McClelland v Environment Protection Authority

SOLICITORS: Adams & Partners (Appellant) Environment Protection Authority (Respondent) File Number(s): 20/234039 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 02 July 2020 Before: Magistrate K Robinson File Number(s): 2019/313627

Judgment

1. The Appellant, Mr McClelland, is appealing his conviction in the Local Court of an offence against s 211(3) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) of delaying an officer, Mr Madden, in exercising the powers under Ch 7 of the POEO Act. He was sentenced to pay a fine of $10,000 and ordered to pay the Respondent's costs of $25,000. The Appellant also appeals against that sentence. Such appeals are enabled by the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act). The charge arose from circumstances where the Appellant locked the front gates to his premises at Shanes Park (the property) preventing two Environment Protection Authority (EPA) officers driving their car off the property until police arrived.

Crimes (Appeal and Review) Act 2001 (NSW)

1. Relevant sections of the Appeal Act provide: Part 4 Appeals from Local Court to Land and Environment Court Division 1 Appeals by defendants Subdivision 1 Making of appeals 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. … (2) An appeal must be made - (a) Within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against conviction) may not be made before sentence is imposed. … Subdivision 2 Determination of appeals … 37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. … 39 Determination of appeals (1) The Land and Environment Court may determine an appeal against conviction - (a) by setting aside the conviction, or (b) by dismissing the appeal, or … (2) The Land and Environment Court may determine an appeal against sentence - (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. … Division 3 Miscellaneous 49 Miscellaneous powers … (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

Protection of the Environment Operations Act 1997 (NSW)

1. Relevant provisions of the POEO Act provide: Chapter 1 Preliminary … 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. … Chapter 7 Investigation … Part 7.4 Powers of entry and search of premises 198 Powers of authorised officers to do things at premises … (2) An authorised officer may do any or all of the following - (a) examine and inspect any works, plant, vehicle, aircraft or other article, (b) take and remove samples, (c) make such examinations, inquiries and tests as the authorised officer considers necessary, (d) take such photographs, films, audio, video and other recordings as the authorised officer considers necessary, (e) require records to be produced for inspection, (f) examine and inspect any records, (g) copy any records, (h) seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations, (h1) for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier, (i) do any other thing the authorised officer is empowered to do under this Chapter. Part 7.7 General 211 Offences … (3) A person who wilfully delays or obstructs an authorised officer in the exercise of the authorised officer's powers under this Chapter is guilty of an offence. … Part 8.2 Proceedings for offences Division 1 Proceedings for offences generally … 215 Proceedings for other offences … (2) If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 1,000 penalty units, despite any other provision of this Act. …
2. The appeal is a rehearing based on the evidence before the Local Court. No error in the findings of the magistrate need be found. The Appellant referred to Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244 (Charara) at [17]-[24] where Mason P (Kirby and Hoeben JJ agreeing) in the Court of Criminal Appeal described what a rehearing entails as follows: The appeal is to be by way of rehearing on the Local Court transcripts (s 18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s 18(2)). The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-425, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118). The nature of an appeal "by way of rehearing" has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. "The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits" (Fox at 118 [22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the "requirements, and limitations, of such an appeal", their Honours continued (at [23], footnotes omitted): ... On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. … The appellate role of the District Court in the present context is further reinforced by the references to "appeal" in ss18 and 19 and by the power, conferred by s20, to determine the appeal against conviction or by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any "fresh evidence" that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the "natural limitations" stemming from proceeding wholly or substantially on the transcript record. Howie and Johnson, Criminal Practice and Procedure NSW state [4-s 19.10(g)] that the reasons of the magistrate for finding the offence proved are not "evidence" and that the District Court may not have regard to those reasons unless the parties consent to that course. The point has not been argued before us, but I wish to express my doubts as to the correctness of this opinion of the learned authors. District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was do [sic] novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate's reasons are not part of the "certified transcripts of evidence" referred to in s18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them. The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found (Paterson at 222-224). There is no basis in principle for a different approach in the criminal law.
3. The Respondent emphasised the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ) set out in the quote above.
4. The Court exercises all the powers that were available to the court below: Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 (Sasterawan) at [34] per Basten JA (Grove and Hidden JJ agreeing).
5. In the Local Court the Respondent identified the elements of the offence charged as: (i) a person; (ii) wilfully; (iii) delays; (iv) an authorised officer; (v) in the exercise of that officer's powers under Ch 7 of the POEO Act. At issue is whether the Respondent proved beyond reasonable doubt that the Appellant acted wilfully - the second element.
6. A preliminary issue arose at the outset of the appeal hearing of whether the Respondent's case in the Local Court had relied on wilful delay in the taking of samples only, or in the taking and removing of samples. The Appellant asserted that it did not, and therefore delay in removing samples could not now be relied on. The Respondent asserted to the contrary that its case in the Local Court did rely on delay in the taking and removal of samples.

Evidence in Local Court

1. The Appellant tendered an appeal book as Ex A which contained transcripts of the Local Court proceedings and evidence tendered in the Local Court.

Evidence relevant to preliminary issue

1. The parties referred to the following evidence in relation to the preliminary issue.

Court attendance notice

1. The Court attendance notice (CAN) stated: Details of Offence Description of Offence: Delay authorised officer exercising power-Chapter 7 of the Protection of the Environment Operations Act 1997 Time & Date of Offence: On or about 12:00pm to 1:00pm on 9 October 2018 Place of Offence: … Shanes Park NSW 2747 Short Particulars: The Defendant did contravene s 211(3) of the Protection of the Environment Operations Act 1997 (the Act) in that he did wilfully delay an authorised officer, Joshua Madden, in the exercise of his powers under s 198(2) of Chapter 7 of the Act from about 12:00pm to 1:00pm on 9 October 2018. Statutory Provision Describing Offence: s 211(3) of the Protection of the Environment Operations Act 1997

Request for particulars (Ex C)

1. The Appellant's solicitor sent the following request for particulars dated 6 November 2019: Thank you for your letter dated 24th October 2019. In relation to the matter would you please provide the following particulars: 1. At what stage or time is it alleged that the alleged offense commenced to occur and at what time is it alleged that the offence ceased occurring, and 2. The Statement of Facts put forward by the Prosecution refers repeatedly to two (2) officers who were present. By comparison the charge refers only to one (1) officer. Is it alleged that an offence was committed in relation to the person identified as Grace Pollock? 3. What is it that is alleged to be the authorised power which the officer(s) was exercising, and which was delayed? 4. What is it that the officer(s) formed an opinion that was necessary to be done, and what were the Facts relied upon by the officer(s) in coming to that opinion? …

Respondent particulars (Ex B)

1. The Respondent replied by letter dated 8 November 2019 as follows: I refer to your letter dated 6 November 2019. The Prosecutor provides the following particulars, adopting your numbering: 1. The offence is alleged to have occurred at or around 12:00pm when Mr McClelland locked the gate and is alleged to have ceased at or around 1:00pm when Mr McClelland agreed to permit Mr Madden to take samples from the stockpile. 2. No. 3. Powers under s 198(2) of the Protection of the Environment Operations Act 1997, including but not limited to: (i) take and remove samples under s 198(2)(b); (ii) make such examinations, inquiries and tests as the authorised officer considers necessary under s 198(2)(c); (iii) take such photographs, films, audio, video and other recordings as the authorised officer considers necessary under s 198(2)(d). 4. Mr Madden formed the opinion that it was necessary to take and remove samples from the stockpile on the basis of the facts set out in the Statement of Facts at [4]­[13]. …

Respondent's opening in Local Court

1. Transcript of the Respondent's opening in the Local Court is extracted below (Tcpt, 3 March 2020, p 2(18-23)): The prosecution alleges that the defendant subsequently wilfully delayed authorised officer Madden in the exercise of the powers that he had to do things at the premises once there lawfully. When the defendant deliberately locked the offices [sic] inside a gated compound at Shanes Park with the defendant. The officers were detained within that compound with the defendant and his wife for approximately 40 minutes until the police arrived, having been called by the defendant and also by the EPA officers, at which point the police officers confirmed to the defendant that the EPA officers were there lawfully and acting lawfully while there. During the intervening period, there [sic] defendant continually refused to listen to Officer Madden's attempts to explain the basis of his powers and the reason for being there. The EPA officers only completed their investigations on site after the police had arrived, and the defendant unlocked the gate.

