mr Suciu said that he was met by Mr Saab at the entrance to the Kemps Creek depot, and directed by him to dump the load quickly. According to Mr Suciu, Mr Saab then said: "For this load, I will give you a docket for another date and I will not charge you".
Mr Suciu and Mr Stan then returned to the Homebush parking site, reaching there, in Mr Suciu's estimation, at about 6:20pm.
Mr Suciu said that he was contacted by Mr Carruthers on his mobile phone some time in August 1996. He denied that he told Mr Carruthers that he taken one load from the Terrey Hills site to Windsor Turf, and had paid cash to John Morris of Windsor Turf. He said that Mr Carruthers had asked him about the delivery of loads, and he told Mr Carruthers about the tips he usually went to - Windsor Turf, Enviroguard and Kemps Creek. He said that he told Mr Carruthers that he would check the records in relation to loads from the Terrey Hills site. Furthermore, he told Mr Carruthers that he was very busy, and Mr Carruthers made an appointment for 20 September 1996.
On 20 September 1996, Mr Suciu said, he went to Ms Stanciu's home at about 7am in his Mercedes car. She refused to travel in that car, so he drove her red Ford. They went first to Enviroguard, where he obtained the receipts for the three loads from the Terrey Hills site that were deposited at Enviroguard on 17 April 1996. They then went to the Kemps Creek depot.
At the Kemps Creek depot, Mr Suciu said that he had a conversation with Mr Saab in the following terms:
Mr Suciu said: "The EPA wants the dockets, the records from 17 April, if you remember that day when I came and I emptied the load after hours."
Mr Saab said: "Okay, Peter, not a problem. I'll give you the docket immediately."
Mr Suciu and Ms Stanciu then drove to an EPA office in Lidcombe which Mr Suciu believed to be the office where he was to have the appointment with Mr Carruthers. He said that Mr Carruthers had given him an address during their conversation in August, but he had forgotten it. In any event, Mr Carruthers was not at that office, and he and Ms Stanciu were directed to the EPA office in Bankstown. They arrived prior to the scheduled time for the interview, so they went shopping and to lunch. At 2pm, they both went to the EPA office and saw Mr Carruthers.
In cross-examination, Mr Suciu denied that he had received the s 68 notice before 20 September 1996. He said that, from 1990 up to the end of 1997, he had been living in Strathfield for each of the working days of the week, and he would only return to his home at Wollongong on the weekend. He said that the s 68 notice would have been sent to his Wollongong home, but that he had not received it. He said that he was given the s 68 notice by Mr Carruthers at the interview on 20 September 1996.
Ms Stanciu said that Mr Suciu asked her to accompany him to an interview on 20 September 1996, so that she might translate and interpret from Romanian to English for him.
Mr Suciu arrived at her home in Strathfield between 7am and 8am on the morning of 20 September 1996. He was driving a Mercedes car, but Ms Stanciu preferred not to travel in it, and they proceeded in her red Ford with Mr Suciu driving.
They went to two places where Mr Suciu obtained some documents. Ms Stanciu did not know exactly where these places were, but she thought the second one was at Kemps Creek.
They then went to an office which Ms Stanciu thought was in Chullora and there she asked about an interview, and was directed to go to an office in Bankstown. They went to Bankstown, went into the EPA office, asked for Mr Carruthers and they were told he was out. So they went away for a meal, and returned at about 2 pm.
At the interview, Ms Stanciu saw Mr Suciu give Mr Carruthers some documents. She was shown the s 68 notice when in the witness box, and she stated that she thought that she had read it before the interview with Mr Carruthers.
She confirmed that, translated by her, Mr Carruthers asked questions of Mr Suciu, that Mr Suciu responded to them, and that she, Mr Suciu and Mr Carruthers signed a record of the interview.
Mr Stan is a truck driver, who lives and works in Romania, but formerly lived in Australia. He acknowledged that Mr Suciu had funded his return to Australia to give evidence in this case.
