TARA HILLS PASTORAL PTY LTD v PETER DOLAN [2025] SASC 200

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) ERD-21-000095, ERD-20-1005 Appellant: TARA HILLS PASTORAL PTY LTD Counsel: MR S HENCHLIFFE KC - Solicitor: MANGAN EY & ASSOCIATES Respondent: PETER DOLAN Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Appellant: PHILLIP JOHN ROLLOND Counsel: MR S HENCHLIFFE KC - Solicitor: MANGAN EY & ASSOCIATES Respondent: PETER DOLAN Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 19/02/0205, 20/02/2025, 21/02/2025 File No/s: SCCRM-24-037813, SCCRM-24-037811 A SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TARA HILLS PASTORAL PTY LTD v DOLAN, ROLLOND v DOLAN [2025] SASC 200 Judgment of the Honourable Justice B Doyle 4 December 2025 ENVIRONMENT AND PLANNING - ENVIRONMENT PROTECTION - LAND POLLUTION AND WASTE - OFFENCES - PARTICULAR OFFENCES STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH - GENERAL PRINCIPLES Tara Hills Pastoral Pty Ltd (‘THP’) and its sole director Mr Philip Rollond (‘Mr Rollond’) appeal against their convictions in respect of a number of offences against the Environment Protection Act 1993 (SA) (‘EP Act’). THP was the occupier of an area of land at 171 John Rollond Road, Tungkillo which comprised about 321 hectares in size (‘the Land’). Since 1997, the Land had been owned jointly by Mr Rollond and his mother. THP conducted various activities on the Land including livestock farming, trucking and landscaping business operations. Trucks, vehicles and machinery used in the businesses, including the transport business, were maintained and serviced from a workshop on the Land. For trucks in regular use, oil needed to be changed every month. For less frequently used vehicles, oil needed to be changed about every six months. It was necessary to replace the tyres on the vehicles from time to time. On 23 March 2016, officers of the Environment Protection Authority (‘EPA’) attended at the Land and commenced excavation of a pit. A number of 44-gallon drums, oil, used truck filters and a large number of used tyres were found. -- 1 of 142 -- On 8 April 2016, the EPA issued an order under s 99 of the EP Act to Mr Rollond (‘the clean-up order’). As later varied by the ERD Court it essentially required the disposal of the drums, vehicle parts and tyres to a licensed facility and the disposal of any remaining waste, including contaminated soil, to a licensed facility. The requirement was to dispose of all tyres by 13 February 2017 and to dispose of the contaminated, soil excavated from the pit by 28 July 2017. The informant (the respondent to the appeal) alleged that the order was not properly complied with and that tyres and contaminated soil were dumped in an area on the Land known as the ‘quarry’. On 16 February 2018, an EPA officer gave a direction pursuant to s 87(1)(m) of the EP Act requiring THP to cease all activity within the quarry including any earth works and any deposition of any thing, object or material (including but not limited to soils, rock, potato waste) (‘the s 87 direction’). On 21 March 2018, the EPA issued an environment protection order pursuant to s 93 of the EP Act requiring, inter alia, that Mr Rollond refrain from moving, remediating or otherwise dealing with any of the waste disposed of at the Site within the ‘Quarry’ (defined with reference to an attached map) until he had written approval from the EPA to do so (‘the s 93 EPO’). It was alleged that prior to the issue of the s 93 EPO, on 9 March 2018, an EPA officer observed that potato waste had been deposited at the quarry, in contravention of the s 87 direction. It was also alleged by the informant that after the EPO was issued, calcrete material and a pile of soil was deposited at the quarry. By Information and Summons laid in the ERD Court dated 2 September 2020, the informant alleged that THP and Mr Rollond committed various offences against the EP Act. • Count 1 alleged that, in or around March 2016, THP caused ‘serious environmental harm’ by polluting the environment intentionally or recklessly with the knowledge that environmental harm would or might result, contrary to s 79(1)(a) of the EP Act. The allegation related to the disposal of a large number of 44-gallon drums containing a significant quantity of hydrocarbons as well as oil filters and used tyres in an area on the Land known as the sandpit and sometimes referred to in the proceedings as the ‘pit’. Count 4 alleged that Mr Rollond was an officer of THP when it committed that offence and that, by reason of s 129(1) of the EP Act, he also committed the offence. • Count 2 alleged that THP failed to comply with the s 87 direction by causing, suffering or permitting the deposit of a stockpile of potato waste in the quarry between 16 February 2018 and 9 March 2018, thus contravening s 90(1)(c) of the EP Act. Count 3 alleged that THP contravened the s 87 direction between 9 March 2018 and 6 August 2018 by causing, suffering or permitting the deposit of a stockpile of soil and calcrete rock within the quarry. Counts 7 and 8 allege that Mr Rollond contravened s 90(1)(c) by reason of having been an officer of THP when it contravened the s 87 direction as alleged by counts 2 and 3. • Counts 5 and 6 allege a failure by Mr Rollond to comply with the clean-up order, contrary to s 99(8) of the EP Act. Count 5 concerns an alleged failure to comply with the requirement to dispose of all oil drums, vehicle parts and tyres to a licensed facility by 13 February 2017. Count 6 concerns an alleged failure to comply with the requirement to dispose of all remaining waste including contaminated soil to a licensed facility by 28 July 2017. In recognition of the three year time limitation applying to the offence described in s 99(8), the informant alleged that there was a continuing breach of the clean-up order in the two respects described between 2 September 2017 and 2 September 2020, being the three year period immediately preceding the laying of the information. The eight counts were tried over some 22 hearing days between 4 May 2022 and 10 May 2023. For reasons published on 10 July 2024 (‘Reasons’), the judge found THP guilty of counts 1, 2 and 3 and Mr Rollond guilty of counts 4, 5, 6, 7 and 8. The appellants’ notice of appeal contained 19 grounds, two of which were not pursued. In the course of hearing the appeal, the appellants were granted permission to include an additional ground of appeal relating to whether counts 3 and 4 were duplicitous on the footing that there could in law be only one offence committed by a failure to comply with the s 87 direction. The respondent was -- 2 of 142 -- granted permission contingently to amend the information in the event that such ground was upheld, so as to incorporate the particulars of both counts within a single count. With respect to the convictions of counts 1 and 4, the appellants contend that: • the judge erred in his consideration and assessment of the credibility of the witness Mr Luke Reekes-Parsons (‘Mr Reekes-Parsons’), who, on his trial evidence, was an accomplice (ground 1); • the judge erred by finding that Mr Reekes-Parsons said he had seen Mr Rollond in the yard at the time the oil drums were loaded and by finding that Mr Rollond had been present when drums containing oil had been loaded on the tipper from the back of the yard (ground 2); • the judge erred in his consideration and assessment of the witness Matthew Rollond (Mr Rollond’s son) and gave inadequate reasons for his acceptance of the evidence of Mr Reekes-Parsons and Paul Doddrell in so far as it was directly contradicted by Matthew Rollond’s evidence (which the judge did not expressly reject) (ground 4); • the judge erred by admitting Google Earth images of the THP land including the yard, paddock and pit, as evidence that accurately depicted those places on the dates indicated on them, pursuant to s 53 of the Evidence Act 1929 (SA) (‘Evidence Act’) (ground 5); • the judge erred by finding that at least 183 44-gallon drums were removed from the pit when the evidence and notes of the person in charge of removal indicated that 145 drums were removed (ground 6); • the judge erred in finding beyond reasonable doubt that all of the drums found in the pit had been deposited by THP in a single event or effort in the weeks of or leading up to March 2016, when the evidence taken at its highest could only prove that 40 to 60 drums had been deposited in the pit in that period (ground 7); • the judge erred in finding that the evidence established that there had been no oil drums in the pits as of January 2016 (ground 8); • the judge erred in various respects in his consideration of, and the findings he made in relation to, statements made by Mr Rollond when spoken to by EPA officers on 23 March 2016 (ground 9); • the judge erred in finding that it had been proved beyond reasonable doubt that at the time 44-gallon drums containing oil were put into the pit, in or around March 2016, THP knew that environmental harm would or might result (ground 10); • the judge erred in finding that the drums containing oil buried in the pit by THP had involved actual environmental harm of a high impact or on a wide scale and that there had been serious environmental harm (ground 11). The respondent contends that if any of the grounds of appeal relating to counts 1 and 4 are upheld, it may nevertheless be concluded on all of the evidence that the appellants are guilty of the charges beyond reasonable doubt and the convictions should be upheld (contention 4). In the alternative, by contentions 5 and 6, the respondent submits that, if this Court finds the appellants not guilty of the offence in s 79(1) it should find THP and, by operation of s 129(1), Mr Rollond, guilty of offences: • against s 79(2) of the EP Act, by operation of s 79(3) of that Act; or • against s 80(1) of the EP Act, by operation of s 81 of that Act; or • against s 80(2) of the EP Act, by operation of s 81 of that Act. The respondent also advances more specific alternative contentions in relation to aspects of the challenges to the convictions on counts 1 and 4. -- 3 of 142 -- • In respect of ground 7 and the appellants’ contention that the evidence did not justify a finding beyond reasonable doubt that all the drums found in the pit had been deposited in a single event or effort over the weeks leading up to 22 March 2016, the respondent contends that if only 40 to 60 drums were dumped during that period that is sufficient to maintain the finding of guilt with respect to count 1 (contention 2). • In respect of any challenge to the finding as to THP’s knowledge of environmental harm, the respondent contends that the finding should be upheld having regard to THP’s knowledge of the conduct the subject of the count given its very nature and the potential impact of the activity in an area of sandy loam in and around the pit (contention 3). With respect to counts 2 and 3, and consequently counts 7 and 8, the appellants contend that: • the judge erred by failing to provide reasons why the s 87 direction was not invalid (ground 18); • the judge erred by failing to find that the s 87 direction was invalid because s 87(1)(m) of the EP Act does not empower an authorised officer to give the directions that were given at all, and/or did not empower an authorised officer to give a direction that continued for an unlimited time (ground 19). With respect to counts 5 and 6, which allege failures by Mr Rollond to comply with the clean-up order in particular respects, the appellants contend that: • the dates by which action was required under the clean-up order expired more than three years before the institution of the proceeding and the failures to comply were not properly charged as continuing offences (ground 13); • one of the verdicts in respect of counts 5 and 6 must be set aside because s 99(8) of the EP Act created a single offence of failing to comply with a given clean-up order and the particulars of non-compliance in respect of those counts alleged non-compliance with the same clean-up order (ground 13A); • the