EPA v Gilmour & Anor

Matter No.50006 of 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v GLENN REX GILMOUR Defendant

Matter No.50007 of 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v TABLELAND TOPDRESSING PTY LTD Defendant JUDGMENT

These two cases are being heard together and concern alleged pollution of waters, contrary to the Clean Waters Act 1970 ("the CW Act"), near Yarrowyck, on the northern tablelands of NSW, about 40km from Armidale, and 25km from Uralla, on or about 17 February 1999.

The purpose of this judgment, the fifth written judgment delivered so far in the proceedings, and my fourth, is to make relevant findings on the evidence.

The prosecutor alleges that, in the period Monday 15 to Wednesday 17 February 1999, the defendant Gilmour, on behalf of the defendant company, applied fertiliser from a light plane, registered call-sign VH-CCH, to the paddocks of the rural property "Myanbah", near the Gwydir River, and that, on Wednesday 17 February 1999, during the course of the aerial application of fertiliser, pellets of fertiliser, dropped from the plane, entered the river, and landed immediately adjacent to it, thereby polluting it, in breach of s 16(1) of the CW Act.

The summonses in both matters provide the following "particulars of charge": WATERS: Gwydir River POLLUTANT Fertilizer pellets

The summonses were issued on 16 February 2000, and both defendants entered pleas of "not guilty" on 26 April 2000.

There is no contest about the defendant company's ownership of the relevant plane. The defendant Gilmour, and his wife Bridget Mary Gilmour, had been, since 1991, and were at the relevant time, the only shareholders and directors of the defendant company (Exhibit P1), and both are employed by it, the defendant Gilmour as a pilot.

"Myanbah" is a grazing property of some 5,000 acres, west of the Gwydir River, owned since 1980 by John Peirce. In the subject area, the river flows generally south-to-north.

Between the fence on the eastern boundary of "Myanbah" and the river itself is a vegetated strip of land, approximately 100m wide, known as a "flood runner". On the eastern side of the river is a property known as "Dwindlestone", owned, for the last 16 years, and occupied for the last 12 years, by EPA officer Riki Davidson. Davidson's house on that property is located approximately 400m east of the river and her fence is about 80m from it. To the south of Davidson's land, one property away, is another rural property, owned by Norman Austin, of Toowoomba, since October 1998 (see Exhibit P6).

Austin, Peirce and Davidson all gave evidence at the hearing.

The earlier written judgments were: (1) that of Bignold J - [2000] NSWLEC 144, delivered 30 June 2000 - on an application by the prosecutor for an extension of the time within which it could put on the evidence upon which it intended to rely. (2) mine - [2001] NSWLEC119, delivered 15 December 2000 - on an application by the prosecutor to adduce evidence of " tendency ". (3) mine - [2001] NSWLEC 121, delivered on 22 December 2000 - on an application by the prosecutor to call Mrs Bridget Gilmour, wife of the defendant Gilmour, and a director of the defendant company, to give evidence against her husband. (4) mine - [2001] NSWLEC 122, delivered on 30 January 2001 - on a " no case " submission by the defence at the close of the prosecutor's case.

Also, on 5, 6 and 8 December 2000, just prior to the commencement of the hearing, I, as duty judge, dealt with motions by the prosecutor in respect of the adequacy or otherwise of the defendant company's compliance with, and response to, a subpoena for the production of documents. Mrs Gilmour was called to give oral evidence on the company's behalf during the hearing of those interlocutory matters, and I concluded that the company could not be said to have control over the relevant documents, and, therefore, could not be required to produce them.

Section 16(1) of the CW Act provides that "A person shall not pollute any waters".

Section 16(2) is a "deeming" provision in the following terms: Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if: (a) the person places any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, on to the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed in such a position, or (b) the person places any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed on such a dry bed or in such a drain, channel or gutter, and the matter would, had it been placed in any waters have polluted or have been likely to pollute those waters.

Section 5 of the CW Act defines "pollute, in relation to any waters," to mean: (a) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or … (c) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter.

[The prosecutor relies on (a) and (c), but not on (b)].

The prosecutor also relies on the following relevant definitions in s 5 of the CW Act: premises includes place, ship, boat and any other vessel whatsoever.

wastes means any solid, gas or liquid, with or without matter in suspension or solution in it, which is or may be discharged from premises: (a) in the course of any process or operation carried on in connection with any mine (within the meaning o the Mines Inspection Act 1901 or the Coal Mines Regulation Act 1982), open cut working (within the meaning of the latter Act), coal washing, trade, industry, agriculture or sewage treatment, or (b) in the course of any domestic process or operation, or which is in, or is or may be discharged from, any waste disposal depot.

waters means any river, stream lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or part thereof, and includes water stored in artificial works, water in water mains, water pipes and water channels, and any underground or artesian water, or any part thereof.

and on the following provisions of the Clean Waters Regulations 1972: 2(2) ['Matter' for purposes of para (c) of definition of 'pollute' in sec 5] The following matter is prescribed as matter for the purposes of paragraph (c) of the definition of 'pollute' in section 5 of the Act: (a) without limiting the generality of paragraph (b), wastes - … (vi) containing any phosphorus compound … (b) any matter of the following nature: … (iii) inorganic matter of any description including ashes, ballast, soil earth, mud, stones, sand, clay residue or washings from any mineral processing or extractive operation or soil, spoil or washings from any dredging operation; … (viii) chemicals or poisonous substances of any description;…

The Macquarie Dictionary (3rd ed) includes the following relevant definitions: change - to make different; alter in condition, appearance, etc; turn;

chemical - a substance produced by or used in a chemical process;

inorganic - 1. not having the organisation which characterises living bodies; 2. Not characterised by vital processes; 3. Chem. Denoting or pertaining to compounds not containing carbon, excepting cyanides and carbonates;

vessel - a craft for travelling on water, now esp. one larger than an ordinary rowing boat; a ship or a boat.

