Gilmour v EPA; Tableland Topdressing v EPA

4 It should be noted that the relevant offences arise under sub-s (1) of s8B involved a maximum penalty for a company of $125,000 and a maximum penalty for an individual of $60,000 with further provision for continuing offences. 5 On 24 September 2001 each of the Appellants was fined $6,000 and ordered to pay the costs of the Prosecutor determined by agreement, or if no such agreement could be reached, in accordance with the Regulations. 6 The place where the alleged pollution occurred is near Yarrowyck in the waters of the Gwydir River. The Prosecutor alleged that, in the period Monday 15 February 1999 to Wednesday 17 February 1999, the Defendant Mr Gilmour, on behalf of the Defendant Company, applied fertiliser from a light plane, registered call sign VH-CCH, to the paddocks of their 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 s16(1) of the Clean Waters Act 1970. Both Appellants, as defendants, entered pleas of not guilty on 26 April 2000. 7 There was no contest about the Appellant company's ownership of the relevant plane. Nor was there any contest that the Appellants Mr 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, and both were employed by it, with the Defendant Mr Gilmour employed as the pilot. 8 "Myanbah" is a grazing property of some 5,000 acres, west of the Gwydir River, owned since 1980 by Mr John Pierce. 9 Between the fence and the eastern boundary of "Myanbah" and the river itself is a vegetated strip of land, approximately 100 metres wide, known as a "flood run". On the eastern side of the river is a property known as "Dwindlestone", owned, for the last sixteen years, and occupied by the last twelve years, by EPA Officer Riki Davidson. Ms 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 Ms Davidson's land, one property away, is another rural property, owned by Norman Austin of Toowoomba, since October 1988. 10 Each of Austin, Pierce and Davidson gave evidence at the hearing.

The relevant statutory provisions start with s16(1) which provides that "A person shall not pollute any waters".

Section 16(2) is a 'deeming' provision in the following terms: "(2) 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)] 11 The prosecutor also relies on the following relevant definitions in s5 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 of 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. 12 The prosecutor also relies on the following provisions of the Clean Waters Regulation 1972: "2(2) 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; …" 13 The factual circumstances concerning the fertiliser spreading operation is set out in the fifth judgment of Sheahan J. So too is the evidence as viewed by the Trial Judge regarding the various "Appellants" as also the Trial Judge's assessment of the expert scientific evidence and his conclusions as to the question of pollution and the cases against the two defendants; see judgment of 15 June 2001, para 17 and following. For the purposes of the present appeal it is not necessary to deal with this evidence in extenso save as is material to the appeal grounds. It is to those I now turn.

GROUNDS OF APPEAL AND SCOPE 14 The Grounds of Appeal are set out below (ground 2 has since been abandoned): GROUNDS OF APPEAL ON CONVICTION 1. The learned Trial Judge erred in admitting and relying on the evidence of Mrs Bridget Gilmour. 2. The learned Trial Judge erred in relying on the evidence of Mr Pierce. [abandoned on appeal]. 3. The learned Trial Judge erred by not excluding the results of the testing by the Environment Protection Authority. 4. The learned Trial Judge erred in interpreting the provisions of the Clean Waters Regulation 1972. 5. The learned Trial Judge erred in failing to provide reasons for dismissing the reasonable hypothesis advanced by the defendant. 6. That the verdict is unsafe or unsatisfactory. GROUNDS OF APPEAL ON SENTENCE 7. The learned Trial Judge erred in holding that 700 grams of phosphorus had entered the river which was against the weight of the evidence. 8. The learned Trial Judge erred in holding that the defendant should have exercised more care which was against the evidence before the Court. 9. The learned Trial Judge erred in holding that the offence was at the maximum end of the lowest end of the range of penalties. 10. The learned Trial Judge erred in imposing a fine that was not in keeping with the notion of parity between this defendant and the co-defendant Tableland Topdressing Pty Limited.