In giving oral evidence, Mr Stan said that he had met with Mr Suciu at Homebush at about 6am on 17 April 1996, and travelled with him in the Volvo truck for the purpose of checking whether he would buy the truck. He confirmed that they took two loads from the Terrey Hills site, one in the morning, and one in the afternoon. He said that they left with the second load at about 5pm and, with Mr Suciu driving very fast, reached the Kemps Creek depot at about 6pm. He said that he saw a man speak to Mr Suciu and he heard him say that there would be "no charge" and that he would give him the docket "next time".
Mr Stan furnished a signed statement dated 28 February 1998 which was tendered in evidence. He said that he had dictated the statement in Romania to a person to write it out in English for him.
In that document, the following statement appears:
"In 17 April 1996 I went into the cab with the owner Peter Suciu who drive the truck Volvo QDW 608 with demolition loads from Terri Hill to 17 - 236 Ghossay Ave. Kemps Creek ... In April 1996 to 5.40pm (17.40) Volvo truck QDW 608 driver Peter Suciu went into tip Kari Gossay Kemps Creek to unloaded the demolition who bring from Terri Hill ... I saw him when he speaks with the menager Ilie Sab ..."
In the course of cross-examination, Mr Stan was asked how it was that he was able to include in his statement an address for Kari and Ghossayn when that statement was prepared in Romania some two years after the events which it recorded. Mr Stan said that he had available to him a copy of receipt 31579, which had been sent to him by Mr Suciu. He said that he had earlier telephoned Mr Suciu from Romania in order to inquire how things were going in Australia, and at that time, Mr Suciu explained to Mr Stan that he had a problem, and sought Mr Stan's help as a witness of the events which happened on 17 April 1996.
When receipt 31579 was shown to Mr Stan in the witness box, and it was pointed out to him that the address of Kari and Ghossayn shown on that document was "Lot 17 -23 Clifton Avenue, Kemps Creek", Mr Stan then said he had derived the address which he put in his statement from a map of Sydney which he had with him in Romania.
Mr Stan said that, in April 1996, he was told by Mr Suciu that the name of the man whom they saw at the Kemps Creek depot on 17 April 1996 was Elias Saab. Mr Stan said that he was able to remember that name when he made his statement two years later because "Elias" is a Romanian name, and "Saab" is the name of a make of car.
Mr Stan also said that he remembered the registration number of the Volvo truck, but was unable to remember the registration of the Kenworth truck because, although he had driven the latter as a prospective purchaser, he was interested in purchasing only the former and hence remembered the number.
Mr Pirko is a truck driver. He swore an affidavit in the proceedings and gave oral evidence.
He said that he bought the truck with registration number QDW 608 from Mr Suciu. He took possession of it around the 19 June 1996, and it was formally transferred into the name of his company on 4 July 1998.
On or about 4 September 1996, one of the number plates on the truck was missing, and accordingly, Mr Pirko went to the Roads and Traffic Authority, and acquired a new set of plates, numbered QOJ 311. At the same time, he ordered personalised number plates ARPIE 1 for the truck, and they were the plates attached to the vehicle at the time of swearing his affidavit in November 1997.
Between 6 September 1996 and 25 September 1996, the truck was in the hands of a repairer for rectification of a defect found upon its annual inspection by the Roads and Traffic Authority.
He gave evidence that the day before 20 September 1996 he was contacted by Mr Suciu and was asked if he would like to work driving a truck for him on that date because he was going to be at an interview.
Mr Pascalau said that the truck was at Austral Bricks at Bossley Park. He went there at about 6:30am on 20 September 1996, located the keys in the front wheel, and worked until about 4:30pm carrying clay and shale from one pile to another.
Mr Pascalau said that he had no records of doing this work on that date.
There were a number of matters established by evidence that is not challenged. They are as follows:
There is only one issue of fact about which the evidence is in conflict and which therefore arises for determination. That fact is whether or not Mr Suciu delivered a load of waste to the Kemps Creek depot on 17 April 1996. If the Court is satisfied beyond reasonable doubt that no such delivery was made, then that will be sufficient to establish the guilt of both defendants, because the false or misleading information alleged to have been given is, first, receipt 31579 and, secondly, the representation that it covers a delivery made to the Kemps Creek depot by Mr Suciu on 17 April 1996.
There are only three witnesses who can testify about whether or not such a delivery was made.