In February 1999, Peirce arranged with Richard Croft for fertiliser to be supplied and delivered to "Myanbah", and then engaged the defendant company to apply it. Peirce had engaged Gilmour and his company at least once previously (T127 L3-20 and T129 L3). As described (by EPA officer Greenhalgh) in the evidence (T75 L2-3), the relevant procedure is that "trucks dump fertiliser on the ground and then it's fed into an aeroplane".

Croft gave evidence that over the years he has had several dealings with Peirce, and that he supplied to Peirce, in mid February 1999, 123 tonnes of MAP-Sulphur, and Gold-Phos, both supplied by Hi-Fert. The former is mono-ammonium phosphate coated with elemental sulphur, and the latter is triple superphosphate, also coated with elemental sulphur (Exhibits P18 and P19, and T202 L34-40).

The "pellets" of both varieties of fertiliser are "between two and four millimetre granules … approximately round", which when coated with the sulphur, "come out like little round balls", with "very little dust" (T203 L22-30). Croft described at length how the pellets are made and how they operate as fertiliser, particularly on "poor soil" like "Myanbah", through their "main elements of nitrogen, phosphorus, potassium and sulphur" (T205-6).

Croft's arrangement with Peirce was for supply and delivery only . Croft placed the order with Hi Fert, Newcastle, on about 11 February, and personally supervised some of the delivery (T203 L10-16), but there would have been five or six truck loads, dumped together, but in a spot away from any remnants of earlier operations (T214) (see Exhibits P20-P23).

On 15 February 1999, Peirce met Gilmour at the airstrip on "Myanbah" (T133 L50). The airstrip is "at least a mile" from Peirce's house (T127 L1). When Gilmour "buzzed the house" to let him know he had arrived, Peirce drove to the airstrip (T127 L24-30). The fertiliser was already there in a pile on the ground (T130 L10-22).

Gilmour then flew Peirce with him in the plane (T129 L41-46), so that he could familiarise himself with the property boundaries, and the area to be spread with fertiliser. The air trip would have taken 15 to 20 minutes (T130 L24-26). When Peirce was at the airstrip with Gilmour "there was another man there" (T131 L8), whom Peirce assumed to be there to "use a loader to load the material" (L8-9). That man did not go up in the plane with Gilmour and Peirce (L21-2).

Peirce would "say" that it took Gilmour three days to spread the super (T134 L46).

The prosecutor alleges that, on and between Monday 15 and Wednesday 17 February 1999, Gilmour applied fertiliser from that plane to "Myanbah" on behalf of the defendant company. Austin testified that he thought he heard a plane in the area, and saw a "cloud of dust", one day between 12 and 17 February. He says he definitely heard a plane on Sunday 14 February (T43 L30 and T44 L24), but Davidson said she did not see or hear any plane on that Sunday (T240 L37-43). She went to work on the Monday and Tuesday, but was at home, on leave, on the Wednesday, 17 February 1999.

Austin observed, floating on the waters of the Gwydir River, what looked to him like grass seed, and a "slight grey coloured film" or scum, on 17 February. He took a sample of the water to the "Water Resources Office" in Armidale on his way home to Toowoomba. No results regarding that sample are among the evidence.

I found Peirce's oral evidence unreliable. Indeed, the prosecutor had the court deal with him as "hostile". However, he agreed that, when he swore his affidavit, without which he was of little real help to the court, "he satisfied himself at that time that was true and correct" (T134 L57-T135 L2). He said that whenever he observed the plane in the air it was flying east-west (T135 L9), and, in terms of the aerial spreading task, he told the court that his property is 3½ miles "across the back of it" (T140 L38).

On the evening of 17 February 1999, apparently after the spreading was completed, Gilmour came to Peirce's house alone in a car, and Peirce paid him a substantial cheque (T135 L18-24 and 35-37), but Peirce cannot relate the time of payment to the time the work finished, and/or to the time the plane stopped flying (L26-33). He had seen the plane, but not the pilot (L46-52) - he assumed Gilmour was "in it" (T135 L56 and T137 L55-7). He cannot remember any particular conversation with Gilmour about the job (T140 L13-15), but there had been a delay on one day due to a reported breakdown (T141-2).

Davidson heard the sound of an aircraft flying "backwards and forwards", east and west, upstream from her home, from about 8am on 17 February. She formed the view that its movements were getting generally closer to her house. The noise was not continuous, and so was consistent with its periodically landing to refuel, and/or collect cargo, and/or change pilots.

At about 10-10.30am, she saw the plane approach from the west, turn right over her house, and fly towards the west. She heard, within seconds, a rattling sound on her roof. She noted the call-sign (or registration number) painted on the underside of the wing of the plane, but she could not see the pilot's face.

She climbed a ladder, and collected, in an envelope (Exhibit P4), a sample of "small greyish pellets" (T14 L29) from the guttering at the edge of the roof. While taking that sample she heard and saw the plane overhead again, and observed similar "pellets" hit the roof and roll into the gutter. She saw similar "pellets" landing on the ground around the house.

There is a substantial dispute as to what the "pellets" on and about her property actually were, and I will return to discuss that term in due course.

Davidson called the EPA and reported the above incident.