15 The appeal lies by the combined operation of ss5AA and 5AB of the Criminal Appeal Act 1912 (NSW) ("the Act"). Prior to those amendments made by the Courts Legislation Amendment Act 2000 (NSW) such an appeal was by way of re-hearing on the evidence before the trial court, subject to fresh, additional or substituted evidence by leave: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. The amendments omitted sub-ss(3) and (3A) of s5AA of the Criminal Appeal Act, which had provided for an appeal of that nature. In the light of the observations of the court in Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, which clearly enough brought about the amendment. It was intended that an appeal under s5AA become an appeal of the same nature as that for which s5 of the Criminal Appeal Act provides, described in Histollo Pty Ltd v Director General of National Parks and Wildlife Service as an appeal "in the strict sense"; see Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 306 per Giles JA. 16 It is convenient that I deal at the outset with a threshold question. It is whether, under these amended appeal provisions, the Court may dismiss an appeal, despite an error at trial having been established, on the basis that no substantial miscarriage of justice has actually occurred. That would parallel the effect of the express proviso to that effect which still appears in the immediately following s6(1) of the Criminal Appeal Act; s6(1) pre-dates the Courts Legislation Amendment Act 2000 (NSW) and the amendments introduced thereby. The latter applies to a person exercising a right of appeal under s5(1) of that Act, who has been convicted on indictment. That is to be compared to a s5AA appeal, which arises in criminal cases dealt with by the Supreme Court in its summary jurisdiction. 17 I therefore set out first s5AA, omitting the repealed sub-ss (3) and (3A) and then to be compared, s6(1) of that Act. " 5AA. Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction (1) A person: (a) convicted of an offence, or (b) against whom an order to pay any costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. (2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. (3), (3A) (Repealed) (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. (5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1). (6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody." " 6. Determination of appeals in ordinary cases (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 18 The question arises because there is no equivalent to the express proviso in s6(1), to be found in s5AA(4). However, the question whether the proviso applied to appeals under s5AA and s5AB did not arise, while the appeals were by way of hearings. It is only now a live question, given the conversion of those appeals from re-hearings into strict appeals, by the amendments made pursuant to the Courts Legislation Amendment Act in 2000. 19 I have already referred to Cabonne Shire Council v Environment Protection Authority as dealing with these sections, to which should be added Thornloe v Filipowski (2001) 52 NSWLR 60 at 63 per Spigelman CJ. Each of those decisions confirmed that appeals of this nature are now appeals "in the strict sense". This means that error must be demonstrated as a threshold point. Neither decision considers the question of whether the proviso in s6(1) is to be read into s5AA(4). This was understandable given that the first case, Cabonne, was purely an appeal on sentence and the other (Thornloe) was an appeal as to the exercise of discretion under s10 of the Crimes Sentencing (Procedure) Act 1999 (NSW). 20 Clearly enough, s5AA(4), in confining appeals to appeals in the strict sense, distinct from a full re-hearing, conferred a discretion on the Court of Criminal Appeal, by use of the word "may". That discretion was either to confirm the determination made by the Supreme Court in its summary jurisdiction or, to "order that the determination made by the Supreme Court in its summary jurisdiction be vacated". In doing the latter, the Supreme Court may "make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal". 21 The discretion is thus stated at large. It omits the express proviso in the earlier unaltered s6(1) for determination of appeals in what are described as "ordinary cases", that is on indictment. It is only that omission which gives rise to the argument that the maxim expressio unius applies. That is to say, the express inclusion of the proviso in s6(1) read with the subsequently amended s5AA(4) which could have, but did not, incorporate a similar such proviso, leads to the result that the appeal in summary cases does not confer any discretion to dismiss the appeal where, though appealable error has occurred, no substantial miscarriage of justice has actually occurred. 