Moore v Environment Protection Authority - [2021] NSWLEC 87 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Moore v Environment Protection Authority

[2021] NSWLEC 87

Land and Environment Court (NSW)|2021-03-25|Before: Pain J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-03-25

Before

Pain J

Catchwords

[2006] NSWCCA 244 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
[2005] NSWCA 110 De Battista v Shoalhaven City Council [2020] NSWLEC 164 Devries v Australian National Railways Commission (1993) 177 CLR 472
[1993] HCA 78 Director of Public Prosecutions v Earl Burns (2010) 207 A Crim R 362
[2010] NSWCA 265 Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228 Fox v Percy (2003) 214 CLR 118

Source

Original judgment source is linked above.

Catchwords

[2006] NSWCCA 244 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731[2005] NSWCA 110 De Battista v Shoalhaven City Council [2020] NSWLEC 164 Devries v Australian National Railways Commission (1993) 177 CLR 472[1993] HCA 78 Director of Public Prosecutions v Earl Burns (2010) 207 A Crim R 362[2010] NSWCA 265 Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Galea v Galea (1990) 19 NSWLR 263 Gianoutsos v Glykis [2006] NSWCCA 137 Green v The Queen (1971) 126 CLR 28

Judgment (61 paragraphs)

[1]

SOLICITORS: Sommerville Laundry Lomas (Appellant) Environment Protection Authority (Respondent) File Number(s): 20/213668 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 23 June 2020 Before: Magistrate K Stafford File Number(s): 18/267754

[2]

[3]

Crimes (Appeal and Review) Act 2001 (NSW)

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 … 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 (c) in the case of an appeal made with leave under section 32 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court. (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 … (2) In determining an appeal, the Land and Environment Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. … (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.

[4]

Pesticides Act 1999 (NSW)

Relevant provisions of the Pesticides Act provide: Part 1 Preliminary … 3 Objects of this Act The objects of this Act are as follows - (a) to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991, (b) to minimise risks to human health, the environment, property and trade, (c) to promote collaborative and integrated policies in relation to the use of pesticides, (d) to establish a legislative framework to regulate the use of pesticides. … 4 Definitions (1) In this Act - … injury to a person includes any kind of physical or psychological injury whether temporary or permanent, including conditions such as nausea, allergic reaction, dizziness, headache, stress, and running nose or eyes. … Part 2 Control of pesticides Division 2 Misuse of pesticides 10 Injury to persons or damage to property resulting from pesticide use (1) A person must not use a pesticide in a manner that - (a) injures or is likely to injure any other person, or (b) damages or is likely to damage any property of another person. Maximum penalty - (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. … (3) "Due diligence" defence It is a defence in any proceedings against a person for an offence under this section if the person establishes - (a) that the commission of the offence was due to causes over which the person had no control, and (b) that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. … Part 10 Procedural provisions Division 1 Proceedings for offences 71 Manner in which proceedings for offences may be dealt with … (3) If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is $20,000 despite any other higher monetary penalty provided in respect of the offence. … Division 6 Other procedural provisions … 111 Causing or permitting offence (1) A person who causes or permits, by act or omission, another person to commit an offence under a provision of this Act or the regulations is guilty of an offence under that provision and is liable, on conviction, to the same penalty applicable to an offence under that provision. …

[5]

Nature of the appeal

Subject to any leave given for the Appellant to adduce fresh evidence, the appeal is a rehearing based on the evidence before the Local Court pursuant to s 37(1) of the Appeal Act. The EPA continues to bear the onus of proving the charge against the Appellant beyond a reasonable doubt: Gianoutsos v Glykis [2006] NSWCCA 137 at [42]. No error in the findings of the magistrate needs to be found: Vince Sunter v District Court of NSW [2008] NSWCA 313 at [24]-[25] (Allsop P). It is for the Court to come to its own conclusion as to the Appellant's guilt.
I discussed the nature of a rehearing in McClelland v Environment Protection Authority [2021] NSWLEC 25 at [4]-[6] referring 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 (there in the District Court) entails: 17 The appeal is to be by way of rehearing on the Local Court transcripts …, 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 ... 18 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). 19 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 [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. 20 In Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208-209 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms: The rule … provides that all appeals shall be "by way of rehearing". This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred … [A power to draw inferences of fact and to give any judgment that ought to have been given] does not … curtail the recognition or respect that an appeal should accord to the decision of a trial judge. 21 These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220). … 23 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 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 s 18(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. 24 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.
The findings in the Local Court are necessary to consider in order to undertake the appeal function adequately.

[7]

Agreed facts

The parties provided the Local Court with the following statement of agreed facts (SOAF) (Ex 5/Local Court Ex 1). Allegations 1. That the accused is charged with three offences of using a pesticide in a manner that injured another person contrary to section 10(1)(a) and section 111 of the Pesticides Act 1999. The Farm 2. The accused and his wife Judith Fay Moore own the macadamia farm located at 345 Friday Hut Road and 387 Friday Hut Road, Brooklet NSW ("the Farm"). The Farm trades in the name of "Wingvale". 3. The Farm is comprised of the following blocks: a. 345 Friday Hut Road, Brooklet is referred to as the block "Wingvale"; and b. 387 Friday Hut Road, Brooklet is referred to as the block "Ryanstone". 4. The Farm covers 160 acres and is comprised of approximately 14,800 macadamia trees. 5. Macadamia trees were planted on the "Wingvale" block between 1992 and 1994. 6. Macadamia trees were planted on the "Ryanstone" block between 1999 and 2000. 7. A map showing the location of the Farm and surrounding properties is at Annexure 1. 8. At the time the alleged offences took place, the accused employed a full-time leading hand to work at the Farm, Mr Neville Battistuzzi and two casual hands, Mr Johnny Ferguson and Mr Patrick Jamieson. The Pesticide 9. That Diazinon is an organophosphorous derivative agricultural insecticide. 10. Diazinon is an "agricultural chemical product" as defined under Part 1, s 4(2)(a) of the Agricultural and Veterinary Chemicals Code Act (Commonwealth) 1994 ("Agvet Code") as (extracted below): 4 Definition of agricultural chemical product a. Subject to subsections (3) and (4), an agricultural chemical product is a substance or mixture. of substances that is represented, imported, manufactured, supplied or used as a means of directly or indirectly: (a) destroying, stupefying, repelling, inhibiting the feeding of, or preventing infestation by or attacks of, any pest in relation to a plant, a place or a thing; 11. As a result, a diazinon is a "pesticide" for the purposes of section 5 (1) (a) of the Pesticides Act 1999 (NSW) (extracted below): 5 Definition of "pesticide" (1) In this Act, "pesticide" means: (a) an agricultural chemical product (within the meaning of the Agvet Code) Pesticide use at the Farm 12. The accused has ultimate management and control of all operational activities undertaken at the Farm, including pesticide application, and the accused makes the choice of what pesticide is to be applied at the Farm. 13. The accused issues instructions in relation to pesticide application and all employees at the Farm report directly to the accused. 14. The general process is that the application of pesticide is discussed between the accused and Mr Battistuzzi, with Mr Battistuzzi then providing instructions to the other employees. To the extent that Mr Battistuzzi issues instructions to other employees he does so upon being instructed to by the accused. 15. Mr Ferguson is provided instructions as to his tasks on a day-by-day basis. On Farm Equipment: Air Blast Sprayer 16. The air blast sprayer operates as follows: a. The air blast sprayer is a unit on wheels that is drawn through the rows of macadamias by a person driving a tractor, from which pesticide is dispensed under pressure ("the tank"); b. Prior to use, the air blast sprayers are calibrated to determine correct nozzle flow rate compared to the manufacturer's specifications: i. The nozzle size is set to determine a flow rate at which the pesticide/water mix is applied to achieve a coverage rate of 6 litres per 100 cubic metres of tree canopy; ii. The height is set for each spray having considered the height of the trees to be sprayed; iii. To be effective, pesticide is required to be sprayed to the top of the tree canopy; and iv. Once the nozzle size and height is set, this cannot be altered by the operator of the tractor. c. The tractor operator can control the speed of the tractor. Electric switches inside the cabin of the tractor enable the operator to turn the flow of pesticide on or off. d. The air blast sprayer is driven between the rows of trees and pesticide is applied to trees on either side. The control unit in the tractor allows the spray to be independently turned 'on' or 'off for each side. 17. The amount of pesticide to be used and the mixing of the pesticide into the air blast sprayer is undertaken by workers under instruction from the accused. 18. The location of pesticide application as well as the identity of the person applying the pesticide and the type of pesticide used are kept in "pesticide use logs". 19. The cost of the pesticide for each tank is $71.87 for the Tornado 2000 litre air blast sprayer and is $125.80 for the for the Silvan 3500 litre air blast sprayer. 18 August 2017: Pesticide use at the Farm 20. On 18 August 2017, the accused undertook pesticide spraying at the Farm as part of a prophylactic 'calendar spray'. 21. The pesticide spraying was undertaken due to the time of season and the development stage of the flower stem, and not in response to any pest outbreak. 22. The air blast sprayers were used by Neville Battistuzzi and Johnny Ferguson on the 18 August 2017 to apply the pesticide to specific rows within the Farm as set out in Annexures 2-3 hereto. Other matters 23. The EPA has not previously taken any action against the accused and is not aware of any antecedents for environmental or any other type of offences.
Annexure 1 to the SOAF includes "Map A" dated 18 July 2018 showing the Appellant's and surrounding properties. The Appellant's properties are Wingvale at 345 Friday Hut Road (property "C") and "Ryanstone" at 387 Friday Hut Road (property "B"). "Map B" is an enlarged version of Map A and identifies EPA sampling points/waypoints 4-7 and 11 taken on 21 August 2017 along Friday Hut Road opposite Ryanstone near Wingvale. Mark Coles and Phillip Scheaffe were also spraying on the morning of 18 August 2017 at 323 Alcorn Road (property "I"). The complainant Mr Sansom lives at 412 Friday Hut Road (property "A") and has been there for about nine years. His parents-in-law Leilani Johnson and Ron Johnson live at the same address.
Annexure 2 to the SOAF, the "Wingvale and Ryanstone Pesticides Application Record Sheet" from Mr Battistuzzi, records the following entries for 18 August 2017: 1. start time 8:00 am, finish time 2:30 pm, operator initials "JF"; rows sprayed "R27/28N to R31/32N" and "R43S to R60S", crops sprayed "macas", product used "diazinon, supa bor, designer", wind speed and direction "light N to NW changed to gentle SW" and a note that "spraying paused during moderate gusts"; 2. start time 8:00 am, finish time 2:30 pm, operator initials "NB", rows sprayed "W85/86 to W103" and "W45/46 to W55/56", crops sprayed "macas", product used "diazinon, supa bor, designer", wind speed and direction "light N to NW changed to gentle SW" and a note that "spraying paused during moderate gusts".
Annexure 3 of the SOAF is a diagram of Wingvale and Ryanstone with diagonal lines indicating the macadamia rows sprayed by Mr Battistuzzi and Mr Ferguson on 18 August 2017.

[8]

Environment Protection Authority's evidence

The EPA tendered exhibits 1-27 from the Local Court (Ex 2). The EPA's documentary evidence in the Local Court included the SOAF extracted above in [9]-[12] (Local Court Ex 1). An additional copy of the "Wingvale and Ryanstone Pesticides Application Record Sheet" was separately tendered (Local Court Ex 10).
Mr Battistuzzi marked an aerial map to show the two areas of Wingvale he sprayed on 18 August 2017 (Local Court Ex 12). Mr Sansom marked an aerial map identifying the point on Friday Hut Road where he estimated he was exposed to spray (Local Court Ex 19).
Mr Coles and Mr Scheaffe both made contemporaneous records on a "Chemical Application Record" of their spray activity at 323 Alcorn Road (property "I") on 18 August 2017 (Local Court Exs 8, 18).
Dr Adendorff prepared a medical certificate for Mr Sansom dated 14 September 2017 and attached Mr Sansom's blood test results (Ex A/Local Court Ex 20).
The EPA tendered statements from its investigators Peter Lynch dated 5 September 2018 (Local Court Ex 14), Alicia Ryan dated 5 September 2018 (Local Court Exs 14, 15) and Michelle Roberts dated 17 July 2018 (Local Court Exs 14, 22). The exhibit to Mr Lynch's statement (Local Court Ex 13) relevantly included the following documents: 1. Bureau of Meteorology (BOM) weather observations for Ballina Airport and Lismore Airport on 18 August 2017 summarised below in [39]; 2. a photograph of Mr Sansom standing with EPA investigator Ms Ryan on the side of Friday Hut Road opposite Ryanstone near Wingvale. Ms Ryan recorded waypoint "4" at this location described as "location Luke Sansom alleges his car was sprayed on 18/08/2017" in Annexure 1 to the SOAF above in [10]; 3. a spreadsheet titled "Pesticide use of surrounding macadamia farmers based on records received" for 1 June 2017 to 19 August 2017 based on spray records provided to the EPA (see below in [43]); and 4. industry guidelines for pesticide spraying summarised below in [46]-[48].
Two certificates dated 8 September 2017 and 25 September 2017, issued under the Pesticides Act s 107 in relation to samples taken by the EPA, were also tendered (Local Court Ex 23).
The following documentary evidence tendered by the EPA was not referred to in this appeal: 1. aerial maps marked by Mr Johnson (Local Court Ex 2), Mrs Johnson (Local Court Ex 5), a video recording taken by Mrs Johnson (Local Court Ex 6) and a record of a water sample taken by Mr Johnson on 22 August 2017 (Local Court Ex 11); 2. an aerial map of the Appellant's property and surrounding farms marked by Mr Ferguson (Local Court Ex 9); 3. a statement of Mr Scheaffe dated 6 November 2018 (Local Court Ex 1 on voir dire) and an attached an aerial map (Local Court Exs 7 and 17); 4. a statement of Mr Coles dated 6 November 2018 (Local Court Ex 2 on voir dire); and 5. an affidavit of Ryan Verzosa dated 22 December 2020 (Ex 4) relevant to sentence.
The EPA also tendered the Local Court transcript (Ex 1). Evidence given by the following EPA witnesses is summarised and extracted from the transcript as referred to in this appeal: 1. Mr Sansom; 2. Mr Johnson and Mrs Johnson; 3. Mr Battistuzzi; 4. Mr Coles and Mr Scheaffe; 5. Mr Lynch, Ms Ryan and Ms Roberts; and 6. Andrew Hewitt spray drift expert.