judge erred in various respects in his consideration and assessment of the evidence of the witness Mr Clothier (ground 3); • the judge erred in finding that the tyres taken out of the pit were disposed of into the quarry, when, inter alia, there was no direct evidence of this, only a small number of tyres were located when the quarry was excavated, and those tyres had been described generically (ground 14); • the judge erred in using findings in relation to the conduct and state of mind of Mr Rollond’s daughter Ms Stephanie Rollond (‘Ms Rollond’) to infer that Mr Rollond had a consciousness of his own guilt in relation to count 5 (ground 15); • the judge erred by providing inadequate reasons for his finding that the low level contaminated soil taken to Integrated Waste Services (‘IWS’) at Dublin was not the soil that was excavated from the pit and failed to consider or provide reasons for rejecting the evidence and explanations of the witness Mr Joe Pedicini (‘Mr Pedicini’) about how the level of contamination could have changed over time (ground 16). In respect of counts 5 and 6, the respondent contends that if any of grounds 3, 14, 15 or 16 succeed, Mr Rollond’s guilty verdicts should be upheld on the basis that on all the evidence it can be concluded he was guilty of the charged conduct (contention 8). Held, dismissing the appeal against the convictions in respect of counts 1 and 4: 1. in a case where the environmental harm in question involves the deposit of waste on land, the basal physical element required by each of ss 79(1), 79(2), 80(1) and 80(2) of the EP Act is that the defendant placed the waste on the land in the location alleged or, alternatively, caused the waste to be put or placed in that location or failed to prevent that occurring. It is not -- 4 of 142 -- sufficient to prove that, at some earlier time, waste had been put or placed on the land, and that the defendant did not remove it from the land; 2. the words ‘intentionally or recklessly’ as they appear in s 79(1) of the EP Act relate to the act of ‘polluting the environment’ and not to the causing of ‘serious environmental harm’; 3. for the purposes of s 79(1) of the EP Act, proof of ‘knowledge that environmental harm will or might result’ does not require proof that the person knew that ‘serious environmental harm’ would or might result, and nor must the knowledge relate to harm of the same kind or character as the harm in fact caused; 4. ground 5 is not made out and the Google Earth images were not inadmissible pursuant to s 53(2) of the Evidence Act, because: a. there was no person by whom or at whose direction the documents were prepared that could and should be called by the party tendering the document to give evidence of the matters contained in the document, within the meaning of s 53(2)(a) of the Evidence Act; b. whilst ‘evidentiary weight’ in s 53(2)(b) of the Evidence Act conveys a different meaning to ‘probative value’ in other legislative contexts, the Google Earth images were not inadmissible by reason that their evidentiary weight was slight and outweighed by relevant prejudice; and c. it was not otherwise contrary to the interests of justice to admit the documents into evidence within the meaning of s 53(2)(c) of the Evidence Act; 5. ground 9 is not made out, in that: a. the judge did not err in finding, partly in reliance on the concessions made in Mr Rollond’s second interview, that he directed or in any event knew that his direction to clean up the yard was being interpreted as an instruction to dispose of the drums containing oil in the pit; b. whilst some paragraphs of the Reasons could be read as overstating what Mr Rollond had in terms admitted to in the second interview, reading the passages as a whole, the issue was one of inapt expression in the Reasons rather than a fundamental misapprehension of what Mr Rollond had said. The Reasons elsewhere disclosed an appreciation of the differing interpretations urged by the parties and a familiarity with the precise phrasing or framing of important answers given by Mr Rollond; 6. ground 1 is not made out, in that: a. the fact that the judge directed himself on the basis that Mr Reekes-Parsons was an accomplice without expressly acknowledging that that would only be the case if parts of his evidence were accepted did not involve an error of law or a miscarriage of justice; b. insofar as the judge was required to consider whether there was evidence that corroborated Mr Reekes-Parsons’ evidence, the judge was alive to the need to treat the evidence with caution and did in fact accept other evidence which corroborated features of Mr Reekes-Parsons’ evidence; 7. with respect to ground 2: a. there was no error in describing the effect of Mr Doddrell’s evidence as being that he observed Mr Rollond in the vicinity when drums were being loaded; b. it was, however, incorrect to suggest that Mr Reekes-Parsons’ evidence was to that effect, albeit it was not necessarily inconsistent with it. However, the judge would -- 5 of 142 -- have reached the same conclusion in respect of counts 1 and 4 irrespective of this misapprehension as to the effect of the evidence; 8. ground 4 is not made out, in that: a. the judge’s reasons were not inadequate by reason that they did not state clearly whether the evidence of Matthew Rollond was accepted or rejected; b. it was open to the judge not to reach a binary decision as to that question, but to consider whether, on either hypothesis, relevant findings of fact could be made; c. reading the Reasons as a whole the judge’s reasoning process was apparent; 9. ground 6 is not made out as there is no basis to reach a different conclusion than the judge with respect to the number of drums removed from the pit. In any event, upholding this ground would not, standing alone, justify setting aside the convictions in respect of counts 1 and 4; 10. with respect to grounds 7 and 8: a. there was an absence of direct evidence as to where the balance of the drums came from and how they were deposited in the pit; b. however, the judge did not err in finding that the drums were deposited over a relatively confined period and, relatedly, that there were no (or at least not a material) number of drums in the pit before early 2016; c. had these grounds been upheld, whilst it would have been unfair to permit the respondent to rely on conduct (related to the dumping of drums) before the latter part of 2015, it would have been open to rely upon the dumping of a lesser number of drums in early 2016 and the same findings of contravention would have been appropriate; 11. ground 10 is not made out, in that: a. the judge’s finding of knowledge of environmental harm was not flawed by reason of its reliance upon findings about Mr Rollond’s knowledge and involvement; b. given that ‘environmental harm’ includes any potential harm to the environment of whatever degree or duration, and ‘potential harm’ included the risk of harm and future harm, the finding of knowledge of environmental harm was well-founded; c. it was not necessary for the respondent to prove that Mr Rollond knew that hydrocarbons would in fact reach the creek and harm aquatic life there; 12. ground 11 is not made out, in that the judge made findings as to each of the two limbs of the definition of ‘serious environmental harm’ in s 5(3)(b) of the EP Act, and the finding of ‘potential harm’ was inevitable. Held, dismissing the appeal against the convictions in respect of counts 2, 3, 7 and 9: 13. ground 18 is made out, because the Reasons did not address the validity of the s 87 direction; but 14. ground 19 is not made out, and the s 87 direction was valid, in that: a. a direction made pursuant to s 87(1)(m) that is directed towards the preservation of evidence and the integrity of an investigation is made for a purpose authorised by that sub-section and extraneous to s 93. The mere fact that such a direction, unlike a s 93 EPO, is not able to be appealed to the ERD Court, and may only be judicially reviewed, does not alter that conclusion; -- 6 of 142 -- b. the s 87 direction was ‘reasonably required’ and was not legally unreasonable. The fact that the direction has not since been countermanded or revoked does not entail that its open-ended nature rendered it invalid when it was made; Held, allowing the appeal against the convictions in respect of counts 5 and 6, setting aside those convictions and entering acquittals in their stead: 15. ground 13 is made out, in that: a. an offence against s 99(8) of the EP Act is not a continuing offence; b. properly understood, s 123(2) of the EP Act has a limited field of operation; c. in circumstances where no proceedings had been instituted within three years after expiry of the specified period in the clean-up order as required by s 131(2) of the EP Act, the prosecution of counts 5 and 6 was statute-barred; 16. ground 13A is not made out, because the information was not invalid by reason that it impermissibly charged two offences. Neither the principles of plea in bar, nor abuse of process, were engaged; 17. ground 3 is not made out, in that the judge did not err in his consideration and assessment of the evidence of Mr Clothier. Any error made in this respect was immaterial; 18. grounds 14 and 15 are not made out, in that: a. it is doubtful that s 127(1) of the EP Act contemplates the imputation to a principal of an agent’s consciousness of guilt; b. however, if it could be concluded that Ms Rollond lied because she feared to reveal the facts as known to her, evidence of her lies was available to be used as part of a circumstantial case against Mr Rollond, albeit only to demonstrate that, so far as she knew, the tyres had not (by that time) been properly disposed of; c. the judge’s reasoning as to the ultimate issue concerning non-compliance with the clean-up order has not been shown to be erroneous; 19. ground 16 is not made out, in that the judge’s reasons for finding that the low level contaminated soil taken to IWS was not soil excavated from the pit were not inadequate. Environment Protection Act 1993 (SA) ss 3, 4, 5, 5C, 10, 25, 53, 79, 80, 81, 84, 85, 85A, 86, 87, 88, 88A, 89, 90, 91, 92, 93, 93A, 94, 95, 98, 99, 100, 101, 102, 103, 104, 106, 123, 124, 125, 126, 127, 129, 131, 133; Environment Protection (Waste to Resources) Policy 2010 (SA) cl 10; Environment, Resources and Development Court Act 1993 (SA) s 30(4); Evidence Act 1929 (SA) ss 52, 53; Interpretation Act 1984 (WA) s 71; Legislation Interpretation Act 2021 (SA) ss 7, 14; Magistrates Court Act 1991 (SA) s 42; Protection of the Environment Operations Act 1997 (NSW) s 242, referred to. Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trade Unions of Australia (1932) 47 CLR 1; Environment Protection Authority v SA Morgan Pty Ltd (2017) 129 SASR 554; Hunter v City of Joondalup (2015) 257 A Crim R 299; Kanaan v The Queen [2006] NSWCCA 109; Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554, applied. