Did Mr Harris Intend to Use the Water for Domestic Consumption?
80The prosecutor submitted that even if the definition of "landholding" was satisfied by Mr Harris, Mr Harris intended to use some if not all of the water in the Main Channel for irrigation purposes. This was evident from the amount of water extracted, which was clearly in excess of that required to fill the House Dam.
81According to Mr Harris, pumping water to the House Dam required filling up the Main Channel. Water pumped at the Central Pump Site had to be gravity fed for approximately 22km along the Main Channel to Central Farm. When Mr Harris initially caused the water meter to cease turning and began pumping water, the Main Channel was relatively dry with "some small puddles" (T 27/11/12 71:35). At the time of the commission of the offence, the Main Channel was almost empty and required approximately 100 to 150 ML of water to fill it before the water could reach the House Dam. By the afternoon of 22 July 2009, the water level was still too low for the water to travel to the House Dam.
82The capacity of the House Dam was approximately 2 to 3 ML. But the House Dam already had some water in it. Images taken of the House Dam that afternoon showed that the Dam was approximately one third to half full. This is consistent with Mr Harris' evidence given during cross-examination that because of the dam's conical shape, it "might have been a third full", but could have been up to half full.
83The prosecutor submitted that if the capacity of the House Dam was 2 to 3 ML, and if on 22 July 2009 the House Dam was already half or one third full, the water extracted during the offence period was in excess of the amount needed to fill the House Dam, and therefore, must have been intended for some other additional unlawful use, such as irrigation.
84The prosecutor relied on the following evidence to support this claim. First, during the 20 November 2009 interview with Mr Harris, in response to the question, "once the house tank was full, where would water go to after that if it continued to be pumped?" Mr Harris replied, "most times we keep it in the channel but then after that it can go to irrigation".
85Second, during the 22 July 2009 interview with Mr Harris, he said:
Q46. - those other times? Okay. Has the rod ever been up the pipe interfering with the meter with water being pumped into one of the irrigation storages or applied to any crops?
A Sometimes when it goes to the house dam, it goes past there and goes into the crop sometimes, yes.
86Third, in cross-examination, he stated (T 27/09/12 73.19-73.40):
Q. You could have taken 2 to 3 megalitres if it was for domestic use and then put the John Deere pump on on 21 July--
A. Because I was just filling up the channel to where it was before. It was a dry time and we wanted to save all our other water for our irrigation crops all the normal allocated water so we wanted to use our basic landholder rights which we were told there was no water left in the stock and domestic licence, 25 this one here that you referred me to. There was no water in there from the piece of paper that I received from the Department so therefore we wanted to make sure we could maximise our water that was there by using the basic landholder right.
Q. You accept you could have used another pump and another account?
A. Yeah could have done.
Q. If you chose to?
A. Yeah no could have done. That's right, could have done but I wanted to maximise my rights.
Q. Are you saying under your domestic and stock right as you call it you could take I think you've said 150 megalitres to fill the channel to then get water into the house dam?
A. If it's not it's only for stock and domestic purposes.
87Fourth, Mr Harris admitted that a wheat crop had been planted at the time in respect of which approximately 300ML of water had been ordered by him for the purpose of irrigating the crop, but that the water had not arrived at the time of the commission of the offence.
88Fifth, Mr Harris admitted that it had been a dry winter before the offence was committed and that there was a water shortage in the area.
89Sixth, only a small proportion of the 30 to 40 ML pumped during the meter tampering was water capable of being used for "domestic consumption". As Mr Harris stated in his affidavit, "water from the House Dam is only for domestic purposes such as showering, washing clothes, watering house gardens and drinking".
