Environment Protection Authority v Ramsey Food Processing Pty Ltd

LEGISLATION CITED: Evidence Act ss 4(2), 184(1), 191, 192 Protection of the Environment Operations Act 1997 ss 120(1), 148(4)

R v JGW [1999] NSWCCA 116 CASES CITED: R v Popovic (unreported 25 March 1996) R v Smith [1981] 1 NSWLR 193, R v Wilkinson (No 4) [2009] NSWSC 323

PROSECUTOR: Mr D Jordan, barrister SOLICITORS Department of Environment & Climate Change LEGAL REPRESENTATIVES: DEFENDANT: Mr A Djemal, barrister SOLICITORS Hannigans

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY v RAMSEY FOOD PROCESSING PTY LTD

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application by the defendant, made on the third day of a sentencing hearing for pollution offences, for leave to contradict or qualify facts agreed in the parties' statement of agreed facts filed approximately ten weeks ago. The prosecutor's case has not yet closed. 2 The defendant has pleaded guilty to charges that it committed offences against s 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters. It has also pleaded guilty to a charge of committing an offence against s 148(4) in that, being the occupier of premises on which a pollution incident occurred so that material harm to the environment was caused or threatened, it failed to notify the appropriate regulatory authority of the pollution incident as soon as practicable after becoming aware of the incident and to provide all relevant information about the incident.

3 The prosecution alleges that the polluting water offences occurred between about 8 and 12 October 2007, the pollutants were effluent from the defendant's abattoir, the effluent was being carried by pipe from the abattoir to the defendant's settlement ponds some distance south of the abattoir; and the effluent escaped through a crack in the pipe in north-easterly and south-easterly directions into the Musk Valley Creek and in a north westerly direction into the Musk Valley Creek Western Tributary. The confluence of the creek and the tributary lies downstream a little to the north of the cracked pipe and close to the abattoir. The prosecutor alleges that the pollutant travelled a substantial distance in the creek downstream from the confluence in a general northerly direction. All this was agreed in the statement of agreed facts.

4 The defendant now seeks leave to contradict or qualify agreed facts in some nineteen paragraphs of the agreed statement of facts in order to make the following three contentions, which relate to the extent of environmental harm caused by the offence.

5 The first contention is that upstream of the confluence the effluent from the cracked pipe did not travel east to the creek (Upstream Contention). This is probably contrary to paras 30, 52, 61, 69, 76, 88 and 89 of the statement of agreed facts. I say "probably" because in para 52 the directions of travel are said to be north easterly and south easterly rather than easterly. I will proceed on the assumption that the Upstream Contention captures those directions. The defendant says that its effluent in the creek above the confluence came not from the cracked pipe but from its settlement ponds further to the south and were washed there by rain.

6 The second contention is that downstream of the confluence the effluent did not travel as far as was agreed in the statement of agreed facts but a lesser, albeit significant, distance which the defendant cannot specify (Downstream Contention). This is contrary to paras 64 and 71 of the statement of agreed facts. Paragraph 64 refers to a plan in annexure 7, which marks by a red line the part of the creek and the tributary above the confluence and below the confluence which were agreed in that statement to have been polluted by the defendant's effluent from the cracked pipe.

7 The third contention is that as a consequence of the downstream contention, the pollution caused by the defendant's effluent downstream of the confluence only presented a potential health risk to humans in that unspecified part of the creek waters that it reached (Consequential Health Contention). The paragraphs of the statement of agreed facts that the defendant seeks to traverse in this limited geographical sense are paras 88 to 97.

8 Two other related contentions by the defendant may be noted in order to obtain an understanding of the issues, being contentions which the defendant says are not contrary to the agreed facts: (a) effluent entered the creek upstream from the confluence, not from the cracked pipe but from the defendant's effluent settlement ponds further to the south, as a result of rain ( Settlement Ponds Contention) . As I understand it, the defendant acknowledges that this is within the scope of the charges against it; (b) unrelated to the defendant's activities there were four other sources or possible sources of pollutants in the waters of the creek; namely, a nearby stock sale yard, a nearby sewage pumping station, some drains and a dam ( Unrelated Sources Contention) . The defendant says that its submission will be that the prosecution bears the onus of proving beyond reasonable doubt that they are not contributing sources of the pollution.