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, distinguished. Adams (a pseudonym) v The Queen [2021] SASCA 147; Alzuain v The King [2025] SASCA 67; Ashton Valley Fresh Pty Ltd v Dolan [2021] SASC 44; Athans v The Queen (No 2) [2022] SASCA 70; Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128; Betts v Hardcastle (2001) 23 WAR 559; Boyle (a pseudonym) v The Queen [2022] SASCA 50; Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 53 ALR 632; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; Chapman v Hearse (1961) 106 CLR 112; Circelli v The Corporation of the City of Adelaide (No 2) [2015] SAERDC 52; Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Dolan (a public officer) -- 7 of 142 -- v Tara Hills Pastoral Pty Ltd [2024] SAERDC 19; Edwards v The Queen (1993) 178 CLR 193; Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; Fleming v The Queen (1998) 197 CLR 250; Frunks v Police [2016] SASC 120; Goring v Police [2022] SASC 93; Helensburgh Coal Pty Ltd v Bartley (2025) 99 ALJR 1185; House v The King (1936) 55 CLR 499; Hughes v Lord Advocate [1963] AC 837; IMM v The Queen (2016) 257 CLR 300; Island Maritime Limited v Filipowski (2006) 226 CLR 328; Jenkins v The Queen (2004) 79 ALJR 252; Krakouer v The Queen (1998) 194 CLR 202; Kuligowski v Metrobus (2004) 220 CLR 363; Kyriakopoulos v Police (2006) 46 MVR 343; Lang v The Queen (2023) 278 CLR 323; Le Cornu v Thomas (2019) 134 SASR 421; Leydon v Forrest (1980) 23 SASR 364; MDP v The King (2005) 99 ALJR 969; Mead (a Pseudonym) v The King [2025] SASCA 3; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; PA v Abrotonite [2024] SASC 130 at [44]; Pearce v The Queen (1998) 194 CLR 610; Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Police v Hill (2022) 140 SASR 482; Pollitt v The Queen (1991) 174 CLR 558; Pollitt v The Queen [2006] NSWCA 109; Questions of Law Reserved (No’s 1 and 2 of 2023) [2024] SASCA 82; R v A2 (2019) 269 CLR 507; R v Baden-Clay (2016) 258 CLR 308; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Collie (1991) 56 SASR 302; R v HS (2004) 90 SASR 28; R v Matthews [2005] SASC 289; R v Murch (2014) 119 SASR 427; R v Quist (2017) 127 SASR 471; R v Riley [2020] NSWCCA 283; R v Sherrin (No 2) (1979) 21 SASR 250; R v Wallis, ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; RGB v Police [2022] SASC 124; Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948; Sharman v Thomas [2020] SASCFC 52; Sloggett v Adams (1953) 70 WN (NSW) 206; South Australia v Crossley [2020] SASCFC 128; Sunland Group Ltd v Gold Coast City Council (2021) 274 CLR 325; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; The Queen v Calabria (1982) 31 SASR 423; Young v The King [2024] SASCA 47, discussed. -- 8 of 142 -- TARA HILLS PASTORAL PTY LTD v DOLAN, ROLLOND v DOLAN [2025] SASC 200 Single Judge Appeal - Criminal 1 B DOYLE J: Tara Hills Pastoral Pty Ltd (‘THP’) and its sole director Mr Philip Rollond (‘Mr Rollond’) appeal against their convictions in respect of a number of offences against the Environment Protection Act 1993 (SA) (‘EP Act’). 2 The appellants originally advanced some 19 grounds of appeal in respect of the eight counts found proved by the judge, and the respondent has raised numerous grounds of alternative contention. Two grounds (appeal grounds 2 and 17) were not pursued. A new ground (appeal ground 13A) was added. 3 In respect of the grounds of appeal relating to counts 1, 2, 3, 4, 7 and 8, I conclude that error has not been established or, to the extent that it has, it does not require those convictions to be set aside. If I had upheld appeal grounds 6, 7 or 8, I would still have dismissed the appeal against the convictions in respect of counts 1 and 4. Had I upheld any of the appeal grounds that would have resulted in the convictions in respect of counts 1 and 4 being set aside, I would not have ordered a re-trial. I would instead have entered alternative verdicts to the effect that the appellants were guilty of offences against s 80(2) of the EP Act. 4 In respect of counts 5 and 6, I uphold appeal ground 13. The prosecution in respect of these counts was commenced more than three years after any offences against s 99 of the EP Act were committed. Those convictions must be set aside, and acquittals entered in their place. Whilst it is not strictly necessary to decide the other appeal grounds that challenged the convictions on counts 5 and 6, I have considered, and would not uphold, those grounds. 5 These reasons are structured as follows. A Introduction .................................................................................................................... 3 Background .................................................................................................................................... 3 The appeal ...................................................................................................................................... 5 Notice of contention ....................................................................................................................... 7 The nature of the appeal ................................................................................................................. 8 B Summary of the Reasons ............................................................................................. 10 C Grounds relating to count 1 (and count 4) ................................................................ 25 The statutory provisions relevant to counts 1 and 4..................................................................... 26 Physical elements ..................................................................................................................... 27 Fault elements .......................................................................................................................... 31 Need for mental element to accompany or coincide with physical elements .......................... 35 -- 9 of 142 -- [2025] SASC 200 B Doyle J 2 Overarching contentions of the parties ........................................................................................ 36 Admission of Google Earth images (ground 5) ........................................................................... 40 Approach on appeal ................................................................................................................. 45 Section 53(2)(a)........................................................................................................................ 45 Section 53(2)(b) ....................................................................................................................... 47 Section 53(2)(c)........................................................................................................................ 49 Conclusion ............................................................................................................................... 49 Treatment of statements of Mr Rollond when interviewed (ground 9) ....................................... 50 Overview of contentions .......................................................................................................... 51 The first interview .................................................................................................................... 52 The second interview ............................................................................................................... 53 The third interview ................................................................................................................... 57 Consideration ........................................................................................................................... 61 Treatment of evidence of Mr Reekes-Parsons (ground 1) ........................................................... 65 Error in finding Mr Reekes-Parsons had said Mr Rollond was present during loading of drums (ground 2) ..................................................................................................................................... 69 Erroneous consideration of Matthew Rollond’s evidence (ground 4) ......................................... 70 Findings about timing and number of drums dumped in and retrieved from the pit (grounds 7, 8 and 6) ....................................................................................................................................... 73 Evidence relevant to these grounds .......................................................................................... 75 Consideration ........................................................................................................................... 78 THP’s knowledge of environmental harm (ground 10) ............................................................... 80 Serious environmental harm? (ground 11)................................................................................... 82 Conclusions in relation to counts 1 and 4 .................................................................................... 85 D Grounds relating to counts 5 and 6 ............................................................................ 89 Whether counts 5 and 6 properly charge continuing offences (ground 13) ................................. 92 Whether the information impermissibly charged two offences (ground 13A) .......................... 101 Whether the judge erred in his consideration and assessment of the evidence of Mr Clothier (ground 3)................................................................................................................................... 103 Particular 3.1 .......................................................................................................................... 103 Particular 3.3 .......................................................................................................................... 103 Particular 3.2 .......................................................................................................................... 104 Particular 3.5 .......................................................................................................................... 104 Particular 3.4 .......................................................................................................................... 106 Particular 3.6 .......................................................................................................................... 106 Whether in respect of count 5 the judge erred in finding tyres disposed of in quarry and in using findings of Ms Rollond against Mr Rollond (grounds 14 and 15) ............................................. 107 Whether in respect of count 6 the judge erred in finding that the low level contaminated soil taken to IWS was not the soil excavated from the pit (ground 16) ..................................................... 118 E Grounds relating to counts 2 and 3 (and counts 7 and 8) ...................................... 119 F Disposition and orders ............................................................................................... 134 -- 10 of 142 -- [2025] SASC 200 B Doyle J 3 A Introduction Background 6 THP was the occupier of an area of land at 171 John Rollond Road, Tungkillo which comprised about 321 hectares in size (‘the Land’). 7 Since 1997, the Land had been owned jointly by Mr Rollond and his mother. THP conducted various activities on the Land including livestock farming, trucking and landscaping business operations. Trucks, vehicles and machinery used in the businesses, including the transport business, were maintained and serviced from a workshop on the Land. For trucks in regular use, oil needed to be changed every month. For less frequently used vehicles, oil needed to be changed about every six months. It was necessary to replace the tyres on the vehicles from time to time. 8 On 23 March 2016, officers of the Environment Protection Authority (‘EPA’) attended at the Land and commenced excavation of a pit. A number of 44-gallon drums, oil, used truck filters and a large number of used tyres were found. 9 Following this discovery, on 8 April 2016, the EPA issued an order under s 99 of the EP Act to Mr Rollond (‘the clean-up order’). As later varied by the Environment Resources and Development Court (‘ERD Court’) it essentially required the disposal of the drums, vehicle parts and tyres to a licensed facility and the disposal of any remaining waste, including contaminated soil, to a licensed facility. The requirement was to dispose of all tyres by 13 February 2017 and to dispose of the contaminated soil excavated from the pit by 28 July 2017. 10 The informant (the respondent in this Court) alleged that the order was not properly complied with and that tyres and contaminated soil were dumped in an area on the Land known as the ‘quarry’. 11 On 16 February 2018, an EPA officer gave a direction pursuant to s 87(1)(m) of the EP Act requiring THP to cease all activity within the quarry including any earth works and any deposition of any thing, object or material (including but not limited to soils, rock, potato waste) and not to enter the quarry for any purpose other than an emergency (‘the s 87 direction’). 