Meaning of likely in the definition
54 Mr Hale SC for the appellant submitted that in the definition of water pollution etc in the Dictionary "likely" meant more probably than not while Mr Craig for the respondent supported the construction adopted by the Judge that it meant "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance". This was the construction of the predecessor provision in s 16(2) of the 1970 Act that was adopted by Smart J in Mathews v Goulburn Wool Processors Pty Ltd (unreported 6/11/1986) at pp 12-15. The reasoning of Smart J on this question was not affected by the decision of this Court which reversed his decision on another point: (1987) 10 NSWLR 419. The Land and Environment Court has consistently followed this construction of s 16(2) and cognate legislation: SPCC v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221, 224; NSW Sugar Milling Co-operative Ltd v SPCC (1991) 73 LGERA 86, 100; EPA v Anning [1998] NSWLEC 135.
55 Mr Hale submitted that there was a conceptual difficulty in establishing beyond reasonable doubt that there was a real and not remote chance or possibility of something occurring if the chance was less than 50 per cent. However the difficulty is the same if likely means more probable than not. In any event likely has been given this meaning in a statutory definition of murder. In Boughey v The Queen (1986) 161 CLR 10 the Court considered the meaning of "likely" in s 156(2) of the Criminal Code (Tas) which defined culpable homicide as including homicide caused by an act "which is commonly known to be likely to cause death or bodily harm" and in s 157(1) which defined murder as culpable homicide which the offender knew to be likely to cause death. Mason, Wilson and Deane JJ said (21-2):
"… in our view, the word 'likely' is used in both [sections] with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent … To bury the word 'likely' in s 157(1) … beneath the gloss of 'more likely than not' and the explanation of 'a more than 50 per cent' or an 'odds on' chance would be to … to attribute to the word 'likely' a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s 157(1) of the Code."
56 The reasoning of Smart J on this question has stood for 20 years and we were not referred to any judicial criticism of it. In 1997 Parliament adopted the same language in the definition of water pollution etc in the Act. Parliament has given a lot of attention in recent years to the protection of the environment and if those promoting the 1997 Act considered that the meaning of likely adopted in these cases was not appropriate, the new Act would have made it clear that a different meaning was intended. Where the language of a statute has received judicial interpretation and Parliament again employs the same language in a subsequent statute dealing with the same subject there is a presumption that Parliament intended that the language used by it in a subsequent statute should be given the meaning which has been judicially attributed to it in the meantime: Salvation Army (Victoria) Property Trust v Ferntree Gully Corporation (1952) 85 CLR 159, 174; The Queen v Reynhoudt (1962) 107 CLR 381, 395-6, 403, 406-8.
57 Smart J considered Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 and particularly the judgment of Deane J who held that likely may have this meaning in an appropriate context. In ASIC v Nomura International plc (1998) 89 FCR 301 Sackville J held that likely in s 998(1) of the Corporations Law meant more probable than not. He said (396):
"The form of the provisions considered in these cases was important to the outcome. For example, Deane J in Tillmanns at 347, thought it significant that s 45D(1) proscribed conduct that 'would have or be likely to have' a particular effect … If, in that context, 'likely' meant more probable than not, the words 'be likely to have' would have had no work to do. Section 998(1) is couched in different terms."
58 This reasoning is not relevant in the present context and the decision does not require this Court to re-open the established construction of this definition.
The decision of Pain J on the facts
59 The Judge was not satisfied to the requisite standard that egg waste from the appellant's factory reached Warabrook Lagoon. Mr Hale relied on this and other matters to challenge the Judge's finding that on the day in question it was "likely to fall [or] descend … into the waters" of the Lagoon. Although egg waste had leaked from the black tank onto the concrete apron and into SW1, from where it had flowed to SW2, and SW4 prompt and effective action on the morning of 3 October prevented it getting any further. The egg waste at SW4 still had some distance to travel before it left the appellant's property (3/40).
60 The fact that, on a particular occasion, the pollutant does not "fall [or] descend" into waters cannot exclude a finding that it was "likely" to do so because that would write the second limb out of the definition.
61 The tank stood in the open and on the day in question exhibited obvious signs of rust as the appellant's maintenance co-ordinator acknowledged (2/323-4, 3/2-4). The appellant had no system for its inspection and maintenance (2/325). The egg waste leaked through a hole created by rust (3/427). When the tank was inspected by an expert on 4 August 2004 corrosion of varying severity was evident over a broad area on the external and internal surfaces where the paint system had been compromised. There were areas of extreme corrosion and metal wastage with the worst affected on the bottom (3/425-6). Two holes were identified at that time (3/437). The appearance on the day in question, with an appropriate adjustment, was some evidence of its condition on the day of the leakage 10 months earlier because of the retrospective presumption of continuance: Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122, 137-8 per Isaacs J.
62 It is obvious that in the absence of any system of inspection and maintenance the rusting tank was likely to leak sooner or later and the fact that it sprang a leak sometime between 3pm on 2 October and 5.45am on 3 October demonstrated that it was likely to do so. Future events are admissible, not to prove a hindsight, but to confirm a foresight: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (2001) 50 NSWLR 665, 677 per Spigelman CJ quoting a statement by Hope JA.