22 Such an interpretation is difficult to reconcile with the reasoning of the High Court in R v Conway (2002) 186 ALR 328. There, the High Court was dealing with s28(1)(f) of the Federal Court of Australia Act 1976 (Cth). It permits the Federal Court to grant a new trial "on any ground upon which it is appropriate to grant a new trial", though there is no equivalent to the contiguous s6AA. It likewise omits an express proviso whereby the court may dismiss an appeal on the basis that no substantial miscarriage of justice has actually occurred. The majority of the High Court (Gaudron ACJ, McHugh, Hayne and Callinan JJ, with Kirby J reaching the same outcome but by different reasoning) found that the combination of the word "appropriate", with the long-established common law, meant that s28(1)(f) incorporated the effect of such a proviso by inference. 23 The Respondent did not press paras 10 and 11 of its written submissions but instead pressed only that in para 12. I quote those written submissions below: "10. Nevertheless, application of the majority decision in Conway would permit, if not require, the Court to rely heavily on the history and purpose of the proviso in construing s5AA(4). If the construction of s5AA(4) is approached in that manner, it would be open to infer the operation of the proviso within the broad powers of the Court under s5AA(4). In particular, the power of the Court under 5AA(4) ' to confirm the determination made by the trial [trial court]" is not restricted to circumstances where no error has been established, so it could be read as incorporating the proviso. In other words, even if error is established, the Court may in any event confirm the determination made by the trial court to convict. 11. In light of Conway , a finding that the proviso operates within s5AA(4) would pay due regard to the fact that the amendments made by the Courts Legislation Amendment Act 2000 were in response to the recommendations of the Court.8 The operation of the proviso for appeals against convictions for indictable offences, but not for appeals against conviction for summary offences, would be the kind of anomaly which the Court identified in Histollo in recommending the amendments.9 12. If the Court is not satisfied that the proviso applies to appeals under ss5AA and 5AB of the Criminal Appeal Act , it is nevertheless open to the Court to exercise its power to dismiss the appeal and confirm the determination made by the Land and Environment Court (sub-s5AA(4)) on the ground that his Honour's error could not, on any reasonable hypothesis, have influenced the result ( Conway v The Queen (2002) 186 ALR 328 per Kirby J at [76] and [80])." 8 Histollo Pty Ltd v National Parks & Wildlife Service (1998) 45 NSWLR 661; Willtara Constructions Pty Ltd v John Clyde Owen [1999] NSWCCAA 390 9 Histollo (1999) 103 LGERA 355 per Greg James J @ 368 24 The distinction between the reasoning of Gaudron ACJ, McHugh, Hayne and Callinan JJ on the one hand and Kirby J on the other, is that while each have resort to the long-established common law rule reflected in the earlier-mentioned proviso, Kirby J eschewed the implication of any proviso. Rather, his reasoning is based upon the proposition that, "any dismissal of the appeal in the face of a misdirection at trial is controlled by the general rule that a court may dismiss an appeal if the error could not, on any reasonable hypothesis, have influenced the result"; see para [80] at 349, citing Stokes v R (1960) 105 CLR 279 at 284-5. 25 The reasoning of Gaudron ACJ, McHugh, Hayne and Callinan JJ is rather derived from giving content to what is an "appropriate" ground for granting a new trial by reference to the same long-established principle of the common law; see para [5] to [6] at 330 in particular, as well as the historical exegesis which follows. 26 Thus the supposed contrast between this approach and that of Kirby J is less sharp than first appears. Both reach the same conclusion by resort to the same common law rule, the larger majority treating that as a basis for construing the statute, whilst Kirby J treats the statute as still permitting recourse to the common law rule. 27 I do not consider that the express inclusion of the proviso in s6(1) of the Act should lead to a different result. Section 6(1), and s5AA in its current form, were clearly enacted at different times. The draftsman of s5AA(4) was content to confer a discretion upon the Court of Appeal whose content can be derived from the same common law rule as has long been an essential part of the common law in relation to appeals. It is a rule that, as Kirby J put it, "an appellate court would not exercise its powers to set aside a valid judgment (criminal or civil) for immaterial, irrelevant or insubstantial reasons", these being exemplified by error where "no substantial miscarriage of justice has actually occurred"; para [76] at 348.

