DISTRICT COURT OF QUEENSLAND
CITATION:
Ward v Cordwell Resources [2018] QDC 224
PARTIES:
JOANNA WARD
(appellant)
v
CORDWELL RESOURCES
(respondent)
FILE NO/S:
33/18
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Maroochydore
DELIVERED ON:
13 July 2018 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
13 July 2018
JUDGE:
Farr SC DCJ
ORDER:
1. The appeal is dismissed;
2. The appellant is ordered to pay the respondent’s costs of and incidental to the appeal pursuant to the Schedule.
CATCHWORDS:
CRIMINAL LAW – APPEAL – REHEARING - Justices Act 1886 – section 222 – appeal against acquittal – where the respondent was acquitted at trial of contravening a condition of an environmental authority – where the condition required contaminants to not be directly or indirectly be released from licensed places otherwise than as permitted – where the appellant alleged that the respondent was guilty by failing to secure a valve and prevent discharge of contaminants – where the magistrate was not satisfied beyond reasonable doubt that the respondent released the relevant contaminants – whether the magistrate erred in their finding – whether the condition can be contravened by omission – whether the appropriate condition was specified in the charge
Criminal Code 1899 (Qld) s 7(1)(a)
Justices Act 1886 (Qld) s 222
Environmental Protection Act 1994 (Qld) s 430(3)COUNSEL:
S Lewis for the appellant
D Purcell for the respondent
SOLICITORS:
The Department of Environment and Heritage Protection for the appellant
Butler McDermott Lawyers for the respondent
This is an appeal against the decision of an acting magistrate of the Maroochydore Magistrates Court on 23 February 2018 to acquit the respondent of one charge of contravening a condition of an environmental authority contrary to section 430, subsection (3) of the Environmental Protection Act 1994. And the appeal is brought pursuant to section 222 of the Justices Act. Pursuant to section 494 of the Environmental Protection Act, an offence against section 430(3) is a summary offence in which proceedings are by way of summary proceedings under the Justices Act. There is one ground of appeal. It is:
“…the learned acting magistrate erred in concluding that a possibility that the release of the contaminants to waters occurred because a third party had tampered with the valve was a reasonable hypothesis consistent with innocence in circumstances where it was the prosecution case that the respondent had failed to properly secure the valve to prevent such an event occurring.”
A s 222 appeal is an appeal by way of rehearing on the evidence given at the trial rather than a completely fresh rehearing. To succeed, an appellant needs to show some legal, factual or discretionary error. The respondent is facing the following charge: “On or about 14 June 2016 in the locality of Chevallum in the Magistrates Court district of Maroochydore, Cordwell Resources Proprietary Limited ACN 066294773, being the holder of an environmental authority, did contravene a condition of that authority, contrary to section 430(3) of the Environmental Protection Act 1994.” That charge was then particularised. The environmental authority number was identified. The condition was identified as condition C1, which states:
“Contaminants must not be directly or indirectly released from the licensed place to any waters or the bed and banks of any waters except:
(a) as permitted under the water schedule; or
(b) as permitted under the stormwater management schedule; or(c) to a sewer as permitted or otherwise agreed from time to time by the relevant Local Government.”
The particulars also then had a heading “Contravention”, which read:
“…the respondent did release contaminants directly or indirectly from the licensed place to waters, namely Eudlo Creek, and the abovementioned exceptions did not apply.”
As can be seen, condition C1 imposes an obligation not to release contaminants directly or indirectly “from the licensed place to any waters or the bed and banks of any waters” in the absence of an applicable exception. The charge alleged that the respondent did by act or omission release contaminants directly or indirectly from the licensed place to waters, namely Eudlo Creek, and that was the case that the respondent expected to meet, at least at the first instance when this charge was laid. The respondent submits that the charge did not allege the requirement to take all reasonable and practical measures in order to take all measures or perform all acts and do all things to ensure compliance with the condition. It is submitted that that is readily explained because such requirements are not, as a matter of construction, a requirement of condition C1 of the authority and do not form part of the essential factual ingredients of the offence charged.
