Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION: Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98

PARTIES: IPSWICH CITY COUNCIL (applicant) v DIXONBUILD PTY LTD ACN 112 083 842 (respondent)

FILE NO/S: CA No 263 of 2011 / DC No 2906 of 2010

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 17 April 2012

DELIVERED AT: Brisbane

HEARING DATE: 26 March 2012

JUDGES: Chesterman and White JJA and Dalton J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The application for leave to appeal is refused with costs.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – PROOF AND EVIDENCE – where the applicant swore a complaint alleging that the respondent had committed three offences against provisions of the Environmental Protection Act 1994 (Qld) – where at first instance the magistrate dismissed two of the offences but convicted the respondent and imposed a fine – where the respondent appealed to the District Court – where the District Court judge allowed the appeal and ordered that the complaint be dismissed – where the applicant applies for leave to appeal against the orders of the District Court – whether the judge erred in interfering with the magistrate’s findings of fact in overturning the conviction and fine / Acts Interpretation Act 1954 (Qld), s 42 / District Court of Queensland Act 1967 (Qld), s 118(3) / Environmental Protection Act 1994 (Qld), s 440ZE, s 440ZE(1), s 440ZE(2), s 440ZG, s 440ZG(a)(ii), s 440ZG(a)(iii), Chapter 8 part 3C, s 500 / Environmental Protection Regulation 2008 (Qld), s 100 / Justices Act 1886 (Qld), s 42(1), s 48, s 158A, s 158A(1) / Justices Act 1902 (NSW) / Local Government Act 1993 (Qld), s 35 / Local Government Act 2009 (Qld), s 237 / Milk Act 1931 (NSW), s 80 / Bedingfeld v Keogh (1912) 13 CLR 601; [1912] HCA 13, cited / Bowman v Brown [2004] 3 QPELR 416; [2004] QDC 6, cited / Crothers v Sheil (1933) 49 CLR 399; [1933] HCA 42, cited / DixonBuild P/L v Ipswich City Council [2011] QDC 185, cited / Mbuzi v Torcetti [2008] QCA 231, cited / R v Stewart [1896] 1 QB 300, cited / Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited / Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited

COUNSEL: W Sofronoff QC SG, with LD Coman, for the applicant / R Wensley QC, with S Moody, for the respondent

SOLICITORS: City Solicitor, Ipswich City Council for the applicant / William Goodwin, Solicitor, for the respondent

1. CHESTERMAN JA: On 14 January 2010 Craig Maudsley, Chief Operating Officer of the applicant Ipswich City Council (“Council”) swore a complaint alleging that the respondent (“Dixonbuild”) had committed three offences against provisions of the Environmental Protection Act 1994 (“EP Act”). The complaint was:

“THE COMPLAINT OF CRAIG MAUDSLEY CHIEF OPERATING OFFICER (HEALTH, PARKS AND RECREATION) of IPSWICH CITY COUNCIL … a “public officer” as defined in the Justices Act 1886 … made this day of 14 January, 2010, as authorised agent for and on behalf of IPSWICH CITY COUNCIL before … a Justice of the Peace …, who says that:-

AOn or about the 13th of February 2009 … within the Area of the … Council, Dixon Build … unlawfully deposited a prescribed water contaminant, namely earth, in a roadside gutter or storm water drainage adjacent to 43 Christine Crescent, Redbank Plains … contrary to s 440ZG(a)(ii) of the [EP Act 1994].

BOn or about the 19th of March 2009 … within the Area of the … Council, Dixon Build … unlawfully deposited a prescribed water contaminant, namely earth, at another place, and in a way so that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into a roadside gutter or storm water drainage at 43 Christine Crescent, Redbank Plains … contrary to s 440ZG(a)(iii) of the [EP Act 1994].

COn or about 19th March 2009 … within the Area of the … Council, Dixon Build Pty Ltd … unlawfully deposited a prescribed water contaminant, namely earth, in a roadside gutter or storm water drainage adjacent to 43 Christine Crescent, Redbank Plains … contrary to s 440ZG(a)(ii) of the [EP Act 1994].”