Transcript of cross-examination of the Appellant

1. The cross-examination of the Appellant referring to "sampling" in the extracts below was relied upon by the Appellant (Tcpt, 4 March 2020, p 36(36-41); p 37(19-40); p 38(4-5); p 39(10-25)): Q. So at the point at which you locked the gate, you knew they said they were EPA officers. You knew they were sampling. And you knew that locking the gate would prevent them from taking further investigations, including conducting those - A. I didn't know who Grace Pollock was at all. She didn't - her name wasn't mentioned. It was, "I'm with her." … Q. And you knew that when you locked the gate that that would stop the officers from doing what they were doing. A. No, why would it stop them? Q. And that was your intention. A. No, it wasn't. I had no - at no time did I tell them to stop sampling. I moved away so they continue to do what they wanted to do. So I wouldn't intimidate them. Q. I'm not asking you what you said. I'm saying to you that you knew that by locking the gate, it would stop the officers from doing what they were doing. A. No, totally wrong. Q. Once you locked the gate, you saw that that's what happened. A. No, I didn't. I was facing away from them. Q. You saw that they stopped doing what they were doing and came down. You've given evidence that they drove down to the gate. A. That's right. Q. And then the dashcam- A. I presumed they'd finished sampling. … Q. And so you knew that they were not, at that stage, doing any sampling. A. That's right. … Q. You knew that by locking the gate you had stopped them from sampling. A. No Q. You knew that by locking the gate you would be committing an offence at that stage - A. No. Q. - because you'd been warned on a number of occasions. And by locking the gate, you intended to stop those officers from conducting their investigations until the police arrived. A. That is not correct at all. Q. And that is exactly what happened. A. That's not - well, that's their decision to do that, not mine. I never asked them to stop. I went away from them. I went down to report to them what they were doing. That's when they were on the phone, and he said he was sampling. They were both on the phone at that time, and that's the time he says he was sampling. You can see it in the dashcam footage. I moved away from them.

Respondent's closing in Local Court

1. Transcript of the Respondent's closing in the Local Court is extracted below (Tcpt, 4 March 2020, p 46(20-23): … And the prosecution case is in essence that by locking the gate and maintaining that by the act of locking the gate and keeping it locked, the defendant wilfully delayed Officer Madden exercising his power pursuant to s 198(2)(b) to take and remove samples.

Magistrate's judgment

1. In her judgment, the magistrate referred to the taking and removal of samples as follows (Tcpt, 30 April 2020, p 3(28-29, 36-37; p 7(23-39)): Section 198 of the Act sets out the powers of authorised officers to do things at premises. … Subsection (2) sets out those things, including at subs (b) as is relied upon here to take and remove samples. … The prosecution submits that in the opinion of Officer Madden it was necessary for him to take and remove samples in order to further investigate the material relating to the complaint. Officer Madden gave evidence that he had taken initial steps to commence the taking of those samples on the day when the accused arrived and interrupted him. Office Pollack [sic] also gave evidence of the samples being taken. The accused in his written correspondence with the EPA and in his conversations with police at the time, also referred to samples being taken. It is clear that the two officers were in the process of taking samples and continue with that process once the accused consented to their doing so. Noting that there is no real challenge to it by the accused, I accept that in the opinion of Officer Madden it was necessary for samples to be taken and removed in order to further the investigation. I am therefore satisfied that officer [sic] Madden was properly exercising the powers available to him under the Act once he had entered the premises of the accused.
2. The magistrate also referred to the power to take samples without reference to removal as follows (Tcpt, 30 April 2020, p 7(40-41); p 9(23-26)): The next issue was whether the authorised officer, being Officer Madden, was thereafter delayed in exercising that power to take samples. … In order to prove this element the prosecution must show that the accused knew his actions would delay the officer in his power to take samples and that was his intention.

Mr Madden EPA officer

1. The summary of Mr Madden's evidence as contained in the Appellant's submissions at pars 10-24 reflecting transcript from the first day of hearing in the Local Court can be relied on as no issue with its accuracy was raised. Mr Madden recalled attending the property on 9 October 2018. He said he was "investigating a complaint in relation to illegal dumping". He arrived at the property around 11:30 am. When first arriving at the property he made observations of it as a "fence compound with open gates". He commenced taking photos of the property. He approached a dwelling located at the corner of the premises and knocked on the door several times. Finding no response, Mr Madden said he "hopped back in the car, drove to the front of the fenced compound, and then entered the premises by exercising our powers". He parked the vehicle "facing out of the premises towards our escape route, or exit point" and "made some observations of the black material and other material located there". He made notes and took photographs of the material observed and advised his colleague they would take samples.
2. At about this point, around midday, Mr Madden said a red Toyota HiLux drove towards him. Two people had arrived - a male and female. The male was the Appellant. Mr Madden said that the Appellant then asked questions like "what are you doing here?" Mr Madden said that he responded "My name is Josh Madden. This is my colleague, Grace. We're from the EPA."
3. Mr Madden said the Appellant asked for identification and that he then showed the Appellant his authorised officer's card. Mr Madden asked the Appellant for his details and said that the Appellant responded that he did not have to do that. Mr Madden said he told the Appellant it was an offence to fail to provide a name and address to an authorised officer. The Appellant then gave his name but is alleged to have then said, "That's all you're getting".
4. Mr Madden said that the Appellant was agitated in that he was speaking quite quickly and relatively loudly compared to him. At this point Mr Madden said "he also threatened us with locking the gate". Mr Madden said that he explained to the Appellant that doing so "would be likely to be obstructing, or wilfully delaying an authorised officer and that he may be prosecuted" in response to which Mr Madden said that the Appellant said, "he was going to lock the gate anyway, and that he would call the police and allow the police to decide who is allowed to be at the premises". Mr Madden recalled the Appellant asking him for an authority to be there and that he responded "I can tell you that - you know, I can explain to you the powers that we have to be on the premises". The Appellant was said to have responded "This is your last chance" before stating "I'm going to lock the gate" and then driving up to lock the gate. It was about this time that Mr Madden suggested to his colleague that she take a video of the event. Mr Madden then called his supervisor. He then went to the gate and observed that it was locked. He recalled calling his supervisor to advise that he was locked in. The Appellant was sitting in his vehicle. Mr Madden approached the Appellant and asked to be let out. The Appellant was said to have responded that the police were on the way. Mr Madden said: I asked Mr McClelland if he could unlock the gate so that we could continue talking about the legislation for why we were allowed to be there outside the gate, because I didn't feel comfortable having that conversation locked on the premises essentially.
5. Mr Madden said he felt unsafe. Mr Madden said that he felt that way because he had been "threatened" to be locked in and "that threat had been realised" and he was "unsure exactly what else might occur if I was to potentially inflame the situation inside the premises". He was then asked: ... at that time what sort of things did you think would inflame the situation? To which Mr Madden answered: Well, explaining our lawful authority to be there, and also potentially making further inquiries about the investigation.
6. Mr Madden returned to his vehicle and made further notes. He again approached the Appellant and asked for details and after believing that he had exhausted all opportunities to exit the property, waited at his vehicle for the police to arrive.
7. The police arrived and the Appellant unlocked the gate. The Appellant later asked Mr Madden for a copy of provisions of the POEO Act. Mr Madden took a photograph copy of the Appellant's license and told him that he would take samples of the materials observed earlier. Mr Madden then took those samples. He left the premises around 12:50pm.
8. Under cross-examination, Mr Madden accepted that he could leave the gated compound area on foot by stepping over a side fence but could not exit with his vehicle. Mr Madden also accepted that he may have only handed over his identification card after the Appellant had asked for proof of his identity. He accepted that the Appellant said to him "I don't know whether you're telling me the truth. Surely you have something in writing". Under cross-examination Mr Madden said that he had copies of provisions of the POEO Act but did not provide them to the Appellant until after the police had arrived, thinking it better that the police resolve the issue. Mr Madden accepted that at the time, rather than having a reasonable suspicion of a pollution incident occurring, he had "at best … some grounds for thinking you need to ask some questions of the landowner". Mr Madden could not recall whether in the conversation with the Appellant the Appellant had said: You can leave or show me your paperwork, or I'm going to lock the gate and call the police and they can sort it out.
9. Mr Madden accepted that in response to the Appellant's questions at the time he may have responded "I will ask the questions". The following occurred in cross-examination of Mr Madden: Q. After he locked the gate, was there anything that, in fact, stopped you from going and taking the samples you wanted and from taking the photographs or whatever else you wanted. A. Yes. Q. What was that? A. Our JSA - well, the job safety analysis says that we're to stay with the vehicle, and it mentions other things. I also believed that it was important to keep an eye on Mr McClelland and also to keep in regular contact with our manager, and also we were required - well, we were asked by our manager to call the police to check whether they were on their way. There was a lot of stuff to do. Q. But those things you had to do, or did, didn't physically prevent you from going and taking samples? A. They - no, they didn't physically prevent us. Q. And from either taking photographs or making other observations of the stockpile? A. Not physically preventing us, no.
10. Mr Madden accepted that the Appellant later told him that none of the events would have occurred if he had been shown the provisions of the POEO Act. He also accepted that the Appellant became quite friendly at that point and that he "in no way interfered with you then taking samples and doing whatever else you wanted to do".
11. In re-examination Mr Madden was asked why he did not leave the scene immediately to which he responded that he wanted to obtain identification of the Appellant and because he felt "slightly threatened".