CONCLUSION 28 The Court of Criminal Appeal, in these appeal proceedings from a determination made by the Supreme Court in its summary jurisdiction, may dismiss an appeal, despite an appealable error at trial having been established, on being satisfied that no substantial miscarriage of justice has actually occurred.

Ground 1 - The learned Trial Judge erred in admitting and relying on the evidence of Mrs Bridget Gilmour. 29 Various bases were advanced by the Appellants for appealable error having occurred in admitting and relying on the evidence of Mrs Gilmour. To put those arguments in perspective, it is necessary to explain how her evidence was received and the nature of that evidence. It will be recalled that Mrs Gilmour was the spouse of the Defendant, Mr Gilmour, and one of the two directors of the corporate Defendant, Tableland Topdressing Pty Limited, the other director being the Defendant Mr Gilmour. Mr and Mrs Gilmour owned the shares in Tableland Topdressing Pty Limited equally. 30 On day 3 of the trial (21 December 2000), the Prosecutor made an application in the proceedings against Mr Gilmour to call Mrs Gilmour as a witness, having earlier required her to attend by subpoena dated 17 December 2000. This was to give evidence as to the identity of the pilot of the aircraft which carried out the aerial fertilising. Counsel for Mr Gilmour and the company, opposed the application. The Trial Judge took it that "Mrs Gilmour is reluctant to comply"; see para [10] of the judgment handed down in relation to that application by the Prosecutor dated 22 December 2000. 31 That judgment records the sequence of events. These include, relevantly, that in late June 2000 Bignold J in Environmental Protection Authority v Gilmore & Another (2000) 109 LGERA 228 had earlier extended the time, which had been set for further prosecution evidence to be filed, to 5 June 2000. Six additional affidavits were, as a result, accepted by the court. The hearing dates were subsequently vacated. On 3 October, 2000, 14 to 15 December 2000 were fixed for the trial (which subsequently took nine days). Thus the application was made on the fourth hearing day, still in the Prosecutor's case, where earlier prosecution witnesses had given their evidence but the Defendants had still to give their evidence. 32 On 8 December 2000 the Trial Judge as Duty Judge, records that he dealt with a dispute between the Prosecutor and the Defendant company regarding compliance with the subpoena issued by the Prosecutor. This was for the production of documents upon which the Prosecutor hoped to rely to prove that Mr Gilmour was flying the plane over the relevant property. He records that Mrs Gilmour gave evidence on behalf of the company on that occasion, to the effect that the relevant civil aviation regulations did not result in the relevant documents being available to the company for production. 33 Significantly, according to the Appellants, the judge states that the Prosecutor has now applied, under s18 of the Evidence Act 1995, to call Mrs Gilmour as witness in the case against her husband"; see para [9] of the judgment AB, 488. Section 18 is in the following terms: " 18. Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.

(2) A person who, when required to give evidence, is the spouse, de facto spouse, parent or child of a defendant may object to being required: (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution.

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given.