2. The trial of the prosecution was heard before a magistrate on 9 July 2010. On 13 September 2010 complaints A and C were dismissed but Dixonbuild was convicted of complaint B and fined $20,000. It appealed to the District Court against both conviction and penalty. On 31 August 2011 a judge of the District Court allowed the appeal and ordered that complaint B be dismissed. On 8 September 2011 in a separate judgment the Council was ordered to pay Dixonbuild’s costs of the trial in the Magistrates Court fixed in the sum of $1,750. The Council applies for leave to appeal against the orders of the District Court made on 31 August and 8 September 2011 pursuant to s 118(3) of the District Courts Act 1967.

3. Dixonbuild had a substantial business in building homes. It did not itself employ builders but engaged sub-contractors whose work was inspected by supervisors employed by Dixonbuild. In February 2009 a home at 43 Christine Crescent, Redbank Plains was one of the many it had under construction. During the course of construction a load of sand, described as bedding sand, was dumped at the site. Most of it was on the footpath but some may have fallen on the site itself. There was no evidence of the location of the boundary line between the site and the footpath but it was accepted at trial, on appeal and on the application for leave to appeal, that a quantity of the sand would have been on the site. When seen for the first time by a Council inspector on 13 February 2009 the sand formed an extensive low mound part of the perimeter of which was the gutter at the edge of Christine Crescent. A photograph depicted some sand in the gutter adjacent to the mound.

4. The magistrate could not find beyond reasonable doubt that it was Dixonbuild who had dumped (deposited) the sand and for that reason dismissed complaints A and C. Different considerations were relevant to the commission of the offence described in complaint B which it will be necessary to mention later.

5. The application for leave to appeal raises two points. One of these is the standing of Mr Maudsley to bring the prosecution. The second is whether the judge was entitled to interfere with the magistrate’s findings of fact and overturn the conviction.

6. Before dealing with the arguments some further facts should be set out.

7. The building site at 43 Christine Crescent, Redbank Plains was on the corner of Christine Crescent and a short cul de sac, Agnes Place. The building site had a frontage to both Christine Crescent and Agnes Place. The footpath on which the bulk of the sand had been dumped was on the Christine Crescent frontage. The land sloped, though not steeply, downwards towards Christine Crescent.

8. On 13 February 2009 an inspector (Compliance Officer) employed by the Council visited the building site and took photographs of the sand (which became Exhibit 6 at the trial). On 17 February 2009 the inspector issued an Infringement Notice to Dixon Homes Pty Ltd, not Dixonbuild, but it was common ground that the companies were related and had common directorships. The Infringement Notice alleged that Dixon Homes Pty Ltd had committed the offence later alleged against Dixonbuild as complaint A. Copies of the photographs Exhibit 6 were included with the Infringement Notice. On 6 March 2009 Mr Mizikovsky a director of Dixonbuild indicated on the notice that Dixon Homes Pty Ltd would contest the complaint in court.

Standing

11. Dixonbuild’s argument before the District Court was that prosecution of an offence against the EP Act must (and may only) be brought in the name of a local authority. Section 100 of the Environmental Protection Regulation 2008 (“regulation”) provides that the administration and enforcement of chapter 8 part 3C of the EP Act is to be implemented by (“is devolved to”) the local government with jurisdiction over the area in which the offence is said to have been committed. Dixonbuild relied for its submission on this provision and on s 35 of the Local Government Act 1993 (“LG Act”) which provided that:

“A proceeding by a local government must be started in the name of the local government.”

The LG Act has been repealed and replaced by the Local Government Act 2009 s 237 which is in identical terms to s 35 save that “a proceeding” is rendered “any proceeding.”