EPA officers Angus Adair and David Greenhalgh arrived at Davidson's property at about 12-12.30pm on 17 February 1999. Davidson showed them the envelope, and gave it to Greenhalgh during the visit. The three of them walked from Davidson's house to the river, via an established track leading to her favourite swimming spot (which became EPA testing "site 2"). They observed similar pellets on the ground between the house and the river, on the riverbanks, on the dry parts of the river bed and on rocks, etc. under the waters of the river. On return to the house, Greenhalgh inspected the guttering, photographed it, and took a sample of pellets from it.

Davidson testified that she had never seen such pellets near her house, nor in the river, prior to 17 February 1999 (T16 L52-55 and T17 L33-35). Greenhalgh knows the area well, and he had never seen such pellets there either (T62 L4-14).

Adair and Greenhalgh testified that they crossed the river, and observed, and collected a sample of, similar pellets within the "Myanbah" paddock nearest the river bank. Greenhalgh also saw pellets on the "flood runner" or riverbank over a distance of approximately 1km upstream from site 2 (T50). He and Adair took samples of pellets. Adair took a number of photographs, which Greenhalgh later captioned (see Exhibits P15 and P16) in terms in which Adair concurred.

Greenhalgh returned to do water sampling later on 17 February. He also took a solid sample on 20 February 1999, from a "thin spreading" (T61 L50-1) of pellets, being "the remains of a stockpile" (T74 L41) on/at the "Myanbah" airstrip. He and Adair took additional water samples (from the same locations as on 17 February) on 20 February. Greenhalgh and Adair called on Peirce on 23 February.

Greenhalgh produced and marked a map of sampling sites (Exhibit P8), and he and Adair were cross-examined about the procedures they followed, especially regarding sample filtering, preservation measures, etc.

Adair took senior EPA scientist Geoffrey Coade to the scene on 26 February 1999, and Coade did further sampling. Like Adair and Greenhalgh, Coade gave oral evidence at the hearing. The certified results of the EPA's sample tests were summarised, and tendered, by agreement (Exhibit P2).

Peirce told Greenhalgh that the defendant company had applied fertiliser to his property on 15 to 17 February, and that the aerial "operator" was Glen Gilmour. Greenhalgh testified to further investigations of the matter with Peirce and Croft, and to obtaining from Croft, on 15 May 2000, a sample of "Hi-Fert Gold-Phos 10" pellets for testing.

Greenhalgh testified that "there didn't appear to be anything, other than the pellets, out of the ordinary", and that he did not see any scum or grass seed type material on the waters (T48). He believed the pellets were "a fertiliser" (T80 L57 and T81 L43), and decided to test the water in the Gwydir River for nitrogen and phosphorus.

At Davidson's swimming spot (site 2) the river bank was steep, and there was a large pool and a riffle zone. There was no sign of animals or cow dung. Testing took place not only there, but at three sites upstream from it, and one (site 1) downstream. Site 2 was the only site with pellets in the immediate vicinity. Some cattle were seen in a paddock at site 3, and there was evidence of livestock having been at site 5 (see T87 L50-8, and map in Exhibit P8).

Greenhalgh sealed and labelled the samples, and Adair wrote the labels. The samples, in 1 litre containers, were "placed in an esky in the [EPA] car" (T155 L9). Adair saw neither pellets nor animals at site 1, but the water there had "a pollen on it", "a very fine" "rusty red powder like… material" the "same colour as the flowering part of the casuarina trees that were overhanging that part of the river" (T155 L21-34). He saw no cow dung and thought the presence of animals unlikely, as the land was not fenced from the road (T155 L39-50). He observed some algae at site 2 when testing was done, and was "observant" for animals (T185 L30).

On return to the office on 17 February 1999, Adair observed Greenhalgh put the samples in the freezer (T161 L34-38) where they remained overnight. Next morning they were "very cold" (T162 L3), and were placed in a large, sealed esky with freezer blocks, and taken to the EPA's contract courier for shipment. Adair authored much of what was written on the relevant sample submission forms (Exhibits P13, and P14, the provisional admission of which [at T68] is now confirmed). He transposed information from the labels (T164). Adair also did the forms on Monday 22 February for the samples Greenhalgh took on 20 February. He identified the granular material from the "dump site" on "Myanbah" in solid sample "6", the only solid sample in the 22 February batch (T167 L12-34).

Adair estimated 130 "pellets" per square metre on "Myanbah" (T175 L41-44 and T186 L51). He, Davidson and Greenhalgh, however, gave some confusingly different estimates of "density" of the pellets observed elsewhere (T404 L1-40), and the court is left in some doubt as to the precise quantity of fertiliser which found its way into the river.

It is clear from the evidence, and is admitted by the EPA witnesses, that the water samples were not filtered on capture, and not frozen immediately. It is conceded by the prosecutor that these "precautions" are mandated by the relevant EPA testing manual (Exhibit P17), with which Adair and Greenhalgh were familiar from special training sessions (see also relevant CW Regulations 1972 and reference material in Exhibit D10). The evidence is that there are no freezing facilities for samples in EPA vehicles, and officers "keep them as cool as possible through use of bricks and eskies and that sort of stuff" (Adair T188 L35-38, and T193 L8-40).