[9]

Mr Sansom's injury

The following summary of Mr Sansom's evidence as contained in the EPA's submissions reflecting the transcript from the third day of the Local Court hearing is relied on in relation to his injury on 18 August 2017 (Tcpt, 15 October 2019, pp 55-62): a. He woke up at about 5:00am and felt fine. b. At about sunrise (between 5:45am and 6:15am) he drove his vehicle from his property on Friday Hut Road to the nursery which he operates about four kilometres to the south on the same road. c. At around 9:00am he drove north up Friday Hut Road back to his property in order to have breakfast with both windows of his vehicle open. d. As he drove north up Friday Hut Road he smelt a strong chemical smell in the air. e. As he drove towards the entrance to Mr Moore's farm he felt a stinging in his eyes and that he could not "breathe the air". f. As he was going past Mr Moore's farm he wound up the driver's side window of his vehicle but was unable to reach across and wind up the other window. g. At about the same time he saw a mist of spray moving across Friday Hut Road from a spray rig situated close to Friday Hut Road on Mr Moore's farm. h. Spray entered his vehicle. i. His mouth started filling with saliva, the stinging in his eyes became more pronounced and he felt like he could not breath. j. He drove his vehicle back to his property where he told his wife what had occurred and observed that the wind was blowing strongly from a westerly direction (i.e., from Mr Moore's farm towards Friday Hut Road). k. The stinging in his eyes and the "saliva response" continued for the rest of the day and his breathing was also affected. His heart rate felt elevated and he also developed a headache for which he took Panadol. I. He made several calls to the EPA that day reporting what he had observed. m. He continued to suffer ill health for a number of days and ultimately made an appointment with Tintenbar Medical Centre which he attended on 29 August 2017. n. He told the doctor at Tintenbar Medical Centre what had occurred and, on 31 August 2017, subjected himself to blood tests.
A medical certificate prepared by Dr Adendorff dated 14 September 2017 included the following statements (Ex A/Local Court Ex 20): During this consultation on 29th August 2017, Luke reported that he lives on a property surrounded by macadamia farms. On the 18th August 2017 he reports two rigs were working on a neighbouring property, spraying trees with an organophosphate product, Diazinon. Luke reports that there were very high winds at the time. Luke was working outside and he reports being able to taste the chemical in the air. That afternoon Luke reports experiencing a cluster of symptoms including hypersalivation, irritation in his ears, mildly restricted breathing, and being unable to get the taste of the chemical out of his mouth. Over the subsequent 3-4 days Luke experienced headaches, nausea and diarrhoea. He also reported feeling disorientated when he woke in the middle of the night to go to the toilet, and being unable to find his way around the house. Luke has not experienced any of these symptoms prior to the 18th August 2017.
Mr Sansom's blood test results collected on 31 August 2017 are summarised as follows: 1. serum cholinesterase measured at 9.8 kU/L, a range is provided in brackets "6.0-15.6" and the statement "no suggestion of recent organophosphate exposure (within 2-3 weeks)"; and 2. red cell cholinesterase measured at 11.9 kU/L of red blood cells (RBC's), a range is provided in brackets "over 8.0" and the statement "no suggestion of organophosphate toxicity (within 2-3 months)".
Mr Lynch gave the following evidence (Tcpt, 23 August 2019, p 98(17-20)): WITNESS: So, look, if I can answer this as a lay person, certainly, I have no medical expertise, but I have been involved in organophosphate exposures and I have suffered it a number of times myself. So, I know that a - often, from a organophosphate exposure - the blood test will not detect it, and -

[10]

Mr Sansom's experience/observation of spray mist on 18 August 2017 and a spray rig

Mr Sansom marked a red dot on an aerial map identifying the point on Friday Hut Road where he estimated he was exposed to spray (Local Court Ex 19). Mr Sansom marked an arrow pointing away from the red dot to the right.
Mr Sansom gave the following oral evidence in relation to his experience of/observation of spray mist on 18 August 2017 and a spray rig (Tcpt, 15 October 2019, pp 57(25)-58(20)): Q. As you drove past more of the Wingvale property, what did you see? A. I drove past Wingvale. You come around a bend. You can see it on the map, that sort of long bend. At some point along there I wound up my driver's side window, but I couldn't - I had a window down on the other side, but it's - they're not automatic windows, so you have to actually reach over - you've got to physically wind the windows. So as I was sitting around, I did that, wound up my driver's side window, and then I - as I came around the bend shortly after that, I could see - once I got into the straight, I could see a mist, like, a white, a mist moving across the section of the road there, which is marked in red on that map, and yeah, I was driving and I - it sort of came up quickly, it's not a big distance there, and then I drove through it and I looked to my left where it was coming from and there was a spray rig operating to my left, immediate left, at that sort of location heading up the road away from me. Q. So just to recap, the red dot that you've marked on the map, that's about where you saw this mist come across the road; is that correct? A. That's right, that red, so across where that arrow is going. Q. In terms of where you saw the spray rig, where was the spray rig relative to that red dot? A. It was basically at that red dot. It wasn't - it looked like it had just started up a row, so it maybe only, you know, not many metres in the row. It was just from where my vehicle was, I'm on the left-hand side of the road, I estimate it to be about 15 metres from my vehicle. Q. From your vehicle to the rig? A. Yeah. Q. You wound up your driver's side window? A. Yeah. Q. Did you wind up your passenger's side window? A. I attempted to. It happened quickly and I sort of went for a lean, and then I realised it just - I was better just to keep - I couldn't get to it. It was just - it felt, yeah, sort of stiff and it takes a bit of force and I would have had to slow right down or stop and then I would have been in it, you know, right in, stationary where the spray was, so I just kept driving. Q. Why did you try and put your window up? A. Because I could see that it was going to come into the vehicle. Q. When you say, "it"? A. The mist that was coming from the rig. Q. Are you able to say which property the rig was on at that time? A. It was on Wingvale. …
In cross-examination, Mr Sansom stated the following (Tcpt, 15 October 2019, pp 68(26)-70(35)): Q. Could you say whether or not you saw the rig spraying anything into the air? A. Yes, I did. Q. Were you able to estimate in your statement that you saw the spray coming from the rig about 20 metres above the tree canopy? A. Yes, that's correct. Q. Do you remember saying that? A. Yes, I do. Q. This is the rig that is being sprayed on this point where you've marked on exhibit 19 and it's spraying 20 metres above the tree canopy at that stage? A. That's my estimation, yes. Q. You're sure about that? A. Yes. I mean, it's an estimation, so it's - I'm sure that it was spraying and it was spraying very high into the air. It's a - the might is an estimation. Q. At that point when you're driving along the road and you can see this spray mist into the air, you're confident, are you, that you can actually see into the property from where you're driving? A. Yes. Q. You can see the spray rig itself? A. Yes. Q. Physically see the spray rig? A. Absolutely. Q. I suggest to you that you are mistaken about that. A. I don't believe so. That's my observation. Q. I suggest to you that you didn't see the spray rig spraying any spray 20 metres into the tree canopy at that point. A. No. Q. Or at any point? A. That's - it's my observation. Q. Just in terms of the speed that you were travelling when you say you saw this, you say you were travelling at 60 kilometres per hour; is that right? A. Yes. Q. That road itself is 80 kilometres; is that right? A. It is, yeah. Q. You were travelling at 60 kilometres at that particular point where you say that you saw the rig; correct? A. Yes, correct. Q. In terms of the actual time that you say that you got to that point, it would have been some time after 9am or thereabouts; is that correct? A. Correct. Q. Can I suggest to you that in terms of driving at 60 kilometres at that particular point on the road, it would have been a number of seconds for you to drive past the rig? A. I'm not clear on your question. Q. This is a property you drive past frequently; correct? A. That's right. Q. In terms of 60 kilometres an hour, if you're driving a vehicle at that speed, can I suggest to you that it takes less than a minute to entirety of the property of Wingvale as it faces Friday Hut Road? A. It would depend on the speed you're travelling. Q. At 60 kilometres, I'm suggesting to you, it takes less than a minute? A. I wouldn't know and I couldn't say. Q. I suggest to you that in terms of that particular portion of the road that it would take a matter of seconds to pass; would you agree with that? A. To pass? What is it? Q. The part of the road where you say you marked where you saw the rig? A. It was, yeah, about a 20/30-metre sort of section. There's a clearing to. Q. So the part that you say that you saw this rig spraying, the rig was, effectively, closest to the road; is that correct? A. Closest compared to what? Q. To the rest of the property? To the rest of the Wingvale? Closer to the road than it was-- A. That's right. It was at the beginning of a row, so it looked like - as in an angle of the tree row, so it's sort of head uphill from the road from that point and it was just inside the first row heading up the hill, yeah. Q. If you're heading away from your property, in terms of towards Tintenbar, do you say it was a row that was, effectively, the last row of macadamias that you could see? A. No. It's not - there's a whole series of rows. When I say it was at the end of the row, I mean at the end closest to the road of a row, not the end row of trees. Q. In terms of what you've depicted on this map where you say you saw it, it's actually much closer to your house than it is to, say, the end of the Wingvale property as you're travelling towards Tintenbar down Friday Hut Road; correct? A. Yes. Q. You said in your statement to Ms Roberts that when you saw this rig, you could actually see in detail an outline of the operator of the tractor? A. I could. No, not in - I couldn't in detail see the operator, I couldn't make out the operator, but I could - I - yeah, no, I couldn't make out who - identify the operator, no. Q. No, I understand that. It was just an outline of the operator is what you told Michelle Roberts? A. Yes. As I was coming along, the rig is at an angle to - yeah, the angle it's on, I could make out an operator. …

[11]

Position of spray rig used by Mr Battistuzzi on Wingvale

Mr Battistuzzi's contemporaneous record on the "Wingvale and Ryanstone Pesticides Application Record Sheet" is set out above in [11].
Mr Battistuzzi gave oral evidence that he has worked at Wingvale for approximately 25 years. He is a volunteer fire fighter. As a firefighter Mr Battistuzzi is focused on safety and observing wind patterns. On 18 August 2017 Mr Battistuzzi sprayed two areas on Wingvale, which he marked in red on an aerial map (Local Court Ex 12). Mr Battistuzzi started spraying the first area at 8:00 am and finished at about 10:15 am. He sprayed the second area from about 11:00 am to 2:30 pm. The trees he sprayed were probably between 30-500 m away from Friday Hut Road.
In cross-examination, Mr Battistuzzi stated that he had started spraying at row 103, the eastern most row on Wingvale. Mr Battistuzzi marked an "X" on Local Court Ex 12 at this spot. He then moved west, going back into the farm. Mr Battistuzzi sprayed one tank from 8:00 am to about 9:00 am. When he stopped at the end of the first tank, Mr Battistuzzi was at row 92. He filled a second tank and restarted spraying from about 9:40 am until about 11:00 am when he finished at row 86.
When spraying row 103, Mr Battistuzzi used one side of the air blast sprayer and was mindful to keep spray on the farm. Mr Battistuzzi agreed that he did not overspray on 18 August 2017 and that he would have stopped had he observed spray drift.
Mr Battistuzzi agreed that there is a buffer zone between Wingvale row 103 and Friday Hut Road to prevent spray going onto neighbouring properties. The buffer includes pine trees, privet, camphor laurels with undergrowth and a native called pittosporum lantana. Mr Battistuzzi described the buffer as basically a hedge with foliage 30 m tall or higher. There is a small gap in the buffer near the entrance to the Appellant's property on the edge of Wingvale, but Mr Battistuzzi was not spraying these exposed trees on 18 August 2017.
Mr Battistuzzi agreed there is also an embankment in the area where he was spraying "where Friday Hut Road has been cut in". Mr Battistuzzi estimated the embankment is about three to four metres high so that the road is not necessarily level with where the trees are situated.