12. It is apparent that the complainant in the prosecution was Mr Maudsley and not the Council which employed him. It is equally apparent that he brought the prosecution as agent for and on behalf of the Council, but it was he, not the Council, who made the complaint. Dixonbuild therefore submitted that Mr Maudsley was not a proper complainant and had no authority to commence the proceedings. The point had not been taken before the magistrate and the Council sought and obtained leave to adduce evidence before the District Court judge which established that Mr Maudsley had been authorised to make the complaint. The argument that Mr Maudsley could not be a complainant remained.

13. Section 35 of the LG Act is clear in its terms. A proceeding, including a prosecution, by a local government must be started in its own name. Section 100 of the regulation identifies by reference to the location of an alleged offence against the EP Act which local government may commence a prosecution for the offence. It does not compel a local authority to take action, nor does it provide that only a local authority may take action to prosecute such an offence. The effect of s 35 of the LG Act is that where a local government does take action it must do so in its own name.

14. There can, I think, be no doubt that Mr Maudsley’s act in swearing the complaint was the act of the Council. He initiated the prosecution “as authorised agent for and on behalf of” the Council, having first described himself as a “public officer” for the purposes of the Justices Act. Section 4 of that Act defines a public officer to be an employee of a local government who is acting in an official capacity. On its face, then, the complaint was made by an employee of the Council acting in an official capacity in the discharge of a statutory power which devolved on the Council. The prosecution was therefore the Council’s, and should have been brought in its name, not Mr Maudsley’s.

15. (It is curious that the proceedings in the Magistrates Court and in the District Court were both entitled “Ipswich City Council v Dixonbuild Pty Ltd” despite the fact that the complainant was not the Council but Mr Maudsley. Perhaps registry staff in both courts presciently anticipated the present argument and sought to forestall it.)

16. The judge referred to Crothers v Sheil (1933) 49 CLR 399 in which the complainant had authority to prosecute offences on behalf of a Milk Board. He signed information in which he described himself as “an officer in the service of the … Board duly authorized to prosecute …”. Section 80 of the Milk Act 1931 (NSW) provided that “[a]ny information, complaint, or other legal proceeding … may be taken in the name of the Milk Board by … any other officer authorized … in that behalf.” The High Court held that the information was defective because it was laid in the name of the employee not the Board but the defect was one which could be cured under a section of the (NSW) equivalent to s 48 of the 1886 (Qld).

“Any person may take a proceeding for the imposition or enforcement of a penalty … under an Act.”

By s 4 the application of the Acts Interpretation Act may be displaced by a contrary intention appearing in any Act. The judge thought that no such contrary intention appeared.

19. Section 42 is a statutory expression of a common law principle. It was described as “an old rule” by Kay LJ in R v Stewart [1896] 1 QB 300 at 303, a case itself accepted as correct by the High Court in Bedingfeld v Keogh (1912) 13 CLR 601 at 604. Beddingfield establishes that a contrary intention displacing the operation of s 42 of the Acts Interpretation Act should not be found without clear expression.

20. Section 500 of the EP Act contains an indication that s 42 has not been displaced. The section provides that if the administration and enforcement of a matter has been devolved to a local authority, and proceedings for an offence about the matter is taken, and a court imposes a fine, the fine must be paid to the local authority. Significantly subsection 3 provides:

“If a person other than the local government prosecutes the offence, subsection (2) does not apply to any part of the fine the court orders be paid to the party.”

The right of someone other than the local authority to prosecute for a breach of the EP Act is thus recognised.

21. Section 35 of the LG Act does not in terms prohibit anyone other than a local authority commencing a proceeding for a contravention of the EP Act. It does not displace the operation of s 42 of the Acts Interpretation Act. Section 35 operates where a local authority commences a proceeding by one of its officers or agents. In that circumstance the section insists that the local authority be named as the initiating party in the proceedings. Section 42(1) of the Justices Act expressly permits a complaint to be made by the complainant’s lawyer or agent, thus accommodating corporate complainants who must act through a human agent.