9 The statement of agreed facts as filed recites the following: "The parties for the purposes of these proceedings only and on the advice of their legal representatives, agree that the following facts are not to be disputed pursuant to s 191 of the Evidence Act 1995 (NSW):

1. The facts contained in the document annexed to this page and marked 'Annexure 1', including all annexures to that document."

The reference to Annexure 1 was to the body of the statement of agreed facts. 10 The recital refers to ss 191 and 192 of the Evidence Act 1995, which provide as follows: " 191 Agreements as to facts

(1) In this section: agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding: (a) evidence is not required to prove the existence of an agreed fact, and (b) evidence may not be adduced to contradict or qualify an agreed fact, unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact: (a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding, or (b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 11 The Evidence Act does not apply because in a sentencing proceeding the Evidence Act only applies if the court directs that the law of evidence applies in the proceedings and no such direction has been sought or made: s 4(2). However, it is common ground that the defendant requires leave to contradict or qualify the agreed facts, and I think that the matters listed in s 192(2) should be taken into account. 12 As to the exercise of discretion, counsel were unable to find a case directly in point and suggested analogies. The prosecutor suggested an analogy with an application for leave to withdraw a plea of guilty. In R v Wilkinson (No 4) [2009] NSWSC 323 Johnson J refused an application for leave to withdraw a plea of guilty to murder. His Honour held at [43] - [48] (omitting most citations): "The onus lies upon the Applicant to demonstrate that leave should be granted. The Applicant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection.

The plea of guilty itself is a cogent admission of the ingredients of the offence. Indeed, it has been described as the most cogent admission of guilt that can be made.

On an application for leave to withdraw a plea of guilty, the question is not guilt or innocence as such but the integrity of the plea of guilty.

A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it. Although these principles were expressed in the context of an appeal, the same principles apply where application is made at first instance for leave to withdraw a plea of guilty.

Where an application is made for leave to withdraw a plea of guilty, evidence ought be adduced from the accused person as to the circumstances in which he or she came to plead guilty.

The various circumstances identified by Spigelman CJ in R v Hura (2001) 121 A Crim R 472 at 478 [32] provide assistance where application is made for leave to withdraw a plea of guilty. These are:

(1) Where the Appellant 'did not appreciate the nature of the charge to which the plea was entered'. (2) Where the plea was not 'a free and voluntary confession'. (3) The 'plea was not really attributable to a genuine consciousness of guilt'. (4) Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt'. (5) Where the 'plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ...some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt'. (6) The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt'. (7) If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt'."