[12]

Wind conditions on 18 August 2017

Mr Sansom gave oral evidence that it was "extremely windy" between 5:45 am and 6:15 am. At 9:00 am, Mr Sansom observed mist travel from the left hand side of the road to the right, being from the west towards the east. Mr Sansom's evidence was based on his experience of making daily wind observations.
In cross-examination, Mr Sansom stated that at about 9:00 am there were wind gusts in excess of 65 km/h. Mr Sansom disagreed that between 5:45-6:15 am the wind was of the same intensity as at 9:00 am. Mr Sansom disagreed that whilst he was driving the wind could have been much less, meaning 30 km less, than 65 km/h. It could have been possibly less or possibly more.
Mr Battistuzzi's contemporaneous record of wind conditions is recorded on the "Wingvale and Ryanstone Pesticides Application Record Sheet" above in [11]. Mr Battistuzzi gave oral evidence that there was a northerly wind at approximately 8:00 am, that it turned around to the north-west (he could not say at what time) and became a south-westerly wind later in the day. In cross-examination, Mr Battistuzzi agreed that different parts of the Appellant's farm have different wind conditions.
Mr Coles gave oral evidence that he was spraying "Lepidex" at 323 Alcorn Road (property "I") on 18 August 2017 from before sunrise at 5:30-8:00 am. The wind was coming from the west at roughly 5-6 km/h when he started spraying. Mr Coles did not notice any change in the wind conditions between 5:30-8:00 am, when Mr Scheaffe took over spraying. Mr Scheaffe had a break from 9:00-9:30 am. At about 9:30 am they decided to stop spraying because it was too windy. In cross-examination, Mr Coles agreed that 323 Alcorn Road (property "I") is in an area with varied topography and that wind conditions are location-specific. The wind was coming from the west at 8:00 am and at 9:00 am.
Mr Scheaffe gave oral evidence that he was spraying Lepidex at 323 Alcorn Road (property "I") on 18 August 2017 from about 8:00-9:00 am. The wind was a slight westerly when he started spraying. At about 9:00 am the wind was westerly, and it was too windy to spray so he and Mr Coles decided to stop. In cross-examination, Mr Scheaffe stated that it was not too windy to spray at 323 Alcorn Road (property "I") between 8:00-9:00 am. Mr Scheaffe agreed that wind conditions on Friday Hut Road can be significantly different from wind conditions at Ballina or Lismore.
A summary of the BOM recordings for Ballina Airport (about 14 km south-east of Wingvale) and Lismore Airport (about 30 km south-west of Wingvale) on 18 August 2017 is included below: Lismore Airport Ballina Airport 5:30am NNW 2km/h CALM 0 km/h 6:00am NNW 13 km/h W 6 km/h 6:30am NW 17 km/h W 6 km/h 7:00am NW 9 km/h W 6 km/h 7:30am NW 15 km/h NW 11 km/h 8:00am NNW 17 km/h WNW 15 km/h 8:30am WNW 17 km/h NW 15 km/h 9:00am WNW 22 km/h WNW 15 km/h 9:30am W 22 km/h WNW 24 km/h

[14]

Sample testing and spray records

On 21 August 2017, the EPA took samples from various locations including waypoints 5-7 and 11 along Friday Hut Road opposite Ryanstone close to Wingvale. Waypoints were recorded at relevant sampling points, identified on Annexure 1 to the SOAF above in [10]. The Office of Environment and Heritage Environmental Forensics analysed the samples. A "Report of Analysis" dated 8 September 2017 identified that a sample from the left side of Mr Sansom's car contained diazinon.
A "Report of Analysis" dated 25 September 2017 identified the following results: 1. a sample from "Macadamia" (waypoint "6") identified diazinon and cyfluthrin; 2. a sample from "Macadamia 2" (waypoint "7") identified diazinon and cyfluthrin; 3. a sample from "site of car exposure" (waypoint "5") identified diazinon; and 4. a sample from the windscreen of Mr Sansom's car did not identify any diazinon.
The EPA collected pesticide spray records for 1 June 2017 to 19 August 2017 from farms within 1 km of the incident location. These properties are identified from "B" to "N" on Annexure 1 to the SOAF in [10] above. A table summarising the records was exhibited to Mr Lynch's statement. Properties "D", "E", "L" and "M" reported no pesticide spraying from 1 June to 19 August 2017. The following properties reported spraying: 1. Wingvale (property "B") sprayed diazinon on 18 August 2017; 2. Ryanstone (property "C") sprayed diazinon on 17 and 18 August 2017; 3. 161 Alcorn Rd (property "F") sprayed "Bulldock" on 2, 3 August 2017 and diazinon on 1, 2 August 2017; 4. 241 Alcorn Rd (property "G") sprayed diazinon on 16, 17 August 2017 at; 5. 271 Alcorn Rd (property "H") sprayed Lepidex on 14, 16, 17 August 2017; 6. 323 Alcorn Rd (property "I") sprayed Lepidex on 17, 18 August 2017; 7. 517 Friday Hut Rd (property "J") sprayed diazinon sprayed on 17 August 2017; 8. 493 Friday Hut Road (property "K") sprayed diazinon on 15, 16 August 2017; and 9. 522 Fernleigh Rd (property "N") sprayed diazinon on 7, 8, 9 August 2017.

[17]

Environment Protection Authority's evidence relied on by the Appellant to submit pesticide spraying at other properties on 18 August 2017

The Appellant relied on evidence adduced by the EPA in the Local Court to submit there was pesticide spraying at other properties on the day of the offence which could have been the source of Mr Sansom's exposure. I note that the two complaints in the Local Court relying on the Johnsons' evidence were dismissed. I do not know the details of those charges. Mr Johnson gave oral evidence in the Local Court that at about 6:30 am on 18 August 2017, he was at 412 Friday Hut Road (property "A") and had a dry, sore throat and sore eyes. He could smell a chemical-type smell. Mr Johnson went out onto the property. He observed some wind and could hear machines running, being machines that he would attribute to a macadamia farm. Mr Johnson looked across his property towards Wingvale and saw spray mist. In cross-examination, Mr Johnson agreed that at about 4:00 pm he could still smell pesticide, could see it in the air and hear machinery like blowers working.
Mrs Johnson gave oral evidence in the Local Court that at about 7:30 am on 18 August 2017, she stepped out of the house at 412 Friday Hut Road (property "A") and could smell a chemical. Mrs Johnson observed wind, mist and she could hear machines running. In cross-examination, Mrs Johnson agreed that as she could hear machinery after 4:00 pm on 18 August 2017 she thought that Wingvale did not stop spraying pesticide until then.
Mr Sansom gave oral evidence in the Local Court that on the morning of 18 August 2017 he could smell a strong chemical smell from before Killen Falls Drive. From the driveway at 412 Friday Hut Road (property "A"), Mr Sansom observed one or two spray rigs operating on the Appellant's properties until around 4:00 pm on 18 August 2017.
Dr Hewitt gave oral evidence that when pesticide is applied to a crop, spray drift is anything that moves away from the intended target, it could be spray droplets or solid particles. How far spray can travel depends on wind speed and the height at which it is released. Small particles of spray can travel "large distances, tens of kilometres, hundreds of kilometres, wherever the wind takes them until they finally deposit". Exposure to spray drift depends mainly on the wind direction.
Dr Hewitt gave the following evidence in cross-examination on "inversion spray drift". During the day, the air gets colder higher into the atmosphere. Temperature inversion occurs when later in the day or at night, there is colder air closer to the ground and the temperature increases with height. Spray drift under inversion conditions is a special case that applicators need to understand because they do not know where the spray is going to go. It would not be best practice to spray when there is little or no wind and temperature inversion, which commonly would be before daylight, unless there is heavy cloud cover.

[20]

Mr Bell (wind conditions on 18 August 2017/other sources of pesticide/inversion spray drift)

Mr Bell's opinion in his report dated 24 July 2019 relied on spray records collected by the EPA summarised above in [43] and BOM weather data for corresponding dates at Ballina Airport and Lismore Airport. Mr Bell concluded that it was possible there was spray drift from 241 Alcorn Road (property "G") on 17 August 2017 which deposited diazinon onto the Appellant's property and surrounds.
Mr Bell's addendum report dated 14 August 2019 outlined two site visits he undertook to the Appellant's property and surrounding areas on 11 August 2019 and 12 August 2019. Following these visits, Mr Bell concluded that wind conditions at Friday Hut Road and surrounds did not mimic BOM wind recordings at Ballina Airport or Lismore Airport.
Mr Bell stated that spray drift can occur up to 5 km. Given the nature of the topography observed surrounding the Appellant's property (rolling hills, undulations, gullies and waterways, small valleys and tall vegetation) it is highly probable that inversion spray drift could have travelled from up to 10 km away. Mr Bell observed there are many macadamia farms in a 10 km radius from Wingvale. Spray records collected by the EPA demonstrated that several farms in the region spray diazinon and Lepidex in the afternoon, evening and at night being conditions that increase the risk of inversion spray drift.
Mr Bell opined that based on his site visits it was unlikely that spray drift emanated from Wingvale on 18 August 2017. This conclusion was supported by the inconsistent wind conditions he had observed between BOM sites at Lismore and Ballina and at the Appellant's property. It was highly likely that spray drift occurred from surrounding properties between 1 to 17 August 2017 based on records collected by the EPA.
Mr Bell also gave oral evidence that since the Appellant had not used cyfluthrin in August 2017, there would have been a drift event from another farm in the region which deposited the cyfluthrin (sold as Bulldock) picked up in the EPA samples collected on 21 August 2017.
Mr Bell estimated that Killen Falls Drive is about 1.1-1.2 km south of 412 Friday Hut Road (property "A"). Assuming the wind was coming from the west and that Mr Sansom encountered a chemical smell before Killen Falls Drive, there is potential that it was spray drift from a farmer other than the Appellant. Mr Bell stated that if there had been wind speeds of 65 km/h any cloud of mist would have dissipated. One can basically minimise and stop spray drift totally if an air blast sprayer is set up correctly. Mr Bell believed that the Appellant had taken all reasonable precautions in relation to the use of pesticide on 18 August 2017.
In cross-examination, Mr Bell stated that the Australian Macadamia Society's guidelines are "very ambiguous and quite difficult to interpret". Mr Bell did not necessarily agree that spraying in strong wind conditions would be a failure to take reasonable precaution to prevent spray drift because it would depend on what is downwind. It would be safe to spray if one was using a properly calibrated air blast sprayer. Mr Bell would not necessarily expect a farm operator to notify neighbours before spraying. Mr Bell did not agree that the Appellant should have notified the occupants of 412 Friday Hut Road (property "A") before spraying.

[22]

Professor Weatherby's report

In summary, organophosphate insecticides such as diazinon affect the parasympathetic nervous system. The parasympathetic nervous system controls bodily functions. When the parasympathetic nervous system is stimulated (eg exposed to organophosphate insecticides), it decreases respiration, decreases heart rate, increases digestion, produces constriction of the pupils of the eye, decreases blood pressure, constricts bronchial muscles and stimulates bronchial secretions, increases production of saliva and mucus and increases urine production. Organophosphate insecticides reduce the activity of an enzyme known as cholinesterase found in red blood cells and in the plasma parts of the blood, inter alia. The red cell test and serum test measure cholinesterase activity. These tests provide a measure of the severity of exposure to organophosphate insecticide. Mild exposure usually produces a decrease to 20-50% of normal activity (compared to 100%). Exposure to organophosphate insecticide with no symptoms can see a decrease in serum cholinesterase activity to 50-90% of normal activity.
In relation to Mr Sansom's blood test results, the result was 9.8 kU/L of serum cholinesterase activity. The normal range in the community is 6.0-15.6 kU/L. As the activity was found within this range, the laboratory interpreted this result as "No suggestion of recent organophosphate exposure (within 2-3 weeks)". The second test was the red cell cholinesterase which was recorded as 11.9 kU/L. The normal range for the community is over 8.0. As the activity found was greater than 8.0 then again this is not a decrease in activity as would occur if an organophosphate insecticide exposure had taken place. The laboratory has interpreted this result as "No suggestion of organophosphate toxicity within 2-3 months". The conclusion following both tests must be that no exposure has occurred.
Professor Weatherby expressed at par 11 that a single blood sample was taken, and two different tests were carried out, both which showed no decrease in cholinesterase activity after 11 days. These tests are able to detect decreased activity for a longer period than that, 2-3 weeks for the serum test and 2-3 months for the red blood cell test. The red blood cell test is more sensitive and regarded as the more appropriate test to use. The same result from both tests indicates very strongly that there was no exposure to diazinon even at a mild level.
Professor Weatherby concluded: 19. My overall opinion in this matter is that: (i) Mr Sansom has reported a group of symptoms which do correspond to. overstimulation of the parasympathetic nervous system. However there are symptoms of parasympathetic stimulation that occur that were not reported by Mr Sansom. If it was parasympathetic stimulation, then the exposure to diazinon would appear to have been severe. (ii) Decreased activity of cholinesterases occurs prior to symptoms appearing (Fuzery & Clarke, 2017). Therefore, with the symptoms described, the cholinesterase activity would have decreased in the hours immediately after exposure. The two blood tests are very significant in that together there is no evidence of decreased activity of cholinesterases. Therefore it must be concluded that no exposure to diazinon (or other organophosphate insecticide) occurred either at the time immediately prior to the symptoms being experienced or at the time the symptoms were experienced. (iii) An alternative explanation is that the symptoms which were self-reported were actually those of an attack of allergic rhinitis. Similarly to the symptoms of organophosphate exposure, the list of reported symptoms does not include all the symptoms possible. However a person self-reporting a health incident is not always able to provide exact information on what is being experienced at the time. (iv) In conclusion, my opinion is that, the significant aspect of determining exposure to an organophosphate insecticide such as diazinon are the 2 blood tests. These together do not indicate that any exposure occurred.