22. The learned judge was, with respect, right to conclude that Mr Maudsley could have commenced the prosecution in his own name. The conclusion, however, ignored the express basis on which he himself described the capacity in which he commenced the prosecution. He was, he said, a public officer for the purposes of the Justices Act; he was agent for and was acting on behalf of the Council in laying the complaint. The authorised act of an agent is the act of the principal and normally the agent comes under no personal liability in respect of it. The consequences of the agent’s authorised acts attach to the principal. The prosecution was, in other words, the Council’s and not Mr Maudsley’s. He was not prosecuting in a private capacity but instituting the Council’s prosecution. These facts and the requirement of s 35 of the LG Act should have led the judge to conclude that the complaint was defective and to order its amendment. Instead his Honour concluded that because Mr Maudsley had made the complaint and because he could do so in a personal capacity pursuant to s 42 of the Acts Interpretation Act he should be taken to have done so. The conclusion was, I think, an error.

23. The Council complains that this error led to another when the judge came to assess the costs which he ordered it to pay Dixonbuild with respect to the trial. The effect on the costs order is the only consequence which followed from the erroneous conclusion that Mr Maudsley prosecuted the complaint in his personal capacity. Because he was found to have that standing the complaint and subsequent prosecution were held to be valid. The error had no effect on the outcome of trial or the appeal save with respect to costs.

24. His Honour said:

“Since s 158A of the [Justices Act] is limited to dismissal of a complaint where the Court gives consideration to an order for costs in favour of a defendant against a specified complainant (namely, ‘who is a police officer or public officer’), given the conclusions that I have reached in the decision [of 31 August 2010] – from which it is absolutely clear that the actual complainant brought the relevant complaint in ‘his’ own name … and that … it is patently obvious that even though the complainant was in fact ‘an officer or employee of a local government’, he was not ‘acting in an official capacity’.”

25. Section 158A(1) provides that:

“… [J]ustices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.”

Subsection 2 sets out circumstances which must be considered in deciding whether it is proper to order costs against a complainant. It is to be noted that the section applies in favour of complainants who are police officers or public officers and no other category of complainant.

26. The council submits that the judge should have found that Mr Maudsley was a complainant in his capacity as a public officer and not in any private capacity with the consequence that whether costs should have been ordered against the Council had to be assessed by reference to s 158A. The judge was wrong to conclude that Mr Maudsley prosecuted in his private capacity but the correct conclusion, that he acted in his capacity as public officer, would not have led to the costs being assessed by reference to s 158A. The consequence of concluding that Mr Maudsley prosecuted in an official capacity was that the complaint should have been amended to name the Council as complainant. Had that happened, as it should have, s 158A would not have applied because the Council was neither a police officer nor a public officer.

27. The Council argued that s 158A(1) must be understood as extending to a local authority because it would be anomalous and perhaps inconvenient if the protection afforded to public officers did not extend to their employers. While accepting that the result may be anomalous and inconvenient the extent of the protection given by the section is made plain by the words of the enactment. There is no ambiguity or uncertainty about the class of complainant which qualifies for protection. It does not extend to local authorities. Whether it should is a matter for Parliament. I note that McGill DCJ in Bowman v Brown [2004] QDC 6 at [34] expressed the same opinion about the scope of the section.

28. There should not therefore be a grant of leave to appeal on the ground of standing. Although an error has been identified the result would have been the same had the District Court judge come to the correct conclusion.

Substantive issues

29. Section 440ZG of the EP Act provides that a person must not:

“(a)unlawfully deposit a prescribed water contaminant –

(i) in waters; or

(ii) in a roadside gutter …; or

(iii) at another place, and in a way, so that the contaminant could reasonably be respected to wash, blow, fall or otherwise move into … a roadside gutter.”

30. What is meant by depositing a contaminant is explained in s 440ZE. It provides:

“(1)A person deposits a contaminant in waters or at another place if the person –

(a) drops, places or throws the contaminant in the waters or onto the place; or

(b) releases the contaminant, or otherwise causes it to move, into the waters or onto the place.