12 On 21 March 2018, the EPA issued an environment protection order pursuant to s 93 of the EP Act requiring Mr Rollond to cease the disposal of any oil, tyres, contaminated soil and vehicle parts contaminated with hydrocarbons at the ‘Site’ (a reference to the Land) and that he refrain from moving, remediating or otherwise dealing with any of the waste disposed of at the Site within the ‘Quarry’ (defined with reference to an attached map) until he had written approval from the EPA to do so (‘the s 93 EPO’). 13 It was alleged that prior to the issue of the s 93 EPO, on 9 March 2018, an EPA officer observed that potato waste had been deposited at the quarry, in -- 11 of 142 -- [2025] SASC 200 B Doyle J 4 contravention of the s 87 direction. It was also alleged by the informant that after the s 93 EPO was issued, calcrete material and a pile of soil was deposited at the quarry. 14 By Information and Summons laid in the ERD Court dated 2 September 2020 (the ‘information’), the informant alleged that THP and Mr Rollond committed various offences against the EP Act. 15 Count 1 alleged that in or around March 2016 THP caused ‘serious environmental harm’ by polluting the environment intentionally or recklessly with the knowledge that environmental harm would or might result, contrary to s 79(1)(a) of the EP Act. The allegation related to the disposal of a large number of 44-gallon drums containing a significant quantity of hydrocarbons as well as oil filters and used tyres in an area on the Land known as the ‘sandpit’ and sometimes referred to in the proceedings as the ‘pit’. Count 4 alleged that Mr Rollond was an officer of THP when it committed that offence and that, by reason of s 129(1) of the EP Act, he also committed the offence. 16 Count 2 alleged that THP failed to comply with the s 87 direction by causing, suffering or permitting the deposit of a stockpile of potato waste in the quarry between 16 February 2018 and 9 March 2018, thus contravening s 90(1)(c) of the EP Act. Count 3 alleged that THP contravened the s 87 direction between 9 March 2018 and 6 August 2018 by causing, suffering or permitting the deposit of a stockpile of soil and calcrete rock within the quarry. 17 Counts 7 and 8 allege that Mr Rollond contravened s 90(1)(c) of the EP Act by reason of having been an officer of THP when it contravened the s 87 direction as alleged by counts 2 and 3. 18 Counts 5 and 6 allege a failure by Mr Rollond to comply with the clean-up order, contrary to s 99(8) of the EP Act. Count 5 concerns an alleged failure to comply with the requirement to dispose of all oil drums, vehicle parts and tyres to a licensed facility by 13 February 2017. Count 6 concerns an alleged failure to comply with the requirement to dispose of all remaining waste including contaminated soil to a licensed facility by 28 July 2017. 19 In recognition of the three year time limitation applying to the offence described in s 99(8) of the EP Act, the informant alleged that there was a continuing breach of the clean-up order in the two respects described between 2 September 2017 and 2 September 2020, being the three year period immediately preceding the laying of the information. 20 The eight counts were tried before a Senior Judge of the ERD Court. The trial occupied some 22 hearing days between 4 May 2022 and 10 May 2023. 21 The informant called evidence from a number of EPA investigators, five former employees and two former contractors of THP, three environmental consultants, an aquatic biologist and a number of other lay witnesses. A significant -- 12 of 142 -- [2025] SASC 200 B Doyle J 5 volume of documentary material was tendered, including ‘Google Earth’ images which were said to be consistent with the informant’s case concerning the deposit of drums at the pit in or around March 2016. 22 The defendants (the appellants in this Court) called one witness, Mr Richard Moss (‘Mr Moss’), a truck driver who had regularly collected used engine oil from the property for six years up until 2018. Mr Rollond did not give evidence. The appellants also tendered a number of documents. 23 For reasons published on 10 July 2024 (‘Reasons’),1 the judge found THP guilty of counts 1, 2 and 3 and Mr Rollond guilty of counts 4, 5, 6, 7 and 8. The appeal 24 By notice of appeal dated 20 September 2024,2 the appellants appeal against their convictions pursuant to s 30(4) of the Environment, Resources and Development Court Act 1993 (SA) (‘ERD Court Act’), which permits a party to a criminal proceeding before the ERD Court to appeal in the same way as may a party to a criminal action under the Magistrates Court Act 1991 (SA). Section 42(1) of that Act contemplates an appeal by way of rehearing. 25 The notice of appeal contains 19 grounds, two of which were not pursued. In the course of hearing the appeal, I granted permission to the appellants to include an additional ground of appeal relating to whether counts 5 and 6 were duplicitous on the footing that there could in law be only one offence committed by a failure to comply with the clean-up order.3 I granted the respondent permission contingently to amend the information in the event that such ground was upheld, so as to incorporate the particulars of both counts within a single count. 26 It is convenient to group the grounds of appeal in the following way. 27 With respect to the convictions in respect of counts 1 and 4, namely, the contravention of s 79(1)(a) of the EP Act by reason of the drums and other material deposited in the pit, the appellants contend that: • the judge erred in his consideration and assessment of the credibility of the witness Mr Luke Reekes-Parsons (‘Mr Reekes-Parsons’), who, on his trial evidence, was an accomplice (ground 1); • the judge erred by finding that Mr Reekes-Parsons said he had seen Mr Rollond in the yard at the time the oil drums were loaded and by finding that Mr Rollond had been present when drums containing oil had been loaded on the tipper from the back of the yard (ground 2); 1 Dolan (a public officer) v Tara Hills Pastoral Pty Ltd [2024] SAERDC 19. 2 At the hearing of the appeal, I granted an extension of time within which to institute the appeal. 3 See ground 13A as summarised below. -- 13 of 142 -- [2025] SASC 200 B Doyle J 6 • the judge erred in his consideration and assessment of the witness Mr Matthew Rollond (Mr Rollond’s son) and gave inadequate reasons for his acceptance of the evidence of Mr Reekes-Parsons and Mr Paul Doddrell (‘Mr Doddrell’) in so far as it was directly contradicted by Matthew Rollond’s evidence (which the judge did not expressly reject) (ground 4); • the judge erred by admitting Google Earth images of the Land including the yard, paddock and pit, as evidence that accurately depicted those places on the dates indicated on them, pursuant to s 53 of the Evidence Act 1929 (SA) (‘Evidence Act’) (ground 5); • the judge erred by finding that at least 183 44-gallon drums were removed from the pit when the evidence and notes of the person in charge of removal indicated that 145 drums were removed (ground 6); • the judge erred in finding beyond reasonable doubt that all of the drums found in the pit had been deposited by THP in a single event or effort in the weeks of or leading up to March 2016, when the evidence taken at its highest could only prove that 40 to 60 drums had been deposited in the pit in that period (ground 7); • the judge erred in finding that the evidence established that there had been no oil drums in the pits as of January 2016 (ground 8); • the judge erred in various respects in his consideration of, and the findings he made in relation to, statements made by Mr Rollond when spoken to by EPA officers on 23 March 2016 (ground 9); • the judge erred in finding that it had been proved beyond reasonable doubt that at the time 44-gallon drums containing oil were put into the pit, in or around March 2016, THP knew that environmental harm would or might result (ground 10); • the judge erred in finding that the drums containing oil buried in the pit by THP had involved actual environmental harm of a high impact or on a wide scale and that there had been serious environmental harm (ground 11). 28 Each of those grounds relates to the conviction of THP on count 1 but, if made out, would also impugn the verdict against Mr Rollond on count 4. 29 With respect to counts 2 and 3, namely, the allegations that THP failed to comply with the s 87 direction, the appellants contend that: • the judge erred by failing to provide reasons why the s 87 direction was not invalid (ground 18); • the judge erred by failing to find that the s 87 direction was invalid because s 87(1)(m) of the EP Act does not empower an authorised officer to give the -- 14 of 142 -- [2025] SASC 200 B Doyle J 7 directions that were given at all, and/or did not empower an authorised officer to give a direction that continued for an unlimited time (ground 19). 30 If the verdicts of guilty against THP in respect of counts 2 and 3 should be set aside then the same would follow with respect to the verdicts against Mr Rollond on counts 7 and 8. 31 Finally, with respect to counts 5 and 6, which allege failures by Mr Rollond to comply with the clean-up order in particular respects, the appellants contend that: • the dates by which action was required under the clean-up order expired more than three years before the institution of the proceeding and the failures to comply were not properly charged as continuing offences (ground 13); • one of the verdicts in respect of counts 5 and 6 must be set aside because s 99(8) of the EP Act created a single offence of failing to comply with a given clean-up order and the particulars of non-compliance in respect of those counts alleged non-compliance with the same clean-up order (ground 13A); • the judge erred in various respects in his consideration and assessment of the evidence of the witness Mr Clothier (ground 3); • the judge erred in finding that the tyres taken out of the pit were disposed of into the quarry, when, inter alia, there was no direct evidence of this, only a small number of tyres were located when the quarry was excavated, and those tyres had been described generically (ground 14); • the judge erred in using findings in relation to the conduct and state of mind of Mr Rollond’s daughter Ms Stephanie Rollond (‘Ms Rollond’) to infer that Mr Rollond had a consciousness of his own guilt in relation to count 5 (ground 15); • the judge erred by providing inadequate reasons for his finding that the low level contaminated soil taken to Integrated Waste Services (‘IWS’) at Dublin was not the soil that was excavated from the pit and failed to consider or provide reasons for rejecting the evidence and explanations of the witness Mr Joe Pedicini (‘Mr Pedicini’) about how the level of contamination could have changed over time (ground 16). Notice of contention 32 In relation to counts 1 and 4, the respondent contends that if any of the grounds of appeal relating to these counts are upheld, it may nevertheless be concluded on all of the evidence that the appellants are guilty of the charges beyond reasonable doubt and the convictions should be upheld (contention 4). -- 15 of 142 -- [2025] SASC 200 B Doyle J 8 33 In the alternative, by contentions 5 and 6, the respondent submits that, if this Court finds THP not guilty of the offence in s 79(1) it should find THP and, by operation of s 129(1), Mr Rollond, guilty of offences: • against s 79(2) of the EP Act, by operation of s 79(3) of that Act; or • against s 80(1) of the EP Act, by operation of s 81 of that Act; or • against s 80(2) of the EP Act, by operation of s 81 of that Act. 34 The respondent also advances more specific alternative contentions in relation to aspects of the challenges to the convictions on counts 1 and 4. • In respect of ground 7 and the appellants’ contention that the evidence did not justify a finding beyond reasonable doubt that all the drums found in the pit had been deposited in a single event or effort over the weeks leading up to 22 March 2016, the respondent contends that if only 40 to 60 drums were dumped during that period that is sufficient to maintain the finding of guilt with respect to count 1 (contention 2). • In respect of any challenge to the finding as to THP’s knowledge of environmental harm, the respondent contends that the finding should be upheld having regard to its knowledge of the conduct the subject of the count given its very nature and the potential impact of the activity in an area of sandy loam in and around the pit (contention 3). 