[23]

Professor Weatherby's oral evidence

Professor Weatherby gave oral evidence that the blood test results are accurate and precise. The red cell test is very sensitive to organophosphate pesticide exposure and is the test predominately relied on. The fact that the red blood cell test says no suggestion of toxicity demonstrates quite clearly that Mr Sansom was not exposed to diazinon. Mr Sansom's results for the serum test being 9.8 kU/L and for the red cell test being 11.9 kU/L simply demonstrated that he is within the range of the normal general population results for both tests. Mr Sansom did not have a baseline test.
Mr Sansom's medical records demonstrate that he is allergic to various things found on farms. Given that Mr Sansom's symptoms became more severe after three days, that would indicate a high probability that the symptoms were an allergic reaction.
In cross-examination, Professor Weatherby agreed that, generally speaking, if someone is exposed to organophosphate pesticide they may suffer decreased enzyme activity. It depends on the level of exposure. If there is only a very tiny amount there may not be any decrease in activity. Even in some people who have a mild exposure sometimes no loss of activity occurs, but for severe exposure a significant loss of enzyme activity occurs.
Professor Weatherby agreed that in relation to the serum test an individual might have an ordinary activity level of somewhere up near 15.6 kU/L or as low as 6.0 kU/L. Mr Sansom's result for the serum test was 9.8 kU/L. In relation to the red blood cell test, the normal range is over 8.0 kU/L and can be as high as about 18 kU/L. Mr Sansom's red blood cell result of 11.9 kU/L could be consistent with mild exposure to organophosphate but not further. Professor Weatherby agreed that there was no baseline activity test which Mr Sansom's test results could be compared against.
Professor Weatherby was asked to assume that if Mr Sansom had a relatively high baseline number relative to that general population study, whether his results would be consistent with a decrease in enzyme activity. Professor Weatherby stated that if Mr Sansom had very mild exposure the results could be consistent with that. But Mr Sansom's symptoms point to severe exposure. For severe exposure the result would be well below the general population range because enzyme activity would be towards zero. Given that Mr Sansom's results are within the general population range they suggest there has been no severe exposure. Professor Weatherby agreed that the impact of exposure to organophosphate can vary between individuals. There can be differences in the degree of decrease in enzyme activity between different people.
Professor Weatherby agreed that if someone was driving past a spray rig spraying diazinon, observed the spray coming towards them and immediately suffered stinging in the eyes, then stinging eyes could be consistent with exposure to diazinon. However, there are other things can cause stinging in the eyes. Mr Sansom reported saliva production, headache, stinging of the eyes. Professor Weatherby stated that these symptoms would require more than a mild exposure to diazinon.

[24]

Magistrate's findings

The EPA tendered the magistrate's reasons dated 23 June 2020 (Ex 3). The magistrate found that Mr Sansom's direct observations at 9:00 am in relation to injury and causation should be accepted beyond reasonable doubt. The hypothesis that the spray came from a property other than Wingvale, supported by the opinion of Mr Bell, was not a reasonable possibility. Mr Battistuzzi was accepted to be a very honest witness but his evidence had to be assessed in light of the fact that the prevailing wind when he was spraying on the morning of 18 August 2017 next to Friday Hut Road, was blowing from the west. Mr Battistuzzi's evidence did not demonstrate that he was positively not in the area where Mr Sansom said he observed the rig.
The EPA relied on the following findings in relation to Mr Sansom's credit: Credibility of Luke SAMSON [sic] I rejected Luke SAMSON's [sic] evidence about wind variability before he left for work. His evidence that it was an extremely windy day at 5:45-6:15am was inconsistent with the independent evidence from COLES and SCHAEFFE [sic]. There was a question around Luke SMASON's [sic] ability to observe spraying 20 metres above the tree canopy. I did not accept that reliability of that evidence because it was made from a moving car, by the driver of that car, and would only have been a momentary look. The inconsistencies between his estimate of windspeed at 65 kph in his statement and his concession that it could have been 35 kph are other factors of unreliability that I have taken into account when assessing all of the evidence. However, a tribunal of fact can reject parts of a witnesses' evidence and accept others. In this case, I direct myself that I must consider my above findings in assessing whether I find Luke SAMSON [sic] to be an honest and reliable witness, particularly where he gave evidence that spray blew into his car from Wingvale at 9:00am. Despite those findings, there was overwhelming corroborative evidence that taken together persuades me to accept Luke SANSOM's evidence about the events that occurred around 9:00am. They include: • Luke SAMSON [sic] was unshaken during cross-examination that he was driving along Friday Hut Road next to Wingvale which was to the west of his car. • His evidence that he saw a spray rig on Wingvale as he drove past was corroborated in part by the evidence of Mr BATTISTUZZI • Mr BATTISTUZZI was spraying Diazinon on rows that were 30 metres to the west of Friday Hut Road that morning. • Mr BATTISTUZZI agreed that at 8:00am, the wind was Northerly and that it turned North Westerly and later in the day became South Westerly. • Mr BATTISTUZZI conceded that if he was spraying near Friday Hut Road, he relied on "anything with an easterly type influence", however he conceded there was no direct easterly wind that day. • Mr SCHAEFFE [sic] and Mr COLES who were only 1 km away, decided to break at 9:00am because the wind was too gusty and was coming from the West. • Mr SAMSON [sic] was unshaken in his evidence that he saw spray mist coming from the rig working on Wingvale and blowing from right to left across Friday Hut Road • He engaged in consistent conduct to prevent mist coming into the car, by winding up the driver's window and leaning across to the passenger window to try to close it. When unable to close it quickly, he decided to keep driving through the mist. • His subsequent conduct was also consistent: when he got out of the car at the JOHNSONs property, he spoke to his wife about what happened. He then rang the EPA for the first time that day, between 9:00am and 10:00am. • Mr SAMSON's [sic] evidence that after he first called EPA he saw 2 rigs on Wingvale, is consistent with the evidence from Mr BATTISTUZZI and Mr FERGUSON that they were both spraying from separate rigs at Wingvale that morning, but that Mr FERGUSON was not spraying near Friday Hut Road when he first started at 8:30am. • Mr SAMSON's [sic] evidence that he observed spray mist above the canopy was partly corroborated by the evidence of Mr BATTISTUZZI that spray is ideally applied above the canopy to achieve maximum coverage - he assumes that on 18 August, it was applied half a metre above the canopy but could have been higher. The trees he sprayed would have been up to 10 metres tall. • A swab taken from the side of SAMSON's [sic] car (that is the side closest to Wingvale) was analysed and revealed the presence of Diazinon • A sample was taken from the site at which Mr SAMSON [sic] complained that the car was exposed, and subsequent analysis revealed the presence of Diazinon • Mr SAMSON [sic] sought medical treatment for ailments that were not present when he woke on 18.8.17, and gave a consistent history to his doctor. • His oral evidence that he experienced symptoms at 9:00am was unshaken during cross-examination by experienced Counsel. Defence Counsel submits that there are further factors that undermine Luke SAMSON's [sic] credibility: his close relationship to the JOHNSONs and the probability of contamination of his evidence by the JOHNSONs (directly and because he was sent a copy of Ronald JOHNSON's statement), his bias against pesticides, the implausibility of a mist during supposedly windy conditions, his failure to seek immediate medical attention, the inconsistent history given to Dr ADENDORFF and the test results which showed no exposure to organophosphates. I do not accept those submissions for these reasons: • There is no evidence of collusion with the JOHNSONs. In fact their evidence was in parts inconsistent with Mr SAMSON's [sic]. I watched Mr SAMSON [sic] closely during his cross-examination and found him to be a straight-forward witness, even vague at times, who was unlikely to have concocted a false account with his parents-in-law. • The sending of Mr JOHNSON's statement to Luke SAMSON [sic] by Ms ROBERTS was unfortunate, however there was nothing sinister in that - Mr JOHNSON does not own a computer whereas Mr SANSOM does. In addition, there is nothing in Mr JOHNSON's statement relating to Luke SAMSON's [sic] allegation of driving up Friday Hut Road. There is no evidence that the receipt of Mr JOHNSON's statement infected the recollection of Luke SAMSON [sic]. • There was no evidence, only a rejected suggestion, that he has a bias against pesticides. The evidence was to the contrary: he, unlike the JOHNSONs, works in agriculture and has customers who are macadamia farmers who use pesticides. He used to spray as a contractor for a company 20 years ago. Further, he uses chemicals in his nursery. He was unshaken in his evidence that any concern about Diazinon arose from concern of its use that day when it drifted off the property. • The witness was adamant in cross-examination that he drove through mist on Friday Hut Road. That passage of driving was not a long one in terms of time. His evidence was that the mist was across the road moving quickly from left to right. His evidence was not that the mist was stagnant on Friday Hut Road but was moving from the rig and across the road. It is not implausible, even on his own account of strong winds, that mist could be over the road at that moment. • His evidence about the speed of the winds and the height of the spray above the canopy at that moment is unreliable, given the circumstances in which his observation was made: driving on a public road, winding up manual windows, struggling to wind up the passenger side window. • Mr SAMSON's [sic] failure to obtain immediate medical attention needs to be assessed in light of the fact that he made an immediate complaint to the EPA, then followed the EPA investigator's suggestion which came days later and submitted to blood testing. That conduct is inconsistent with someone who, as the Defence submits, was lying about having driven through pesticide spray mist. • The inconsistencies in the history given to the doctor were adequately explained in cross-examination: the doctor incorrectly recorded "ears" rather than "eyes", he worked outside all day and could taste the chemical in his mouth all day. While there was no mention in the Doctor's statement of injury whilst driving, this must be viewed in the context that he had already made that complaint to the EPA investigator Peter LYNCH on 21 August, 8 days earlier. • Dr ADENDORFF's record (Exhibit 21 [sic]) indicates a consistent history given by a regular patient: that Mr SAMSON [sic] had been a patient for 3 years, had presented with a concern about his exposure to Diazinon and his subsequent symptoms, that 2 rigs were spraying on a neighbouring property spraying macadamia trees, that the winds were very high at the time and that he experienced a cluster of symptoms which lasted 3 -4 days. • The lack of pathological findings is, according to Peter LYNCH, not unexpected. Mr LYNCH has had his own experience of exposure and gave unshaken evidence that often blood tests do not show the presence of organophosphorus. Mr SANSOM's description of symptoms he experienced at 9:00am was consistent and unshaken during cross-examination. His conduct in making a complaint to EPA, directing investigators to take samples from the exterior of his vehicle and then consulting a medical practitioner when his symptoms persisted, are all actions that are consistent with someone having been injured in the manner described. Given the corroboration of Luke SAMSON's [sic] account and having found that the evidence of Mr BELL does not raise a doubt that is reasonable, I find as a fact that the wind at 9:00am was westerly and gusty. Considering the proximity of the spraying area on Wingvale next to Friday Hut Road at the moment when Mr SAMSON [sic] was driving by, the westerly wind and the westerly position of Wingvale in relation to Friday Hut Road, the only logical explanation is that the mist that blew into his car blew from Wingvale. I further find proved beyond reasonable doubt that when Mr BATTISTUZZI was spraying close to Friday Hut Road, he was doing so in a manner that was likely to injure people passing at that time along Friday Hut Road. Although that road is a rural road, it connects Tintenbar, Brooklet and other villages and is regularly used by motorists and school buses. At 9:00am on a week day, the likelihood is that people would either be driving or otherwise be a passenger around that time. Given that Mr BATTISTUZZI was spraying close to that road in unfavourable wind conditions, and given that the Diazinon spray was blown from Wingvale onto a passing car, l find that the Prosecution has proved beyond reasonable doubt that at that time, the Defendant permitted the pesticide to be used in a manner likely to injure another person. I accept Luke SAMSON's [sic] evidence BRD that he was injured and that his injuries were caused by the manner in which the pesticide was sprayed on Wingvale. Accordingly, I am satisfied BRD that the defendant used a pesticide in a manner that injured Luke SAMSON [sic].

