Warringah Council v Koch and Severino

Warringah Council v Koch and Severino - [2006] NSWLEC 551 - NSWLEC 1998 case summary — Zoe

[63]

22 It was put to Mr Wintle in cross-examination that these additions and omissions were "self-serving", and he agreed that they could be seen that way. Mr Wintle's opinion 23 Based on his knowledge of the Myoora Road locality and the Kieran's Creek catchment area, Mr Wintle was of the opinion that the discoloured water which he saw at the commencement point, and which flowed downstream to the gross pollutant trap, emanated from the subject land. To confirm this opinion, he carried out a non-toxic dye test on the watercourse on 29 November 2005, which established that water from the commencement point flows downstream to Kieran's Creek. As a consequence of his observations and his experience as a Catchment Liaison Officer, Mr Wintle was of the opinion that at the time of his inspection of 48 Myoora Road on 21 February 2005, the sediment laden water being pumped out of the excavated pit thereon contained suspended solids which caused the waters within Kieran's Creek to be physically, chemically and biologically changed. Mr Wintle's Credit 24 It was submitted on behalf of Mr Severino that Mr Wintle deliberately changed the version of his conversation in his affidavit from that in his contemporaneous notebook, in order to "stitch up" Mr Severino and to assist the prosecution, and that he lied when he denied this proposition when it was put to him in cross-examination. It was also submitted by both defendants that Mr Wintle was biased and that his evidence was unreliable. I reject the submissions of dishonesty and bias. The fact that he assumed, when taking the samples, that the water from which he took Sample 1 was solely water from 48 Myoora Road does not exhibit bias in the sense of partiality. The assumption may have been erroneous, but that is because of the evidence (considered below) which the defendants adduced at trial of possible alternative sources of water in Sample 1 as a result of the storm events which had occurred over the preceding two days. Some of the discrepancies between Mr Wintle's affidavit evidence of his conversation with Mr Severino and his contemporaneous notebook are of no real significance, others are of varying degrees of significance. Taking into account my impression of Mr Wintle when he was taxed with these matters in cross-examination, I am not satisfied that the discrepancies were deliberate. They were, however, careless and adversely affect the reliability of his evidence of the conversation with Mr Severino such that I would treat this evidence cautiously, in the absence of corroboration, when deciding whether to accept any alleged admissions by Mr Severino therein beyond reasonable doubt.

[106]

69 That such water is sediment laden also derives support from the evidence of Mr Kander, a defence witness, who was present as the official photographer at a wedding function at 48 Myoora Road on 26 February 2006 during heavy rain. He observed and photographed a significant volume of apparently sediment laden water flowing down the driveway from the direction of Mona Vale Road. Although he could not definitely say that the water came from Mona Vale Road, as distinct from the adjacent property to the north of the driveway, it seems likely to have come from Mona Vale Road given Mr Kander's evidence that he could see all the way up the driveway due to floodlighting, and that the driveway was the only entry point because there was an edge on the garden. Fifth alternative source: the second PVC pipe 70 The evidence does not disclose the source of the flow through the second PVC pipe. Mr Wintle's evidence was that it was a clear flow when he took his samples. I accept that evidence. Conclusion Re Alternative Sources of Sample 1 71 It is significant that Mr Wintle did not take a sample directly from the blue hose which undoubtedly led from the construction site on No 48. Had he done so, there would have been no question as to the source of the water in Sample 1. When asked in re-examination why he did not do so, he said "Sorry, I don't have an answer for that". Because he did not do so, the door was thrown open to the defendants to adduce evidence in support of hypotheses that the water in Sample 1 included waters from other sources that had entered the commencement point pond as a result of storms over the preceding two days. In the result, I am of the opinion that there are reasonable hypotheses that Sample 1 included water from the suggested alternative sources to which I have referred, other than the second PVC pipe, and that the prosecutor has not excluded those hypotheses. I am not satisfied that such a hypothesis is reasonable in the case of the water from the second PVC pipe because it was observed to be clear on the day of the alleged offence and nothing is known of its source.

[107]

72 Consequently, in my opinion, it has not been proved beyond reasonable doubt that Sample 1 is a reliable sample of waters pumped from 48 Myoora Road. Sample 2 73 The prosecution must prove that the discharge from 48 Myoora Road changed the condition of the receiving waters. Sample 2 was put forward by the prosecution as being representative of the condition of the receiving waters. In examination-in-chief, Mr Wintle said he had taken Sample 2 from a pool to the east of the first PVC pipe. This was on the right hand side of a large concrete pipe and just below the second PVC pipe. In cross-examination, however, he said that Sample 2 was a composite sample, comprising a mixture of water from the pond to the right of the large concrete pipe and clear water discharging from the second PVC pipe. There is no evidence as to the source of the water from the second PVC pipe. Mr Wintle conceded in cross-examination that he did not check where that pipe came from, having assumed that it was "base flow from a spring or whatever". There is no evidence as to how much of Sample 2 came from that pipe, other than Mr Wintle's evidence that Sample 2 came "mainly" from the pond and "a little" from the second PVC pipe. In Mr Anink's opinion, Sample 2 provided no useful information and could not be relied upon to establish background water quality of the commencement pond. Mr Wintle in cross-examination conceded that his manner of obtaining Sample 2 was inappropriate such as to deprive that sample of any probative value whatsoever. Given the state of the evidence, I am not satisfied beyond reasonable doubt that Sample 2 should be accepted as representative of the receiving waters. Colour of the Discharge 74 Mr Wintle said in cross-examination that the water pumped from 48 Myoora Road was a "different colour" to the colour of the water in the creek. However, the prosecution did not press a pollution case based upon the colour differences. In any event, I accept Mr Severino's submission that it would be unsafe to find pollution proved on the basis of colour difference. Mr Anink's opinion, which I accept, is that it is well known in the discipline of water science that colour is a subjective and unreliable indication of the composition of waters, particularly concentrations of suspended solids. Conclusion 75 For these reasons, in my opinion, the prosecution has not proved beyond reasonable doubt that the waters discharged from 48 Myoora Road polluted the waters of the watercourse. Consequently, the prosecution has not proved beyond reasonable doubt that the defendants are guilty as charged. The charge against each defendant must be dismissed. It is therefore unnecessary to address the causation issue. Orders 76 I make the following orders in each proceedings: (i) the proceedings against the defendant are dismissed; (ii) costs are reserved; (iii) the exhibits may be returned.

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Cases Cited (6)