Ms Pollock EPA officer

1. The Respondent also led evidence from Ms Grace Pollock, the colleague of Mr Madden. The summary of Ms Pollock's evidence as contained in the Appellant's submissions at pars 26-31 reflecting the transcript from the hearing in the Local Court can be relied on as no issue with its accuracy was raised. Ms Pollock confirmed attending the property around 11:35 am. She confirmed taking photographs of the property and the material being investigated and that she and Mr Madden had made estimates of the volume of material on the property.
2. In the course of her evidence in chief, the Respondent sought to lead evidence of Ms Pollock's video recording of the events. This was rejected on the basis that the Appellant did not contest that the gates had been open and were locked by him at this time. In the course of argument over that evidence, the Respondent said that the video was "relevant because it goes to the fact of the gates having been locked … which is an aspect of the offence which we rely on as being the cause of the delay".
3. Ms Pollock gave similar evidence to Mr Madden regarding calls to the supervisor and in physically inspecting the gates being locked. She said that when they returned to the Appellant's vehicle, he said to them he would not open the gates as "we could be lying, and he wasn't going to let us out". Ms Pollock confirmed that she discussed leaving the property over the side fence with Mr Madden, but they agreed to wait in their car with their doors locked. Later, Ms Pollock said that the police asked if she felt comfortable to do her sampling but at that stage the Appellant "seemed to have no trouble with us being on the property and was, you know, very open and happy for us to sample, as if that was no big deal".
4. Under cross-examination, Ms Pollock said: The conversation that occurred between Mr McClelland and Mr Madden happened very quickly and that Mr McClelland repeated himself a number of times. The piece of paper was in the car, and Mr Madden was very clear to Mr McClelland that it was a business with an open gate, and that we didn't know who Mr McClelland was, and that we needed to know who he was before we could discuss matters regarding why we were there first.
5. It was also put to Ms Pollock that there was nothing stopping her from continuing to take samples which she rejected saying "I felt fearful for my safety and I did not feel that to continue the investigation at that time was in [my] best interest". Ms Pollock agreed that in this period the Appellant remained in his car and in response to a question whether the Appellant did anything to threaten the officers said only that she felt "threatened" because the gates were locked despite requests for it to be opened. Ms Pollock gave evidence that the Appellant did not provide opportunities for them to leave before the police arrived.

Dashcam from the Appellant's car

1. The Court watched and listened to 25 short videos taken by the dashcam in the Appellant's car aided by transcripts. These videos were noted on a schedule of video evidence marked MFI-1. The footage relied on by the parties included the following videos.
2. Video 20181009_120404 at 12:04pm: McClelland: That's all you're getting off me? Show me legislation. Show me what you got? Nuh. No, mate, I'm going to go and lock the gate and ring the coppers. …
3. Video 2018009_120421 at 12:04pm: Passenger: Shouldn't you have told them that they could leave? McClelland: No. Passenger: (Indistinct) our place. McClelland: They could say that. Passenger: (Indistinct).
4. Video 2018009_121740 at 12:17 pm: Madden: Legislation. McClelland: No I asked you for the paperwork. You can tell me anything. I'm not saying you're a liar. But you could possible be one. Madden: Yeah, okay. McClelland: You should carry with [sic] paperwork with you. And you should say, "Here it is there in writing." Madden: I can explain, I can explain to you (indistinct) the legislation. I do have paperwork and I could show it to you. McClelland: I asked you to show it - I asked you to show that to me. Madden: I first asked you to unlock the gate (indistinct) be going to investigate. McClelland: No, no. Madden: I don't want to have this discussion with you in here when you're obviously quite hostile. McClelland: No. I'm not - no, I'm not hostile. I'm sitting in the car. I went away - I come down to tell you about the police. Youse were busy on the phone so I left you to do your business. And I've come away. Madden: I was not on the phone. McClelland: You were both on the phone walking around. Pollock: Yeah. Passenger: (Indistinct) down. Madden: Yes you were. I've got it on dashcam here. Here. You were both on the phone. When I went down there to tell you, you were both on the phone. Madden: No. We were about to undertake some sampling. McClelland. No. When I went down after I locked the gate and rang the police, I come down to tell you - so now you don't want to talk to me? Madden: No. I'll just (indistinct).
5. Video 2018009_130410 at 1:04 pm where the Appellant says to his wife: McClelland: And why didn't they finish what they were doing. That's what I don't understand. …

Police bodycam video

1. The Court watched and listened to footage taken by a bodycam worn by Senior Constable Brendon Adams when he attended the property from 12:50 pm to 12:59 pm. The video included the following exchanges: Police: What was your intentions by locking the gate? McClelland: To get someone here to tell me whether they're allowed to be here or they're not allowed to be here 'cos … just to know what their rights are, what my rights are … Police: Yeah … McClelland: If they're gonna be allowed to be here, then they're allowed to be here … … Police: They've told us they need to do three more samples … McClelland: Yeah … Police: And then they're done … McClelland: Yeah, yeah … Police: Um, I have to warn you that if you obstruct them then you are committing an offence … McClelland: Well, I'm not interested in obstructing them … Police: Yeah … McClelland: I wanted to know what my rights are …

Transcripts of calls to emergency services

1. Transcript of the Appellant's calls to emergency services (police) were tendered in the Local Court.

Appellant's statement to the EPA

1. The Appellant's response dated 13 February 2019 to a "Notice to Provide Information and/or Records" (Notice) issued by the EPA stated "when my wife and I first arrived on site, they were taking samples" (Ex A).
2. In a further response to the Notice, the Appellant wrote on 14 May 2019 that "it wasn't until the police came and spoke to me and EPA officers that the police showed me a piece of paper that the EPA officers had saying that they [were] allowed to be there". He wrote, "if they had showed me the piece of paper in the first place I would have let them do whatever they wanted to do because I don't think the material was contained [sic]" (Ex A).