On the one hand, Mr Saab said that it was not. He said that Mr Suciu did not come to the Kemps Creek depot on 17 April 1996, but he did come to that depot on 20 September 1996, in a truck with a load of waste material, and that he asked for, and was given, receipt 31579 dated back to 17 April 1996.
Mr Saab's recollection about 17 April 1996 is to some extent corroborated by the docket books and the daily record sheets. There are no entries in relation to Mr Suciu, Maraline, or either of the trucks registered QDW 608 and QKW 707 for that day. However, in relation to 20 September 1996, those records disclose, first, the issue of receipt 31579 and, secondly, a delivery by truck QDW 608 driven by Mr Suciu and for which there was no charge.
On the other hand, Mr Suciu and Mr Stan both say that they went to the Kemps Creek depot on 17 April 1996. Both estimate the time of arrival as about 6pm, and both testified to the fact that no docket was issued at that time.
The issue turns, therefore, on the question of credit - whose evidence is to be believed?
Mr Saab has nothing to gain from the evidence he gave. He readily admitted to furnishing a false receipt to Mr Suciu. His employer, Mr Ghossayn, testified as to his honesty, despite the false receipt. Furthermore, Mr Mezher confirmed that Mr Suciu came to the Kemps Creek depot in a truck on 20 September 1996 and Mr Mezher overheard Mr Suciu ask for a backdated receipt.
In relation to Mr Saab's credit, it was submitted by Mr Perrignon, on behalf of the defendants, that he changed his story. A file note dated 25 October 1996 of conversations between Mr Saab and the prosecutor's solicitor, Mr D Robinson, was tendered. Amongst other notes of the conversation, the following material appears:
"On 17/4/96 I was using Book No 30551 - 3060; 33151 - 33200.
(20 minutes later: subsequent tel. call from Mr Elias.
[10 minutes on hold as Mr Elias checked his records]
I wrote it down - he wanted it backdated. I don't know why.'
I do not consider that this record undermines Mr Saab's testimony. It is true that it discloses some changes in recollection, that is, there was reference to a delivery from Wollongong and then to a backdated receipt, and there was reference to not knowing why the backdated receipt was sought and then to the statement about a neighbour complaining. But, taking into account the undermentioned factors, those changes do not amount to a change of "story" so as to make Mr Saab's evidence unreliable. First, Mr Saab was being asked to recall records, conversations and events occurring some six months previously, secondly, his 20 minute and 10 minute delays merely indicate that he was checking, thirdly, his evidence was recorded not over days but over approximately 30 minutes on the one day, and, fourthly, his evidence remained unshaken in cross-examination.
Nor is Mr Mezher's evidence unreliable. Mr Perrignon sought to cast some doubt upon Mr Mezher's evidence by reason of two matters. First, in an internal message dated 3 October 1997, Mr Robinson noted that Mr Saab would be contacting Mr Mezher to see what Mr Mezher remembered by way of corroboration, and, during cross-examination, Mr Mezher confirmed that he had been contacted by Mr Saab before being contacted by the prosecutor. Secondly, a draft of Mr Mezher's affidavit which was tendered which referred to "an impression" as to Mr Saab being asked by Mr Suciu for a backdated receipt. I do not think that either of these matters shook Mr Mezher's testimony. He appeared to me to be forthright and honest, and not merely repeating a "story" which someone else had told him. Furthermore, he stated that it was a "fact" and not an "impression" that Mr Suciu asked for a backdated receipt and was given one.
Mr Ghossayn was, of course, not able to corroborate Mr Saab's recollection, because he was not at the Kemps Creek depot at the relevant time, but I place some weight upon his testimony as to Mr Saab's honesty.
On the other hand, I do not accept either Mr Suciu or Mr Stan as reliable witnesses.
I deal first with Mr Stan's evidence. His response to questions about the preparation of his statement in Romania destroyed his credit altogether. It is hard to believe that he could recall such details when he was in Romania two years later. In any event, there were serious discrepancies in the details in his written statement. The explanations he gave for those discrepancies, namely, that he had in his possession in Romania a copy of receipt 31579 and a map of Sydney, were unbelievable and likely to have been fabricated. The consequence is that considerable doubt is thrown on the remainder of his testimony and I do not accept it.