13 Because of the high cogency of a guilty plea, I do not think that the approach to an application for leave to contradict or qualify an agreed fact, at least where a matter of expert evidence may be involved, requires the same degree of caution as an application to withdraw a guilty plea. 14 The defendant suggested an analogy with cases where the Crown was permitted to adduce evidence on an issue where the defendant had made admissions. Provision for such a situation is found in s 184(1) of the Evidence Act. Three decisions of the NSW Court of Criminal Appeal were cited: R v Smith [1981] 1 NSWLR 193, R v Popovic (unreported 25 March 1996) and R v JGW [1999] NSWCCA 116. In JGW it was held at [44] (omitting citations): "I do not consider that, as a matter of principle, the Crown should be required to accept admissions in lieu of a record of interview, where the latter can be seen to contain evidence that qualifies as relevant, and where there is no occasion, otherwise, for a discretionary exclusion under ss 90, or 135 to 137 of the Act. It is well settled that the fact that formal admissions have been made does not, of itself, preclude the Crown from adducing further evidence on the issues which are the subject of the admissions. There is no reason for assuming that enactment of the Evidence Act has altered that principle. This ground has accordingly not been made good." 15 I think that these cases are too far removed from the subject of the present application to be of significant assistance. 16 The onus is on the party seeking leave to contradict or qualify agreed facts to make out a case for leave including as to the circumstances in which they came to agree the facts. An application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. There has to be an incentive for parties to agree facts. To allow a party to back out of such an agreement easily does not encourage agreement in the first place. In a general sense, there is prejudice in denying to a party the right to rely on something that they reasonably thought was agreed. 17 The fact that there was a careful process whereby the statement of agreed facts was negotiated and ultimately agreed and signed by the parties' lawyers tends to weigh against giving leave. The process took about three months and may be summarised as follows. On 27 March 2009, the Court made a consent order that the parties file any statement of agreed facts by 2 April 2009 and that the matter be adjourned for mention on 3 April 2009. Between 27 March and 3 April, the parties' legal representatives discussed and negotiated a draft statement of agreed facts. On 3 April, the defendant's solicitors sent the prosecutor's lawyer an email stating that the defendant agreed to the filing of the attached statement of agreed facts. On that basis, the prosecutor filed that version of the statement of agreed facts. On 22 May 2009, senior counsel for the defendant (who was not the counsel appearing on this leave application) submitted to the court that the defendant had not agreed to the statement of agreed facts. In communications later that day between the prosecution's lawyer and the defendant's solicitor, the latter said that the defendant had not withdrawn its agreement from the statement of agreed facts. Still later in the day, the prosecutor's lawyer sent the defendant's solicitor a statement of agreed facts with an execution page and invited the defendant to execute it. On 28 March, the parties' lawyers had a number of phone conferences in which the defendant's solicitor said that the defendant did not agree to part of that statement of agreed facts. Correspondence passed between the lawyers concerning amendments. On 29 May the matter was before the court and the prosecutor's counsel brought the issue of the unresolved statement of agreed facts to the court's attention. Between 2 and 15 June there were communications between the parties lawyers concerning the statement of agreed facts. Finally, on 19 June, the prosecutor's lawyer received from the defendant's solicitors an executed, amended version of the statement of agreed facts, which he caused to be filed on 23 June 2009.

18 Another factor weighing against giving leave is the very late stage of the leave application. It has taken more than a day and a half to hear the application in the middle of a sentencing hearing, which threatens the conclusion of the hearing within the allotted time. The application should have been made before the hearing and promptly after receipt of the expert evidence, which is said to have focused the defendant's attention on these matters.

19 A further factor weighing against giving leave is prejudice to the prosecutor. As regards the Upstream Contention, the evidence of the prosecutor's lawyer establishes that he thought Mr Denny's evidence was irrelevant unless the defendant obtained leave to contradict or qualify the agreed facts. In reliance on the agreed facts, he did not obtain instructions to incur the expense of obtaining evidence from an expert surveyor to rebut Mr Denny's evidence and an affidavit was not obtained from an officer of the Environmental Protection Authority, Ms Murphy, to corroborate the evidence of another officer Mr Ensbey (yet to be called) concerning the flow path. I think that the position he took was reasonable. If leave were to be granted, the prosecutor says that those instructions for surveying evidence would be sought, which may take time to obtain given that the prosecutor is a government agency, and a conference with Ms Murphy would be held to determine if evidence should be adduced from her both corroborative of Mr Ensbey and focusing on the Upstream Contention. She now works in Queensland and could not be compelled to attend within the time fixed for the hearing. 20 As regards the Downstream Contention, the prosecutor says that its expert witnesses, who are yet to be called, can deal with it and therefore there is no prejudice so far as expert evidence is concerned. However, the prosecutor submits it is otherwise prejudiced in that it would seek to confer with and consider calling three lay witnesses: Ms Murphy; a Ms Day, an environmental health officer employed by the local council, who lives some 60 kilometres from Grafton; and a Mr Roper, who is employed by the council as a senior environmental officer. Their affidavits were received into evidence earlier this week when the Court conducted part of the hearing in Grafton for the purpose of taking evidence from local witnesses and to conduct a view. They were not required for cross examination. Since then the Court has returned to Sydney. Ms Day is on maternity leave and may have difficulty in travelling to Sydney.