Appellant's evidence

1. The Appellant gave evidence in the Local Court. A summary of the Appellant's evidence and cross-examination is contained in the Appellant's submissions at pars 32-41 and is set out as there is no dispute about its accuracy.
2. The Appellant gave evidence that the relevant material was placed on the property two weeks before the inspection and remained on the property at the time of the hearing. He had not been charged with anything relating to the soil and had not been previously charged with any offence under environmental protection legislation.
3. The Appellant received a call from a neighbour about people being on the property and so drove there with his wife. He said he saw the EPA vests but "I couldn't get an answer off them, what they were doing I asked them who they were". He said he was told by Mr Madden "I will ask the questions here" and he said in response that he was the owner of the property. The Appellant said that he asked for paperwork a number of times. He said that he did tell Mr Madden that he would lock the gates and call the police and though Mr Madden tried to explain the legislation, he said Mr Madden could have been telling lies so he "want[ed] it in writing". He went to the front gate, locked it, and called the police. He accepted that the dashcam recording in his vehicle picked up his wife asking him if he should tell them they could leave and that he responded "no". He said that after he locked the gates he was "getting quite concerned about what was happening" and that when Mr Madden again approached he said "I don't want to - don't want to talk to you. The police are on their way". The Appellant said he opened the gates to the police and that on being shown copies of the legislation, he said "they can do whatever they like. I'd got what I wanted, proof that they were allowed to be there". The Appellant was asked what he would have done if the legislation had been shown to him earlier and he said he would "tell them to do whatever they like". The Respondent also referenced the following extracts from the Appellant's evidence (Tcpt, 4 March 2020, p 20(4-23); p 21 50; p 22(1-40)): Q. So, is it the case that your conversation and his were jumping over each other? A. That's correct. Q. Then what was said? A. I told them that if they don't show me some information or a piece of legislation as to why they're allowed to be here I'm going to ring the police and I'm going to lock the gate. He tried to explain the legislation and I said to him that he could be telling me lies, I want it in writing. Q. Then. A. So again, I said, "You can either leave or give the paperwork, the legislation or I'm going to ring the police and lock the gate and they can tell me my rights." Q. An then what was said? A. I hopped in the car and proceeded to drive to the front gate as I was driving away they followed me a little bit, as I was backing up, Ms Pollock and Mr Madden sort of followed me a - couple of paces as I was backing away, and I sung out, "Show me the paperwork." I went and looked [sic] the front gate, rang the police. … Q. So then what was the next thing that happened? A. While I was parked at the - up near the front gate, the - the officers both drove up. They parked right in front of the gate, just Madden got out, checked the lock, then they reversed back a little bit. Then they both got of the car and come over and talked to me. Q. We've had a transcript of some conversation where you've been asked to wind the window- A. Correct. Q. -et cetera. A. Yes. Q. Do you say that that transcript is an accurate record of the conversation that occurred at that point? A. Yes. Q. Then what happened? A. They approached me a number of times to - to - trying to talk to me. And I was got - getting quite concerned about what was happening. Wife was getting a little bit worried, so I rang the police a second time to try and hurry them up. Q. And again, there's a transcript of your conversation, at least your side of it, when you rang the police again? A. Yes. Q. Then after you had rung the police again, what happened? A. They - EPA approached me again. And I've just - "I don't want to - don't want to talk to you. The police are on their way." Mr Madden said that - Q. Mr Madden said - A. That he has the paperwork to show me, but he won't show me until I open the gate. Q. You declined to open the gate. A. Yes, I did, because I didn't trust for the - what he had been before. I thought he might just drive out.

Cross-examination of Appellant

1. Under cross-examination the Appellant accepted that he was told locking the gates could be an offence but said in evidence "And I explained to them that I had no interest in - in obstructing at all".
2. It was put to the Appellant that in subsequent correspondence with the EPA he had lied regarding the investigation into the incident by stating that he gave opportunities to the officers to leave when this was not recorded in the dashcam video/transcript, which the Appellant did not accept.
3. In cross-examination the Appellant stated (Tcpt, 4 March 2020 p 31(36-50)): Q. And you decided to lock the gate at that stage because you didn't believe them that they had the power to be there and to do the things that they said they wanted to do. A. I didn't know whether they had the power or not. I asked him to show it to me in writing. Q. Just answer my question. You decided to lock the gate because you didn't believe that they had the power to be there and do the things they said they wanted to do. A. I didn't know what powers they had. Q. Instead, you wanted to wait for confirmation of those powers from the police. A. No. I wanted them to show me what paperwork they had, otherwise I had no choice. I didn't know what they were doing.
4. The Appellant accepted that Mr Madden offered to show him legislation but on "the proviso that I unlock the gate first".
5. It was put to the Appellant that at the time he locked the gates he knew the officers were "conducting investigations" to which the Appellant responded, "I didn't know for sure who they were". It was put to him that locking the gates would "stop the officers from doing what they were doing" to which he responded "No, why would it stop them?" It was put to him that this was his intention, to which he said: No, it wasn't. I had no - at no time did I tell them to stop sampling. I moved away so they continue to do what they wanted to do. So I wouldn't intimidate them.
6. In re-examination, the Appellant confirmed that he had doubts as to whether the officers were lawfully entitled to be on the property.