On 1 February 2000, a senior EPA officer, David Dutaillis, issued to the defendant company a "notice requiring information and/or records" under s 193(1) of the Protection of the Environment Operations Act 1997 ( Exhibit P9). The solicitor for the company, Stephen Rugendyke, responded in writing on 14 February 2000 (Exhibit P10). An invoice issued to Peirce on 18 February 1999 and various wage and taxation records were provided and the following questions were answered as shown (taken from Exhibit P11): (i) Was Tableland Topdressing Pty Limited hired to apply fertiliser to the property know (sic) as 'Myanbah' in February 1999? If so, when did the spraying take place? Answer Yes. No spraying took place (ii) Was Glenn Gilmour employed by Tableland Topdressing Pty Ltd on and between 15 to 17 February 1999? Answer Yes. (iii) Is the aircraft registered number VH-CCH registered to Tableland Topdressing Pty Ltd? Answer Yes. (iv) If the answer to (iii) above is yes, who flew this plane on 15, 16 and 17 February 1999 Answer Glenn Rex Gilmour (v) If the answer to (iv) above was Glenn Gilmour, was he doing so in his capacity as an employee of Tableland Topdressing Pty Ltd and if not, in what capacity was he flying? Answer Yes.

The prosecutor conceded that these responses are admissible only in the proceedings against the defendant company (matter 50007), and not in those against the defendant Gilmour (matter 50006).

Davidson described the pellets she took from the guttering and put in the envelope as "… small spherical pellets of a few millimetres in diameter and perhaps ranging from about 3 to 7mm in diameter, light in colour, varying from sort of whitish to greyish" (T14 L33-36). She described those that fell on the roof while she was "up the ladder" as "they looked the same, they were spherical whitish grey colour and the same range of sizes as the pellets that were already in the guttering" (T16 L2-4).

Greenhalgh testified that the pellets in the envelope "are very similar" to those he himself saw in the gutter of Davidson's house on 17 February 1999 (T61 L20-24). He crushed a couple of pellets he found on the dry river bed on 17 February (T97 L16), using a rock (T98 L45) "and they powdered quite readily, whereas rock and sand doesn't powder like that" (T62 L16-24). Some he picked out of the stream at site 2 "turned into a bit of a paste" when squeezed (T99 L32-54).

Adair also testified that the "pellets" in the envelope were "the same type of pellets" he saw around Davidson's house, in the "creek" and on "Myanbah", on 17 February 1999 (T170 L29-52). Some of the pellets he picked up from within the water "disintegrated" as he did so (T177 L35-39).

Croft thought the "pellets" in Davidson's envelope (Exhibit P4) "could be Gold-Phos" or MAP-Sulphur, "but it's a bit rough" (T204 L4-11).

Patterson prepared five Petrie dishes of "pellets", which were shown to three prosecution witnesses by Mr Baird. Patterson, the last witness called, testified that the contents of the five dishes were as follows: Dish No.1 (became Exhibit D4 ) - " egg cases … of either a wasp or a spider of some description" (T308 L40-1).

Dish No.2 (became Exhibit D6 ) - " 25 pellets of Gold-Phos fertiliser " (T310 L58), taken " from a container that was marked 'Gold-Phos' that had been given to me by Mrs Gilmour. I know them to be similar to Gold-Phos because I've actually purchased Gold-Phos and spread it on my property " (T311 L19-23).

Dish No.3 (became Exhibit D7 ) - " 25 pellets of MAP fertiliser … from a container that was marked 'MAP sulphur', given to me by Mrs Gilmour " (T311 L29-31).

Dish No 4 (became Exhibit D8 ) - a sample of " only the white pellets " of MAP sulphur " rather than the white and grey " but taken from the same container as Dish No 3 (T311 L45-55).

Dish 5 (became Exhibit D5 ) - casuarina " branchlets " or needles with egg cases " glued " to them (T308-310).

When Davidson was shown, by Mr Baird, the five Patterson Petrie dishes she gave the following responses: Dish No.1 - " these have the same general appearance … but I'm not saying they're the same " (T29 L51-57).

Dish No.2 - " well, they're similar but … this is a varied population in both of these Petri dishes and even the pellets that I observed on that day there was also variability … there's some sameness and there's differences within the pellets in a given Petrie dish and there are similarities between pellets in different Petrie dishes and the envelope " (T31 L26-34).

Dish No.3 - " again a mixed population … perhaps 12 to 15 of them are fairly dark and the rest are fairly light. … of the pellets that I picked out of the guttering the percentage of dark ones was not as high …" (T32 L12-16).

Dish No.4 - " Well that sample population is in general more uniform in size and definitely more uniform in colour than those I saw or than those in any of the other 3 dishes … there are pellets that are similar to pellets that I saw on the day … but … there's not the same variability between the pellets in the sample as there was in the pellets that I collected from the guttering " (T33 L2-4 and 25-30).

Dish No.5 - " … they appear to be some type of egg case … all attached to casuarina needles " (T33 L47 and 58); " they're roughly spherical, they fall within the size range of 3 to 7mm in diameter " (T36 L32-4). The pellets she saw on 17 February 1999 " weren't attached to anything " (T36 L50).

Greenhalgh's reactions to the five Patterson Petrie dishes were as follows: Dish No.1 - asked if similar to what he saw on 17 February, Greenhalgh replied " no " (T95 L4-10).

Dish No.2 - " on 17 February I saw something similar to that, yes " (T95 L17).

Dish No.3 - " It's similar again to Dish 2 and what I saw on the 17th … but … there appears to be a very clear contrast between the pellets. There is one a very light grey and one a dark grey … I would say that the contrast that I observed was nowhere near that distinct " (T95 L26-38).

Dish No.4 - " Yes, they're similar to the pellets I saw on 17 February" (T95 L45-6).

Dish No.5 - He saw nothing " like that on 17 February " (T95 L48-54). 55. Adair's reactions to the five Patterson Petrie dishes were as follows:

Dish No.1 - " they look a little more degraded than what I saw" on 17 February 1999 (T195 L18-25).

Dish No.2 - " … is similar to what I think I saw " (T195 L32-44).