[25]

Due diligence defence - magistrate's reasoning

The EPA also relied on the magistrate's reasons in relation to the available defence of due diligence: MATTERS TO BE PROVED BY THE DEFENCE Defence Counsel submits that the defence has been made out because the spray drift occurred due to caused over which the Defendant had no control, the Defendant had taken all reasonable precautions and had exercised due diligence to prevent the commission of the offence. I accept Counsel's submission that safety was a paramount concern to the Defendant who was an experience macadamia farmer with no prior adverse history. He appropriately trained and oversaw his staff and the calibration of machinery. I accept that the use of the Beaufort scale to measure wind was appropriate, and that the use of buffer zones and awareness of sensitive areas were aspects that he addressed. I further accept that Mr BATTISTUZZI made observations of the wind before he started spraying. As did Mr FERGUSON. However, I do not accept Defence Counsel's submission that the onus has been discharged. That is because the Defendant has failed to discharge his burden of proving on the balance of probabilities each of the essential elements. That is that the spray drifted due to a cause out of his control AND that he took all reasonable precautions AND that he exercised all due diligence to prevent it. For the reasons below, I find that he did have control over the cause, and that while he took precautions and exercised due diligence, he did not take all reasonable precautions and he did not exercise all due diligence. Was the offence committed due to causes over which the Defendant had no control? Mr BATTISTUZZI acknowledged in his evidence that pesticide spray drifts in the same direction as the wind. When Mr SAMSON [sic] drove past Wingvale, the Westerly wind carried the Diazinon off Wingvale and across Friday Hut Road, drifting easterly. While the defendant had no control over the wind direction, he did have control, through the operation of the air blaster by Mr BATTISTUZZI, over the drift of spray with the wind. At the time that the Westerly wind carried Diazinon from his air blaster off the farm, Mr BATTISTUZZI was in control of the spray leaving the air blaster. Accordingly, the offence was committed due to a cause over which the Defendant had control. Even if I was wrong about that, I would have found that the Defendant had failed to discharge his onus in relation to the second essential element of the defence. Did the Defendant take all reasonable precautions and exercise all due diligence to prevent the commission of the offence? Defence Counsel submits that all reasonable precautions and due diligence were taken. I reject those submissions for the following reasons. I do not accept the evidence of Mr BATTISTUZZI that they made all attempts to prevent spray drift. This is because of the location at which he was spraying, he was close to a public road. The sensitivity of that area is the reason why buffer zones are in place. As Mr BATTISTUZZI said, to spray there, there should be an easterly wind, and yet there was no easterly component to the wind when he was spraying near that area. This was known to him before he started spraying. For the spray to be travelling across to Friday Hut Road, he was not paying proper attention to the prevailing westerly winds at that time, even despite spraying only one side of the trees. The location in which he was spraying was near a public road on which school buses travel, it was a school day and the road separated Wingvale from a residential property. Given those circumstances and the time of day at which he was spraying, when a school bus or commuter traffic could be reasonably expected, a high standard of care was necessary to prevent drift, in order to amount to reasonable precautions. All reasonable precautions would include only spraying close to Friday Hut Road when there was an easterly wind. Defence Counsel submits that the failure to notify neighbours was not a failure to exercise due diligence. It is not a matter referred to by the Minister in the Second Reading Speech. However I do not accept that submission for these reasons: 1. Mr BATTISTUZZI acknowledged that the residents from the farmhouse on the Wingvale property itself were notified of an intention to spray. Spraying was not done when they were at home. 2. The Defendant's evidence was that he knew spray could drift from as far as Bangalow, so to suggest that it could not drift across the road to the JOHNSONS' residence 500 metres away is illogical. 3. The Second Reading Speech examples do not constitute an exhaustive list. Section 10(3) contains no limitations. In that subsection, the linking of the term "all" to "reasonable" and to "due" is an acknowledgement by the legislature that each case will depend on its particular circumstances. 4. The circumstances in this case are that Friday Hut Road divides the farm from another property with a residence in which an extended family including children lived, with a school bus stop at the end of that property. It is also a road that runs parallel to the Pacific Motorway, connects villages and provides access to a number of working farms. 5. The notification of neighbours forms part of the Best Practice Guidelines set out by the Australian Macadamia Society. David BELL may dismiss these Guidelines as vague and inconsistent, however they are issued by the Society and the prosecution expert Dr Andrew HEWIIT is of the view that residents of the JOHNSON property should have been notified. 6. The Defendant conceded in cross-examination that it would have been reasonable to notify the residents of the JOHNSON property. 7. The Defendant has since changed his practice to notify those residents. An assessment of what precautions are "reasonable" and what is "due" diligence, must be made in the context of the objects of the Act which include the protection of human health and the minimisation of the risks to human health. Notification of neighbours allows them to make adequate preparations to avoid exposure in the case of spray drift, and therefore to protect their health. Obviously not every potential road user could be notified, however the prospect that there would be traffic in and out of a neighbouring property on a school morning is a foreseeable one that should have been addressed. It could have, for example, lead Luke SAMSON [sic] to delay or minimise his driving or at least wind up the manual windows before driving past Wingvale.

[26]

Appellant's submissions on conviction appeal

It is incumbent upon the Court to look at the evidence afresh and form its own views. The Court is not bound to accept the magistrate's findings: Director of Public Prosecutions v Earl Burns (2010) 207 A Crim R 362; [2010] NSWCA 265 at [23]-[27] (Beazley JA) citing Charara and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. The Appellant does not need to prove error or that a conclusion was not open to the Local Court. The EPA must prove the offence beyond a reasonable doubt.
In Fox v Percy, the appellate court overturned credit findings made by a lower court. There are natural limitations that exist for an appellate court in relation to findings on credit, but the mere fact that a trial judge favoured one witness over another does not, and cannot, prevent the performance by an appellate court of its functions imposed by statute: Fox v Percy at [28]-[31].
The EPA submits that to overturn findings of credit in relation to the complainant Mr Sansom, the Appellant must demonstrate that the magistrate "palpably misused" her position (see below in [132]). That is not the test the Appellant needs to meet. If the Appellant needs to demonstrate incontrovertible evidence to support overturning the magistrate's findings, then that comes from Professor Weatherby. His interpretation of the blood test results directly contradicts the evidence of Mr Lynch and Mr Sansom, relied on by the magistrate to conclude that Mr Sansom was exposed to organophosphate.
In the High Court's recent unanimous decision Pell v The Queen [2020] HCA 12, the complainant was considered to be truthful and reliable but the evidence as a whole was nonetheless unable to exclude a reasonable doubt as to the applicant's guilt: at [57]-[58], [118]-[119]. The High Court determined that the function of an appeal court is to assume that the complainant's evidence was credible and reliable and to then examine the record to see whether, notwithstanding that assessment, there is a reasonable doubt as to proof of guilt: Pell v The Queen at [39]. When looking at all the evidence in this case, the Court would also have a doubt as to proof of the Appellant's guilt.
The Appellant seeks the following factual findings: 1. that Mr Sansom had no organophosphate exposure or toxicity as per the pathology results; 2. the Appellant did not injure Mr Sansom by way of spray drift coming from his property; 3. spray drift did not come from the Appellant's property; 4. if there was spray drift, the EPA cannot exclude the possibility that it came from somewhere other than the Appellant's property including a radius of up to 10 km surrounding the Appellant's property.
The above findings would cast reasonable doubt on the reliability and credibility of Mr Sansom.
The NSW Judicial Commission Criminal Trial Courts Bench Book (as at 22 March 2021) provides relevant directions. Were the matter before a jury a Murray direction would be appropriate because Mr Sansom is the main witness: at [3-610]. The Court should exercise caution before convicting the Appellant because the EPA's case largely depends on accepting the reliability of a single witness. Further, the value of any expert evidence is very much dependent on the reliability and accuracy of the material which the expert used to reach their opinion: at [2-1,100].

[27]

Mr Sansom is unreliable in relation to injury

The Court should find that Mr Sansom is unreliable in relation to his account of injury. Mr Sansom' symptoms as recounted in oral evidence and recorded in the medical note extracted above in [22] are contradicted as evidence of exposure to organophosphate by his blood test results in [23] above. The Court should accept the conclusion of Professor Weatherby's report extracted above in [71] that Mr Sansom's blood test results suggest no exposure to organophosphate. The red cell test states no organophosphate toxicity within two to three months and the serum test states no suggestion of recent exposure within two to three weeks. The kilo unit markers for Mr Sansom were within the average range. This is objective evidence.
The EPA submits that Mr Sansom could have started with a high baseline level of enzyme activity. This submission ignores Professor Weatherby's assessment of Mr Sansom's alleged symptoms. Professor Weatherby gave oral evidence that if Mr Sansom had experienced very mild exposure and started with a high baseline level, then the blood test results could be interpreted to suggest no exposure to organophosphate. However, Professor Weatherby concluded that Mr Sansom had complained of severe exposure, which would have resulted in an enzyme activity level much lower than what was found. The EPA's interpretation of the blood test results is incorrect.
The EPA submits that the blood test results are immaterial because they cannot be compared to Mr Sansom's baseline level of enzyme activity, which is unknown. The blood test results indicate no exposure to organophosphate. This is sufficient to undermine Mr Sansom's evidence that he was exposed to organophosphate.
The serum test tests for exposure within a 2-3 week period. The EPA suggests that Mr Sansom's sample collected 13 days after purported exposure was very close to the end of the 2-3 week period and that the dissipation of time could have impacted the result. Professor Weatherby articulated clearly that the red cell test, which tests for exposure within 2-3 months is the preferred test. The red cell test provides clear objective evidence of no exposure to organophosphate.
Professor Weatherby concluded that Mr Sansom's alleged symptoms could have resulted from an allergic reaction as opposed to organophosphate exposure.
The fact that Mr Sansom attended a doctor and underwent medical testing does not bolster his credibility. It is likely that Mr Sansom was directed to do so by an EPA investigator. Someone exposed to diazinon and suffering Mr Sansom's alleged symptoms would have sought immediate medical attention. He only attended a doctor 11 days later.
Mr Lynch's evidence that blood test results do not always show organophosphate exposure should be given little or no weight. Mr Lynch did not provide evidence on how long he was exposed for, when he was exposed, when he was tested or whether he had a baseline reading. Mr Lynch is an EPA investigator. He is not qualified to give this kind of evidence.

[28]

Mr Sansom is unreliable in relation to his observations of a spray rig

The Court should find that Mr Sansom is unreliable in relation to his observations of a spray rig. Mr Sansom states that he was driving about 60 km/h north along Friday Hut Road. He looked to his left and observed a rig about 15 m away and could see an outline of a person. He observed the rig spraying 20 m above the tree canopy. The rig was basically at the red dot marked on Local Court Ex 19 extracted above in [25]. Mr Sansom also stated he observed gusts of wind up to 65 km/h.
The magistrate found that Mr Sansom's observations of wind speed and of spray 20 m above the tree canopy were exaggerations. This undermines Mr Sansom's credibility. The Court should not accept the EPA's submission that Mr Sansom did not deliberately embellish the height of the spray or strength of the wind. In cross-examination, Mr Sansom stated that he could "absolutely" see the rig and see spray 20 m above the tree canopy. Mr Sansom coupled his observation of the rig with the fact that it was spraying 20 m into the air. The Court should not accept that Mr Sansom saw the rig but exaggerated about the height of the spray.
The photograph of Mr Sansom and Ms Ryan standing on the side of Friday Hut Road at EPA sampling point "4" does not show a gap in the buffer zone. Mr Sansom could not have seen through these trees to identify a rig 15 m away.
Mr Sansom's evidence must be contrasted with Mr Battistuzzi's, a credible and reliable witness whose evidence, based on his memory and contemporaneous records, establishes that: 1. where he was spraying on 18 August 2017 was not an area where the roadway had a view directly into the farm, but was obscured by an embankment where the road is cut into the hill about three to four metres; 2. the area between the roadway to the rig was interrupted by a buffer zone of trees; 3. Mr Battistuzzi began spraying on Wingvale row 103 at about 8:00 am at least 30 m away from Friday Hut Road. This is the closest Mr Battistuzzi got to the road on 18 August 2017; 4. at about 9:00 am he was completing his spraying at Wingvale row 92 which is well into the orchard and away from the road; and 5. Mr Battistuzzi commenced a second tank of spray at 9:40 am at Wingvale row 92 and finished at about 11:00 am at Wingvale row 86.
Mr Sansom is either mistaken or lying about seeing the rig about 15 m away from where he was on Friday Hut Road. If Mr Sansom was correct, he would have observed a rig on Ryanstone (property "B"), not Wingvale. Mr Sansom cannot have seen the rig that he says he saw because Mr Battistuzzi was not spraying at that point, he was at Wingvale and well within the orchard. Compare also Mr Sansom's oral evidence that he observed mist coming from the rig "at the beginning of a row … just inside the first row [of trees] heading up the hill". This inconsistent with where Mr Battistuzzi was, well into the orchard.
Mr Sansom's evidence directly contradicts that of another prosecution witness, Mr Battistuzzi. It is not possible for the Court to accept both witnesses and not entertain a doubt. The Court should prefer Mr Battistuzzi's evidence which is based on contemporaneous records. Mr Sansom's evidence is based on momentary observations made from a moving car looking up an embankment of three to four metres into an orchard with mature trees.