(2) A person deposits a contaminant at a place if –

(a)the person is an occupier of the place or the contaminant is under the person’s control; and

(b)someone deposits the contaminant at the place in a way mentioned in subsection (1); and

(c)the person does not remove the contaminant from the place within a reasonable time after becoming aware that the contaminant has been deposited at the place.”

31. The contaminant was the sand. The “place” for the purposes of s 440ZE(2) was the building site at 43 Christine Crescent. The “other place” for the purposes of s 440ZG(a)(iii) was also the site at 43 Christine Crescent. The definition relevant to complaints A and C was that set out in s 440ZE(1). Because it was not proved that Dixonbuild deposited the sand within the meaning of that definition the complaints were dismissed. The definition relevant to complaint B was s 440ZE(2). It was common ground that Dixonbuild occupied the building site and that someone had deposited a contaminant at the place. Dixonbuild was deemed to have deposited the sand if it did not remove it from the site within a reasonable time after becoming aware of the presence of the contaminant.

32. When Dixonbuild became aware of the presence of the sand was a critical question at trial and on appeal to the District Court.

33. The photographic exhibits showed a low mound of sand extending from the gutter across the footpath (and it was assumed) across the property boundary and onto the building site. Some small quantities of sand were in the gutter. I say that the presence of some sand on the building site was assumed because there was no evidence of the location of the property boundary to differentiate the site from the adjacent footpath which separated the site from Christine Crescent. No point was taken at trial or on appeal that the prosecution had not proved that there was some sand on the building site. The case was conducted by the Council and Dixonbuild on the basis that some sand was on the site. Dixonbuild did not resile from that position on the hearing of the application for leave to appeal and the application should not be decided upon the point that there was no proof, because of the lack of identity of the boundary, that there was sand at “the place” or “at another place”.

34. Nevertheless the absence of evidence about what (if any) sand was on the site is relevant to the approach the court must take to the Council’s criticism of the judgment of the District Court allowing the appeal. This is because the Council had to prove that Dixonbuild was aware of sand on its site which it was reasonable to expect would wash or move into the gutter. It is not enough to prove that Dixonbuild may have been aware of sand on the footpath. It was not the occupier of, or in control of, the footpath.

35. The magistrate’s findings in relation to Dixonbuild’s awareness were:

“The next issue in contest is whether the defendant was aware of the deposit of sand. The evidence here is that the sand pile was photographed by witness Quirk on 13 February 2009. His evidence was that the pile appeared to have been there for some time. The same pile was again photographed on 19 March 2009 by witness McBean. During this time frame the defendant has been the registered builder of a dwelling on the site which has progressed from slab stage (a matter of days prior to 13 February 2009) to frame stage (within a week of 19 March 2009). Persons engaged by the builder have performed all of this work. The defendant’s employee, John May, who was the site supervisor stated that he visited the site at various times and was able to nominate one date, 17 February 2010. He states he cannot recall the pile of sand, but I accept that it was there. This is not a large building site. It is a residential block and the pile of sand is quite prominent being located in the outside edge of the corner in a corner block. Witness May would have had to drive directly past the pile of sand to park his vehicle to gain access to the block. While he stated he had no memory of the pile of sand, on the facts in evidence I am satisfied that sufficient inferences can be drawn to determine that he was aware of the pile.

In any event, as pointed out by counsel for the complainant, the Director of the defendant company has completed, on 6 March 2009, the court election part of the first Penalty Infringement Notice issued. This Penalty Infringement Notice may have referred to a deposit of contaminant in a road side gutter, a different offence to that here, but what is in effect being spoken of is the same pile of sand. The only difference is that the Penalty Infringement Notice relates to the outer edge of the pile which extends into the gutter, whereas complaint B relates to the inner edge of the pile which is within the property boundary.