63 Although the tank was normally emptied every Friday, this did not always happen. Mr Fitzpatrick said that he emptied the tank when asked by the appellant to do so (2/97, 121). The tank could have begun to leak over a weekend without the leak being detected until the following Monday morning, or even Tuesday if there was a long weekend such as that which fell on 4-6 October 2003.
64 Once the tank began to leak the egg waste would flow by gravity across the concrete apron and into SW1 and eventually, if there was enough waste in the tank, and nothing was done, it would flow into the Lagoon. There were voids or sumps in the drainage pits which would have to be full before the waste could move further down the drainage line and some of the waste would be needed to wet the surface of the pipes and would not move further.
65 There was also evidence that there were voids under the concrete apron. Egg waste flowing across the apron would leak into these through the gaps between the slabs and this would delay and reduce the movement of the waste to SW1.
66 The dryness or otherwise of the pits and pipes in the drainage line and of the voids under the concrete apron would be affected by rain. If enough rain had fallen shortly before the tank sprang a leak the pits might be full, the pipes might be wet, and the voids under the apron might also be more or less full. If this was the position the waste would flow more quickly through the system (386). Moreover if it rained heavily during the leakage the runoff would carry the egg waste to the Lagoon within half an hour. A fluorescein test with running water on 17 December 2003 carried the dye from SW1 to the gross pollution traps on the edge of the Lagoon in 24 minutes: judgment para [24].
67 Rainfall of 6.8mm and 1.4mm was recorded at Newcastle University during the 24 hours to 9am on 2 and 3 October respectively. The University was only about 1.5 kilometres from the appellant's property although the location of the rain gauge was not established. The falls on 2 October would have generated runoff from the impervious areas on the site, and that on 3 October may have done so (3/576). Dr Joliffe said that with this rainfall it was highly improbable that the pits were completely dry during the night of 2-3 October, and it was quite possible that they were full of water (259).
68 As the Judge found there was no bund or other physical barrier which would prevent egg waste which leaked from the tank flowing under gravity across the concrete apron to SW1 and then eventually to the Lagoon.
69 The primary facts found by the Judge were not challenged. Mr Hale's factual challenge was to the ultimate finding that the pollutant was likely to fall or descend to the Lagoon. In my judgment that ultimate finding was fully supported by the evidence and was correct.
70 The appeal against conviction should be dismissed with costs.
71 HULME J: In or about November 2004, the Respondent to this appeal charged the Appellant with having, on or about 3 October 2003, committed an offence against s120(1) of the Protection of the Environment Operations Act, 1997 in that "it polluted waters at Warabrook Wetland Reserve, namely the Warabrook Lagoon (Upper Pond)".
72 The offence alleged was particularised in a number of respects. The place of the offence was said to be the Defendant's land, a line of stormwater drainage pipes and pits owned and occupied by the Defendant, the stormwater drainage pipe and pit system between the Defendant's land and the Reserve and at the Reserve. The manner in which the pollution occurred was described as:-
The pollutant was in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or other non-polluted waters.
The pollutant was introduced into the said waters at the said place by passing through the pipes and pits within the defendant's land and through the public stormwater drainage pipe and pit system to discharge into the Warabrook Lagoon (Upper Pond) on the Warabrook Wetland Reserve.
73 On the day on which the offence was alleged to have occurred, poultry egg waste had escaped from a hole in a tank on the Defendant's land into at least some of the drainage lines and pits on the Defendant's land.
74 On that day also, Council officers had found adjacent to where material from the Appellant's drainage system would enter the Lagoon, material which appeared to be of the same type as that which had leaked from the Defendant's tank. The Council's primary case was that the material found was part of that that had leaked from the tank.
75 However, drainage pipes from other properties also fed into the Council's drainage system between the Appellant's property and this made it at least possible that what the Council officers found in the Lagoon came from persons other than the Defendant. There was also evidence that tended to suggest that the material that had leaked from the tank had not found its way as far as the boundary of the Defendant's land. Justice Pain, from whom this appeal is brought, was not satisfied that the material found in the Lagoon had come from the Defendant's property.
76 However, her Honour convicted the Appellant upon a second argument that the Council advanced, namely that given the condition of the tank when inspected on 4 August 2004, the drainage system which existed between the location of the tank, and the inadequacy of emergency procedures to deal with any spillage, the Appellant had offended against s120(1) "by placing egg waste in a position where it was likely to fall, descend, or be washed into Warabrook Lagoon". On a later occasion, her Honour dealt with the issues of penalty and costs. Clearly orders made in those respects are dependent on the Appellant's conviction but there is no separate appeal against her Honour's decisions in respect of these further matters.
77 Her Honour did not make any specific findings as to the condition of the tank at the time of the escape from the tank but it is implicit in what she said that the hole from which the egg waste escaped was the result of the tank rusting.