Dish No.3 - " Similar, however I feel there's more darker pellets in here than were in the pellets that I saw …" (T196 L18-23).

Dish No.4 - " Yes, again, similar; I actually felt that there were more darker pellets than there is in this sample " (T196 L45-8).

Dish No.5 - " I see parts of Casuarina leaves and I see blobs on the end of them. I saw plenty of Casuarina leaves but I don't recall seeing these blobs … " (T196 L58-T197 L3). 56. All EPA witnesses saw consistency among the pellets in all relevant locations.

57. Croft links those pellets to the Hi Fert products he supplies, including those he supplied to Peirce, over whose land the plane was observed.

58. The EPA witnesses may well have seen some egg sacs (Exhibit D4), but I am satisfied that they certainly saw granules of the two Hi Fert fertilisers. Davidson in her twelve years on her property has never otherwise seen such pellets. Conclusion No.1

59. I have concluded, beyond reasonable doubt, that the pellets found by Davidson, and her EPA colleagues, on her property, and in and near the Gwydir River, on 17 February 1999, were, or at least included, Hi Fert fertiliser products, which were dropped in those places from VH-CCH, an aeroplane owned at that time by the defendant company.

60. The prosecutor relied on a Senior Environmental Scientist from the EPA, Geoffrey Coade, who has recognised expertise and experience in the investigation and assessment of environmental impact of pollutants on estuarine, marine and fresh waters (see CV annexed to his affidavit of 30 December 1999). He prepared an "environmental effects" statement in relation to the alleged dropping of fertiliser pellets "from a plane into and around the Gwydir River" (also annexed ibid). That statement includes the following comments (ibid, pp8-9): The deposition of agricultural fertiliser in and adjacent to the waters of the Gwydir River would change the chemical and subsequently biological and physical conditions of the waters. Such deposition of this fertiliser in these waters would result in increased concentrations of soluble plant nutrients leading to an increased growth of simple aquatic plants known as algae. … Phosphorus, whether deposited in streams during wet or dry periods, will essentially remain in the stream, being carried downstream and recycled through plants and animals until it is discharged to the sea or onto land via irrigation. Nitrogen however can be transformed to a form where it can escape from the stream as nitrogen gas. In other words the legacy of the addition of phosphorus to a stream is much more long-lived than that of nitrogen and hence the consequences can be felt much further downstream at a later time. … During my inspection of the Davidson's property (Site 2 of the sampling sites referred to in David Greenhalgh's affidavit) on 26 February 1999 (hereinafter called sampling sites) I was shown and saw greyish white pellets about 3mm diameter on the adjacent land, on the rocks and sand in the dry river bed. I also saw what appeared to be partially disintegrated pellets on the bed under the water of the river. I did not see these pellets at the other three locations (Sampling Sites 1, 3 and 4) that I visited on that day. I take these pellets to be fertilizer pellets and note that the EPA laboratory analyses of similar material (Lab Numbers 9900855, 9900856, 9900857, 9900858 and 9900962) demonstrate high concentrations of phosphate phosphorus and ammonium nitrogen. These pellets, deposited in the water of the river, would change the chemical nature of the water by way of increasing the concentration of phosphorus (as phosphate) and nitrogen (as ammonium). Likewise the pellets deposited on the dry riverbed would during a rain event leach phosphorus and nitrogen into the waters of the river. The increased concentration is likely to be transitory as the nutrients are taken up by plants quickly (days). … There is clearly higher concentration of free reactive phosphorus at Site 2 on the 17 February (the day of the deposition) compared to sites upstream and downstream. This peak has reduced 3 days later (20 Feb) and almost disappeared 9 days later (26 Feb). The deposition area (Site 2) and the downstream location (Site 1) have on all occasions higher concentrations of free reactive phosphorus than the upstream locations (Sites 4 and 3). These results are consistent with an addition of phosphate phosphorus to the waters near Site 2 on 17 February 1999. … the pattern of phosphate phosphorus concentrations in the river water at Davidson's property (Site 2) is consistent with an uptake by macroalgae and is likely to have resulted in an increased amount (biomass) of that algae in the 9 days since the deposition.

61. Coade's later affidavit (2 June 2000) addressed the composition of sample granules in comparison with the two Hi-Fert products. He observed in relation to the two products (par 10):

The main difference between the chemical composition of Gold Phos 10 and MAP sulphur is the absence of nitrogen as ammonium in Gold Phos 10 compared with 8.8% nitrogen as ammonium in MAP Sulphur and the significantly higher calcium content of Gold Phos 10.

and in relation to the sample (par 13-20): The chemical composition of the granules collected on the 17 February 1999 is consistent with the chemical composition of MAP Sulphur as indicated in the Hi-Fert technical data, subject to what I say in the following paragraph. They are also consistent with samples comprising mixed Gold-phos 10 and MAP sulphur.

I note that the analysis of the granules collected from the water (sample ID 9900857) is different to the others. In particular, it has a lower percentage of phosphorus and nitrogen and a higher percentage of aluminium and iron, relative to the samples collected from the paddock (sample IID (sic) 9900855) the dry river bed (sample ID 9900856) and the granules taken from the roof (sample ID 9900858). Sample 9900857 is consistent with granules of MAP Sulphur being partially leached of the water-soluble components after a period immersed in water. … I conclude from this that the granules found in the river on 17 February 1999 would have leached some of their water-soluble components, namely phosphorus and ammonium nitrogen, into the water at the rates I describe above following their deposition in the water.