For these reasons, I am satisfied that the defendant was aware of the deposit of contaminant, further that in the position that it was, that it could reasonably be expected to flow into the gutter, and further, that the defendant took no action to remove the contaminant within a reasonable time of becoming aware of it.”

36. The magistrate then expressed himself satisfied beyond reasonable doubt as to the elements of “the offence charged as complaint B.”

37. The learned judge’s reasons for disagreeing with the finding of awareness were:

“[53]The concluding findings of the learned Magistrate concerning Mr May were that:

although the witness stated that he could ‘not recall’ the pile of sand, the learned Magistrate accepted that ‘it was there’ (reasoning that it was not a large building site, that it was a residential block, that the pile of sand was quite prominent and that the witness ‘would have had to drive directly past the pile of sand to park his vehicle’ to gain access to the block – notwithstanding the absence of any evidence to support the last conclusion); and

while the witness said that he had ‘no memory’ of the pile of sand, ‘on the facts in evidence’ the learned Magistrate was ‘satisfied that sufficient inferences can be drawn to determine that Mr May was aware of the pile’.

…

[55]Accordingly, I am of the view that although Mr May indicated that he could not recall the sand prior to early April 2009, particularly in the circumstances where I agree with the learned Magistrate that he had no particular reason to be unduly concerned about it, it has not been proved beyond reasonable doubt that he was relevantly ‘aware’. The problem with a circumstantial case (such as the learned Magistrate rightly treated this) is that the criminal law, and not civil law, approaches to inferences must be adopted. So, since ‘awareness’ is an element of this offence, Shepherd v R (1990) 170 CLR 573 dictates that any reasonable inference consistent with innocence generates the relevant ‘reasonable doubt’: at 578-579. The learned Magistrate did not expressly find that Mr May was untruthful (which he could have done), while accepting that he had ‘no memory’ of the ‘pile’ of sand as at 19 March 2009. Rather, he took the approach that non-recollection was due to defective recall of his true memories and that the surrounding circumstances supplied the deficiency. My review of the evidence – although it could also be based on such non-recollection being an implicit denial of ‘awareness’ [see, for instance, his cross-examination where he saw the pile of sand, and for the first time was ‘aware’ of it, when he went to clean it up (in April, 2009)] – shows that it is sufficient to give rise to a reasonable doubt, even without that contrary finding. I accept the ‘facts’ (apart from the error as to the ‘driving directly past’) as found above in paragraphs [49] to [53.5] (inclusive) as demonstrating that reasonable inferences are clearly open which are consistent with ‘innocence’, particularly where the learned Magistrate’s focus was, erroneously, on the whole pile of sand, rather than on the sand, if any, at the ‘place’ (if any). As Deming instructs, the awareness involves not only knowledge of the sand pile but also that it was deposited ‘at the place’ (namely, the actual ‘occupied’ site). (See: Dixonbuild v Ipswich City Council [2011] QDC 185 at [53] and [55].)

38. The applicant criticises the judge’s rejection of the magistrate’s finding that Mr May had “to drive directly past the pile of sand to park his vehicle” because there was no evidence to support it. In fact there was such evidence. Mr May testified that when he drove to the site he parked his car in Agnes Place. An aerial photograph and a map of the location which were in evidence at the trial show that to get to Agnes Place he must have driven along Christine Crescent, past the site and therefore past the sand.

39. The magistrate inferred that because the sand was proved to have been dumped on the footpath prior to 17 February 2009, a date on which Mr May accepted he was at the site, he must have seen it because of the small size of the site, the prominence of the deposit and its proximity to the roadway of Christine Crescent along which he drove, and that it was close to a building he went to inspect.

40. Counsel for Dixonbuild criticised the process of reasoning but I see nothing wrong with it. The Council had to prove a subjective awareness, an actual knowledge of the presence of the sand, but such knowledge can be inferred from evidence of circumstances such as those identified by the magistrate.