21 The prosecutor says that, if leave were given, it is likely that it would have to seek an adjournment to attend to the evidence and instructions to which I have referred. The defendant submits that none of these lay witnesses could really assist the prosecutor with these matters. In my view, it is a matter for the prosecutor as to how it wishes to conduct its case and, if leave were granted, it would be reasonable for the prosecutor to proceed in the way that it has indicated. As regarded evidence from a surveyor, the defendant submits that the prosecution should have attended to survey evidence as soon as it received Mr Denny's report. Given the strength of ss 191 and 192 of the Evidence Act and their application by analogy where the Act does not apply, I think it was reasonable for the prosecutor to proceed upon the basis that, until an application was made and determined for leave to contradict or qualify the agreed facts, it did not have to embark on this process, which necessarily involved significant cost.

22 On the other hand, the proceedings are criminal in nature, which I think gives a defendant a stronger case for leave than in civil proceedings even though the application was not made until the hearing. In addition, the Upstream and Downstream Contentions are of significance to the defendant's case on the issue of the extent of environmental harm.

23 The defendant submits that leave should be given to contradict or qualify agreed facts because when it agreed them it did not have the benefit of expert evidence from a Mr Denny relating to the Upstream Contention and from a Mr Lancaster relating to the Downstream Contention (and therefore to the Consequential Health Contention). The defendants served their reports on the prosecution subsequent to the filing of the statement of agreed facts and approximately six weeks before the commencement of the sentencing hearing. The defendant has not yet gone into evidence in the sentencing hearing but those expert reports are before me on this leave application. The defendant in effect identified the Upstream Contention when identifying the issues on the first day of the hearing.

24 The Upstream Contention is supported by an opinion expressed in Mr Denny's report that the effluent could not have travelled from the cracked pipe "eastward" into the creek. As I have earlier indicated, the agreed facts are that the effluent travelled in a northeast and southeast direction from the cracked pipe into the creek as well as northwest into the tributary, and I assume for present purposes that by "eastward" Mr Denny meant to include northeast and southeast.

25 The defendant submits that the Downstream Contention is implicitly, although not expressly, supported by the report of Mr Lancaster. I disagree. Mr Lancaster's evidence does not indicate that the defendant's effluent was not present at all through the length of the creek marked in red in the plan in the agreed statement of facts to which I have referred. Rather, it supports the Unrelated Sources Contention.

26 On balance, I am persuaded that I should give leave to the defendant to contradict or qualify the agreed facts to the effect of the Upstream Contention. There is expert evidence capable of supporting it, which was not received by the defendant until after the statement of agreed facts was filed and which was duly served on the prosecutor before the hearing.

27 I am not persuaded that I should give leave in respect of the Downstream Contention or the Consequential Health Contention. No notice was given to the prosecution of those contentions until this leave application was made on the third day of the sentencing hearing. The expert evidence before me does not support the Downstream Contention. The weight of prejudice to the prosecution is greater, I think, than in the case of the Upstream Contention, particularly when viewed as cumulative to the prejudice or potential prejudice arising from the Upstream Contention.

28 For these reasons, I give leave to the defendant to contradict or qualify the statement of agreed facts by contending that the effluent from the cracked pipe did not travel east to the creek. I order the defendant to pay the prosecutor's costs occasioned by this leave and the prosecutor's costs occasioned by any consequential adjournment of the hearing.

29 After delivering the above reasons for judgment, the defendant informed the Court that, having regard to prospect of the prosecution requiring an adjournment and the costs order, it abandoned the Upstream Contention.

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.