Insofar as the evidence is concerned and the facts relating to this matter, it’s in reasonably short compass, that essentially what occurred was that on 14 June 2016, a Mr Cordwell, who was the managing director of the defendant company – respondent company invited officers from what was then the Department of Environment and Heritage Protection to visit his property for the purposes of discussing the management of water on the site. As those two officers and Mr Cordwell were walking on the property in the direction of Eudlo Creek, they observed some turbid water discharging into a culvert that led to the nearby creek.
It was not controversial at the hearing in the court below that such a discharge was contrary to the conditions of the environmental authority. The source of the water was a submerged valve but a lever that actuated the valve consisting of a steel rod was observed to extend beyond the water line. There was also observed to a length of rope on the ground nearby. Mr Cordwell immediately expressed surprise as to what was happening, saying that he had been in the same area only a few hours earlier and no such discharge was occurring at that time. He then immediately arranged for some earthworks to be undertaken to stop the water flowing into the creek.
Subsequent testing of that water showed that its level of turbidity far exceeded that permitted under the environment authority. About 12 days later, Mr Cordwell was interviewed by departmental officers. That interview formed part of the evidence – or the recording of the interview formed part of the evidence before the court. During the course of that interview, Mr Cordwell again raised – well, no. Mr Cordwell raised the possibility that an unknown person had interfered with the valve. He also said that by the time of the interview, he had now padlocked the valves so that they can’t be opened and that he had taken that remedial work to prevent the discharge of water in accordance with the authority.
Insofar as the magistrate’s findings are concerned, the learned magistrate concluded beyond reasonable doubt that contaminants were directly or indirectly released from the licensed place to any waters or the bed and banks of any waters and, secondly, that the exceptions did not apply. There really is no criticism that has been made of his Honour’s conclusions in relation to those matters. His Honour, however, was not satisfied beyond reasonable doubt that the defendant released such contaminants. Now, the appellant submits that the respondent’s activities were governed by the environment authority. It was admitted as an exhibit in the court below. A general condition, that is condition A1 of that authority states:
“In carrying out the environmentally relevant activities, the holder of this development approval must take all reasonable and practicable measures to prevent and/or to minimise the likelihood of environmental harm being caused. Any activities conducted in or on the premises that if carried out incompetently, may cause environmental harm, in a manner that could be prevented, shall be carried out in a proper manner by a competent person in accordance with the conditions of this approval.”
Similar to condition A2:
“The holder of this development approval must:
(a) install and operate all works and control equipment; and
(b) take all measures, perform all acts and do all things necessary to ensure compliance with the conditions of that approval.”
When opening the case for the prosecution in the court below, the prosecutor stated:
“…the prosecution case is that the defendant company failed to leave the valve in a secured way to prevent the discharge of this contaminated water from the quarry and so the charge, your Honour, is under section 430(3) of the Environmental Protection Act, that is a contravention of the environmental authority.”
The appellant submits that it was made clear during the course of that opening and then during subsequent argument that the prosecution case was that the respondent company had breached the environmental condition by failing to properly secure the valve so that the discharge could not occur. It was submitted therefore that it was a breach by omission rather than by over act. The appellant submits that the learned magistrate misconstrued the prosecution case as the very essence of the prosecution case was that the tampering was foreseeable and that the defendant had not taken any reasonable steps to prevent it and it submitted that this was a matter which was apparently overlooked by the learned magistrate. It is further submitted by the appellant that failing to secure the valve in a way such a third party would be prevented from opening it and allowing the discharge without the respondent’s notice was not taking all reasonable and practicable measures.
And the appellant submits that the precautions which could have been taken and which were subsequently taken were, indeed, simple and reasonable in the circumstances. So the prosecution submitted effectively during the course of that opening address that the wording of condition C1 is such that the failure to properly secure the value so the discharge could not occur was a – or could be interpreted as a contravention of condition C1. The respondent submits, however, that condition C1 properly construed is the act or omission – or a contravention of it is the act or omission of releasing contaminants directly or indirectly released from the licensed place to waters in the absence of an applicable exception.