35 In respect of counts 5 and 6, the respondent contends that if any of grounds 3, 14, 15, 16 or 17 succeed, Mr Rollond’s guilty verdicts should be upheld on the basis that on all the evidence it can be concluded he was guilty of the charged conduct (contention 8). The nature of the appeal 36 As earlier observed, the appeal is by way of rehearing.4 The Court on appeal is required to undertake an independent review of the evidence and the findings below. However, the appeal is not a hearing de novo. The Court should not substitute its own view, or otherwise interfere, unless satisfied that the primary judge has made an error. In conducting its own review, the appeal court, whilst not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, should nevertheless have regard to the findings of the primary judge and any advantage that he or she may have had in making those findings.5 37 Where an appellant demonstrates an error on the part of the primary judge, it is necessary to consider its significance and consequences. First, the error must be 4 Ashton Valley Fresh Pty Ltd v Dolan [2021] SASC 44 at [26]-[27] (Lovell J). 5 Frunks v Police [2016] SASC 120 at [11]-[12] (Doyle J), Goring v Police [2022] SASC 93 at [72] (Stein J). -- 16 of 142 -- [2025] SASC 200 B Doyle J 9 material in the sense that it had the capacity to have affected the reasoning of the decision-maker to a relevant conclusion, in the sense that it could realistically have affected the reasoning process.6 38 Even where that is demonstrated, the appellate court may nevertheless dismiss the appeal if the relevant charge was clearly proven irrespective of the error, which is to say that it is inevitable that the primary judge would have found the charge proven irrespective of the error.7 This approach is subtly different from the approach that applies under the common form criminal appeal provisions, which directs attention to the question whether a substantial miscarriage of justice actually occurred. That said, in practical terms, there will often be little difference between the two approaches.8 39 Where the appellate court resolves that the appeal must be allowed and a conviction set aside, the court may remit the case for further hearing to the ERD Court, or, if it considers that it can fairly do so notwithstanding the natural limitations that apply to the appellate court, direct that the appellant be acquitted. Alternatively, in some cases, it may be appropriate to convict the appellant of a lesser alternative charge. Of course, that would ordinarily only be done where such a course would properly have been available to the primary judge. The appellate court would not lightly adopt a course on appeal that was not open at trial in view of the conduct of the trial by the informant or prosecution. 40 In some cases, such as where there has been substantial delay or some other reason why it would be unjust to subject the appellant to a further trial, it may be appropriate not to direct a retrial, even though the court is not otherwise persuaded that an acquittal should be entered.9 41 I mention these possibilities because, in response to various of the grounds of appeal concerning the convictions on counts 1, 4, 5 and 6, the respondent contends that even if the primary judge made findings that are affected by material error, the Court should uphold those convictions on the basis that there are or were alternative pathways to guilt, relied upon by the respondent at trial, and which are not inconsistent with any findings made by the primary judge. The respondent contends that a finding of guilt by those pathways, either on the primary charges, or the alternatives, was inevitable in the relevant sense. By contrast, the appellants contend that if the Court finds vitiating error in respect of any of the counts of a kind that would ordinarily require a retrial, the Court should decline so to order in 6 MDP v The King (2005) 99 ALJR 969; [2025] HCA 24 at [61]-[62] (Edelman J). 7 Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [133]-[135] (Livesey P, Lovell and Bleby JJA), referring to Le Cornu v Thomas (2019) 134 SASR 421 at [31] (Peek J, Bampton J agreeing). 8 Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [135] (Livesey P, Lovell and Bleby JJA) and Sharman v Thomas [2020] SASCFC 52 at [11]-[13] (Stanley J, Kourakis CJ and Hughes J agreeing). 9 See, eg, RGB v Police [2022] SASC 124 at [161]-[162] (Parker Aux J), applying in this context the approach in Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ). -- 17 of 142 -- [2025] SASC 200 B Doyle J 10 this case because of the passage of time. Any re-trial in this case would not occur before mid-2026, in respect of alleged conduct in and following 2016. 42 In submissions filed after the hearing in this matter, the parties jointly indicated that in the event that the Court were disposed to set aside the convictions in respect of counts 1 and 4, it should not remit the matter for a further trial in respect of offences against s 79(1) of the EP Act if the Court is satisfied that the evidence discloses beyond reasonable doubt that the appellants should be found guilty of alternative (lesser) offences. B Summary of the Reasons 43 The judge commenced by summarising the charges, outlining the categories of evidence led at trial, and reminding himself of the relevant general directions (Reasons [1]-[28]). 44 The judge then gave a brief summary of the witnesses called by the respondent, commencing with the EPA officers who attended the Land in 2016 (Reasons [29]-[33]), before turning to witnesses who had worked on the Land (Reasons [34]-[68]). 45 In respect of the latter, the judge identified some critical aspects of those witness’ evidence and the nature of the challenges made to their evidence. Relevantly: • Mr Doddrell, a mechanic in the yard, said used oil had been stored in drums at the back of the yard and Mr Rollond and Mr Reekes-Parsons had been present at the back of the yard on an occasion a tipper truck loaded with oil drums drove away from the yard in the direction of the pit. The defence submitted his evidence should not be accepted because his observations were made across a distance of 250 metres and by an obscured line of sight; he had not seen the faces of the men and he had conceded that Mr Reekes-Parsons’ father (Mr Rob Stewart) had a similar build to Mr Rollond (Reasons [34]- [35]); • Mr Reekes-Parsons (also known as Luke Stewart), a sub-contractor who drove trucks and undertook farm and mechanical work, gave evidence that he loaded 44-gallon drums of oil onto a truck trailer ‘weeks’ before March 2016, assisted by Mr Kevey Skeyhill (‘Mr Skeyhill’)10 and Matthew Rollond, and that Matthew Rollond had driven the loaded truck from the farm. He said Mr Rollond had later instructed him to level out the area of the pit and push sand over it to cover tyres, rubbish, and oil containers deposited in the pit. In cross-examination, he denied that his father was involved in the disposal of oil into the pit. He accepted he had told the EPA lies in an earlier interview in which he had denied having anything to do with putting the drums and tyres in the pit because he feared prosecution and for his job and 10 Mr Skeyhill was not a witness. He was deceased by the time of the trial. -- 18 of 142 -- [2025] SASC 200 B Doyle J 11 safety. The defence submitted that the past untruthfulness meant his evidence that Mr Rollond had told him to load the tipper with the drums and other things and instructed him to cover over the pit should not be accepted. It was also submitted he was unreliable because he could not remember specific instructions said to have been given to him. His account was lacking in detail. He had been granted an immunity from prosecution and was an accomplice (Reasons [36]-[41]). Mr Reekes-Parsons’ evidence is relevant to appeal grounds 1, 2 and 3; • Matthew Rollond attended at trial in answer to a subpoena and he gave no material evidence in chief. In cross-examination, he denied having ever driven a truck filled with oil barrels from the yard or that his father had asked him to load a truck with barrels of oil, and he could not remember having ever seen oil barrels buried on the farm (Reasons [42]-[43]). Matthew Rollond’s evidence is relevant to appeal ground 4; • Mr Clothier was an employee who gave evidence about instructions given by Mr Rollond in 2017 in relation to the disposal of oil drums and contaminated soil and clean soil to IWS. The defence submitted that Mr Clothier was an unsatisfactory witness who had been in dispute with Mr Rollond for other reasons (Reasons [44]-[48]). Mr Clothier’s evidence is relevant to appeal ground 3; • Mr Anthony Williams (‘Mr Williams’) was a mechanic who had serviced vehicles in the yard and decanted used oil into 44-gallon drums stored by the ramp in the yard. He said that a ‘little rigid truck’ had collected waste oil from the yard (Reasons [49]); • Mr Daniel Keatley (‘Mr Keatley’) was employed by THP as a truck driver. The judge found that he had made prior inconsistent statements and should be declared hostile, permitting him to be cross-examined by the respondent (Reasons [50]-[67]); • Mr Ian Elliot (‘Mr Elliot’) was employed to perform mechanical duties and drive trucks. He said Mr Rollond had directed him to load a semi tipper with soil from the pit area and that he had parked it in front of the workshop. He had seen ‘Brian’ and a young man loading tyres in a Beaurepaires truck (Reasons [68]). 46 The judge then identified and summarised the evidence of witnesses who had expertise or specialised knowledge: • Mr Peter Goonan (‘Mr Goonan’), an aquatic biologist, gave evidence about the impact of oil on aquatic invertebrates in the creek and how they might be adversely affected (Reasons [69]); -- 19 of 142 -- [2025] SASC 200 B Doyle J 12 • Mr Pedicini, an environmental engineer, had been the site contamination consultant employed by Mr Rollond in accordance with the clean-up order and explained the remediation of the site by reference to the remediation plan for the pit (Reasons [70]). Mr Pedicini’s evidence is relevant to appeal ground 16; • Julian Howard was a certified site contamination environmental scientist, who had analysed contaminated soil taken from the pit and creek in 2016, and the quarry in 2018, and considered whether hydrocarbons could be detected (Reasons [71]); • Ms Jennifer Catherine (‘Ms Catherine’) was an environmental consultant who worked with Mr Pedicini and attended the pit to supervise its excavation (Reasons [72]). Her evidence is relevant to appeal ground 6. 47 The judge then referred to the witnesses Michael Cummings (‘Mr Cummings’) (a Beaurepaires employee who amongst other things could not recall having picked up a large quantity of oil covered tyres from the yard), Robert Coleman (manager of the Brinkley landfill who said that Mr Rollond had deposited high level waste with him but had later been required to remove it) and Benjamin Tume (an operations supervisor at Brinkley who said that the soil deposited by THP had an ‘oily sheen’ and that Mr Clothier had deposited at least two such truckloads of soil, being the only time that contaminated soil had to be removed from the dump) (Reasons [73]-[76]). 48 The judge then recorded his reasons for rejecting the objection to the admissibility of Google Earth images relied upon by the respondent (Reasons [77]- [89]). That ruling is the subject of appeal ground 5. He then set out his reasons for having rejected the application to exclude the records of interview of Mr Rollond, and his conclusion that the three interviews were voluntary (Reasons [90]-[122]). Appeal ground 9 concerns Mr Rollond’s interview, but there is no challenge to the conclusion that it was voluntary. 