Magistrate's findings

1. In relation to finding that the Appellant caused delay, the magistrate found (Tcpt, 30 April 2020, pp 8-9): I do not accept the accused's evidence regarding the initial exchange, whilst it was not recorded, the subsequent conversations were. In those conversations the tone of the accused is apparent. He is belligerent, confrontational and is obstinate, talking over the top of Officer Madden and refusing to properly either engage with him or listen to the explanations proffered. His behaviour and attitude is consistent with that described of him by both officers and markedly different to his behaviour and attitude once police had intervened. The accused's evidence that he in effect was the cooperative one and Officer Madden was the aggressive one is inconsistent with the available objective evidence. His evidence in that respect undermines his credibility generally, as do some other aspects of his evidence, such as for example, his calling the police on a second occasion on the basis that things were heating up and he was afraid an assault would occur. There is nothing occurring in the footage at that stage that supported those statements of the accused to police. I also do not accept that the accused gave the officers an opportunity to leave prior to locking the gates. That is inconsistent with the conversation between the accused and his wife whilst they were travelling to the gate to lock it, wherein his wife says to him, "Shouldn't you have told them that they could leave?", the answer from the accused is, "No". The explanation in evidence for that exchange by both the accused and his wife was that that was a suggestion to ask or offer that again is not an explanation that I accept. It is completely inconsistent with the exchange as it occurred and more consistent with the evidence of the officers that they were never given that opportunity. In my assessment both officers presented as honest and credible witnesses. Whilst there were some differences in their evidence, those differences were not significant and reflect the passage of time and their independent view of the circumstances that unexpectedly presented themselves to them on that day. I accept as genuine the evidence of both officers that they did not feel they were free to leave nor free to continue with their task and felt fearful of continuing whilst they were on the property. It is evident that the officers were delayed in continuing with their investigation and taking samples. That delay was occasioned by the behaviour of the accused, by his initial confrontational attitude, by his locking of the gate shortly after his arrival, by his refusal thereafter to properly engage with Officer Madden and his refusal to open the gates to allow the officers to leave prior to police arriving. I am accordingly satisfied to the requisite standard that the actions of the accused delayed Officer Madden in his exercising his powers under the Act.
2. On the question of intention the magistrate found as follows (Tcpt, 30 April 2020, pp 9-11): I turn now to the final element for consideration. Were the acts of the accused in delaying Officer Madden in exercising his powers under the Act intentional. In order to prove this element the prosecution must show that the accused knew his actions would delay the officer in his power to take samples and that that was his intention. Alternatively, if not satisfied of actual knowledge, proof may be found in wilful blindness. The prosecution submits that actual knowledge is proved in this instance. Reliance is placed on the evidence that relates to the issue of delay. The prosecution refers to the evidence of the officers that they were about to undertake sampling when the accused arrived, the dash cam audio of the accused stating to his wife, "They were taking samples", the accused's comment to police recorded on body-worn footage, "They had done a fair bit of it already", and the accused's admission in his correspondence to the EPA that when he and his wife first arrived the EPA officers were onsite and taking samples. This evidence is to be considered, it is submitted, with the dash cam footage timings and the uncontroverted evidence that no sampling took place between the time the gates were locked at 12:04pm and the time that the officers returned to the stockpile after police had left at 1:1 pm [sic]. The prosecution submits, however, that if the Court is not satisfied that that evidence demonstrates actual knowledge of delay by the accused then wilful blindness is established in that the accused deliberately, as evidenced in the dash cam and body-worn footage, chose not to listen to Officer Madden's explanations of his powers, which by inference it is submitted must have included why it was that the officer was there and what he wanted to do, which was to take samples. As to intention, the prosecution submits that this can be inferred from the accused's own actions in locking the gate and calling police and his admission to police on arrival that he "wanted to get someone here to tell me whether they are allowed to be here or they are not allowed to be here because best to know what their rights are and what my rights are". Further, as per his written admission to the EPA, "If they had showed me the piece of paper in the first place I would have let them do whatever they wanted to do because I don't think the material was contaminated". The accused submits that his intention on this day was simply to reasonably exercise his rights as a landowner to seek proof in writing of the basis upon which the officers had interfered with that right and come onto his premises without his consent. It was only when that could not be provided and the officers refused his invitation to leave, he argues, that he determined it was reasonable to have the police attend and sort out the matter and advise him on his rights. His intention, accordingly, was simply to keep the officers there if they in fact chose to stay, so that the police could arrive and provide some ruling on the issue. The officers chose not to leave or continue with their task and that was a decision of their own making and not his intended consequence. If anything, the accused submits, he attempted to reduce any resulting consequence of delay by ringing the police a second time to hurry them up. On this issue I accept the submissions of the prosecution that the accused had actual knowledge of his actions and intended the consequences of his actions. The evidence shows that on his arrival at the property the accused saw the two officers with their EPA signage visible on their vests. Officer Madden introduced himself and provided his identification as an EPA officer. The officers were in and around the recently acquired stockpiled material. The officer's evidence was that they were intending on taking samples. The accused's evidence I find was that he knew that they were taking the samples or at the very least were investigating the stockpiled material. On the locking of the gate shortly thereafter the accused knew by his own observation that the officers moved away from the stockpiled material and waited near their vehicle at the front gates, which were now padlocked. The accused knew by his own observation that the officers did not return to that stockpiled material and continued with their duties until after the police had left and the accused had consented to them continuing with their task. As to the accused's asserted explanation for locking the officers in and waiting for police, he may have taken what he considered to be a reasonable step to have police intervene to explain his rights, but that was not a step that was necessary. If he had given Officer Madden a chance and perhaps been more conciliatory in his interactions with him, he would have been told and later shown the legal basis and authority for the officers' presence, but he was not prepared to afford that opportunity. Accordingly, the inevitable conclusion is that in keep [sic] the officers inside the compound while police were attending, in refusing to open the gates to let them leave and refusing to listen to them he intended to delay them or at least disturb them from doing what it was that they were doing when he first arrived at the compound. His clear intention was to keep them there until the police arrived and to delay or perhaps divert them from their task in the meantime. I am accordingly satisfied that the prosecution have proved to the requisite standard that the accused knew the consequences of his actions and that he intended that consequence on this day.

Preliminary issue

1. The Appellant submits that the Respondent should not be allowed to argue a case that departs from the case presented in the Local Court. The focus of the Respondent's case in the Local Court was wilful delay in the taking of samples, not removal of samples. Removal inevitably must take place off a site. To allow that reliance now on appeal enables the Respondent to present an entirely new basis for criminal liability not raised below.
2. Firstly, the charge in the CAN lacked any particularity of the conduct of the EPA officer said to be delayed. If the Appellant had been charged as taking samples and removing them, that would be bad for duplicity: Environment Protection Authority v Truegrain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [51]-[52] (Leeming JA, RA Hulme and Button JJ agreeing).
3. Secondly, the Respondent's response to a request for particulars dated 8 November 2019 (Ex B) provided particulars which alleged that the offence ended when the Appellant agreed to permit Mr Madden to take samples from the stockpile. Read in context, the letter refers to powers including the taking of samples, not the removal of samples.
4. Thirdly, the Respondent's opening statement refers to powers the officer had to do things at the property which does not include removal of samples that can occur only off a premises.
5. Fourthly, the cross-examination of the Appellant referred only to "sampling" (not the explicit taking and removing of samples as demonstrated). No question was put that in locking the gates the Appellant intended to prevent the EPA officers leaving with any samples.
6. Fifthly, nothing said by the Respondent in closing submissions assists. An attempt to widen the charge in closing would have been oppressive as identified in Gregg v R [2020] NSWCCA 245 at [398] per Bathurst CJ (Hoeben CJ at CL and Lemming JA agreeing). The magistrate's understanding was that the case concerned the taking of samples as she referred to sampling in her judgment, which cannot include removal of samples (see above in [18]).
7. If the Respondent does want to change its case, adequate notice must be given in compliance with s 38 of the Appeal Act, the possibility for which is identified in Sasterawan by Basten JA at [34], and none has been provided.