(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) ….. " 34 The Trial Judge stated his reasons for acceding to the Prosecutor's application. This was in terms which indicated that he was necessarily dealing with both the Prosecutor's application for leave to adduce further evidence by calling Mrs Gilmour as a witness and, of necessity, the subpoena that initiated that process. He did so, according to the Appellants, erroneously, in wrongly invoking s18 of the Evidence Act. Reliance is placed by the Appellant on the quoted passage from the judgment below, as betraying appealable error. "11. These are serious proceedings and are so regarded by both sides, the general community, and the court. They are matters of substantial public importance. 12. The defendants have undeniable rights, and are exercising them, in their current situation, but so does the prosecution. 13. Bignold J makes that point in par 37 of his judgment, to which Mr Baird draws attention. 14. The issue at the core of the prosecutor's application is, as Mr Howard says (in par 16 of his written submissions), ' important, indeed … critical'. Mrs Gilmour's evidence would carry considerable weight, not least because no ' other evidence is reasonably available to the Prosecution in this issue ', even though there are relevant admissions in the company's case, which are not admissible against Mr Gilmour. 15. Not only that, but another witness, expected to identify Gilmour as the pilot at the relevant time, failed to give the evidence expected of him when he testified on 15 December. Indeed he swore to the presence, at the airport, on at least one day of the operation, of another person. 16. The business relationship, and the personal relationship, between Mr & Mrs Gilmour are involved here, but the information sought by the prosecutor is correctly described by Mr Howard (par 24 of his written submissions) as ' routine ', in the operations of a company engaged in the rural aviation industry. 17. The relevant provisions of s18 appear to me, therefore, to be satisfied on the evidence before me. 18. It is regrettable that such situations arise while trials are running, despite the best efforts of the Rules, and of the court, to ensure that defendants in class 5 proceedings are fully apprised of the evidence to be led against them. 19. This is a most unusual situation, given the events of 8 and 15 December, and the court simply has to deal with it as it has arisen, regardless of the defence's cry that the prosecutor should have been more thorough in its investigation and preparation. 20. I have, accordingly, decided to accede to the prosecutor's application for leave to adduce further evidence by calling Mrs Gilmour as a witness in the prosecution case. I am fortified in that conclusion by the Court of Criminal Appeal's decision in R v Glasby [2000] NSWCCA 83." 35 Before I deal with the judgment in the context of this appeal ground, I should note that on taking the stand, and having had explained by the Court the questions of compellability, Mrs Gilmour agreed to give the evidence and not claim any right to be silent. She thus did not herself invoke s18 of the Evidence Act. 36 The Appellants' objection to receiving the evidence of Mrs Gilmour was on a number of different bases relied upon both individually and it can be assumed, collectively. These I shall attempt to summarise below: (a) the correct procedure was departed from in that the court should first have determined whether the Prosecutor should have been allowed to call on the subpoena and only then to consider whether Mrs Gilmour was a compellable witness under s18 of the Evidence Act ; (b) the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act 1995 (NSW), on the basis that its prejudicial value outweighed its probative value; and (c) the Trial Judge wrongly invoked s18 of the Evidence Act as the basis for the Prosecutor's application and wrongly dealt with it in his judgment of 22 December 2000. 37 One important matter should be stated at the outset. While clearly enough the Appellants objected to the Prosecutor being allowed to call on the subpoena, thereby to obtain the evidence of Mrs Gilmour, the Appellants did not seek an adjournment when that application was refused nor indeed beforehand. 38 Self-evidently, had the Appellants' prejudice consisted of the need to assess the late evidence of Mrs Gilmour and there were a genuine need for further time to do so in relation to the preparation of the defence case, such an application could and should have been made at the time and may have had some prospects of success. 39 Moreover, it could not be said that the evidence of Mrs Gilmour was likely to have occasioned surprise to the defence. This is because, though the admission of Tableland Topdressing Pty Limited could not be used against its director Mr Gilmour, it would be artificial in the extreme not to recognise, but so far only as surprise is concerned, that Mrs Gilmour on its behalf admitted that Mr Gilmour was the person who piloted the aeroplane. 40 The Appellants pressed upon the Court in the appeal that nonetheless the defence case has been prepared on a particular premise or theory, namely that the evidence for Mr Gilmour being the pilot was very weak. Hence evidence came at a late point after the trial had commenced and at a time when the defence had cross-examined Prosecution witnesses on the basis of that premise and in reliance upon there being no further scope for witness evidence. The Appellants pressed that the prejudice in consequence was sufficiently serious as to cause not only the Trial Judge's discretion to miscarry but for that miscarriage to come within the limited range of circumstances as permit appellate review. 