49 The judge then summarised the evidence in the defence case, noting that Mr Rollond had exercised his right to silence, and that Mr Moss, a truck driver who collected waste oil from the yard about three times a year, gave evidence in the defence case (Reasons [123]-[125]). 50 The Reasons then set out a number of findings of fact together with, in respect of some findings, the judge’s explanation for why he had accepted or rejected aspects of the evidence (Reasons [126]-[248]). It is not necessary to recite all of the findings made, but in order to provide the context for the specific grounds of appeal, it is helpful to describe the topics by reference to which findings were made, to summarise some of the findings, and to extract some important passages of the Reasons. -- 20 of 142 -- [2025] SASC 200 B Doyle J 13 51 After referring to some features of the Land and the businesses operated on the Land and their management (Reasons [128]-[137]), the judge made findings about the use and storage of oil in the yard and collection of oil from the yard (Reasons [138]-[143]). He made findings about the volume of used oil generated and that oil was drained and ultimately stored in 44-gallon drums (in various states) stored throughout the yard, including towards its rear north, with the ground around the drums stained by oil. From 2012, Mr Moss would attend when he was able, at least twice yearly, and sometimes quarterly, and would collect oil from full and partly full drums containing oil in the yard. 52 The judge then made findings in relation to the state of the pit and the surrounding paddock in and around March 2016 (Reasons [144]-[145]). He found that a few weeks prior to 23 March 2016, sandy loam in the paddock had been used to cover the pit, which was located about 15 to 20 metres from the swampy area of the paddock and about 20 to 30 metres from the nearby creek. He found that on 11 March 2016, Mr Reekes-Parsons had, on the instructions of Mr Rollond, spread manure in the paddock. 53 The judge described what occurred when the EPA first attended on 22 March 2016 and confronted Mr Rollond about the disposal of buried drums in the pit area (Reasons [146]-[151]). The judge recounted the effect of Mr Rollond’s responses, which was to acknowledge that there had been a hole there and that he had instructed ‘rubbish from here’, including tyre trucks, which ‘did go in but weren’t meant to’, be put in the hole. He said that anyone with spare time had cleaned up and had put a bit of rubbish in the hole. The hole had been levelled off a couple or three weeks prior by ‘James Reeves’, who had pushed and levelled heaps of manure, to enable planting of crops. Mr Rollond said that he did not know of waste oil being buried. He said there might have been empty oil drums put in the holes, but not oil. He knew there were some truck tyres loaded up, which he had said not to put in the hole, but he knew some truck tyres ‘did go in there which they weren’t meant to’. He said that if ‘we’ve done the wrong thing, well we need to know and whatever we’ve gotta do, we’ll do’. 54 The judge then described the commencement of excavation of the pit by the EPA on 23 March 2016 and the observations made about the change in soil composition at particular depths, indicating the presence of oil (Reasons [152]- [156]). He described the removal of old, rusted, uncapped and damaged drums from which oil had flowed out, and the flowing of groundwater into the pit out of the wall above the clay layer, mixing with oil in the base of the pit. 55 The judge set out part of the second interview with Mr Rollond on 23 March 2016 (Reasons [157]-[158]). As is apparent later in the Reasons, the judge considered that Mr Rollond made important admissions in this interview. Appeal ground 9 challenges the judge’s consideration and treatment of statements made in the interview. -- 21 of 142 -- [2025] SASC 200 B Doyle J 14 56 The judge then described the further excavation of the pit, the removal of items from the pit and the clean-up order given to Mr Rollond by the EPA (Reasons [159]-[204]). Importantly, he found that when the pit was excavated it was observed that the tyres were around the pit edge and bottom, and that drums had covered the tyres in the centre of the pit (Reasons [163]). The judge described the observations of Mr Pedicini of LBW Environmental Projects (‘LBW’), the firm engaged by Mr Rollond to prepare a compliance plan in relation to the clean-up, and the EPA’s investigation officer Mr Adam Lewis, (‘Mr Lewis’) about the number of drums and tyres that had been located in and removed from the pit. The judge found that at least 183 drums were removed from the pit (Reasons [179]). This finding is challenged by appeal ground 6. He found that the amount of oil that had been in the drums could not be proved with precision, but that there were significant quantities. Some of the drums removed were fully or partly full of oil. The judge found that 144 tyres were removed (Reasons [180]-[185]). 57 The judge recounted aspects of the third interview of Mr Rollond on 15 June 2016 (Reasons [186]-[189]). As will be explained in more detail later, in the course of that interview, Mr Rollond said that he ‘did not tell anyone to dispose of drums of oil form the yard’. 58 In respect of the clean-up, the judge found that about 120 tonnes of contaminated soil extracted from the pit required disposal (Reasons [190]). The judge considered that in his evidence about these matters Mr Clothier was trying to tell the truth and that his evidence made sense and was supported by other evidence the judge accepted (Reasons [191], [194]). The judge recounted Mr Clothier’s evidence that he was instructed to deliver waste to Brinkley and that Mr Rollond had told Brinkley it was intermediate level waste (Reasons [195]- [196]). Between 19 and 21 April 2017, on Mr Rollond’s instructions, Mr Clothier and Mr Keatley had delivered a number of loads of what was in fact high level waste to Brinkley, in the total amount of 85.84 tonnes (Reasons [197]-[199]). 59 However, on 21 April 2017, the EPA informed Brinkley that what had been received was high level contaminated waste. Brinkley isolated 80 – 100 tonnes of recently deposited waste and it was inspected by the EPA on 24 April 2017 and subsequently tested. Mr Rollond was asked to remove it and this occurred with four loads being collected by Mr Clothier and one by Mr Rollond. Allowing for a buffer, some 95.28 tonnes was removed (Reasons [200]-[204]). 60 The judge also accepted Mr Clothier’s evidence that he was later instructed by Mr Rollond to take a load of unclean brown and black dirt to IWS at Dublin, but that it had been rejected and had to be returned by Mr Clothier to the yard. This was repeated the following day (Reasons [205]). 61 Importantly, the judge also accepted that he then took clean soil to IWS, concluding that the evidence was consistent with weighbridge receipts and soil tests. The judge was satisfied this soil came from areas other than the pit. That is to say, it was not the contaminated soil (Reasons [206]-[207]). -- 22 of 142 -- [2025] SASC 200 B Doyle J 15 62 In respect of the soil that returned from Brinkley and IWS, the judge found that Mr Rollond had instructed Mr Clothier to deposit three of the returned loads in the ‘quarry’. He accepted Mr Clothier’s evidence that he did this, accompanied on the first occasion by another employee, Josh Jury (who failed to appear at trial in answer to a subpoena). Mr Clothier said the soil was sticky and needed to be scraped out of the truck with an excavator with the help of another employee, Steve Simpson, who was not called at trial. The judge accepted Mr Clothier’s evidence that Mr Rollond watched him deposit the first load of contaminated soil in the quarry. He considered this evidence to be consistent with Mr Rollond’s involvement in other ways based on other evidence the judge had accepted (Reasons [208]-[214]). 63 The judge considered that subsequent observations and excavation of the quarry supported Mr Clothier’s evidence about disposal into the quarry of the contaminated soil returned from Brinkley and IWS. Excavation was undertaken on 9 March 2018 and 6 August 2018. The judge described the results of the soil analysis, and observed oil drums, engine parts and old tyres had also been found. He rejected the possibility that the quarry was left over from the construction of the Adelaide to Mannum pipeline and also that it was possible the contaminated soil located in the quarry had found its way there on some earlier occasion (Reasons [215]-[223]). 64 The judge found that Mr Lewis of the EPA attended the quarry on 15 February 2018 and that an oral direction, and later a written direction, had been given to THP requiring that it cease activity in the quarry including the disposal of any object, thing or material, or entry into the quarry for any purpose other than an emergency (Reasons [225]). 65 The judge accepted that on his subsequent attendance at the quarry on 9 March 2018 (to dig test pits), Mr Lewis observed a stockpile of potato waste that was not present when the direction was given. On 6 August 2018, Mr Lewis observed calcrete material and grass in a pile of soil that had not been present on or prior to 9 March 2018. The judge was satisfied the waste was deposited after the written direction given on 16 February 2018 (Reasons [224]-[228]). 66 The judge then turned to the evidence concerning the disposal of tyres and the photo that Ms Rollond had sent to LBW of a Beaurepaires truck loaded with tyres, which had been taken and sent to suggest that the tyres were being disposed of to Beaurepaires in compliance with the clean-up order. The judge was satisfied that Ms Rollond was Mr Rollond’s agent for relevant purposes and that he authorised her to correspond on his behalf. The truck in question was not owned by Beaurepaires and was not registered. It could not have been used to return tyres to Beaurepaires. The photos were a deception to give a false impression (Reasons [229]-[239]). 67 The judge found that the truck had been loaded by Mr Clothier and another, had been driven out of the yard and across to the Land towards the quarry. Tyres -- 23 of 142 -- [2025] SASC 200 B Doyle J 16 had been found in the quarry. Mr Cummings from Beaurepaires had never removed more than a 30 tyre load of tyres from the yard, and never picked up more than one or two that had been dirty or oily. The dockets that suggested Beaurepaires had taken receipt of a large number of tyres were irregular (Reasons [240]-[243]). 68 Against that background, the judge turned to give consideration to the counts on the information. 69 With respect to count 1, in overview, the judge found that: • the drums, tyres, oil and other items in the pit were ‘pollution’ within the meaning of the EP Act (Reasons [250]-[254]); • THP was the occupier of the Land under the EP Act and was deemed to have deposited the pollution (Reasons [255]-[290]); • the pollution caused ‘serious environmental harm’ within the meaning of s 5(3) of the EP Act both because there had been ‘actual or potential environmental harm (not being merely an environmental nuisance) that was of a high impact or on a wide scale (Reasons [296]-[324]), and because it resulted in ‘actual or potential loss’ exceeding $50,000 (Reasons [325]- [346]). The judge concluded that, having assessed all the evidence, the inference must be drawn that all the drums found by the EPA in the pit had been deposited by THP in a single event or effort in the weeks of or leading up to March 2016 (Reasons [333]). The asserted finding of actual environmental harm of a high impact or on a wide scale is the subject of appeal ground 11; • THP intentionally put the pollution in the pit because Mr Rollond had the requisite intent and this was attributed to THP (Reasons [347]-[424]); • a defence was not available under s 84(1)(c) of the EP Act (Reasons [425]- [429]); • THP knew environmental harm would or might result (Reasons [430]-[436]). This finding is the subject of appeal ground 10. 