Conviction arguments

1. The Appellant's conviction appeal should be upheld on the basis that the evidence led against him before the Local Court was insufficient to establish the mental element of the charged offence. Though it is not strictly necessary to identify any particular error in the approach of the Local Court, the Court below appeared to reach its finding that the evidence was sufficient by an improper reversal of the onus of proof and focus upon the wrong legal question concerning the requirement for proof of the mental element of the offence. This Court, properly directing itself to the right legal questions on a rehearing of the evidence led in the Court below, should find that the mental element has not been established to the standard of beyond reasonable doubt and, accordingly, set aside the conviction.
2. The Respondent has to prove that the Appellant knew that what he did would cause delay in the actions of the authorised officers. The Respondent relied on the Appellant's knowledge that the officers were taking samples when he first arrived (Tcpt, 4 March 2020, p 55(19, 49), 56(2)). Alternatively, he was wilfully blind to what the officers intended to do in relation to sampling (Tcpt, 4 March 2020, p 56(25-32)). There was no evidence in the Local Court that the Appellant wilfully intended to delay Mr Madden in the exercise of any specific power by locking the gates.
3. The evidence from the contemporaneous dashcam videos and police bodycam video is that the Appellant's intention in locking the gates was to detain the officers until the police arrived to enable him to find out what the officers' powers were to enter private property, not to delay them in the taking of samples. The Court should not draw an inference that the Appellant had a specific intent to delay Mr Madden from taking samples by locking the gates. That must be the only inference available on the evidence in order to satisfy the Respondent's burden of proof of intent beyond reasonable doubt. Any inference consistent with the Appellant's innocence must be disproved beyond reasonable doubt: Shepherd v R (1990) 170 CLR 573; [1990] HCA 56 at 579 per Dawson J.
4. While the magistrate made findings of credit adverse to the Appellant, these related only to a portion of the evidence concerning the initial exchange with Mr Madden (which was not filmed) and his evidence that he was cooperative and that he offered an opportunity to the officers to leave before locking the gates. While authorities such as Fox v Percy identify that weight can be given to findings in the court below where the magistrate had the advantage of seeing a witness in person, the appeal court is not bound by those findings. Further, the issues of credit findings are not germane to the issues in this appeal as they concerned whether the Appellant caused delay.
5. The stated intention of the Appellant in locking the gates (in addition to calling the police) was to have the powers of the EPA officers and his rights clarified. There is a reasonable doubt that it was not his intention to prevent Mr Madden taking samples. In the Appellant's sworn evidence before the Local Court he denied a specific intention to prevent Mr Madden taking samples. The officers' decision to pause in their work was their decision. The subjective feelings of the officers attending the property are not relevant to the intent of the Appellant. Mr Madden accepted there was no physical impediment to his obtaining further samples. The inciting incident appears, on the totality of the evidence, to be the Appellant's concerns with the power of the EPA officers to be present on the property. The Appellant intended only to resolve the status of their authority. The magistrate's findings on intention should not be accepted in light of the Appellant's clear contemporaneous statements of his intention in locking the gates.

Preliminary issue

1. The CAN identifies the powers in Ch 7 of the POEO Act relied on by the Respondent. The Respondent's case as particularised in Ex B identifies that the relevant power under Ch 7 was the taking and removal of samples and that was the basis on which the case was run in the Local Court, as is clear from the opening before the Local Court. The Respondent's case at trial was consistent with that approach. That "sampling" is referred to in cross-examination during the hearing and by the magistrate does not undermine that the Respondent's case included the taking of samples and their removal. Removal of samples can take place on a site where the action of removal commences and continues off site, contrary to the Appellant's submission that removal must of necessity be entirely off site. The Appellant could have requested further particulars. The Respondent's case on appeal is consistent with the case clearly presented in the Local Court and no issue of duplicity arises.

Conviction issue

1. The learned magistrate had the advantage of seeing and hearing the Appellant give evidence. Her Honour concluded that the Appellant was not a reliable witness and made a number of findings that the Appellant was not a credible witness (see above in [53]). On significant questions of fact where there was dispute about what occurred, the magistrate rejected the Appellant's evidence. His evidence needs to be considered with that in mind.
2. Contrary to the Appellant's submissions on what proof of intention is required, the Respondent submitted in the Local Court (and now submits) that to prove the mental element of wilful intent it needs to prove: (i) that the Appellant knew there would be delay because of his actions (that he had actual knowledge that his actions would delay the officers from taking samples, or was wilfully blind to that knowledge); and (ii) he intended that there be delay as a consequence of his actions. The Appellant disputes (ii). The Appellant's actions viewed in totality show that he did not want the officers' functions to be carried out until he was satisfied that they were lawfully on the property. No complaint can be made that he telephoned the police but there was no necessity to lock the gates. That he wanted the police to assist does not explain why he locked the gates unless he intended to delay the officers until the police were called. This inevitably delayed the officers in the exercise of their functions of taking samples and removing samples from the property. The Appellant was aware that his locking of the gates caused the officers to be delayed in the performance of their functions of taking samples and removing them.
3. The NSW Judicial Commission's Criminal Trial Courts Bench Book's (Criminal Trial Courts Bench Book) direction to juries is instructive, at [3-210] stating: Intent and intention are very familiar words; in this legal context they carry their ordinary meaning. Intention may be inferred or deduced from the circumstances in which ... [specify, for example, the death occurred], and from the conduct of [the accused] before, at the time of, or after [he/she] did the specific act ... [specify, for example, which caused the death of the deceased]. Whatever a person says about [his/her] intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time. In some cases, a person's acts may themselves provide the most convincing evidence of [his/her] intention. Where a specific result is the obvious and inevitable consequence of a person's act, and where [he/she] deliberately does that act, you may readily conclude that [he/she] did that act with the intention of achieving that specific result. Let me assist you with an illustration of that direction. If one person hits another on the head with a hammer, it is (you may think) both obvious and inevitable that that person will receive a really serious bodily injury as a result. If, therefore, the first person deliberately hits the other on the head with a hammer, it is a simple matter for a jury to conclude that [he/she] did so with the intention of inflicting really serious bodily injury upon that other person. You may think that there is no difficulty at all about coming to such a conclusion. But you must remember that you are considering the intention of [the accused] not what your intention might have been had you been in [his/her] position, nor the intention of any theoretical person.

Preliminary issue

1. I accept the Respondent's submissions that the case before the Local Court included reliance on delay in the taking and removal of samples, based on the CAN, the particulars provided by the Respondent set out in [13] above, particularly the responses to questions three and four asked by the Appellant's solicitor, set out in [12] above. The opening and closing submissions of the Respondent in the Local Court referred to the taking and removal of samples. At the time of the circumstances giving rise to the charge, no samples had yet been taken by the EPA officers so that cross-examination on the basis of "sampling" does not undermine the basis of the prosecution made in reliance on all aspects of s 198(2)(b) of the POEO Act. The magistrate referred to the taking and removal of samples and also to sampling in her judgment. A fair reading of the judgment shows that she understood the Respondent's case relied on both taking and removal of samples. No issue of unfairness as considered in Gregg v R arises in so concluding. The preliminary issue is answered in favour of the Respondent. I also consider that the act of removal of samples commences on a property and continues off site, contrary to the Appellant's submission that removal could only take place off site.