41 However, to succeed in challenging what was a discretionary determination in the course of trial on a matter of procedure and evidence, the Appellants must invoke the limited scope for appellate intervention, by demonstrating that the Trial Judge acted on an incorrect principle, gave weight to extraneous or irrelevant matters or gave no weight or insufficient weight to relevant considerations, accepting that where the nature of the error is not manifest or otherwise discoverable, the result may itself show that the mistake occurred, as where the appellant court may infer an error from an obviously unjust decision; see for example, Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627. 42 Here, it must be emphasised, the decision of the Trial Judge was an interlocutory one where appellate courts do not readily review such decisions; see generally House v the King (1936) 55 CLR 499. 43 The Appellants nonetheless contend that here a matter of general principle is involved. That Mr Gilmour, as an Appellant, would suffer an injustice if the original decision were allowed to stand so far as the admission of Mrs Gilmour's evidence is concerned and the manner in which it was admitted. 44 The question of injustice or unfair prejudice is substantially answered by the failure of the defence at trial to seek an adjournment. It is further answered, insofar as unfair prejudice is concerned by the fact that, first, the defence witnesses had not yet been called. Second, it was not demonstrated in argument before this Court that the particular assumption upon which the defence had been prepared was such that the very structure and form of cross-examination were critically affected. This is more especially where no attack had been made on the credibility of the witnesses for the prosecution. To the extent that further questions could have been directed, the defence chose not to seek to have prosecution witnesses recalled. Indeed in argument, the Appellants conceded that really the only consequence of admitting the late evidence was that it called for some tactical shift by the defence, though even that could have been accommodated had the defence sought an adjournment and the opportunity to further cross-examine prosecution witnesses, neither of which it did. 45 As to the first of the summarised grounds, the premature invocation of s18 before calling on the subpoena, clearly enough the Trial Judge in his judgment of 22 December 2000 did determine whether the Prosecutor should have been allowed to call on the subpoena. He did so, in considering whether Mrs Gilmour should have been permitted to be called at all. That is apparent from para 19 of the judgment of 22 December 2000, read in its earlier context. 46 As to whether the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act, the short answer is this. Even if otherwise it were the case that its probative value in retrospect was outweighed by the danger of unfair prejudice to the defendant, the onus to have that evidence so excluded lay on the defence, who simply did not invoke s137 at trial. Clearly the onus to have such evidence excluded lies on the defence. Self-evidently this is because it is only the defence that can point to the danger of unfair prejudice, to be weighed against any probative value. 47 In any event, in circumstances where Mrs Gilmour, though reluctant to give evidence, did not chose to invoke s18 of the Evidence Act, it is difficult to see how such a contention can tenably now be made. An examination of her evidence, moreover, does not support that contention insofar as unfair prejudice is concerned. 48 In relation to the Trial Judge's treatment of s18, there was indeed some confusion, though not such as to amount to any miscarriage of justice. The Prosecutor was said to have applied under s18 of the Evidence Act 1995 to call Mrs Gilmour as a witness in the case against her husband. That appears at para 9 of the judgment. However, the section is not invoked by the Prosecution but can only be invoked by the spouse. 49 Later in the judgment, the Trial Judge notes that Mrs Gilmour is "reluctant to comply". In that context, if it were fairly said that she had in so demonstrating reluctance, objected to being required to give evidence even if not in terms of s18, then judicial consideration of s18 was required. Clearly enough the Trial Judge was not convinced by any matters before him that s18 could have been successfully invoked. I find no appealable error in that conclusion nor in the exercise of interlocutory discretion that underlay it. 50 Incidentally, in relation to para 40 of the Appellants' written submissions, it is not correct to say that "even if the court was correct in admitting the evidence, the evidence of Mrs Gilmour can only go to establishing the fact that Mr Gilmour left for work on the days in question". First, she did give evidence that student pilots are not permitted to carry out commercial activity on aircraft. Second, she chose not to put any matter in opposition to the proposition that Mr Gilmour was the pilot, indicating that "presumably" he was. 51 Finally, it is apparent that the Trial Judge was alive to the issue of the need for timely re-application to call Mrs Gilmour when the submissions were made. That is apparent in the initial exchange between bench and counsel for the defendants [AB, 160.39-.54] and as can be gleaned from the Trial Judge's attempt to encapsulate the defendant's submission [AB, 229.26-.29].