78 Section 120 of the Act provides:-
(1) A person who pollutes any waters is guilty of an offence.
(2) In this section
pollute waters includes cause or permit any waters to be polluted.
79 In the Dictionary to the Act, "water pollution or pollution of waters" is defined to mean:-
"(a) Placing in or on, or otherwise introducing into or onto, waters… any matter… so that the… condition of the waters is changed, or
(b) Placing in or on, or otherwise introducing into or onto the waters… any… matter… so that the change in the condition of the waters or the… matter… makes, or is likely to make, the waters unclean, noxious… or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or
(c) Placing in or on, or otherwise introducing into or onto, the waters… any matter… that is of a prescribed nature… or that does not comply with any standard prescribed in respect of that matter,
and, without affecting the generality of the foregoing, includes:
(d) Placing any matter… in a position where:
(i) it falls, descends, is washed, is blown or percolates, or
(ii) it is likely to fall, descend, be washed, be blown or percolate
into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater, or any water that is not polluted, or
(e) Placing any such matter on the dry bed of any waters or in drain, channel or gutter used or designed to receive or pass rainwater, floodwater, or any water that is not polluted,
if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters."
80 The Appellant's case here is that Justice Pain misconstrued the meaning of the word "likely" in that definition and, when that expression is properly understood, was not justified by the evidence in reaching the conclusion she did.
81 However, I do not need to embark upon this argument for the Council has a more fundamental problem. It is either that there was duplicity in the charge or, as I think is the preferable view, that the Appellant was convicted of an offence different from that charged as that charge was particularised. As the particulars set out above make clear, particulars of the charge included that the pollutant "was in a position "where it was likely to and did fall" and that the pollutant "was introduced into the said waters", expressions consistent with only an allegation of actual pollution, not of merely creating a situation where pollution was likely to occur.
82 Given the presence of the words underlined in the preceding paragraph, it is not possible to regard the offence charged as one of "placing egg waste in a position where it was likely to fall" etc. And even if one could, the addition of those words or an interpretation that included them would have meant that the charge suffered from duplicity. The Defendant placed the relevant material in the tank at one point in time and, assuming all other relevant matters existed, it then committed an offence. Any offence of introducing the material into the Lagoon, occurred at a different point of time and, if it occurred, was a different offence.
83 In so concluding I do not ignore the fact that, given the terms of s120 and the definition quoted the Council could have charged the offence as it did and particularised that offence, for example, as:-
"placing matter in a position where:-
(i) it fell, or
(ii) was likely to fall, descend, be washed, or percolate,
into Warabrook Lagoon"
84 Given the form of paragraph (d) of the definition of "water pollution …" such phraseology, directing attention to one act which answered one of a number of possible descriptions or carried one of a number of possible consequences, would not have been duplicitous - see Ex parte Polley: Re: McLennan (1947) 47 SR (NSW) 391 at 392; Brownlie v SPCC (1992) 27 NSWLR 78 at 82B; CSR Ltd v Environmental Protection Authority (2000) 110 LGERA 334; Reynolds & Co Pty Limited v Australian Stock Exchange [2003] NSWSC 33 at [101]. However, that is not the way the charge against the Appellant was particularised. There was no allegation of "placing" the pollutant where it was likely to fall and although if there were no contrary indications of what was being alleged, one might have been justified in inferring that was intended, here the clear emphasis was on actual not potential pollution.
85 Nor is it to the point that the charge itself was in the terms of s120 and not formulated in duplicitous terms. The particulars also must not suffer from that fault. This is made clear from the remarks of Dixon J in Johnson v Miller (1937) 59 CLR 467 at 489.
86 The only question which has caused me any concern is whether the Appellant, having made no objection to the course pursued by the Respondent before Pain J should now be permitted to do so. After all, putting aside for the moment the Appellant's primary argument, on her Honour's findings the Appellant is guilty of the offence of polluting waters. However, just as "it is not pedantry to insist that an accused be tried for the crime for which he is charged" - Andrews v R (1968) 126 CLR 198 at 209, it is not pedantry to insist that any conviction, if it is to stand, be for that offence. The specification of an offence requires that there be included not only the legal ingredients of it but the identification of its essential factual ingredients also. See Johnson v Miller (1937) 59 CLR 467 at 486, Andrews v R at 209; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520; Taylor v EPA (2000) 50 NSWLR 48 at [20-22]. Inter alia, such matters are needed to enable any decision to be made should issues of autrefois acquit or autrefois convict arise - R v Burns (1920) 20 SR (NSW) 357.
87 The appeal should be allowed, and the conviction and penalty quashed and the order for costs made by Judge Pain set aside.
88 No argument was addressed as to the costs of this appeal. Given that the point upon which the appeal has succeeded was not taken below and not taken in the appeal until the Court raised it, there is a deal to be said for the view that the costs of the appeal should lie where they have fallen. However, that is not a concluded view and the parties should have liberty to raise the issue of costs by written submissions within 7 days if they wish to do so.
89 KIRBY J: I agree with Handley JA.
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