Conviction issues

1. An element of the charge under s 211(3) of the POEO Act is wilful delay. Wilful means deliberate or intentional, applying its ordinary meaning. The question on appeal is whether the evidence before the Court is sufficient to establish beyond reasonable doubt that the Appellant's intention in locking the front gates was to delay the EPA officer, Mr Madden, from taking and removing samples from his property. That evidence can include the magistrate's reasons as identified in the extract from Charara set out above in [4]. As I consider the magistrate's reasons contain a thorough analysis of the evidence before the Local Court, it is relevant in this appeal to consider them. I must also form my own judgment of the facts, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called, as identified in Fox v Percy cited in Charara, also in [4] above. The Respondent continues to bear the onus of establishing the elements of the offence, here that the Appellant's actions which caused delay were wilful.
2. There is no disagreement between the parties as to what occurred in the Local Court hearing and therefore the facts before me in this rehearing. Much of the evidence before the Local Court has been identified above in summary form. The facts as presented in the Local Court were that after the Appellant arrived at his property, some five minutes of unrecorded conversation between the Appellant and Mr Madden occurred. The Appellant locked the front gates to the property so that the EPA officers could not leave in their car and then called the police.
3. The magistrate found that the Appellant had delayed the EPA officers and did not accept his evidence that he gave the officers the opportunity to leave in their car before locking the gates. The magistrate made adverse findings in relation to the Appellant's credibility in concluding that the Appellant caused delay to the officers.
4. The Appellant's action of locking the gates did delay the EPA officers in carrying out the taking of samples and removing them. There is no challenge to the findings of the magistrate in that regard set out above in [53], or to the magistrate making adverse findings about the Appellant's credibility in doing so. The Appellant submitted in this appeal that the magistrate's finding on credibility was limited to the matter of whether delay was caused and was not relevant to any finding I make in relation to the Appellant's intention in locking the front gates.
5. The focus of the appeal from the Appellant's point of view is the contemporaneous statements made by the Appellant on the day, as recorded by the Appellant's dashcam and by the police bodycam, extracted above in [35]-[40]. The Appellant's counsel emphasised the stated intention of locking the gates, made contemporaneously by the Appellant, was solely to prevent the EPA officers leaving until the police arrived and the officers' powers were clarified. The Appellant also relied on cross-examination in the Local Court set out in [15] and [47]-[51] above. The Appellant denied in cross-examination that he intended to stop the officers taking samples and stated that he drove away from them to stop them being intimidated.
6. As made clear in the Criminal Trial Courts Bench Book extracted above in [70], intention can be deduced from words and actions. What is said is not necessarily conclusive of what intention is proven in any circumstances.
7. The magistrate's detailed reasoning extracted in full in [54] above on the issue of intention examined the evidence extensively. There is no dispute about the facts relied on by the magistrate in reaching her conclusion. The magistrate posed the questions of whether the Respondent had proved the Appellant knew his actions would delay the officer in taking and removing samples and whether that was his intention. The magistrate stated that if no actual knowledge was established, proof may be found in wilful blindness. The Respondent relied on the evidence that the officers were about to undertake sampling when the Appellant arrived, the dashcam audio of the Appellant stating "they were taking samples", his comments to police that "they had done a fair bit of it already", admissions in correspondence to the EPA that when he first arrived the EPA officers were taking samples, the uncontroverted evidence that no sampling took place between the time the gates were locked at 12:04 pm and the time the officers returned to the stockpile after police had left at about 1:00 pm.
8. The magistrate accepted the Respondent's submission based on this evidence that the Appellant had actual knowledge of his actions and intended the consequences of his actions because the Appellant saw that the officers were wearing EPA vests, Mr Madden introduced himself and showed his EPA identification and the officers were in and around the recently acquired stockpiled material. The officers' evidence was that they intended to take samples and that the Appellant knew that they were taking samples or were investigating the stockpiled material. On locking the gates the Appellant knew by his own observation that the officers moved away from the stockpiled material and waited near their vehicle at the locked front gates. He saw that the officers did not return to the stockpiled material until after the police had arrived. The magistrate found that it was unnecessary for the Appellant to have locked the gates in addition to calling the police as a means of having the officers' powers clarified, a self-evidently correct conclusion. The magistrate reached the "inevitable" conclusion that the Appellant intended to delay them from doing what they were doing when he first arrived.
9. While I am not bound by the magistrate's reasoning, given her advantage in hearing all the evidence, including the Appellant's in person, it is useful to consider her conclusions on intention summarised immediately above and extracted in [54]. Her detailed observations are consistent with the evidence presented at the Local Court hearing and before me. It is apparent from her reasoning that she focussed on the Appellant's actions as she found them based on the evidence she accepted. That evidence included statements made by the Appellant that he was only seeking to clarify the officers' powers. She identified in her reasoning the Appellant's argument in this appeal, namely that the Appellant submitted that his intention was the reasonable exercise of his rights as a landowner to seek proof in writing of the basis on which the officers were there, they having come onto his property without his consent.
10. One argument recorded by the magistrate which was not put in this appeal is that the Appellant's intention was simply to keep the officers there if they in fact chose to stay, so that the police could arrive and provide some ruling on the issue and the officers chose not to leave. The Appellant also submitted that the officers chose not to continue with their task, a decision of their own making, a submission made in this appeal which I consider below in [83].
11. The magistrate found it was an inevitable conclusion that the Appellant intended "to delay them or at least disturb them from doing what it was that they were doing when he first arrived". Such a finding is consistent with the overall evidence in which the contemporaneous statements of the Appellant, the focus of this appeal, must be assessed. Even if the EPA officers had collected samples they could not have removed them, hence they were delayed in carrying out their functions under s 198(2)(b) of the POEO Act as a direct result of the Appellant's actions.
12. I do not accept the Appellant's submission that as there was no physical restraint placed on the officers the Appellant did not delay them in taking and removing samples. The aggressive act of locking the front gates in addition to calling the police and refusing to unlock them when asked to do so by Mr Madden not surprisingly created a situation in which the officers determined to follow their job safety analysis which was to remain in or close to their car. To characterise their behaviour as arising from their subjective response, as the Appellant submitted, is not to the point. That the Appellant considered he had not intimidated them and had driven off to the other end of the property does not render neutral the effect his actions had on the EPA officers. The locking of the gates did cause delay in the taking and removal of samples by the EPA officers. In that respect, his actions can at best be described as wilfully blind as to their effect. Wilful blindness is also established by the Appellant not listening to Mr Madden's explanation of his powers, as identified by the magistrate, another finding consistent with the contemporaneous evidence. The Appellant was told by Mr Madden that locking the gates could give rise to an offence before he proceeded to do so (see above in [22]).
13. I consider it was an inevitable result of the Appellant's actions of locking the front gates that the EPA officers were delayed in taking and removing samples. The Appellant had knowledge that this is what the officers were attempting and he intended through his actions to prevent them or was wilfully blind to the consequences of his actions in locking the front gates until the police arrived. Such a conclusion does not require any finding as to the Appellant's credit. The Respondent has established beyond reasonable doubt that the Appellant acted wilfully in delaying the EPA officers in taking and removing samples.
14. I consider the Appellant's conviction appeal should be dismissed as provided for by s 39(1)(b) of the Appeal Act.

Appellant's submissions

1. An appeal against a sentence imposed by the Local Court is to be by way of rehearing: Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 per Preston CJ at [2].
2. The Appellant's offending conduct was of such low gravity that the fine of $10,000 is manifestly excessive. The maximum penalty for an offence against s 211 of the POEO Act is a fine of $250,000. This maximum penalty covers a wide spectrum of activity (I note that the jurisdictional limit in the Local Court is $110,000 as identified below in [102]).
3. The Court should take into account the actual impact of the Appellant's conduct on Mr Madden's investigations: R v Richmond [2000] NSWCCA 173; Sampson v R [2014] NSWCCA 19. There was no relevant impact. The Appellant's conduct was entirely passive in that there was no physical action to restrain Mr Madden and no threat or direction made to stop sampling. There was no substantial interference with Mr Madden's investigations other than to delay him in taking samples by 20-40 minutes. That delay did not hamper or prevent any investigative outcome and those investigations did not lead to any other charges being laid against the Appellant. It is also relevant that the Appellant's conduct was spontaneous rather than a deliberate and planned effort to delay or obstruct Mr Madden's investigations: R v Derbas [2003] NSWCCA 44 at [17].
4. An order for conviction with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) or dismissal on condition of a period of good behaviour under s 10(1)(b) of the CSP Act would be available and appropriate given the Appellant's character, antecedents, age and the extenuating circumstances in which the offence was committed (ss 10(3) and 9(2) of the CSP Act). The Appellant is self-employed and runs a transport business, is currently 63 years old and has provided the following three references of good character: 1. Mr John Graham, General Manager of PF Formation Pty Ltd, provided a reference dated 8 April 2020. Mr Graham addressed his letter to the presiding magistrate. Mr Graham has known the Appellant for approximately 30 years and has always viewed the Appellant as a respectable and successful businessman. Mr Graham highlighted the Appellant's significant charitable donations. Over the past 26 years, the Appellant has donated $50,000 to the Royal Flying Doctor Service through his support of Mr Graham's annual fundraising events. 2. Mr Mark Richmond, an employee of the Appellant's business since September 2008, provided a reference dated 9 April 2020. Mr Richmond stated that he was aware the Appellant was to appear in court over an EPA matter. Mr Richmond highlighted that the Appellant is a fair and reasonable employer who always conducts himself in a professional and appropriate manner. Mr Richmond stated that the Appellant has developed a business that is respected by his peers, staff and customers. 3. Mr Chris Quinlan of Quinlan Repairs Pty Ltd, who has known the Appellant for over 30 years in work and socially, provided a reference dated 15 April 2020. Mr Quinlan addressed his letter to the court magistrate. Mr Quinlan stated that the Appellant is helpful and kind-hearted and is someone who gets on with all people. The Appellant supports sport, charities and at his own cost each Christmas provides a load of sand for the local caravan park so that the children have a sandy beach to play on. Mr Quinlan stated that the Appellant is someone who makes the best of things and does not leave others behind.