Ground 2 - The learned Trial Judge erred in relying on the evidence of Mr Pierce. 53 This ground was not pressed.

Ground 3 - The learned Trial Judge erred by not excluding the results of the testing by the Environment Protection Authority. 54 Here the Appellants' argument starts with what it describes in its written submissions (para 52) as "the clear failure by the prosecution to follow the guidelines as set out by the EPA, and as admitted by Mr Coade [the Senior Environmental Scientist with the Environment Protection Authority's Coastal Catchments Unit] should have led to the exclusion of the testing results by the EPA." 55 In argument, the Appellants put the case on the basis of an "express and unambiguous policy to reject samples" to be found in the Field Manual; see AB, Vol.3, 141, particular at 145. Paragraph 2 under the heading "Scope" states: "This document describes procedures for the appropriate presentation of samples submitted to the EPA Laboratories. The procedures provide guidance on the selection of sample bottles, preservation, labelling, transportation and submission of the samples to the EPA Laboratories for chemical and/or microbiological analysis, including special requirements for Prosecution samples." [emphasis added]

The heading on the Field Manual is "Requirements for Samples Submitted to the EPA Laboratories". It, read with paragraph 2 supports the conclusion that this is stated policy but in the form of guidance. 56 However, the Trial Judge was clearly cognisant of deficiencies in the sampling, stating at para [45] of his judgment of 15 June 2001 the following: "45. 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)." 57 Moreover, importantly, in the same judgment dealing with liability, at [84], after earlier dealing with "the question of pollution" in the context of the relevant legislation and in particular para (c) of the definition of "pollute" in s5 of the Clean Waters Act 1970, it is clear that he concluded, not that a particular measured increase had occurred in the concentration of phosphorus in the river, but rather that there had been simply an addition to the concentration of phosphorus in the river. Thus para [84] of the judgment states: "The Court concludes that the pellets dropped from the aeroplane VH-CCH, which found their way in to the Gwydir River on 17 February 1999 added to the concentration of the phosphorus in the river at or near their point of entry. Even if somehow the riverbed sediments absorbed the phosphorous released from the pellets, the pollution test in the CW Act [ Clean Waters Act 1970] is satisfied." 58 It should be appreciated that para (c) of the definition of "pollute" in fact does not even require a change in the chemical or biological condition of the waters, in contrast to para (a) of that definition. It is simply concerned with the introduction of matter of a prescribed nature, into the relevant waters. Paragraph (c) reads, "to place in or on, or otherwise introduce into or onto, 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;" 59 Moreover, it should be noted that para (a) of the definition of "pollute" merely requires that the "physical, chemical or biological condition of the waters is changed" but does not lay down any minimum level of change. 60 In that context, the evidence of Mr Coade is therefore relevant. His report accompanies his affidavit of 30 December 1999 and was before the Trial Judge. His report does not purport to state the quantum of any increase in the concentration of phosphorus but simply concludes that, "there is a 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 is reduced three day's later (20 Feb) and almost disappeared nine day's 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." 61 He then deals in his report with the addition of algae that he observed. 62 The effect of Mr Coade's evidence that the relatively higher level "spike" of phosphorus measured in the sample taken from the section of the river where pellets had been deposited (site 2) as compared to the upstream and downstream sites, was consistent of the deposition and leaching of the fertiliser pellets having polluted the waters by changing the physical, chemical and biological condition of the waters. 63 Mr Coade was aware of the departures by the EPA officers from the sampling guideline both as to the samples not being frozen and as to the lack of filtration, as earlier identified (AB, 262.25-.30). These were identified in detail in his examination in chief. But he gave evidence to the effect that he nonetheless adhered to this opinion (AB, 263.42-.52) on the basis that the departures from the sampling protocols could not have affected the results to such degree as to raise doubt about the presence of the phosphorus "spike" at site 2. 64 Not only did Mr Coade in his evidence in chief expressly acknowledge and consider the departures by the EPA officers from the sampling protocols, but he was also thoroughly examined about his reliance on the sample results despite the departures from the sampling guidelines; AB, 269.39 - 275.57; AB, 282.6 - 285.44. 65 Mr Coade having provided the Trial Judge with the facts and reasoning process on which he justified adherence to his conclusions, regardless of the departures from the sampling protocols, it was open to the Trial Judge to accept Mr Coade's opinion. No attack was made on Mr Coade's opinion insofar as his being an expert or the opinion satisfying the requirements for an expert opinion; see Makita (Australia) Pty Ltd v Sprowles (2002) 52 NSWLR 705. The Trial Judge accepted Mr Coade as a reliable (indeed preferred) expert; see para [63] of the judgment of 15 June 2001 which follows a detailed consideration of the evidence relating to the quality control procedures in laboratory testing. 66 While the Appellants relied upon R v Olejarnik (1994) 33 NSWLR 567 at 573, the Respondent correctly submits that that case is not apposite here. In that case, the court held that a breath analysis certificate, which had been demanded outside a prescribed period of two hours, was inadmissible as to the blood alcohol level of the accused. This was, however, in the absence of expert (pharmacological) evidence to establish the blood alcohol level of the accused at the time of the event which gave rise to the requirement to submit for analysis. Here there is that expert evidence in relation to which the Trial Judge made a considered finding. Moreover it was a finding merely that there had been a change of condition of the waters. It was not one where the Trial Judge purported to measure the degree of that change, beyond placing an upper limit of the number of grams of phosphorus as "no more than 700 grams, the evidence would suggest"; see para [2] of the judgment of 24 September 2001 dealing with penalties. I shall revert to that judgment later in relation to the relevant appeal grounds.

Ground 4 - The learned Trial Judge erred in interpreting the provisions of the Clean Waters Regulation 1972. 68 This Ground can be shortly dealt with. It depends essentially upon the previous ground, namely that the EPA evidence was not admissible by reason of the sampling deficiencies, so that there could be no change in the condition of the water with the consequence that the Trial Judge's earlier quoted conclusion at para [84] had no basis. However, for the purpose of determining whether para (a) of s5 of the definition of "pollute" was satisfied, it was open to the Trial Judge to accept the evidence of Mr Coade and to reach the conclusion he did at para [84]. Indeed to the extent that that conclusion may be said to follow from para (c) of the definition of "pollute" in s5 of the Clean Waters Act 1970, a conclusion inherent in the finding made, then that finding discloses no appealable error either. The Respondent submits that the words "added to" in para [84] point to para (a) of the definition of "pollute" being invoked, and that is clearly the case. 69 Insofar as the judgment could be criticised as failing with sufficient particularity to make a finding or determination in relation to para (c) (see judgment [83]), that, as the Respondent points out, is an error favouring the defendant's interests. The result is that, to the extent error was thereby disclosed, no substantial miscarriage of justice has actually occurred.