41. The judge did not criticise the magistrate’s process of reasoning, but thought however that the circumstances did not prove the relevant awareness beyond reasonable doubt. His Honour correctly pointed out that any reasonable inference consistent with innocence would give rise to a reasonable doubt, and that what was proved by way of circumstances suggesting that Mr May was, or must have been, aware of the sand was insufficient to prove his awareness of sand at “the place” ie within the boundary line of the building site.

42. The Council complained that the judge did not comply with the appropriate guidelines for appellate intervention with respect to findings of fact. The criticism is unfounded. The judge referred to Warren v Coombes (1979) 142 CLR 531 as determining that in an appeal by way of rehearing he was obliged to consider what inferences could and should be drawn from the primary facts found by the magistrate. The judge determined, as I said, that the primary facts did not prove inferentially Mr May was aware that sand had been deposited on the building site. Given the absence of evidence as to where the boundary was and what, if any, sand was actually on the building site, the judge’s conclusion was, with respect, inevitable. The magistrate’s finding that Mr May must have been aware in general of the presence of the sand is supported by the circumstances and was no doubt correct. What had to be proved, beyond reasonable doubt, was awareness of sand on the site.

43. The magistrate found that Mr May was aware of “the pile of sand”. He did not find specifically that he was aware of sand on the site or at “the place” alleged in the complaint. That specific awareness was necessary before Dixonbuild could be found guilty of the offence. It is not to the point that having observed the pile of sand on the footpath that Mr May could have looked more closely to ascertain whether part of the pile was on the building site. Section 440ZG of the EP Act did not impose criminal liability on the basis that Dixonbuild should have enquired about the presence of sand on its site, or was careless in not making a proper investigation. It required actual knowledge of the presence of the sand on the site it occupied. There was no finding on that critical point. The evidence did not show that it was obvious, and therefore must have been seen, that part of the sand was on the site.

“[58]In my view, a number of problems attend that conclusion. First, it is clear from the PIN dated 17 February 2009 that the “proscribed contaminants” were not specifically identified. On acceptance that the photographs which became Exhibit 6 were sent with the PIN, there are several different potential ‘proscribed contaminants’ shown: see, in particular, photographs 1, 3 and 4. These are in addition to the ‘pile of sand’. Further, it is not to the point that the ‘pile of sand’ which is shown outside the ‘Site’ is primarily relevant. The focus needs to be on that part of the ‘pile of sand’ which was proved to be within the boundaries of the relevant ‘Site’. Thus, there is very little evidence at all from which an inference can be drawn that Mr Mizikovsky had the relevant ‘awareness’ and even if it could, it would, at least, be only on the balance of probabilities and could never overcome the higher standard applicable to a criminal law prosecution.”

47. The applicant complains that this is “a very technical approach”, but it was fundamental to the prosecution to prove that Dixonbuild was aware that sand had been deposited on land under his control so that the obligation to remove it arose. It did not discharge the onus of proof by giving Mr Mizikovsky photographs which showed sand on the footpath. It is impossible to tell from the photographs whether any sand lay upon the building site.

48. There is an even more fundamental difficulty with the Council’s reliance on the Infringement Notice as proving the requisite notice. It was not proved that Mr Mizikovsky ever saw the photographs. There was no evidence as to who opened the mail in Dixonbuild’s offices or what documents were put before Mr Mizikovsky for him to make his decision to contest the complaint.

49. Enough has been said to show that the application for leave to appeal should not succeed. The conclusion of the District Court that the Council did not prove that Dixonbuild was aware of the deposit of sand on the building site has not been shown to be wrong.

50. It is not therefore necessary to deal in any detail with the argument in relation to the findings that the sand could reasonably be expected to wash or move into the gutter of Christine Crescent. The magistrate’s finding was:

“Complaint B is set out in different terms relying on S. 440ZG(a)(iii). That is, the deposit was ‘to another place (particularised as the property of 43 Christine S\Crescent, Redbank Plains) in a way that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into a roadside gutter or storm water drainage’.