The defendant – the respondent submits that in that respect, the respondent’s liability is premised on the application of section 7, subsection (1)(a) of the Criminal Code, that is, that is alleged that he – or the defendant was a principal offender. The respondent submits that having regard to the plain and ordinary terms of condition C1 of the authority, the offence is the contravention of the condition, namely, the release of contaminants and has submitted that it follows that the act or omission constituting the offence is that act or omission. It is submitted that the prosecution must therefore have established beyond a reasonable doubt that the release of the contaminants was caused by the act or omission of the respondent.
It is submitted that the prosecution would have had to have proved beyond reasonable doubt that it was the omission of leaving the subject valve in the unsecured state that resulted in the release of waters. It was not disputed that the respondent through its agents or employees or otherwise omitted to secure the valve, resulting – which was subsequently opened, resulting in the release of the contaminants. And it is submitted on behalf of the respondents that if there had been a conclusion that the respondent had omitted to close it itself or through its agents or employees, that it ought on that interpretation be found guilty of the offence as charged.
The respondent submits, though, that the distinction here is that on the prosecution’s case, it is alleged that the respondent failed to prevent the discharge of contaminated waters to the creek by leaving the subject valve in the unsecured state. It is submitted that the leaving of the valve in that unsecured state did not consequent the release of the contaminants rather it was the opening of the valve that caused the release of contaminants, that is, that there was an intervening act. The respondent maintains that the prosecution failed to prove beyond reasonable doubt that the respondent’s act or omission resulted in the release of the contaminants, in fact, the respondent submits that, as a matter of law, the appeal must fail because it is not the failure to secure the value which constitutes the offence, but rather the intervening act resulting in the opening of the valve which released the contaminants.
And the respondent submits that on the evidence, it remains open that it was an act or omission of an unknown third person and having interfered with the valve, which resulted in the release, something for which the respondent should not be and cannot be held criminal responsible. The respondent submits that the essence of the prosecution case was that the tampering was foreseeable and that the respondent had not taken any reasonable steps to prevent it and it is further submitted that that case was misconstrued having regard to the charge that was particularised. It is submitted that the appellant’s contention and case, as presented, in that light does not form part of the charge as particularised, is not an element of the alleged offence and is not a contravention of condition C1 of the environment authority.
The respondent submits that the proper charge, as it appears on the appellant’s case, is an alleged contravention of condition A1 to which I have already referred, that is one which required the respondent to:
“…take all reasonable and practicable measures to prevent and/or to minimise the likelihood of environmental harm being caused in the carrying out of the environmentally relevant activities under that authority.”
Taking all those matters into account, it appears to me that the prosecution of this matter has been misconstrued from the outset. The nature of the case presented was such that on the appellant’s particulars, as provided during the course of opening submissions, then if a no case submission had been made at the end of the prosecution case, in my view, it would have had to have been successful. The particulars of the failure to secure do not form any part of the charge that has been placed before the court. It is quite apparent that a charge under the – alleging a contravention of condition A1 would have been the appropriate charge in the circumstances.
But the charge as laid unambiguously alleges that the breaches of condition C1 and the charge as laid alleges that the defendant did discharge the waters – or the contaminants. That was the issue that was addressed by the magistrate in the court below, as it had to have been and there is no evidence of error or mistake in his conclusions in that regard. The appellant failed to discharge its onus and establish that the respondent did by act or omission release contaminants directly or indirectly from the licenced place to Eudlo Creek, contrary to condition C1. The learned magistrate’s conclusion has not been demonstrated to be infected by error of law or of fact or lack of reason and for those reasons, the appeal is dismissed.
The appellant is ordered to pay the respondent’s costs of and incidental to this appeal pursuant to the schedule.