70 In the course of concluding that THP intentionally put the pollution in the pit because Mr Rollond had relevant intent which was attributed to THP, the judge drew together his consideration of a number of aspects of the evidence and expressed a number of conclusions of fact. It is useful to set out some of those. 71 First, it is useful to extract part of the judge’s analysis of the interviews involving Mr Rollond. The judge said (references omitted): [359] The informant submitted Mr Rollond, in his interviews, had made several statements against his and the company’s interest as admissions of this offending. -- 24 of 142 -- [2025] SASC 200 B Doyle J 17 [360] I have had regard to all of what Mr Rollond had said in his interviews, including those parts which might help the informant and those that may help the defence. Both the informant and the defence relied on those records of interview. All parts of what Mr Rollond said, including those which might help the prosecution and those that may help the defence, are evidence. [361] I have accepted some parts of what had been said and have rejected other parts. I have decided the weight to give his statements and have given different weight to what he said at different times. In assessing the weight to be given to what he had said in the interviews, I have kept in mind those interviews had not been sworn evidence tested by cross-examination and Mr Rollond’s statements may have been self-serving. [362] Mr Rollond repeatedly said in the second interview it had been his decision to bury oil in the pit. When asked who had been to blame, consistent with his earlier answers, he had said ‘no-one else is to blame but me’. The very next question he had been asked ‘whose decision was it to bury the oil here’ elicited a response from Mr Rollond which repeated that answer ‘yeah it’s got to be me’. [363] I have considered the defence submission that parts of the first interview provide context for the second. I have considered that submission together with the interviews as a whole and with all the evidence I have accepted. [364] The defence referred to the fact Mr Rollond had said: ‘I don’t know of waste oil being buried’; ‘There might be empty oil drums been put in these holes, but not oil. There’s empty drums around the place, might have been buried’; ‘I know there was some truck tyres loaded up from here, which I said not to put them in there, but I know some truck tyres did go in there which weren’t meant to’; ‘Nothing like oil, oily material and oily drums that I know of have been buried’; ‘If we’ve done the wrong thing, well we need to know and whatever we’ve gotta do, we’ll do. If we’ve got to clean something up, or whatever we’ve gotta do, we’ll definitely do it’. [365] Having referred to what Mr Rollond had said in the first interview, the defendants submitted, the second interview of Mr Rollond on 23 March 2016, had therefore been unreliable. Specifically, the defendants submitted Mr Rollond had said those things because: the interview had taken place in the paddock near the pit; earlier that day Mr Doddrell had confronted Mr Rollond and had got very angry with and had sworn at him and had told him once the EPA got their teeth in him they would not let go; Mr Rollond had cried and had difficulty getting his words out; Mr Rollond had said ‘I’m not sure what’s gone on but I just want to clean it up’; and Mr Rollond had said ‘I’ve had the wrong thing happen and yeah, its, I’m sorry’. [366] The defendants also submitted some answers in the second interview had been very strange and had not been admissions. In its entirety, the defendants submitted, the second interview should be characterised as Mr Rollond having been upset and his answers as having reflected his desire in that respect to fix the problem. [367] Mr Rollond, submitted the defendants, seemed to have felt he had to take the blame, even though he had not been responsible. The defence referred to his answers to the question about who he had told to bury the oil (“Oh, I don’t know, no-one”) and to the question about who would have loaded up the tipper (“Oh, I don’t know, probably me”). [368] The defendants submitted, given what they had described as the nonsensical nature of some of Mr Rollond’s answers on 23 March 2016, and a comparison with his -- 25 of 142 -- [2025] SASC 200 B Doyle J 18 other two interviews, that his statements had not established he, or Tara Hills Pastoral, had intentionally or recklessly caused oil to be deposited in the pit. [369] Assessed as a whole, Mr Rollond had been responsive in his second interview and had given a clear account. I have not considered his answers to have been confused. He had been upset in the second interview and had cried obviously, at least once. The day before he had said he had instructed the pit be filled, but not with oil. His upset occurred when confronted with what had been found. He had volunteered that he had instructed the disposal of oil in the pit and said he had taken responsibility for that. [370] In considering the whole of those interviews, and the whole of the evidence, the context, timing, and location of the interviews had been important. [371] At the first interview, Mr Rollond had been told by the EPA it had been investigating the disposal of oil and he was a suspect. In response, Mr Rollond had readily admitted he had instructed rubbish go into the hole the EPA had identified but had denied any oil had been disposed of. The EPA had clearly identified the area of the pit as being of particular interest and subsequently had sought his assistance to excavate it. Mr Rollond had given that assistance. [372] The second interview had taken place at the location of that excavation. Mr Rollond had known the excavation was going on. He had been warned and cautioned, after being told oil had been found. Mr Rollond knew he was a suspect. He had known the EPA had found oil exactly where they had told him they thought it had been buried and in the spot Mr Rollond had told them the day before he had instructed only rubbish be deposited and in the spot he said he instructed to be covered and spread with manure. [373] Mr Rollond, with that knowledge, had volunteered his and others involvement in respect of the disposal of the oil he had been told had been found. He had made admissions against his interest in answer to a general question that had given him an opportunity to explain what had happened. His answers had addressed his role and responsibility and the manner in which the oil had been put into the pit and that the tipper had been used. [374] Mr Rollond in his third interview had some months later resiled somewhat from what he said in his second interview. He said he had not told anyone to dispose of drums of oil from the yard. He maintained a clean-up had been instructed but he downplayed his role from what he had said in his first interview. [375] It had been his answers in the second interview though which had made sense by reference to the whole of the evidence I have accepted. Particularly, those answers had made sense when assessed against his admissions in the first interview that a hole had been dug and the information given by the EPA at the outset of the second interview that oil had been found. [376] His answers had been consistent with what he had told the EPA the day before, to the extent he had said he had instructed a hole be filled with rubbish, including some old oil drums. In responding to new EPA information that oil had been found, Mr Rollond had volunteered he had instructed that be done and he had been upset by that. [377] I have given significant weight to that part of the first interview in which Mr Rollond said he had instructed the filling of the pit with rubbish and to the admissions in his -- 26 of 142 -- [2025] SASC 200 B Doyle J 19 second interview that his instruction had included oil go into the pit. I have not accepted his answers in the first and third interview that denied oil had been put in the pit on his instruction. I have accepted his statements that he had recently instructed his workers to clear the yard and put rubbish into the pit. I have been satisfied the instruction which had been given by Mr Rollond had been the one he elaborated in the second interview; that oil should be put into the pit as part of the general clean-up. He had volunteered that elaboration confronted with the EPA’s discovery the information they had received, as they had explained to him the day before, had been correct. [378] I have been satisfied barrels containing oil had been moved from the yard and deposited in the pit by the tipper as Mr Rollond described. I have been satisfied and have found Mr Rollond admitted he had instructed the clean-up of the yard and that rubbish should be put in the pit and that his instruction had included putting pit engine parts, old tyres, and oil drums containing oil into the pit. [379] In being so satisfied, I have looked at the three interviews in their entirety and together with all the other evidence I have accepted. I have kept in mind that what the EPA officers had said to Mr Rollond in those interviews had not been evidence – only his statements are. I have kept in mind that what the EPA officers said had provided context or helped explain what Mr Rollond had meant by his answers. [380] His admissions in the second interview had been consistent with the other evidence. It had been consistent with the Google Images and the evidence given about the removal of drums containing oil from the yard by Mr Reekes-Parsons and the evidence of Mr Doddrell who had seen drums driven out toward the pit. It had also been consistent with the instruction Mr Rollond said he had given Mr Reekes- Parsons to top and level the pit a few weeks before 23 March 2016. I have considered the submission of the defence that Mr Reekes-Parsons had been unable to recall the precise words Mr Rollond had used when he had given him instructions. That is unsurprising, given it had occurred in 2016. [381] I have been satisfied as Mr Rollond said, that the filling of the pit with oil containing drums had occurred a few weeks before the EPA attended and it had been done on his instruction. I have been satisfied those drums containing oil had been damaged, uncapped and had leaked oil. [382] The excavated contents of the pit supported the evidence of Mr Doddrell, Mr Reekes-Parsons and Mr Rollond that drums containing oil had been moved from the yard, and the evidence of Mr Rollond that they had been dumped in the pit using the tipper. [383] Mr Doddrell said one morning he had heard and had seen an excavator running at the rear of the yard next to a truck. He said he had seen the tipper go out the yard full of drums and return 10 or so minutes later, empty. Mr Rollond said the hydraulic oil-stained tipper had made several trips and the tipper had been used to tip drums of oil into the pit. [384] Mr Doddrell said Mr Rollond had been present in the yard before the tipper loaded with drums had driven past. He said he had seen men who matched the builds of Mr Matthew Rollond, Mr Reekes-Parsons and Mr Rollond, at the back of the yard at that time. He said there had been activity and the excavator had been used. [385] Mr Doddrell had been challenged in respect of his observation Mr Rollond had been at the rear of the yard. It had been put to him it had been made over a long distance. -- 27 of 142 -- [2025] SASC 200 B Doyle J 20 He accepted that Mr Reekes-Parsons father Rob Stewart had a similar build to Mr Rollond, in terms of height and build. [386] The involvement of Mr Rollond, as Mr Reekes-Parsons had said, in the loading of the tipper with drums had made sense. Mr Rollond said the tipper had been used in his second interview. Mr Rollond had said the clean-up had been a priority for a bank valuation and at that time