Again, counsel for the complainant opened that the definition of ‘deposit’ relied upon was S. 440ZE(2). While much of the evidence led by the complainant figured on the lack of sediment control measures, it was argued on behalf of the defendant that this evidence was not relevant. I disagree, whether sediment control measures have been complied with is relevant to whether the contaminant could reasonably be expected to wash into a roadside gutter. In respect to the placement of the pile of sand on the corner of the property of 43 Christine St, Redbank Plains, the fact that the pile extending from within the property boundary, over the top of and collapsing the sediment barrier and beyond, is relevant as to whether it is reasonably expected that sand from within the property to wash into the gutter. If the sand pile had not extended over and collapsed the sediment control fence then such a reasonable expectation may not be open.”

51. The learned judge said on this topic (at [65]-[67]):

“[65]Of course, that may be potentially relevant if the identified ‘place’ was in fact the footpath. But instead, it was the land within the boundaries of the Site that formed the basis, in reliance upon particulars supplied by the prosecution, which must be considered.

[66]Even accepting that there was sufficient evidence given which permitted the learned Magistrate to decide exactly where the boundary in the relevant area was (a ‘fact’ to be considered later), and that it coincided exactly with the top of the collapsed sedimentary barrier, it is not clear at all, and certainly not clear beyond any reasonable doubt, from the photographs which are contained in Exhibits 6 and 10 that that part of the pile of sand which was within the “Site” was such that ‘it’ could reasonably be expected to either wash, blow, fall or otherwise move into the roadside gutter.

[67]This is particularly so where the two inspectors employed by the respondent had no expertise at all with respect to water flow. Therefore, given that the only evidence of doubtful vague assistance is that given by the geo-technical engineer, it is not clear to me, as an uninstructed lay person, that the relevant causation has been established beyond reasonable doubt.”

52. This is criticised by the applicant as being “overly technical” and ignoring the consideration that the Council’s officers had not been cross-examined about whether sand on the site, as opposed to sand on the footpath, might reasonably be expected to move into the gutter so that there was no evidence on the point. It was submitted that Dixonbuild’s trial counsel did not, as required, put to the Council’s witnesses that the pile of sand should be distinguished between that part of the footpath and that part on the site so that they were not given the opportunity “to answer the question as to whether or not that part of the sand being on (the site) could reasonably be expected to … move into the roadside gutter”.

53. It was for the Council to prove its case. That involved proving that sand on the site, beyond the boundary line, could reasonably be expected to move into the gutter. There was no obligation on Dixonbuild, or duty on its counsel, to fill gaps in the prosecution case. If no evidence was led on the critical point Dixonbuild was entitled to have the complaint dismissed. The magistrate found, no doubt correctly, that some of the sand could reasonably be expected to move into the gutter. Indeed the photographs show that some had. The magistrate did not address the critical question which the District Court judge rightly thought was important, whether sand on the site, the place designated in the complaint, could reasonably be expected to move into the gutter. That would no doubt require a finding of fact as to what amount of sand was on the site and what quantity of sand was between that part of the pile and the gutter i.e. whether the sand on the footpath was a sufficient barrier to prevent a reasonable expectation that the sand on the site would move into the gutter. The reasonable expectation would be affected by the distance between the gutter and the site, and the amount of rainfall needed to wash sand from the site into the gutter; and the likelihood that that amount of rainfall would occur before the building was complete and the site cleared of building materials in readiness for occupation.

54. These are matters which were not the subject of findings of fact. They were not explored in evidence and this court cannot determine them. The approach taken by the learned judge cannot fairly be criticised.

55. The application for leave to appeal should be refused with costs.

56. WHITE JA: I have read the reasons for judgment of Chesterman JA and agree with his Honour’s reasons for refusing leave to appeal and with his Honour’s proposed costs order.

57. DALTON J: I have read the reasons for judgment of Chesterman JA and agree with his Honour’s reasons for refusing leave to appeal and with his Honour’s proposed costs order.