I turn now to Mr Suciu. The matters set out in paras 85 to 95 below are pertinent to testing Mr Suciu's credit, and they indicate, individually and collectively, that his evidence was unreliable.
Ms Stanciu's evidence was adduced in order to corroborate Mr Suciu's version of the relevant events, but her evidence is open to doubt for a number of reasons. First, she was not forthright about her relationship with Mr Suciu. During examination in chief she was asked if she was a friend of Mr Suciu. She answered that she was. She was then asked "... You're not married to him, are you?". She answered by saying "No. I don't know fortunately or unfortunately". She also denied that she was in a de facto relationship with him. That may be true (there is no contrary evidence), but it is not forthright and frank, because, at the relevant time, Mr Suciu was residing in Ms Stanciu's house from Monday to Friday of each week, and sometimes on Saturday as well. Mr Suciu did not proffer information about that connection with Ms Stanciu either, but, when questioned about his receipt of the s 68 notice, he revealed that he had resided at 8 Telopea Avenue, Strathfield (Ms Stanciu's address) for about seven years previo usly.
Secondly, Ms Stanciu was vague about exactly where she and Mr Suciu had driven on the morning of 20 September 1996. She thought they went somewhere near Liverpool, and could only recall the places by reference to one "clean" place and one "dirty" place.
Thirdly, there is a discrepancy between the evidence of Ms Stanciu and the evidence of Mr Suciu in relation to what happened when they finally reached the EPA office in Bankstown. Ms Stanciu said that they went and enquired after Mr Carruthers, who was out, and they were told to come back. Mr Suciu said that they arrived early, that is, before the appointed time of 2pm (if, indeed, an appointment had been made for that time, because Mr Carruthers denies that fact) and merely went to have a meal until the time arrived.
There is also a discrepancy between the evidence of Ms Stanciu and Mr Suciu in relation to the s 68 notice. Ms Stanciu said that she had read it before they got to the interview with Mr Carruthers, but Mr Suciu said that he had not received the s 68 notice before that interview and that Mr Carruthers had handed him a copy of it.
Mr Suciu gave evasive and conflicting answers about his records. He said that he had a book at home in which he recorded what he did every day and where he unloaded his trucks. Later he said that the entries he wrote in that book were in his "kind of English" and in Romanian. He was then asked whether the book was kept at Fairy Meadow (Wollongong) or at Strathfield and he answered that it was with his tax agent. Counsel for the prosecutor requested him to retrieve the book from his tax agent overnight for production to the Court the following day. Next day, Mr Suciu said that he had been unable to get to the tax agent's office before it closed, and had not had time to do so the following morning. Later he said that his tax agent had retained all of his records for the last ten years. But he had given evidence that he had checked his records within two days after his conversation with Mr Carruthers on 13 August 1996, and in relation to that, he claimed that he had another book which he kept for himself wri tten in Romanian and which was not given to the tax agent, but he had been unable to find it at his home when he looked overnight.
Mr Suciu made much of the fact that a photograph attached to the affidavit of Mr Sdrolias depicted Mr Stan sitting in the excavator. That was not confirmed by Mr Stan, and it was expressly denied by Mr Sdrolias.
Mr Suciu also denied that he had a conversation at the site with Mr Sdrolias about the trouble he was having with the differential in his truck, and that he showed Mr Sdrolias the problem. Mr Sdrolias said that the "diff had just about come out of its case".
There is considerable difficulty about accepting Mr Suciu's evidence that he was able to drive the Volvo truck from Terrey Hills to Kemps Creek in one hour on a weekday leaving from Terrey Hills at about 5pm. I put aside the fact that the journey may have taken place during peak hour. Even if I was to take judicial notice that peak hour refers to a period generally commencing at 5pm, there was no evidence as to what effect the peak hour period may have had on the traffic en route. But I may observe that the journey involved a route, as described by Mr Suciu, from the north east of Sydney to the south west, and that the distance was, on his evidence, about 60 - 70 kilometres. Mr Sdrolias said that the Volvo truck had a differential problem, and that, when he observed the truck on Mona Vale Road, it was crawling along. Added to that, the truck had a load of waste topped up with soil. It was a journey, so Mr Suciu said, which normally took 11/2 to 2 hours, but he asserted that he was able to undertake it in less time simply because he drove very fast in a high-powered truck. All those circumstances make it highly unlikely that the journey took only one hour, and it casts doubt upon whether the journey took place at all.