[29]

Mr Sansom is unreliable in relation to his observations of wind speed and direction

The Court should find that Mr Sansom is unreliable in relation to his observations of wind speed and direction. There is nothing to support his evidence that the wind was gusting up to 65km/hr. The Court would find that this is a clear exaggeration. Mr Battistuzzi's contemporaneous record annexed to the SOAF was that the wind was "light N to NW changed to gentle SW".
Mr Sansom's evidence that the wind was from the west is in contradiction of Mr Battistuzzi who gave oral evidence that when he commenced at 8:00 am the wind was coming from the north, later swung around to the north west and again later to the south west.
All applicators who gave evidence, being Mr Coles and Mr Scheaffe from 323 Alcorn Road (property "I"), Mr Battistuzzi and the Appellant believed the conditions on 18 August 2017 were appropriate for spraying (being wind speeds of 3-20kms km/h) at least up until 9:00 am.
Mr Scheaffe, Mr Coles and Mr Battistuzzi accepted in their oral evidence that wind conditions are variable from farm to farm given the local topography. Mr Scheaffe's and Mr Coles' observations of a westerly wind relates to their farm alone.
The EPA relies on the BOM records for Ballina Airport and Lismore Airport on 18 August 2017 summarised above in [39]. The topography at Friday Hut Road is significantly different compared to these airport areas. Ballina is on the coast and Lismore is inland. The area at Friday Hut Road is along a ridge line, hilly with undulations. Mr Bell conducted site visits on 11 and 12 August 2019 and drew the conclusion that on those days the wind at Friday Hut Road did not mimic that recorded by the BOM. Mr Bell's evidence supports the submission that the Court should not place much weight on the BOM observations for 18 August 2017. The BOM records should also be considered in light of Dr Hewitt's acceptance in cross-examination that wind speed can vary over tens of kilometres.
If Mr Sansom's observation that wind speeds were 65 km/h was accepted, the Court should accept Mr Bell's evidence summarised above in [65] that this would have meant that any "mist" would have dissipated.

[30]

Possibility that spray came from another property

The evidence relied on to establish that the spray came from another property is set out above in [50]-[53], being the evidence of Mr and Mrs Johnson of what they heard on 18 August 2017, Mr Samson's evidence of smelling a chemical from before Killen Falls Drive and Dr Hewitt's cross-examination about potential for spray drift. There is a possibility that any "mist" or spray that Mr Sansom experienced came from either 323 Alcorn Road (property "I") which was spraying until about 9:00 am on 18 August 2017, or another unknown property.
Mr Johnson gave evidence that he smelt and had been affected by a spray at about 6:30 am on 18 August 2017. Mrs Johnson gave similar evidence for about 7:30 am. The spraying on the Appellant's property did not commence until 8:30 am. There was spraying that morning of Lepidex at 323 Alcorn Road (property "I") from 5:30 am before sunrise until 9:00 am. Spraying before sunrise increases the risk of inversion drift. The EPA cannot rule out that the spray drift may have come from 323 Alcorn Road (property "I").
Mr Sansom, Mr and Mrs Johnson gave evidence of observing spray after 4:00 pm on 18 August 2017.The EPA records do not reveal another person spraying within the 1 km radius of the Appellant's property at 4:00pm. The Appellant stopped spraying at about 2:30 pm. This suggests that Mr Sansom and the Johnsons were hearing machinery on a property outside the 1 km radius of the Appellant's farm. The property outside the 1 km radius could have been spraying also at 9:00 am.
Mr Sansom smelled a chemical smell before Killen Falls Road, which is approximately 1.2 km south of 412 Friday Hut Road (property "A"). The EPA did not obtain spray records of any properties outside the 1 km radius from the Appellant's property or south of 277 Friday Hut Road (property "E"). This is critical considering that Mr Sansom said he encountered spray before Killen Falls Road. Dr Hewitt gave evidence that spray drift can occur up to 10 km from a spray point. Mr Sansom gave evidence that the wind was coming directly from the west - which means that it was not possible for the chemical smell he smelt at Killen Falls Road, south of Wingvale, to have emanated from Wingvale, leaving open the reasonable possibility that it came from another unknown source.
Lepidex was being sprayed on 18 August 2017 at 323 Alcorn Road (property "I"). If Mr Sansom was exposed to a chemical spray, the EPA are unable to exclude the possibility that it was Lepidex rather than diazinon (both organophosphates) since his blood test results only refer to organophosphate.

[36]

Available defence of due diligence should be upheld

Section 10(3) of the Pesticides Act provides a defence of due diligence. The magistrate found that the due diligence defence had not be made out on the balance of probabilities due to two reasons: 1. Mr Battistuzzi was spraying near a public road and there was no easterly component to the wind when he was spraying; 2. The Appellant's failure to notify neighbours of the intended spray activity as required by the relevant guidelines.
In relation to due diligence the Court would find on the balance of probabilities that: 1. conditions on the morning were suitable for spraying - the EPA called four applicators who said it was suitable to spray on 18 August 2017 at least until 9:00 am (including Mr Scheaffe and Mr Coles); 2. that the Appellant did turn his mind to the issue of notification and notified his tenant Ms Ford, the person he considered to be a neighbour; 3. the requirement to notify neighbours only applies to Mr Sansom, who was allegedly exposed on a public road, because he lives at 412 Friday Hut Road (property "A"). If it had been someone else driving on the road the notification of neighbours requirement would not have applied. The standard would be too high, unable to be met by any defendant if the defence required notification of anybody driving along the public road. The lack of notification does not amount to a reason that Mr Moore did not act with all due diligence.
The due diligence defence is only relevant to the time when the injury is said to have been occasioned, being approximately 9:00 am. At that time, Mr Battistuzzi was not near the road and was well within the farm.
The spray drift from the Appellant's property (if it occurred) was due to causes over which the Appellant had no control. Even if the Court found that Mr Battistuzzi had sprayed in the wrong wind, the Appellant had done all he could to train and supervise Mr Battistuzzi so that no spray drift events occurred. The Appellant has had no adverse finding against him in the 30 years since he has operated the farm. The Appellant oversaw calibration of the airblast sprayer before spraying commenced and relied on the Beaufort scale which is an industry approved standard to assess whether conditions are appropriate for spraying.
There are references to the obligation to notify neighbours in the guidelines in evidence produced by the Australian Macadamia Society, the Primary Industries Standing Committee and ChemCert Australia. The Australian Macadamia Society Guidelines are vague. There is no definition of "neighbour". Wingvale and 412 Friday Hut Road (property "A") do not share a common boundary. There is no evidence that a neighbour includes properties across a road.
The Appellant was not required under the Pesticides Regulation 2017 (NSW) to notify neighbours. The fact that Parliament has not legislated a requirement to notify neighbours of spraying suggests it does not see it as a best practice requirement. The Second Reading Speech of the Pesticides Bill 1999) (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2351-2357) sets out "reasonable precautions" that a sprayer should take and notifying neighbours is not included in the list. The EPA's argument is unsupported by Parliament's intent.
Dr Hewitt is not an authority on requirements for spray notification. Mr Bell's evidence should be preferred on the application of the guidelines. Mr Bell disagreed that if the wind is blowing towards a sensitive area the spraying should not occur. Mr Bell criticised that the Australian Macadamia Society's guidelines are poorly worded and contain contradictions. Application of the guidelines depends on the circumstances of the farm itself and the local topography. Mr Bell visited the farm to inform his opinion and Dr Hewitt did not.
The due diligence defence does not counsel perfection. Additionally, if the magistrate's summation were to be accepted, then all farms which face roadways would be required to notify road users of their intention to spray. That would be entirely unworkable.

[37]

Environment Protection Authority's submissions on conviction appeal

The offence alleged against the Appellant is one of strict liability: Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228 at [33], [35] (Talbot J). The EPA needs to prove to the criminal standard that Mr Sansom suffered injury for the purposes of s 10(1)(a) of the Pesticides Act, and that the injury was caused by the use of diazinon on the Appellant's farm on 18 August 2017. Injury is defined in s 4(1) of the Pesticides Act. Given the breadth of the definition and the symptoms that Mr Sansom describes as having suffered on 18 August 2017 and in the period shortly thereafter, this case hinges significantly on the acceptance of Mr Sansom's evidence.
Whilst the Court is to make its own assessment of the evidence, this comes with the caveat stated by the High Court in Fox v Percy at [23] per Gleeson CJ, Gummow and Kirby JJ, cited in Charara at [19]. The advantages of a trial court in making findings as to and based on witnesses' credit were described more comprehensively by Kirby A-CJ (Priestley and Meagher JJA agreeing) in Galea v Galea (1990) 19 NSWLR 263 at 265-266.
To the extent that the Appellant seeks to have this Court depart from the magistrate's credit-based findings, he must demonstrate that in coming to the conclusions that she did the magistrate "palpably misused" her Honour's advantage: SS Hontestroom v SS Sagaporack [1927] AC 37 at [19] (Lord Summer). To do so he would need to show that her Honour's findings were either glaringly improbable or disproved by other, incontrovertible evidence.
A number of the matters raised in Galea v Galea at 265-266 are particularly apposite to this case. First, the evidence was heard over five days in three separate sittings. It is clear from the magistrate's reasons that her Honour recorded over the course of the hearing both her views as to the honesty of the witnesses and also her impression of the strength and reliability of their recollections. Following that process, her Honour's credit-based findings should be accorded considerable deference. Second, there was disparate, and to some degree conflicting, evidence from many sources, including a number of lay witnesses attempting to recall events from about two years earlier with limited documentary assistance and on things, such as wind conditions, about which it is difficult to be entirely precise.
The nub of Mr Sansom's account of what occurred on 18 August 2017 is summarised above in [21]. The Court should accept the essential aspects of Mr Sansom's evidence. At about 9:00 am he was driving north on Friday Hut Road, he observed the spray rig on the Appellant's property and spray emanating from that rig on a generally westerly wind caused him the symptoms that he immediately felt and continued to feel for at least a few days afterwards. Each of the criticisms made against Mr Sansom's evidence were not sufficient to cause the magistrate who saw and heard Mr Sansom to doubt his evidence. Her Honour also made significant findings regarding Mr Bell and Mr Battistuzzi. Evidence of Mr Bell and the Appellant does not raise any matters that could cause this Court to doubt her Honour's findings.
The magistrate's acceptance of Mr Sansom's account flowed from a combination of her acceptance of him as a witness of truth and the corroboration of his account by other sources of evidence. The magistrate's findings in this respect were neither glaringly improbable nor inconsistent with interconvertible evidence. Given the magistrate's findings and the principles relating to appellate deference to the credit-based findings of a trial court, the question on this appeal is really whether, in light of the magistrate's findings with respect to the key witnesses of the case, and the important respects in which Mr Sansom's evidence was corroborated, the Court ought nevertheless to entertain a doubt as to the Appellant's guilt. For the reasons which follow, it should not.

[38]

Mr Sansom's account of injury should be accepted

Mr Sansom gave direct evidence of observing spray emanating from a spray rig on the Appellant's farm drifting onto and into his vehicle as he drove towards and past the farm at around 9:00 am. He also gave direct evidence of feeling symptoms consistent with exposure to diazinon immediately on doing so. Mr Sansom's subsequent behaviour was entirely consistent with that evidence in that he engaged in immediate complaint to his wife and then to the EPA. He later sought medical attention and subjected himself to testing. It is scarcely likely that Mr Sansom would have made up a version of events and then sought medical assistance and taken a blood test if he was not telling the truth.
Dr Adendorff's note and the blood test results should not cause the Court to doubt that Mr Sansom's symptoms were caused by exposure to pesticide from the Appellant's property. Dr Adendorff's note sets out a history of events with respect to what Mr Sansom says happened to him. In that sense Mr Sansom is behaving consistently with the exposure having happened. On the face of the blood test results collected on 31 August 2017, there is no suggestion of recent organophosphate exposure.
Professor Weatherby gave evidence that exposure to diazinon decreases the production rate of an enzyme. One can take a blood test which gives a reading as to the rate at which a person is producing that enzyme. In relation to the serum test result, the normal range of enzyme production is 6.0-15.6 kU/L. Professor Weatherby accepted in cross-examination that Mr Sansom's reading of 9.8 kU/L possibly reflected that he had a baseline level of production at the high end of the normal range, which had been reduced by exposure to organophosphate. In relation to the red cell test, the ordinary population number is over 8.0 kU/L. Mr Sansom recorded 11.9 kU/L. Professor Weatherby accepted in cross-examination that a normal reading can be as high as 18 kU/L. Whilst Mr Sansom's result falls within the normal range, it may again simply reflect a high starting point.
Without more information the blood tests are not positive proof that Mr Sansom was not exposed to organophosphate. Mr Sansom's symptoms including stinging eyes are consistent with organophosphate exposure, as agreed by Professor Weatherby in cross-examination: see above in [77].
Mr Lynch EPA investigator gave oral evidence extracted above in [24] to the effect that he had previously been subjected to organophosphate exposure, and that blood tests had not been demonstrative of that fact.

