Prosecution v Offenders

1 At the conclusion of a trial which commenced on 16 May 2019, the offenders were each found guilty of three offences of polluting the atmosphere under s 41(1) of the Environment Protection Act 1970 ('EP Act'). The pollution was smoke emitted by the fire or fires which ignited at the Hazelwood Mine in the Latrobe Valley on 9 February 2014 and burned for 45 days ('the mine fire').

2 This ruling deals with two issues which arose during the trial. First, it sets out my reasons in relation to the admissibility of evidence of environmental epidemiologist and public health expert, Dr Fay Johnston. Second, it deals with the question of whether honest and reasonable mistake applies in relation to an alternate case which the prosecution pursued.

3 At the start of the trial, the offenders formally admitted that the atmosphere was polluted by smoke from the mine fire as alleged in the charges brought against them.

4 On 17 May 2019 I ruled that, despite the admission, the prosecution could lead some evidence as to pollution to provide the jury with context and because the evidence could possibly be relevant, at least indirectly, to the issues which the jury had to decide.

5 The prosecution gave notice of intention to call evidence from Dr Johnston in accordance with a report she prepared dated 9 June 2016, which dealt in general terms with studies on the adverse health impacts of exposure to air pollution, including smoke, and the likely impact of smoke from the mine fire on Latrobe Valley residents.

6 The offenders objected to Dr Johnston's evidence on the basis that much of the content of her report was not relevant to a fact in issue, or was unfairly prejudicial, misleading or confusing.

7 In her report, Dr Johnston dealt at length with studies and literature concerned with the health impacts of air pollution and smoke. There was no apparent connection between a great deal of the content of the report and the circumstances with which the jury were concerned. For example, Dr Johnston set out health impacts of 'major constituents ... from biomass, peat or coal combustion'. However, there was no evidence that many of these harmful constituents were identified on scientific analysis of smoke emitted by the mine fire. Much of the material referenced in Dr Johnston's report, and the opinions she expressed, were only indirectly relevant to pollution exposure caused by the mine fire given potential differences in the constituents of the smoke, population size and socioeconomic circumstances, period of exposure, dose of exposure and the nature of the polluting event.

8 In her report, Dr Johnston frequently used absolute or definitive language to describe the impacts of smoke from the mine fire, for example, stating there is indisputable evidence that the mine fire caused a prolonged episode of poor air quality in the towns of Morwell and Traralgon, and categorising measured levels of PM 2.5 as 'moderate', 'severe' and 'extreme'.

9 The report did include air quality data as measured by the Environment Protection Authority. However, the only reference to adverse health outcomes suffered by residents was anecdotal. Given the acknowledgement by Dr Johnston in her report that the results of many of the studies to which she referred were not directly translatable to the circumstances of Latrobe Valley residents during the period of the mine fire, the definitive opinions expressed in the report did not appear justified.

10 The effect was to reduce the possible probative value of Dr Johnston's evidence, while at the same time increasing prejudice to the offenders if evidence were permitted as to serious adverse health consequences which have been reported in studies, but which may never be established in the Latrobe Valley as resulting from exposure to smoke from the mine fire.

11 Since Dr Johnston prepared her report, data has been collected and analysed, and reports prepared by various organisations dealing with the impact of smoke from the mine fire on communities in the Latrobe Valley ('the data surveys'). During argument it became apparent that the prosecution intended to lead evidence from Dr Johnston which took into account the results of the data surveys. I was told these surveys had been served on the offenders. However, the offenders objected on the basis no notice of intention to lead additional evidence from Dr Johnston had been served.

12 There was an obvious benefit in Dr Johnston giving evidence on the basis of data which had been gathered in the Latrobe Valley, rather than by reference to anecdotal reports, or extrapolation to the Latrobe Valley from the results of studies of pollution events in other parts of the world. A further report was prepared by Dr Johnston, setting out her opinion based on measured health impacts found in the data surveys. Dr Johnston's further report resolved most of the offenders' objections to her evidence. I excluded some evidence which was not based on quantitative findings in the data surveys, but otherwise allowed evidence to be given in line with Dr Johnston's further report.

Does honest and reasonable mistake apply to s 62C of the _EP A_ct?

13 Prior to final addresses an issue arose as to whether the offenders had discharged the evidentiary burden they bore in relation to honest and reasonable mistake. I ruled they had not, and that honest and reasonable mistake should not go to the jury.

14 The parties were also in dispute about whether honest and reasonable mistake applied to the alternate case run by the prosecution that the offenders were deemed under s 62C of the EP Act to have polluted the atmosphere. Whilst it is not necessary that I decide this point, given that it was argued, and in case it becomes relevant, I will address the issue.