The evidence of Mr Suciu and Mr Carruthers is in conflict. Mr Suciu admitted that he had a telephone conversation with Mr Carruthers on or about 13 August 1996, but he denied the substance of it. He explained that the reference to "Windsor Turf" occurred because he was advising Mr Carruthers that he took loads to various tips, including Windsor Turf. But Mr Carruther's version of the conversation is very specific. It included a report of Mr Suciu referring to "John Morris at Windsor Turf". To accept Mr Suciu's more generalised version of the conversation would require regarding Mr Carruther's evidence as untrue. There is nothing which would suggest to the Court that Mr Carruthers was untruthful in giving evidence; in fact, he appeared honest and forthright. Furthermore, I cannot see any reason why Mr Carruthers would falsify the content of those initial conversations seeking information from Mr Suciu.
Mr Suciu's evidence is also in conflict with the evidence of Mr Sdrolias. Like Mr Saab, Mr Mezher and Mr Ghossayn, Mr Sdrolias had nothing to gain by giving evidence which was untrue.
I turn to the evidence of Mr Pirko and Mr Pascalau. Their evidence, if accepted, would show that Mr Suciu did not have either the Volvo truck or the Kenworth truck in his possession on 20 September 1996, and it would thereby cast doubt upon Mr Saab's assertion that Mr Suciu arrived at the Kemps Creek depot on that date in a truck carrying a load of waste.
However, the veracity of the evidence of both Mr Pirko and Mr Pascalau is reduced by the fact that they are both truck drivers, and, like Mr Suciu, they are formerly of Romanian nationality and they are friends of Mr Suciu. In such circumstances, their evidence would have more weight if it was corroborated. But nothing that each of them said in relation to events of 20 September 1996 was corroborated; the Court was simply asked to accept their respective recollections.
Mr Pirko said that the Volvo truck was in the possession of Steve's Smash Repairs from 6 September 1996 to 25 September 1996, but no record or other evidence from that firm was tendered. Mr Pascalau said that he was driving the Kenworth truck at Austral Bricks from about 6:30am to 4:30pm on 20 September 1996. Again, no record or other evidence was tendered to corroborate that evidence. In those circumstances, I am unable to accept their evidence as proving that Mr Suciu did not drive a truck to the Kemps Creek depot on 20 September 1996.
However, even if the evidence of Mr Pirko and Mr Pascalau is accepted, it does not prove that Mr Saab's recollection of the events of 20 September 1996 is wrong. Mr Saab was firm in his evidence that he inspected the load in Mr Suciu's truck that day, but he did not inspect the truck, and he could not say what truck Mr Suciu was driving. Neither he nor Mr Mezher checked the number plate of the truck, but both were firmly convinced that Mr Suciu had come to the Kemps Creek depot on that day in a truck with a load of rubbish.
I am satisfied beyond reasonable doubt that Mr Suciu did not deliver a load of waste to the Kemps Creek depot on 17 April 1996.
The findings of fact that I have made lead to the inevitable conclusion that the information furnished to the EPA by Mr Suciu on behalf of Maraline on 20 September 1996 was false or misleading in a material respect.
The s 68 notice was issued to Maraline, and hence, in complying with the s 68 notice, it provided information that was false or misleading in a material respect. Accordingly, I find Maraline guilty of an offence against the EO&P Act, by contravention of s 85 of the Waste Act.
The contravention of s 85 of the Waste Act by Maraline leads to the consequence, under s 10 of the EO&P Act, that Mr Suciu, as a director of that corporation, is to be taken to having contravened the same provision. Mr Suciu did not raise any of the defences under s 10, and accordingly I find him guilty of an offence against the EO&P Act by contravention of s 85 of the Waste Act.
I reserve the questions of conviction, penalty and costs.
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