[39]

Mr Sansom's observation of the rig should be accepted

The Appellant submits that Mr Sansom was incorrect about where he saw the spray rig on the Appellant's farm. Mr Sansom's evidence was that he was driving up Friday Hut Road, saw a rig operating on the Appellant's property not very far from Friday Hut Road, and that he saw spray emanating from that rig. Mr Sansom was at the point of the red circle marked on the map which became Local Court Ex 19 when he saw the rig. In cross-examination, Mr Sansom stated that he "absolutely" saw the rig.
Mr Battistuzzi's evidence was that between about 8:00 am and 9:00 am he was spraying rows of macadamia trees in an area of the farm close to Friday Hut Road, starting with the row closest to Friday Hut Road and progressively moving back into the farm. Mr Sansom's cross-examination extracted above in [27] demonstrates that Mr Sansom observed the spray rig at the end of a row of trees. He was not saying that it was at the end row of trees (that is, the row of trees closest to the road). Mr Battistuzzi's evidence about where he was on the farm is not inconsistent with a fair reading of Mr Sansom's evidence.
The diagram annexed to the SOAF above in [12] depicts the rows on Ryanstone and Wingvale being sprayed on 18 August 2017. Mr Battistuzzi was spraying "Wingvale Block A16 rows 89-102" between about 8:00 am and 9:00 am. The Appellant submits that the area nominated on Local Court Ex 19 by Mr Sansom as where he saw the rig, corresponds with "Ryanstone South East rows 51-100".
It would be a very odd thing for Mr Sansom to make up that he saw a rig when there was in fact a rig operating. The Court should find as the magistrate found that Mr Sansom did in fact see the rig as he says he did. To the extent that he has nominated a slightly different spot on the map in Local Court Ex 19 compared with where Mr Battistuzzi was, is not important.
Mr Battistuzzi gave evidence about a using a buffer zone to prevent spray drifting out from the property. Mr Battistuzzi's evidence does not support the Appellant's submission that Mr Sansom could not have seen the rig because of the buffer zone. Mr Battistuzzi just states there is a large amount of growth. He does not state that the vegetation for example creates a complete barrier that cannot be seen through from where Mr Sansom was driving. The photograph taken by Ms Ryan at waypoint "4" does not take the issue of whether Mr Sansom saw the rig any further.
The EPA accepts that Mr Sansom's observation of spray 20 m above the tree canopy is incorrect. The magistrate did not find that this observation was deliberately embellished. Mr Sansom's exaggeration about the height of the spray is not a particularly significant point. Mr Sansom was moving and had a reasonably limited opportunity to make observations from his vehicle.

[40]

Mr Sansom's evidence in relation to wind should be accepted

Mr Sansom's evidence was that spray came into his car carried on a westerly wind. He also observed that there was a westerly wind on 412 Friday Road (property "A"). The preponderance of the evidence is that there was wind coming from the west, or with a significantly westerly component, as Mr Sansom drove up Friday Hut Road. This is what the magistrate found.
Mr Sansom gave evidence that it was windy when he was driving past the Appellant's property at 9:00 am. The magistrate found that Mr Sansom's evidence about gusts of wind going 65 km/h at 9:00 am was exaggerated, but not deliberately embellished. Mr Sansom was giving evidence about his recollections more than two years after the day in question. Mr Sansom did qualify his evidence in cross-examination, stating that to the extent that the gusts of wind were not constant. Mr Sansom conceded that whilst it was very windy at dawn, it was not at the same intensity as it was at 9:00 am. Mr Sansom's recollection about wind intensity should not go against his credit in a significant respect.
Mr Sansom's evidence on wind conditions on the morning of 18 August 2017 is supported, albeit at a level of relative generality, by the BOM weather observations for Ballina and Lismore summarised above in [39].
Of more significance is the unchallenged oral evidence of Mr Scheaffe and Mr Coles and their contemporaneous chemical application records. Their evidence was that the wind was westerly and that by about 9:00 am it was very windy.
Samples taken by the EPA revealed traces of diazinon in precisely the places one would expect if the wind was significantly from the west. Crucially, diazinon was detected at the "site of care exposure" (waypoint "5") and on the left side of Mr Sansom's car. The samples have limitations. It is accepted that there is no evidence as to when the samples could have been deposited. The fact that diazinon was found at these sampling sites at least provides some inferential support for Mr Sansom's account of what happened.
The "Wingvale and Ryanstone Pesticides Application Record Sheet" for 18 August 2017 indicates that the wind was at least generally from a westerly direction for at least substantial parts of that day and that there were some periods when Mr Battistuzzi and Mr Ferguson considered it too windy to safely spray.
Mr Battistuzzi gave oral evidence that there was a northerly wind at 8:00 am, that it turned around to the north-west, he could not say at what time, and then ultimately became a south-westerly wind later in the day. Mr Battistuzzi's evidence admits clearly of the prospect that the wind was doing exactly what was necessary for Mr Sansom to have experienced what he said he did (that is, coming from the north-west). Mr Battistuzzi does not give a relevant time as to when changes in the wind direction occurred after the 8:00 am northerly wind.
Mr Bell conducted a site visit after the day in question. He records that BOM records for Ballina and Lismore were different to wind speed and direction at the Appellant's property on the two days he was there. The Court is only concerned about what the people at the property on 18 August 2017 observed. Mr Bell's opinion should not be accepted.
The Court would accept Dr Hewitt's evidence based on statements from the Johnsons, Mr Sansom and BOM records summarised above in [39], that at about 9:00 am on 18 August 2017 the wind speed at Wingvale would have been in excess of 20 km/h.
The Appellant's observations of the wind conditions on 18 August 2017 are not of any particular assistance as to what was going on at the spraying points near Friday Hut Road.

[45]

Available defence

If the Court is satisfied beyond reasonable doubt that Mr Sansom was injured in the way that he says, the question becomes whether the Appellant exercised or his employee exercised all due diligence to prevent that. The Appellant bears the onus of establishing the due diligence defence under s 10(3)(a) and (b) of the Pesticides Act on the balance of probabilities.
The magistrate's findings on this issue extracted above in [80] should be adopted. In relation to s 10(3)(a), the magistrate accepted that the Appellant had control over operation of the air blast sprayer and therefore the defence was not satisfied. In relation to s 10(3)(b), the magistrate found that the Appellant or his employee ought not to have used the air blast sprayer as close to Friday Hut Road as they were using them at about 9:00 am, in the absence of a favourable wind. This would be an easterly wind that directs spray back onto the property. Common sense says spraying should not occur near a public road and residential properties without a favourable wind. For completeness also refer to the evidence of Dr Hewitt on due diligence. Applying the magistrate's findings in respect of liability to the question of the defence, one cannot spray as the wind was in terms of its direction on that day (ie it was coming from the west).
In relation to notification of neighbours, the Court should apply the magistrate's reasons where she sets out why notification of properties and people in the immediate vicinity of spraying is appropriate. The Appellant failed to notify neighbours as the relevant guidelines required. The Appellant's criticism was that Mr Sansom was not relevantly a neighbour in the circumstances in which he came to be affected. That is, he was driving up the road and could simply have been any other member of the public. The answer is though, Mr Sansom was not just any member of the public. Had he been notified, he could have, as the magistrate found, delayed or minimised his driving on the day in question or at least had his windows wound up. If there had been notification, it is entirely possible Mr Sansom would not have been injured in the way he says he was. All due diligence, given that Mr Sansom was a neighbour, was not exercised.

[46]

Consideration of conviction appeal

As summarised above in [5], and emphasised by the Appellant in [81], the EPA bears the onus of proof of its case and the Appellant is not required to prove error by the magistrate. The EPA must prove the Appellant's guilt beyond reasonable doubt. The Appellant argues that in a number of respects the EPA has not proved its case beyond a reasonable doubt. A large number of matters have been raised.
The relevant principles I am applying in this rehearing are identified in the extract of Charara set out above in [6]. As identified in Charara at [23]-[24] it is permissible to consider the reasoning of the magistrate. The magistrate's reasons are briefly summarised above in [78]. The magistrate's findings in relation to Mr Sansom's credit and the available defence are extracted in full above in [79]-[80]. The reasons are detailed and address the evidence extensively. I note that the majority but not all the matters referred to by the magistrate in reaching her finding of guilty were referred to in this appeal. No criticism is intended by that observation. I make it simply to explain why I do not refer to every matter the magistrate did because it was not a matter raised in this appeal.
As the EPA identifies, key to a finding of guilt is the credibility of Mr Sansom, whose evidence the Appellant submits should not be accepted in key areas. In this regard, the EPA referred to Galea v Galea where Kirby A-CJ held (Priestley and Meagher JJA agreeing) at 265-266: The judge hears the evidence in its entirety, where the appellate court is typically taken to selected passages chosen by the parties to the appeal: see Lend Lease Developments Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210. The trial judge hears and sees all of the evidence in context, chronologically unfolding as it is given in testimony. Typically, the trial judge has the time during the trial and adjournments to reflect upon the evidence and to weigh it against all of the other evidence whilst the latter is still fresh in his or her mind. A busy appellate court may not always, in the nature of things, have the time or opportunity to do more than to visit particular passages of the transcript. From these there may, or may not, emerge an accurate impression of the whole of the evidence and the conclusions to be derived from it. The trial judge has advantages which simply cannot be provided to an appellate court under present arrangements. He or she is aware of interruptions, hesitations and delays in the giving of testimony which will generally be quite unknown to the appellate court. The judge at the trial will be able to observe the body language of the witnesses that can sometimes be important for interpreting communication. This is usually unrecorded in the cold page of an appeal book. These and other reasons have led to the conventional theory, accepted by the courts of this country and of England, that a trial judge has marked advantages in the assessment of the credibility of witnesses which an appellate court, prisoner of the transcript, can rarely match.
As the extracts from Charara and Galea v Galea above identify, the magistrate had an important advantage during the five-day trial in observing a witness and hearing all the evidence, in contrast to this Court on appeal. As identified by the EPA, the threshold for departing from a trial court's credit-based findings is high. Such findings should stand unless it can be shown that the trial court "palpably misused" its advantage: SS Hontestroom v SS Sagaporack at 47 cited in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at 479 (Brennan, Gaudron and McHugh JJ). There has been no suggestion that the magistrate "palpably misused" her advantage.
The Appellant submits that when the evidence as a whole is considered there is reasonable doubt as to the Appellant's guilt, relying on Pell v The Queen at [39], [57]-[58] and [118]-[119].
The major change in evidence relied on by the Appellant compared to the Local Court hearing is the expert opinion of Professor Weatherby to the effect that the red cell and serum test results mean that Mr Sansom did not have any exposure to organophosphate in the two or three months before the test in relation to the red cell results and two or three weeks in relation to the serum results. This opinion was relied on extensively to argue that Mr Sansom's evidence and Mr Lynch's evidence could not be correct. Professor Weatherby's opinion evidence about the blood test results inter alia has no bearing on the evidence of what physically occurred on the day of the alleged exposure and does not undermine Mr Sansom's credibility in that respect. Contrary to the Appellant's submission in [83], Professor Weatherby's opinion is not an interconvertible fact that demonstrates the magistrate's conclusions are erroneous and does not support a departure from her findings on credit.
Apart from Professor Weatherby's fresh evidence, the matters relied on by the Appellant as undermining Mr Sansom's credibility are summarised above in [112]-[112]. Firstly, the Appellant submitted Mr Sansom is related to the Johnsons, and this was a motive to be untruthful. This was not accepted by the magistrate because there was no evidence to support such a claim. The magistrate found Mr Sansom's evidence varied from the Johnsons, (see the extract above in [79]). No basis has been presented for a different finding in this appeal. Secondly, concerning the suggestion that Mr Sansom's evidence was compromised by the EPA's investigation, why the EPA sent Mr Johnson's statement to Mr Sansom's computer was explained above in [44] and [161], and there is no evidence that he read the statement or that its contents influenced his evidence. None of the bases put forward for undermining Mr Sansom's credibility in relation to his own experiences are made out in this appeal.
It is necessary to consider Mr Sansom's first-hand account of what occurred on 18 August 2017.

[47]

Mr Samson saw a spray rig on Wingvale on 18 August 2017

Mr Sansom's oral evidence was that he saw a spray rig as he drove north along Friday Hut Road past Wingvale at about 9:00 am (see above in [21] and [26]). He marked a red dot on the map being Local Court Ex 19 to show the approximate location of where he saw the spray rig, see above in [25]. His evidence did not alter in cross-examination. In cross-examination extracted in [27] above Mr Sansom stated he could see the outline of the operator in the spray rig cabin. His evidence is consistent with Mr Battistuzzi's oral evidence summarised above in [29] of where he was spraying. In cross-examination, Mr Battistuzzi gave evidence summarised above in [30] that he started spraying close to Friday Hut Road at Wingvale row 103 at about 8:00 am and moved inward reaching Wingvale row 92 at about 9:00 am. He marked where he sprayed on a map tendered as Local Court Ex 12. The magistrate observed that Mr Battistuzzi was spraying on rows that were about 30 m to the west of Friday Hut Road at the time of the offence.
Mr Battistuzzi's location on Wingvale is confirmed by the contemporaneous record attached to the SOAF at Annexure 2 above in [11] and the diagram attached at Annexure 3 extracted above in [12].
The Appellant's counsel referred to the photograph of Ms Ryan and Mr Sansom taken at waypoint "4" on the map attached to the SAOF at Annexure 1 (see above in [10]), being the point where Mr Sansom said his car was sprayed, and submitted that because this photograph showed trees on the Wingvale side Mr Sansom's observation could not have been correct. The Court is not able to draw its own conclusions in relation to any aspect of that photograph in the absence of any other information about the surroundings at that point. No inference arises which can challenge the direct evidence of the eyewitness being Mr Sansom.
The Appellant's strongest argument is that the points marked on Local Court Ex 12 and on Annexure 1 to the SOAF as the location where Mr Sansom saw a spray rig and experienced spray, are actually opposite Ryanstone (property "B") not Wingvale (property "A"). The Appellant submits that since Mr Battistuzzi was on Wingvale, Mr Sansom must have been mistaken when he says he saw a rig from a point that is directly opposite Ryanstone. According to the records attached to the SOAF, Mr Ferguson was on Ryanstone. Mr Ferguson's location was not raised in this appeal. I agree with the EPA that to the extent a spot opposite Ryanstone as opposed to Wingvale has been nominated on the maps in Local Court Ex 19 and Annexure 1 to the SOAF, this does not undermine Mr Sansom's oral evidence that as he drove around the bend in Friday Hut Road past Wingvale he saw a spray rig to his left.
Mr Sansom's evidence extracted above in [27] is that the spray rig was at the end of a row. His evidence was not that the spray rig was at the end of all the rows and therefore close to Friday Hut Road. I agree with the EPA's explanation of the evidence, summarised above in [142]-[145]. Mr Sansom was extensively cross-examined about events on 18 August 2017 as set out in [27] above. His evidence of seeing a spray rig at the end of a row was clarified as meaning at the end of the row closest to Friday Hut Road, "not the end row of trees". This statement does not in any way undermine Mr Sansom's evidence of what he saw.
The EPA has proved that Mr Sansom saw a spray rig on Wingvale on 18 August 2017 at about 9:00 am as he was driving past.