90Suffice it to say that I found this evidence compelling. This was so notwithstanding that in cross-examination Mr Harris emphatically denied that any water pumped during the commission of the offence was to be used for the purpose of irrigation. According to Mr Harris, it was his usual practice to keep the Main Channel full to allow water to be moved quickly into the House Dam if needed and to keep water backed up upstream "which is important because this part of the Main Channel is the only source of drinking water for livestock". This was consistent with the fact that during the commission of the offence, Mr Harris had closed all other channels so that the water being pumped was travelling only to the House Dam. Thus, Mr Harris argued that it was never his intention to fill the Main Channel before switching the water meter back on and that at 10am on 22 July 2009 he visited the Central Pump Site with this very intention of swapping the pump over.
91But in my opinion this argument is unconvincing. It is inconsistent with waiting until 30 to 40 ML of water had been extracted before switching the pumps over. On any view, this amount of water was well in excess of what was required to fill the House Dam, which was already, by Mr Harris' own admission, half to a third full.
92Mr Harris argued that s 52 of the WMA does not place any limit on the amount of water that may be extracted pursuant to domestic and stock rights and, on its proper construction, s 52(1) allows the extraction of sufficient water to enable it to be transported to the place where it was to be used for domestic consumption, if not the right would be illusory. Mr Harris relied on the ancient maxim and its more modern formulation, applied in Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 (at [38]), that:
Whenever anything is authorized, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment...
93The prosecutor submitted that in the circumstances of this case, the maxim would not extend to permitting a person to pump 30 to 40 ML or up to 150 ML of water to fill a dam of 2 to 3 ML capacity. Although Mr Harris believed he had a zero allocation under the WAL, he nevertheless had access to water under a number of other licences and approvals that he could have utilised to fill the Main Channel. For example, he had at the time access to 300 ML of water that he had already ordered under his general security licences for irrigation purposes. He also had other pumps available for use.
94As Mr Harris explained in cross-examination (T 27/09/12 73:21-73:28):
It was a dry time and we wanted to save all our other water for our irrigation crops all the normal allocated water so we wanted to use our basic landholder rights which we were told there was no water left in the stock and domestic licence, this one here that you referred me to. There was no water in there from the piece of paper that I received from the Department so therefore we wanted to make sure we could maximise our water that was there by using the basic landholder right.
95On the balance of probabilities, I do not accept that the purpose of Mr Harris tampering with the meter was to take unmetered water for the purpose of satisfying any domestic or stock rights pursuant to s 52 of the WMA. The evidence relied upon by the prosecutor was persuasive, particularly the answers given by Mr Harris during cross-examination.
96I have no hesitation in finding that the water pumped by Mr Harris was not wholly to be used for "domestic consumption" as claimed by Mr Harris, but that a significant proportion of the 30 to 40 ML pumped during the commission of the offence was to be utilised by Mr Harris for irrigation of his wheat crop. This was not a permissible purpose under s 52 of the WMA and Mr Harris cannot rely on it in mitigation.
97Moreover, in my opinion, acting lawfully pursuant to an exercise of rights under s 52 could only authorise the extraction of sufficient water to fill the House Dam. Otherwise the provision would give those water users with a domestic dam some distance from the water source a considerable advantage over those whose dams were closer in proximity to the extraction source. I do not believe that this was the objective intention of the legislature in enacting s 52 of the WMA.
98I also find beyond reasonable doubt, albeit as a matter of inference, that the offence was committed in order to obtain a financial benefit, namely, to avoid water from being debited from the relevant water licence account, whether this was the WAL or some other licence or approval. For instance, if it was the WAL, the taking of unmetered water resulted in a financial benefit to Mr Harris to the extent that he could take additional megalitres of water from the River pursuant to this licence without having to utilise water allocated to the WAL or some other licence. If it was another water licence or approval, the result is the same, namely, the taking of water occurred in circumstances where it could not be recorded, debited, and therefore, the cost of which could not be charged to Mr Harris. This finding is consistent with the answers Mr Harris gave during the 20 November 2009 interview (see Q and A 314 to 320: quoted above at [61]).
99I find, therefore, that the prosecutor has proved to the requisite standard of proof that Mr Harris committed the meter tampering offence for financial gain and I take this factor into account as a factor in aggravation.