As the water soluble components of the granules deposited in the river leached into the water, the chemical condition of the water would have been changed by increasing the concentration of soluble phosphorus and ammonium nitrogen. … While the percentage of the phosphorus and ammonium nitrogen in sample 9900857 were lower compared to the other samples (consistent with leaching as described above) the sample still contained a reasonable percentage of phosphorus and ammonium nitrogen. This is consistent with their recent deposition in the river. By 'recent' I mean within a few hours of deposition. The result would in my opinion be inconsistent with those granules having been in the river for more than a day.

62. In his oral evidence, Coade explained the sampling/investigation protocols of the EPA, including the documentation involved. He also produced graphical presentations of the analysis results (Exhibits P25 and P26), and other relevant data (Exhibits P27 and P28), and interpreted all the results (T247ff).

63. He acknowledged the shortcomings in the EPA's "not ideal" sampling procedures in these matters, but adhered to his opinions, saying that he had been "aware and mindful" of those shortcomings, and had allowed for them in arriving at his conclusions (see generally T252-263 and T275). He remained confident about the comparative concentration results, but, with the flaws in the sampling procedures (especially failure to filter), he relied more on the results for total phosphorus (Exhibit P26), than for free reactive phosphorus (Exhibit P25).

64. After Coade's evidence about quality control procedures in laboratory testing (T270), Mr Howard reopened his case to tender a letter from the Manager of the EPA's Inorganic Chemistry Unit, dated 30 January 2001 (Exhibit P29), confirming that the laboratory's analyses "complied with sample preservation requirements".

65. Coade was closely cross-examined by Mr Baird. He conceded that river flow rate, ponding rainfall and, especially cow dung in the river (T285f), but not temperature, would "contribute to a certain level" of phosphorus being evident, but said that the presence of pellets of the Hi Fert products in the water "would just add to it" (T256 L33-5), and "it would need a fair bit of manure … [to] cause that spike" in phosphorus concentration at site 2. If manure were present in such a significant amount, he would expect that the water would appear turbid (T277 L1-20).

(a) it was "unlikely" that the elevated level of phosphorus on site 2 on 17 February was attributable to cow manure upstream (T288 L4-11); and (b) there is no "possibility that pellets of the Hi Fert products would not release phosphorus between late morning .. and … late afternoon on 17 February" 1999 at site 2 (T288 L47-53).

Adair observed filamentous green algae at site 1 (T180 L44-53), and at site 2 (T178 L50-58), and pellets at site 2 were both "surrounded or in the midst" of it (T179 L3-5). The algae was "generally … attached to a rock or a group of rocks" (T199 L45-6) and "there appeared to be the same amount … at site 2 as there was at the other sites" (T200 L19-28). Adair testified that the water in the sample jars was "… clear water" and that "the samples were taken very carefully; there wasn't algae or detritus or anything going into those samples" (T200 L41-44).

In this context, Coade testified (T257 L52-58): The filamentous green algae would probably only appear in the total Phos if it got into the sample bottle. From my observations … filamentous algae was fairly well attached. You'd have to be pretty uncareful … to dislodge it and get it into your container.

Overall, I found Coade's evidence to be frank, open, and fair to the defence.

The defendant relied on the evidence of Soil Scientist and Environmental Engineer, Robert Patterson (CV in Exhibit D3). Patterson prepared an expert report, following site visits on 24 February 2000 and 14 March 2000, and revised it after hearing the oral testimony of the prosecutor's witnesses (Exhibit D2).

Patterson operated at the distinct disadvantage that his field observations and sampling work (including various types of "pellets") came 12 months after that of the EPA, as he was retained only after the summonses were issued. It was during his site visit on 24 February 2000 that he collected the samples which he put in the three Petrie dishes which were not "supplied" by Mrs Gilmour.

In cross-examination he conceded several quite important errors in his report, and that Coade had more experience, but not better qualifications, to give evidence about environmental assessment of rivers and streams (T322ff c.f. T325 L5-8).

Patterson's report and oral evidence went into a lot of detail as to the range of usual environmental inputs to the Gwydir River upstream of site 2, which could influence the test results at that point (see sections 3 and 4 of Exhibit D2, at pp 2-7). His conclusions were as follows (s 9 at pp 14-15): After examination of the affidavits from the EPA officers and their senior environmental scientist, and obtaining a wider range of data available for the Yarrowyck area, it is erroneous to conclude that the undisclosed number of pellets entering an unknown volume of water caused a change in nitrogen and phosphorus levels when no other effect was considered.

I further conclude that: a. the levels of P in any river system are highly variable depending upon numerous environmental, agricultural and urban activities, the Gwydir River at this point is susceptible to numerous upstream and in-stream inputs. Without a thorough understanding of the sinks and pathways for phosphorus mineralisation and demineralisation, fluxes cannot be determined. b. it is impossible to show causal links to 'some pellets' in the river to the changes alleged to have occurred when no other assessment of likely factors has even been measured or observed, and no prior assessment of the river is reported. c. the sampling techniques used by the two EPA officers failed to meet the sampling protocols set out in the Field Manual (EPA, 1996) or the AS/NZS 5667 and could not represent an accurate assessment of water quality in a particular pool at any point of time. This poor understanding of sampling technique is further compounded by the lack of statistical analysis on the samples. d. the sample preservation for the analyte determinations was not performed and the determinations were performed after the maximum holding periods had expired rendering the results uncontrolled, which must caste doubt on the validity of the sample results. e. that after examining the stream flow records from DLWC, it is evident that a small flush had just passed through the system. Increased levels of P would occur in the wake of that flush as organic material transported into the deeper pools biodegraded, releasing nutrient into the water. Increasing temperature (and nutrients) at that time of year is problematic with increases in algae. f. that the levels of P being discussed are at the noise end of analytical techniques and over 40 times lower than the most recent NATA proficiency testing program. g. in comparison with expected and allowed levels of P into river systems, the change from 28 to 61 ug L-1 of TP is irrelevant even compared to the load based licence fee limit of 300 ug L-1 and typical sewage discharges of 5000-7000 ug P/L. h. that the EPA officers in walking through the water to cross to the opposite side of the river and to take water samples may have disturbed bottom sediments with a greater potential to cause increases in water column phosphorus than from the pellets. i. that the assumptions on which the EPA officers based their water sampling techniques and interpretation of the laboratory data are seriously flawed and the conclusions they draw have no sound scientific basis.