[49]

Mr Sansom was injured

The Court Attendance Notice particularises the injury to Mr Sansom as follows: Whilst driving North along Friday Hut Road near the Premises [at or near 345-387 Friday Hut Road, Brooklet in the State of New South Wales 2479], Mr Luke Sansom was exposed to the pesticide. As a result, Mr Sansom suffered injury in the form of, but not limited to, headache, nausea, irritated, watering and stinging eyes and sinuses, restricted breathing, sore throat, elevated heart rate and anxiety.
Mr Sansom described his symptoms when he gave oral evidence on the third day of the hearing in the Local Court, summarised above in [21], of salivation, stinging eyes, headache and elevated heart rate on the day of exposure.
The medical report of Dr Adendorff extracted in [22] above is consistent with the symptoms Mr Sansom reported experiencing on the day and identifies symptoms he reported as continuing for several days afterwards.
Injury is broadly defined in s 4(1) of the Pesticides Act to include any kind of physical or psychological injury whether temporary or permanent including (not exhaustively) nausea, allergic reaction, dizziness, headache, running nose or eyes. Mr Sansom was injured within the meaning of that definition in the Pesticides Act regardless of any medical report later obtained. To constitute an offence Mr Sansom had to be exposed to a pesticide regulated by the Pesticides Act in this case diazinon as identified in pars 9-11 of the SOAF.
The Appellant relies on Professor Weatherby's report and oral evidence set out in detail above in [68]-[77] to submit that the EPA has not proved beyond reasonable doubt that Mr Sansom was exposed to diazinon on 18 August 2017. Professor Weatherby considered the same blood test results as those attached to Dr Adendorff's report, summarised above in [23]. After explaining how diazinon affects the parasympathetic nervous system, Professor Weatherby identified a number of symptoms resulting from diazinon exposure and provided an explanation for the how certain blood tests can be used to detect exposure and the severity of that exposure. The explanation for the pathology results finding of no exposure to an organophosphate based on an assumed normal range of serum cholinesterase and for red cell cholinesterase in the community is identified. While Professor Weatherby considered Mr Sansom had experienced a number of symptoms consistent with exposure, because he did not experience all symptoms which suggested a severe exposure, which the symptoms he did experience suggested, Professor Weatherby proffered an opinion that Mr Sansom may have had an allergic rhinitis reaction to an unknown substance. Once again he identified that not all the symptoms of such a reaction were experienced by Mr Sansom.
In cross-examination Professor Weatherby agreed that there was no baseline activity against which Mr Sansom's test results could be compared. He considered the results if adjusted for an assumed baseline pointed to severe exposure. He agreed that the impact of exposure varied between different individuals.
I agree with and accept the EPA's submissions at [138]-[139] that Professor Weatherby's findings are not positive proof that Mr Sansom was not exposed to organophosphate because of the absence of knowledge about Mr Sansom's background levels of the enzyme cholinesterase. His opinion that the symptoms experienced were consistent with an allergic reaction does not raise a reasonable doubt. The principal doubt raised by Professor Weatherby's evidence is whether the exposure of Mr Sansom to an organophosphate was mild or severe given the theoretically different symptoms that might arise in each case. The EPA's case does not require a finding on whether exposure was mild or severe, simply that there was exposure of Mr Sansom. Professor Weatherby's evidence does not undermine a finding of exposure beyond reasonable doubt.
Mr Lynch EPA investigator gave evidence before the magistrate extracted above in [24] that in his experience exposure to organophosphate is not always confirmed by blood tests. That appears to be consistent with the evidence of Professor Weatherby given orally that results vary between individuals. There is no reason not to accept that opinion from an investigator of these kinds of cases. Professor Weatherby's informed opinion, set out above in [71], that these blood tests suggest no exposure does not raise a reasonable doubt given the physical evidence of what occurred to Mr Sansom on the day.
I consider the EPA has proved that injury through exposure to a chemical likely to be an organophosphate did occur to Mr Sansom on 18 August 2017.

[55]

(v) Other sources of diazinon

Possibilities that are "fantastic and unreal … ought not to be regarded … as the source of reasonable doubt": Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 per Barwick CJ, McTiernan and Owen JJ at 33. Where an argument only raises a fanciful doubt, this is not a reasonable doubt: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) at [36]-[37] cited in De Battista v Shoalhaven City Council [2020] NSWLEC 164 at [78]-[79]. Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the prosecutor's case: Moore v R [2016] NSWCCA 185 at [43] per Basten JA (with RA Hulme J generally agreeing).
Records were sought by the EPA from properties with macadamia farms within a 1 km radius of the exposure site. Those properties are set out in Annexure 1 to the SOAF (see above in [10]). A summary of the records of pesticide use of those surrounding macadamia farms between 1 June 2017 and 19 August 2017 were attached to Mr Lynch's statement (see above in [43]). Properties within the 1 km radius spraying on 18 August 2017 were 323 Alcorn Road (property "I"), Wingvale (property "C") and Ryanstone (property "B").
The Appellant argues that the EPA cannot negative the possibility that the spray mist experienced by Mr Sansom came from other sources, such as 323 Alcorn Road (property "I") or properties beyond the 1 km radius, because Mr Bell in [62] above and Dr Hewitt in [53] above, gave opinions that spray drift could arrive from several kilometres away.
I have found that wind was blowing in a westerly direction so that spray drift could not have come from 323 Alcorn Road (property "I") as that lies to the north-east of the exposure site. An additional aspect of the evidence in the Local Court was the topic of inversion drift arising from night time/early morning spraying in clear, cold conditions resulting in cool air collecting spray droplets or solid particles close to the ground. In cross examination, summarised above in [54], Dr Hewitt was asked to identify such a phenomenon and explained aspects of how it might arise, with the drift of spray a possibility depending on conditions if undertaken early in the morning. His oral evidence did not address any particular scenario. Mr Bell was also asked about inversion drift in relation to events on 18 August 2017 in his examination in chief, summarised above in [62]. That evidence was addressed to the experience of Mrs Johnson and does not appear to have any relevance to Mr Sansom. The evidence from Mr Bell and Dr Hewitt on inversion spray drift does not raise a reasonable possibility that mist could have come from 323 Alcorn Road (property "I") as a result of spraying from around 5:30-9:00 am 18 August 2017, given the wind direction was westerly.
The other argument that the spray could have come from elsewhere is that the Johnsons gave evidence that they heard other machinery on 18 August 2017 before spraying had commenced on the Appellant's properties (see above in [50]-[51]). Spraying at 323 Alcorn Road (property "I") was undertaken earlier in the day. They also gave evidence that they heard machinery which they thought was on Wingvale after spraying had ceased on the Appellant's properties at about 4:00 pm (see above in [50]-[51]). Spraying had ceased at 323 Alcorn Road (property "I") by the afternoon. Mr Sansom gave evidence summarised above in [52] of observing spray rigs on the Appellant's properties from the driveway on 412 Friday Hut Road (property "A") of Wingvale or Ryanstone until around 4:00 pm. As no records of spraying outside the 1 km radius were collected, the Appellant submitted that there was machinery working other than at the Appellant's farm which could also have been spraying at the relevant time and been the source of spray. I consider this submission amounts to no more than speculation. That spraying was possibly occurring in the afternoon at a property other than the Appellant's has no relevance to Mr Sansom's exposure at 9:00 am. The Johnsons' evidence summarised above in [50]-[51] and Mr Sansom's evidence summarised above in [52] does not undermine the direct evidence of his experience at 9:00 am.
I consider Mr Bell's conclusions, based on two site visits some two years after the event, that there were other credible sources of the spray experienced by Mr Sansom are speculative. Further, his opinion summarised above in [65] that the spray mist could have come from another farm based on Mr Sansom smelling a chemical before Killen Falls Drive, south of Wingvale, is speculative.
None of this evidence raises a reasonable hypothesis or a reasonable possibility inconsistent with the EPA's case.

[56]

(vi) Sample testing undertaken by Environment Protection Authority

As identified in the evidence above in [41]-[42], the EPA undertook testing of several locations including sampling points 5-7 and 11 as identified on Map B in Annexure 1 to the SOAF. The EPA also took samples from the external surface of Mr Sansom's car.
The Appellant submits that the samples do not support a finding that diazinon emanated from the Appellant's farm because there is no evidence when these samples could have been deposited. Given the potential for spray drift, there is a reasonable possibility that the chemicals detected came from another farm, considering those farms identified by the spray records collected by the EPA as spraying pesticide in August 2017 (summarised above in [43]). Mr Bell's opinion above in [60] was that the diazinon picked up in the EPA's samples could have been the result of a spray drift event from 241 Alcorn Road (property "G") on 17 August 2017, being the day before the exposure event.
The presence of diazinon was detected in the samples taken from the left side of Mr Sansom's car and sampling points 5-7 along Friday Hut Road opposite Ryanstone near Wingvale (see above in [41]-[42]). Mr Bell's opinion summarised above in [64] was that the detection of cyfluthrin (Bulldock) at sample points 6 and 7 suggested there had been spray drift from another property, as may well be the case. Supa Bor and Designer, also sprayed on the Appellant's farm on 18 August 2017, were not detected in the samples. No diazinon in the sample taken from the windscreen of Mr Sansom's car was detected. The sample results were part of the multiple matters the subject of the EPA's evidence and as submitted provide some support for its case. The sampling evidence is not conclusive and can be considered as essentially a supplement of the direct evidence of what occurred. The criticisms of the sampling by the Appellant suggesting it was not reliable can be accepted but does not give rise to a reasonable hypothesis or a reasonable possibility inconsistent with the EPA's case, providing at most some support for Mr Sansom's evidence that diazinon emanated from the Appellant's farm across Friday Hut Road.

[58]

Is the due diligence defence established?

A defence of due diligence as found in s 10(3) of the Pesticides Act can be relied on if the Appellant can prove on the civil standard, namely that on the balance of probabilities, firstly the offence arose from circumstances over which he had no control and, secondly that all reasonable precautions were taken and all due diligence exercised to prevent the offence. Both elements must be established.
The magistrate found that the Appellant did not satisfy the requirements of due diligence as set out above in [80]. The offence was not a result of causes over which the Appellant had no control as Mr Battistuzzi controlled the airblast sprayer from which the pesticide was sprayed, as the magistrate identified. Further, the Appellant did not take all reasonable precautions and did not exercise all due diligence because the wind was westerly when Mr Battistuzzi sprayed near a public road on a school day and the Appellant did not notify the Johnsons and Mr Sansom of intended spraying on 18 August 2017, as relevant guidelines required. No basis to find contrary to the magistrate's detailed findings has been provided.
Relevant guidelines summarised above in [46]-[48] suggesting that notification of neighbours should occur were tendered by the EPA being the Australian Macadamia Society's Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011), the Commonwealth Primary Industries Standing Committee's Spray Drift Management: Principles Strategies and Supporting Information (October 2002) and ChemCert Australia's Chemical Users Handbook. Dr Hewitt's opinion above in [49] was that notification of the occupants of 412 Friday Hut Road (property "A"), being the Johnsons and Mr Sansom, should have occurred. Mr Bell's opinion above in [66] was to the contrary.
Application of the guidelines in evidence requires common sense. The fact that they have not been legislated by Parliament does not undermine their application. Notification of neighbours is a straightforward requirement to the effect that those living next to or very close to a property should be contacted if chemical spraying is planned. That included in addition to Ms Ford who lived in a dwelling on Wingvale, the Johnsons' property, immediately opposite the Appellant's properties given that they were separated only by a public road. The Appellant agreed in cross-examination that it would have been reasonable to notify his neighbours in advance of spraying in 18 August 2017, see above in [58].
Characterising Mr Sansom as someone driving along a public road rather than as a neighbour, suggesting that there was no expectation he would be notified ignores the plain words of the guidelines. The Appellant submitted that the guidelines do not require perfection. I agree but that does not undermine a conclusion in the circumstances of this matter where Mr Sansom was a neighbour and the guidelines could have been easily complied with. The fact that he was travelling on a public road does not undermine that conclusion, as the magistrate also found. The reason to notify neighbours is to ensure that they can plan accordingly, as referred to in the magistrate's reasons set out above.
Mr Bell's opinion summarised above in [65]-[66] that it was appropriate to spray on 18 August 2017 is speculative. No weight can be placed upon it.
The defence of due diligence is not made out by the Appellant. Accordingly, the Appellant's conviction for the offence charged remains.

Moore v Environment Protection Authority

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (61 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (24)

Cited By (1)