Ground 5 - The learned Trial Judge erred in failing to provide reasons for dismissing the reasonable hypothesis advanced by the defendant. Ground 6 - The verdict is unsafe or unsatisfactory. 70 The Appellants dealt with these grounds together. As to the "reasonable hypothesis", it was that the unknown person near the plane on or about the day of the offence may have been the pilot of the aircraft". 71 Quite clearly the Trial Judge did deal with this issue; at [22] and [89] in particular para 7(d). He rejected that hypothesis with, albeit brief, reasons, in drawing the conclusion instead, a conclusion which the admittedly circumstantial evidence justified, that Mr Gilmour was flying the plane. I quote: "89. 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 s193 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)." 72 In so doing, the Trial Judge recognised the proper criminal standard to be applied was that the relevant finding be the only rational hypothesis regarding the relevant events, when that finding, as here, was based on circumstantial evidence. The Trial Judge gave no weight to Mr Gilmour's failure to offer any explanation. This was in accordance with the High Court's recent delineation for criminal cases of the relevant principles precluding such weight or any adverse comment to the jury save in the rare case where the accused declines to offer an explanation but where the evidence was capable of explanation by disclosure of additional facts known only to the accused; see Azzopardi v The Queen [2001] HCA 25 at [61] to [68]. He concludes that the exception did not apply, as there were other avenues of enquiry available to the Respondent; at [97] to [98]. The Trial Judge was entitled to find, as he did, without giving any weight to the absence of evidence from Mr Gilmour that Mr Gilmour was flying the relevant plane; there was no appealable error and the verdict was not unsafe and unsatisfactory.

Appeals Against Sentence 73 The Trial Judge did not accept the submission on behalf of the Appellants that "this particular offence, although of low seriousness, is 'trivial' enough to obtain, for either defendant, the benefit of s10." Clearly, therefore, the Trial Judge directed his mind to that question. At para [11] he states his reasons for that conclusion, "the aerial agricultural industry is important to both the economy, and the environment, and less than perfect attention to ensuring no environmental harm results from operations such as those in this case must attract a penalty of some sort. See the discussion in Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357." 74 The Trial Judge was clearly referring to the reasoning of Mahoney JA at 399 where indeed the company was fined $50,000, the size of the fine no doubt reflecting the greater quantum of pollutant as against the much lower fine of $6,000 here. But the observations made by Mahoney JA are directly applicable, quoted below: "In determining the fine appropriate to an offence of pollution, two things are to be borne in mind: the seriousness with which the community regards pollution of this kind; and the purposes sought to be achieved by the imposition of fines in cases such as these. The community has adopted a stern policy against pollution. The legislative scheme requires that proper, and strict, precautions be taken by those whose activities may cause proscribed pollution. The quantum of the fines which may be imposed evidences this: for the present offence, a maximum fine of $125,000 was available. The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur." 75 The conclusion reached by the Trial Judge was well open to him. While the amount of grams may have been as few as 10 grams as was argued before us, the Trial Judge clearly was concerned with the principles expressed by Mahoney JA, including the importance of deterrence. No doubt implications of "less than perfect attention" would have been present in the Trial Judge's mind, namely that in legislation of strict of liability, environmental harm results from the cumulative effect of breaches, though individually small. 76 Indeed as regards the Appeal Ground 8 in relation to Tableland Topdressing and 9 in relation to Mr Gilmour, namely that the Trial Judge erred in holding that the defendant should have exercised more care being "against the evidence before the court", that overlooks that the legislation does indeed in some of its strictures require "perfect attention to ensuring no environmental harm", as the Trial Judge points out. Thus the evidence of Mr Patten, called by the Appellants on sentence, as to the circumstances in which fertiliser could be inadvertently applied from the air to areas outside the target area, was to the Trial Judge simply "one class of possible explanation for such discharge" but, based on his reasoning, beside the point. As the Trial Judge said at para [5], "the court simply does not know how to explain the discharges, other than the failure (however explicable) on the part of the defendants to take sufficient care and precautions." The Trial Judge goes on to say, "even so, the degree of culpability has not been proven to be very high. The evidence of environmental harm is sufficient to make out the offence, but is not strong (see paras [60] to [83] of the June judgment). There is no specific or lasting harm done." 77 All of this bears on a sentence in which a relatively modest penalty, $6,000 within a much higher range, was imposed on both Mr Gilmour and the corporation. This was within the discretion of the sentencing judge, and well within permissible range. The mere smallness of the number of grams does not make the offence trivial, when regard is had, as s10 invites, to the other relevant factors, namely those identified by the Trial Judge in paras [6] to [11] above and in particular those quoted.

CONCLUSION 78 Both in relation to Mr Gilmour and Tableland Topdressing Pty Limited, none of the Grounds of Appeal, individually or cumulatively, are such as to warrant disturbance of the Trial Judge's sentence.

ORDERS 79 I propose orders as follows: (1) Appeal dismissed. (2) The Appellants to pay the costs of the appeal. 80 HIDDEN J: I agree with Santow JA 81 ADAMS J: I agree with Santow JA ***********

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