15 The offenders submitted that the only effect and operation of s 62C of the EP Act, in situations where the person charged with an offence under s 41 is an occupier, is to provide the prosecution with an alternative method of establishing that an accused polluted the atmosphere in contravention of s 41(1). This does not alter the character of the offence as one of strict liability in respect of which honest and reasonable mistake of fact may arise. The offenders submitted it follows that honest and reasonable mistake of fact, if raised by the evidence, remains an issue on which the prosecution bears the burden in respect of a charge under s 41(1) of the EP Act, even if the prosecution are able to rely on s 62C to deem that an accused polluted a segment or element of the environment.

16 The prosecution submitted that once the three preconditions of s 62C had been proved, the offence is established unless the offenders proved the pollution is unrelated to the undertaking conducted on the premises. This excludes any operation of an honest and reasonable mistake defence.

17 The offenders were charged under s 41(1) of the EP Act, which provides that a person shall not pollute the atmosphere so that its condition is changed in one or more of the ways described. The EP Act creates similar offences of polluting waters[1] and polluting land.[2] Definitions relevant to each offence are:[3]

'pollute' includes causing or permitting pollution;

'polluted' means the condition of the environment described and referred to in section 39(1), 41(1) or 45(1) as the case may be;

18 In State Rail Authority (NSW) v Hunter Water Board,[4] Gleeson CJ said in relation to the issue of honest and reasonable mistake:

The actus reus of an offence may consist, for example, of one or more physical acts, (for example, breaking, entering and stealing), or a combination of acts and circumstances, (for example, permitting a motor vehicle to be driven by a person who is unlicensed), or a combination of acts and consequences, (for example, assault occasioning actual bodily harm). Courts have been careful to point out that, in the case of offences involving mens rea, it is necessary to describe the relevant state of mind or intention in a manner appropriate to the particular offence. In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, Gibbs CJ pointed out (at 530), that the expression "mens rea" is ambiguous and imprecise, and Brennan J (at 564-572) analysed the various possible elements that might be involved. Brennan J said (at 568):

"It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required. It is the 'beginning of wisdom', as Lord Hailsham of St Marylebone said in Reg v Morgan [1975] UKHL 3; [1976] AC 182 at 213, to see 'that "mens rea" means a number of quite different things in relation to different crimes'."

A cognate problem arises in relation to the concept of honest and reasonable mistake. It is settled that the mistake must be one of fact, not law: Von Lieven v Stewart (1990) 21 NSWLR 52. However, there can be problems involved in relating the state of mind, knowledge, or belief which is described as an honest and reasonable mistake, to the acts, or the combination of acts and circumstances, or the combination of acts and results, constituting the actus reus of the relevant offence: see, eg. Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751-752.[5]

The state of mind, knowledge or belief which is the necessary foundation of honest and reasonable mistake of fact must relate to the actus reus of the offence. The actus reus of the offence against s 41(1) of the EP Act is to pollute the atmosphere so that it is changed as described.

19 The mistaken belief on which the offenders sought to rely was related to the allegation that they caused the atmosphere to be polluted.

20 Section 62C does not have independent operation. It is enlivened when attached to ss 39, 41 or 45.

21 In order to rely on s 62C the prosecution must prove that the atmosphere is polluted, that the pollution was as a result of a discharge, emission or deposit from or on premises on which there is conducted a commercial or industrial undertaking, and, that the accused is the occupier of the premises. If those matters are proved, an accused is deemed to have polluted the atmosphere, and the offence created by the substantive provision is complete, unless the accused proves the discharge, emission or deposit was unrelated to the undertaking conducted on the premises.

22 The purpose of s 62C is to assist with prosecutorial proofs, and to make the occupier of premises on which an industrial or commercial undertaking is conducted responsible for an emission of pollution on or from the premises.[6] Consistent with that purpose, in order for the deeming provision to operate it is not necessary to prove that the accused caused or permitted the pollution, conducted the undertaking, was aware of the manner in which it was being conducted or the risk of pollution which might eventuate. The effect of s 62C is to deem the actus reus of the offence. Because it is not relevant to consider whether the accused caused the pollution, the accused's state of mind, knowledge or belief as to whether an act or acts by it will or may cause pollution does not relate to the matter to be proved to establish the offence.

23 If the offenders' submissions were accepted, the prosecution would often face the evidentiary difficulty s 62C was intended to avoid, of having to negative honest and reasonable mistake beyond reasonable doubt in circumstances where the occupier of the premises does not cooperate and provide sufficient admissible evidence. That outcome is inconsistent with the purpose of s 62C.

24 For the above reasons I would have concluded, had it been necessary, that honest and reasonable mistake did not apply to the alternate prosecution case based on s 62C of the EP Act.

[1] Environment Protection Act 1970 (Vic) s 39.

[2] Ibid s 45.

[3] Ibid s 4.

[4] (1992) 28 NSWLR 721.