Respondent's submissions

1. This may be a matter where the Court considers it is required to give the Appellant a warning in accordance with Parker v DPP (1992) 28 NSWLR 282 at 295.
2. The only submissions made on appeal relate to the objective seriousness of the Appellant's offending conduct. In the Local Court, the Respondent submitted that the offending conduct fell into the mid range of objective seriousness particularly given that the Appellant detained EPA officers in a fenced compound. The Appellant submitted that the offending conduct fell into the low range of objective seriousness taking into account the Appellant's reasons behind locking the gate. The magistrate characterised the objective seriousness of the Appellant's conduct as "within the upper end of low range …" (Tcpt, 2 July 2020, p 5(32-47)). The magistrate's finding was reflected in a fine of $10,000 that is at the lowest end of the range when set against the maximum available penalty of $250,000. The Appellant was not entitled to a discount of sentence for utilitarian benefit. There was no evidence of remorse or contrition. There was no submission made to moderate the fine because of incapacity to pay. The magistrate refused to make an additional publication order as sought by the Respondent.
3. In all circumstances, the sentencing appeal should be dismissed. It would be inappropriate to make orders under ss 10 or 10A of the CSP Act. None of the relevant factors in s 10(3) of the CSP Act were such as to enliven the discretion not to record a conviction. The offending conduct was wilful. The Appellant was obstreperous and his actions intimidated the officers. He expressed no apology, remorse or contrition for his conduct.
4. General deterrence is highly relevant to sentencing for offences under s 211 of the POEO Act: Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191 (Roche) per Pain J at [85]. An offence under s 211(3) of the POEO Act is inherently serious given that wilfulness is an element of it: Roche at [91].
5. There are a small number of other relevant sentencing outcomes. In Roche, the defendant pleaded guilty to wilfully obstructing authorised officers by providing false information in an email and record of interview causing a three week delay to the investigations. The defendant received a fine of $5,000. The Respondent submitted that the conduct in Roche was less objectively serious than what occurred in the present case.

Consideration of sentencing

1. The purposes of sentencing are identified in s 3A of the CSP Act as follows: Part 1 Preliminary … 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. …
2. The Appellant also referred to the following provisions in the CSP Act: Part 2 Penalties that may be imposed … Division 3 Non-custodial alternatives … 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied - (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction - (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.
3. Factors relevant to sentencing are set out in the CSP Act, s 21A(1) providing that in determining an appropriate sentence the Court is to consider any aggravating factors referred to in subs (2), mitigating factors in subs (3) and any other objective or subjective factor relevant to the seriousness of the offence.

Objective seriousness of offence

1. It is necessary to determine the objective seriousness of the offence. No aggravating factors as identified in s 21A(2) of the CSP Act are identified.

Nature of offence

1. The objects of the POEO Act are extracted above in [3] and include the protection of the quality of the environment in NSW, strengthening the regulatory framework for environment protection and assisting in the achievement of the objectives of the Waste Avoidance Resource Recovery Act 2001 (NSW).

Maximum penalty

1. In setting a penalty the Court should have regard to the maximum penalty applicable as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701 Kirby P stated (Campbell and James JJ agreeing): The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided ... … the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.
2. The maximum penalty for an offence represents Parliament's assessment of the seriousness of the offence and therefore provides a sentencing yardstick. It commonly invites comparison between the case before the Court and cases falling within the category of the "worst case".
3. The maximum penalty for this offence for an individual in this Court is $250,000, suggesting the offence is regarded as serious. In the Local Court the jurisdictional limit on the penalty able to be imposed is $110,000 by virtue of s 215(2) of the POEO Act. The maximum penalty remains relevant, see R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at 123 cited in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242.

State of mind

1. An element of the offence is that the Appellant acted wilfully. The circumstances giving rise to the offence are canvassed above in the conviction appeal and are relevant to consider in relation to the Appellant's state of mind. On arriving at the property, the Appellant saw the officers and that they were wearing EPA vests, was not satisfied with the proffered explanation Mr Madden provided of the powers of authorised officers, demanded that he be provided with that information in writing, was told by Mr Madden that he could provide the legislation to the Appellant which was in the car and was told that locking the gates could give rise to an offence. The Appellant proceeded to lock the front gates. The magistrate found on the evidence before her which included the Appellant appearing in person that he was aggressive in the exchanges with Mr Madden and had delayed the officers in carrying out their duties.

Section 241 matters

1. Section 241 of the POEO Act identifies matters to be considered in imposing a penalty. The matters in s 241 include, most relevantly, the extent of environmental harm caused or likely to be caused by the offence, the measures that could have been taken to avoid that harm, the extent to which a defendant could have reasonably foreseen the harm caused or likely to be caused and the extent of control that a person had over the causes of the offence.
2. The principal harm resulting from the offence is impeding the carrying out of the regulatory scheme under the POEO Act. If authorised officers are delayed in carrying out their functions, then the integrity of that system is affected. The Appellant was told by Mr Madden that locking the front gates could give rise to an offence before he did so. The Appellant clearly had control over the causes of the offence and could have foreseen the harm caused to the integrity of the regulatory scheme by his actions.
3. I agree with the magistrate's assessment of the matter as falling within the upper end of the low range of objective seriousness.

Consideration of Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10(1)(b), 10A

1. Factors relevant to consider in relation to ss 10A and 10(1)(b) of the CSP Act are set out in s 10(3) and include a person's antecedents, the trivial nature of the offence and whether there are extenuating circumstances in which the offence was committed and any other relevant matter. The Appellant's antecedents are identified in submissions above in [89]. No extenuating circumstances have been identified. The charge is not trivial in that it concerns wilful detaining of an authorised officer resulting in delay in the conduct of his duties. That this was for a short period and no other charges arose concerning the material sampled on the Appellant's property does not render the charge trivial.
2. I do not consider an order under ss 10(1)(b) or 10A of the CSP Act is appropriate.

Subjective factors

1. A number of matters that may be taken into account in mitigation are identified in s 21A(3) of the CSP Act. No benefit from an early plea of guilty can arise. There is no evidence of remorse before the Court. The Appellant does not have any prior convictions. His appeal is supported by the references, summarised above in [89], and I accept that he is otherwise of good character.

General deterrence

1. General deterrence is an important aspect of sentencing in environmental crime as in other areas of criminal law. As held by Preston CJ in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J.
2. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-1 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-6, 490-1, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
3. Taking into account the objective and subjective matters outlined above, the conviction and fine of $10,000 is confirmed as appropriate and accordingly the sentencing appeal is dismissed.
4. The issue of costs of the appeal proceedings arises. Under s 49(4) of the Appeal Act the Court has power to order costs as it sees fit. Costs are compensatory not punitive: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 567 per McHugh J. The Appellant has been unsuccessful in both appeals. The Appellant should be liable for the Respondent's costs.

Orders

1. The Court orders as follows: 1. Conviction appeal of matter no 2019/313627 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act). 2. Sentencing appeal of matter no 2019/313627 in the Local Court is dismissed pursuant to s 39(2)(c) of the Appeal Act. 3. The Appellant is to pay the Respondent's costs. 4. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2021