Patterson gave quite cogent evidence of the importance and scientific value of compliance with the guidelines in the EPA Testing Manual (Exhibit P17), especially in regard to filtering and freezing (T312ff), and opined that even Davidson's regular swimming at site 2, and the EPA officers' crossing of the river on 17 February 1999, before taking samples, could impact on the test results (T316 L57-T317 L13, and T328).

He also had the practical advantage of having used Hi Fert products on his own property, and he gave relevant evidence of that experience (T348): The sulphur coating "prevents it wetting up too rapidly and it really relies upon decay by bacteria and so forth" (L45-8), and he has seen it sitting on the ground eight months after spreading, despite rainfall (L48-54), even though he conceded that some of the phosphorus inside the "pellets" would have leached out (L56-T349 L3).

He opined that when the pellets enter river waters and fall to the riverbed, the sulphur is captured by the sediments, etc. which, in turn, prevents the phosphorus escaping (T349 L40-55). Accordingly, he strongly rejected Mr Howard's suggestion that the "spike of phosphorus at site 2 would be consistent with those pellets being in the water" (T350 L47-58).

He conceded that the "egg sacs" in some of his Petrie dishes were "light", could be "flattened" using only fingers, floated on water, and did not feel similar to the pellets of Hi Fert products (T374).

The court acknowledges Mr Patterson's expertise, especially in land-application of waste water, and his relevant experience, but notes the damage done to his theses, and to their objectivity, during vigorous cross-examination. He remained firm in his evidence that the "spike" in the phosphorus results for site 2 can be attributed to a number of possible causes, and that those other than fertiliser pellets were not properly excluded by investigation.

On balance, the court prefers the testimony of Mr Coade.

Coade links the immersion of Hi Fert pellets in water to the release of phosphorus, and the analysis of the sampled pellets to the analysis of the Hi Fert products, and also to at least some of the increase in the concentration of phosphorus in the Gwydir River, at a point between the properties of Davidson and Peirce, shortly after they were seen to be dropping from the plane.

An increase in phosphorus levels is a change in the chemical condition of the water, as required by the definition of "pollute" in the CW Act s 5 - par (a). At least some of the increase was caused by the dropping of Hi Fert pellets from the aircraft on 17 February 1999, so the court concludes that an act of pollution occurred in consequence of the aerial fertiliser operation on "Myanbah" on that date.

The major alternative likely source of elevated phosphorus levels in the water is cow manure. The EPA officers saw no cow manure in or next to the river on 17 February. Greenhalgh conceded that he could have missed some cattle at site 5 in the failing light, but no cattle or dung was seen, even though it is conceded that cattle have been observed in paddocks near site 5.

I do not think that a plane is a "vessel", so the requirements of Reg 2(2) for the CW Act definition of "premises" or "pollute" [par (c)] are not met by the evidence, even though fertiliser products are "inorganic matter", under cl 2(2)(b)(iii) of the CW Regulations [see EPA v Taylor Woodrow (1997) 101 LGERA 226 (Lloyd J at 239)], and are probably also "chemicals or poisonous substances of any description" under s2(2)(b)(viii).

The court concludes that the pellets dropped from the aeroplane VH-CCH, which found their way into the Gwydir River on 17 February 1999, added to the concentration of phosphorus in the river at and near their point of entry. Even if somehow the riverbed sediments adsorb the phosphorus released from the pellets, the pollution test in the CW Act is satisfied.

Having found that an act of pollution occurred, the court must now address the evidence implicating the two defendants in that act.

In the case of the defendant company, the admissions made in the s 193 notice (see Exhibit P11, and par 46 above), coupled with the eyewitness identification of its aircraft by Davidson leads to a conclusion that the offence charged against the company has been proved, the company being in control of the "Myanbah" operation, and vicariously responsible for the acts of its employees in the course of, and within the scope of, their employment. EPA v Multiplex [2000] NSWLEC 6 (Lloyd J at pars 234-263).

Those admissions by the company being not admissible against the defendant Gilmour, and the court having found that he had a case to answer - see judgment No.4 [2001] NSWLEC 122 - the court must now address the issue as to whether it has been proven beyond reasonable doubt that the defendant Gilmour was indeed the pilot of the plane at or about 10-10.30am on Wednesday 17 February 1999.

In this respect, Mr Howard submits that the only rational hypothesis regarding the relevant events is that consistent with coming to the conclusion that the defendant Gilmour was, indeed, the pilot.

There is no direct evidence that Gilmour was flying the plane on Wednesday morning 17 February 1999, but the evidence against him discloses the following: 1. The defendant company operated two aircraft at the relevant time (VH-CCH and WH-ELK) (T233 L56-8), but employed/contracted only one pilot (T235 L46-52 and T236 L42-45). VH-CCH was usually parked at Armidale airfield (T237 L54-57). 2. The defendant Gilmour was known to Peirce, and was the only person in the defendant company with whom Peirce dealt, specifically, in regard to the company's application to Peirce's land of the fertiliser supplied to the " Myanbah " airstrip by Croft. 3. Peirce attended the airstrip on the morning of Monday 15 February, and there saw Gilmour and another unidentified male person. Peirce accompanied Gilmour on a short flight on VH-CCH over the property, to establish the boundaries of the area to be fertilised, and saw Gilmour pilot the plane. No other person was in the plane at the time. 4. At various times on and between 15 and 17 February 1999, an aircraft was heard and/or seen flying east and west across " Myanbah ", and on 17 February, during such flights, the defendant company's plane (VH-CCH) was seen to turn over Davidson's house to fly back across Peirce's land. Davidson saw what looked like a human head in the plane at the time, but not the pilot's face. 5. At some time on 17 February 1999, planes were no longer seen or heard in the vicinity. 6. In the evening of 17 February 1999, the defendant Gilmour came to Peirce's house by car, and collected from him a substantial cheque, in payment for the work the defendant company had contracted to do for Peirce on a commercial basis. 7. Mrs Gilmour testified: (a) that she saw her husband leave home, presumably to go to work, on the morning of 17 February 1999 (T236 L16), (b) that she " can only presume that Glenn " did the " Myanbah" job (T236 L14), (c) that she did not actually see who did the job (T236 L2), nor did she see the plane, nor who flew it, on 15, 16 or 17 February (T238 L47-55). The company's statement in response to the EPA's notice under s 193 was not based on Mrs Gilmour's " observation or actual knowledge" (T239 L4-15), (d) that the plane could have been flown on 17 February by others, including student pilots or a licensed pilot needing to get " hours " (T237 L10-50), but student pilots are not permitted to carry out commercial activity on aircraft (T239 L39-47). Mrs Gilmour was not asked about other employees of the defendant company, nor about the third man at the airstrip on 15 February, (e) that she prepared an invoice on 18 February 1999, stating that the spreading of fertiliser on " Myanbah " was completed on 17 February 1999 (see T234 L46 and T239 L22-30).

The court, as tribunal of fact, could properly conclude on the basis of this evidence that the defendant Gilmour flew the plane at the time of the alleged offence. The question is whether it should do so.

This is a summary trial. Section 20 of the Evidence Act precludes a prosecutor, in a criminal proceeding for an indictable offence, from making any comment upon the failure of a defendant to give evidence.

Mr Howard believes that the evidence summarised above (and in pars 8 to 20 of his submissions of 4 January 2001, in my judgment No.4 of 30 January [2000] NSWLEC 122, and in par 51 of his submissions of 31 January 2001) is sufficient to convince the court to conclude, beyond any reasonable doubt, that the defendant flew the plane at the relevant time. He also submits that, in the absence of evidence from the defendant Gilmour of relevant facts within his personal knowledge, that could cast doubt on that conclusion, the necessary conclusion should be drawn, as the alternative hypothesis, consistent with innocence, is not rational or reasonable. Shepherd v The Queen (1990) 170 CLR 573.

The High Court has considered s 20 of the Evidence Act, and the general issue of the accused's not giving evidence at trial, on several occasions over recent years. Weissensteiner v The Queen (1993) 178 CLR 217 was decided before the enactment of s 20, and the impact of the section on the principles in Weissensteiner was not considered in RPS v The Queen (2000) 199 CLR 620. However, the issue arose again recently in Azzopardi v The Queen [2001] HCA 25.

Azzopardi decided that s 20 "requires some modification of the language used in the remarks approved in Weissensteiner" (see majority judgment at par 32). The majority summarised the "fundamental proposition" thus (par 34), not distinguishing between summary and indictable matters: The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding.

The majority in Azzopardi (pars 61 to 68) also noted that: What was important in Weissensteiner , and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that were sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial. … Another important matter to be noted with respect to Weissensteiner is that, as mentioned above, that case was decided in a context in which there was no prohibition on judicial comment with respect to an accused's failure to give evidence. That is not the case with s 20(2) of the Evidence Act. That sub-section enables comment to be made but it contains a prohibition against suggesting that the accused failed to give evidence because he or she is, or believes that he or she is, guilty of the offence charged.

There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. … It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteine r, the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS , there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case.

The conclusion I draw from the majority decision in Azzopardi is that it is permissible for a trial judge, as the tribunal of fact in a criminal proceeding heard summarily, to attach weight to an accused's failure to give evidence, in the "rare and exceptional" circumstances where "the evidence is capable of explanation by disclosure of additional facts known only to the accused".

This is not such a case. As Mr Baird pointed out in his submissions, the EPA had other avenues of inquiry it could pursue to either prove or discount relevant hypotheses as to the identity of the pilot at the time.

Accordingly, I attach no weight to Mr Gilmour's failure to give evidence.

However, the evidence, as it stands, leads me to find, beyond reasonable doubt, that the defendant Gilmour was flying the relevant plane (VH-CCH) at the time (approximately 10-10.30am on Wednesday 17 February 1999) when it discharged to the ground, on both sides of the Gwydir River, and to the surface of the river itself, "matter" which I have already found caused pollution of the waters of that river.

I find the offences charged against both defendants to have been proven beyond reasonable doubt.

As requested by counsel, I publish these reasons and findings for the consideration of the parties.

I stand the two matters over to the Registrar's callover on Friday 20 July 2001 for the giving of directions regarding their further disposition.

The exhibits should remain with the court file, subject to the parties having liberty to approach the Registrar on three days' notice for any of them to be released, by mutual agreement, pending the conclusion of both matters.

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.