work had been quiet and he had instructed all workers on site to clean up the yard. That Mr Rollond had been present when that had been done accords with his role as the boss. [387] Mr Keatley said in cross-examination he had thought Rob Stewart had hired the tipper to move oil. That was never put to Mr Reekes-Parsons. Mr Reekes-Parsons had accepted his father had a few barrels of waste oil in a shed but denied his father’s involvement in the loading or disposal of oil in the pit. [388] I have not accepted the evidence of Mr Keatley about Rob Stewart and the tipper. Mr Keatley had just speculated about an arrangement to which he had not been privy. There had been no other evidence that Mr Stewart had been involved. The evidence about him had risen no higher than he had been around the farm sometimes in 2016, and had a few barrels of oil in his shed, and had owned the JCB excavator which Mr Rollond had instructed Mr Reekes-Parsons to use to level out the paddock ready for cropping. [389] It had been Mr Rollond who had said the tipper had been used on his instruction and he had provided detail about that consistent with what other witnesses said. Mr Reekes-Parsons had said he had loaded the oil-stained tipper at the back of the yard with 44-gallon drums, some full of oil, some half-full and some empty. The Google images showed drums had been moved from the yard and drums containing oil had been deposited into the pit in the few weeks before about 22 March 2016. Mr Doddrell had seen drums driven out of the yard in the tipper. [390] Mr Reekes-Parsons said he had been helped by Mr Matthew Rollond and Mr Skeyhill. He said he had operated the excavator and had filled up the truck trailer more than once and it had been the only work he had done that day. Mr Rollond said the tipper had been on two or three trips. Mr Reekes-Parsons said he had been told to do that work by Mr Rollond. Mr Doddrell and Mr Reekes-Parsons had both said that Matthew Rollond had been driving the truck which had exited the yard. [391] Mr Skeyhill had been deceased by the time of trial. Mr Matthew Rollond, had denied any involvement or that he had seen oil buried on the land. [392] The difference between what Mr Matthew Rollond and Mr Reekes-Parsons and Mr Doddrell had said about who had been driving the truck has not caused me to doubt the evidence of Mr Reekes-Parsons he had loaded the truck with oil drums as instructed by Mr Rollond or the evidence of Mr Doddrell that the truck had been driven from the yard in the direction of the pit. All of those witnesses had been giving evidence about things that had occurred in 2016. [393] Mr Matthew Rollond said he had not been present in the yard. Accordingly, he could not have assisted me about who had been present. The presence of Mr Rollond though had been consistent with the chronology of how the pit had been filled, the roles of the persons said to have been present, the instruction given to clean-up, the Google images which showed drums had been moved, and the excavation of drums containing oil in the pit, and what Mr Rollond had said himself about all of that in his first and second interviews. -- 28 of 142 -- [2025] SASC 200 B Doyle J 21 [394] I have accepted Mr Reekes-Parsons also had loaded into the trailer smaller 20l drums and general rubbish from the yard. That evidence had also been consistent with the type of rubbish Mr Rollond had said he had instructed go into the pit. [395] For all those reasons, I have found, consistent with the instruction given to clean up the yard and his role and responsibilities, that Mr Rollond had been present when drums containing oil had been loaded from the back of the yard. Given he had been present at that time and given his role in the operations on the land and his statements that rubbish had to go into the pit, his presence in the yard with drums containing oil being loaded onto the tipper, made sense. [396] I have also found the tipper loaded with drums containing oil had been driven through the yard, via the eastern side of the yard roadway exit. When it had exited the yard, the noise the tipper had made indicated it had been loaded. The loaded drums had been visible across the back of the trailer as the tailgate on the trailer had been open. The drums had been on the edge of the rear of the trailer. The truck had turned down Camel Hump Road toward the pit. [397] That those drums containing oil had been loaded into the oil-stained tipper had gone into the pit had been consistent with the evidence of Mr Reekes-Parsons and what Mr Rollond had said in his second interview about the use of the tipper. [398] Mr Rollond and Mr Reekes-Parsons had said the tipper had been used. EPA witnesses said the yard under where the trailer had been parked showed black stains. That area had tested for hydrocarbons. Mr Rollond in his second interview had identified the tipper as the one in the yard stained with oil [399] What Mr Rollond had said about the use of the hydraulic tipping mechanism to tip the drums into the pit had been consistent with the time taken for the truck to go to the pit and return, as had been observed by Mr Doddrell. It had returned after about 10 minutes rattling empty over the bumps as it had re-entered the yard. [400] I have been satisfied Mr Reekes-Parsons had been the man James Reeves whom Mr Rollond said he had instructed to use the backhoe in the paddock three or so weeks before 22 March 2016, to cover the pit and level out the paddock for cropping. Mr Reekes-Parsons had said he had done that. Mr Doddrell said he had been told by Mr Reekes-Parsons a backhoe had broken in the paddock and needed to be fixed. A backhoe had broken down near the pit. It had sat on a mound and the ground underneath had been oil- stained. There had otherwise been an absence of evidence about who was James Reeves, other than he lived in Williamstown. [401] That Mr Lewis had not seen oil on the ground when he had gone to the pit on 22 March 2016, has not caused me to reasonably doubt the evidence of Mssrs Doddrell and Reekes-Parsons about that excavator. Mr Lewis had seen the backhoe in the paddock. Mr Rollond had said oil had been tipped into the pit and there had been oil in the pit when it had been excavated. Mr Rollond said he had instructed the pit be filled and levelled so farming in the paddock could occur. [402] The evidence of Mr Reekes-Parsons that he had looked in the pit and had seen tyres, rubbish and 44 gallon drums before he had covered it over, also made sense. Looking in would have been the obvious thing to do to prepare for covering over the pit and to level out the paddock. That Mr Reekes-Parsons, when he had later excavated the pit, had seen the same material or type of material he had put into the oil-stained trailer and had seen in the pit before he had filled it had made sense. -- 29 of 142 -- [2025] SASC 200 B Doyle J 22 [403] The video of the excavation and other EPA evidence established the contents of the pit to have been consistent with what Mr Rollond said he had instructed to be put into it, including drums containing oil and with what had been in the yard and in need of a clean-up. [404] To the extent the evidence of Mr Reekes-Parsons had contradicted what he had told the EPA in March 2016, Mr Reekes-Parsons accepted he had lied. He said had been scared in 2016, and he had been just a ‘kid’. [405] I have kept in mind Mr Reekes-Parsons said he had lied initially to the EPA. I have considered whether other evidence I have accepted supported what he said at trial. [406] Mr Rollond had instructed a clean-up. He and Mr Reekes-Parsons had both said the tipper stained with oil had been used to transport the oil to the pit. Mr Doddrell had seen the tipper filled with drums leave the yard toward the pit. The Google images and the evidence of EPA officers had established drums had been removed from the yard in March 2016. [407] Mr Lewis had observed oil in the tipper. The tipper had tested positive for hydrocarbons. Mr Rollond and Mr Reekes-Parsons had said the clean-up and filling of the pit had happened a few weeks before the EPA attended. Mr Rollond and Mr Reekes-Parsons said an instruction had been given to spread pig manure and cover the pit. Oil had been on the excavator tool. [408] Oil rings on the ground the same size and shape of 44-gallon drums indicated oil drums had been stored and moved as Mr Reekes-Parsons and Mr Rollond said they had been. There had been fresh vehicle tracks, in recently laid sand, where the oil drums had been stored and moved. [409] I have not accepted the speculation of Mr Keatley that Rob Stewart had hired the oil- stained tipper, as evidence Mr Stewart had been involved. It had never been put to Mr Reekes-Parsons his father had hired the tipper truck. [410] I have excluded as a reasonable possibility Rob Stewart dumped any 44-gallon drums in the pit. Mr Reekes-Parsons rejected that proposition, and that he had colluded against Mr Rollond. He said he never had a conversation with his father about drums in the pit or stored in the yard. [411] There had been no evidence beyond the speculation of Mr Keatley, that Mr Stewart had been involved. That Mr Rollond and Mr Stewart may have been of a similar height and build, was not evidence it had been Mr Rob Stewart, rather than Mr Rollond at the back of the yard. In that respect, it had been Mr Rollond who had been in charge and who had said he ordered the clean-up of the yard. Mr Doddrell and Mr Reeks-Parsons said they had seen him in the yard at the time drums were loaded. [412] Mr Rollond had volunteered to the EPA he had instructed rubbish be put in the pit. He had told the EPA his workers had not been busy. Mr Rollond had accepted responsibility for the work which had been undertaken. On 23 March 2016, he had correctly described the use of the tipper to put drums in the pit, consistent with its ten-minute journey and return and with the positioning of the drums uncovered and removed from the pit. [413] I have considered, in my assessment of the records of interview, the way Mr Rollond had spoken. He had said on several occasions to preface an answer ‘it’s got to be’ -- 30 of 142 -- [2025] SASC 200 B Doyle J 23 and ‘we’. His manner of speaking in that way had not caused me to reasonably doubt he had admitted to instructing the oil be put into the pit. Waste or used oil had been stored in 44-gallon drums in the yard and drums of that nature, type and description had been removed from that area and placed in a tipper truck exiting the yard in early 2016, which had been seen driving toward the paddock. [414] Mr Rollond had said in his second interview the oil drums had been transported to the pit in a tipper. He had said two or three loads had been taken to the pit. Mr Doddrell said there had been two trips made by the tipper. Mr Rollond had said the drums had been dumped into the pit using the hydraulic lift on the tipper, and that approximately 30 drums had been in the tipper for each of those trips. He accepted that about 60 drums had gone into the pit that way. Three loads, as Mr Rollond thought there might have been, would have resulted in 90 drums. 72 The judge then canvassed a defence submission that all the drums in the pit could not have come from the rear yard because, at around March 2016, there had only been 60 drums there. He said (references omitted): [417] The evidence in this case had not precisely accounted for the method by which all the drums found in the pit had got there. The evidence had established there had been no drums in the pit as of January 2016. By 23 March 2016, there had been 187 drums in the pit. [418] Mr Rollond had, within that time, instructed a clean-up of oil, drums, and rubbish into the pit. He had admitted at least 60 (and perhaps) drums containing oil had gone into the pit in accordance with his instructions by use of the tipper. There had also been other drums of oils stored at the rear of the yard and other drums of oil had been stored around the yard which had been within the bounds of the yard clean-up instruction. [419] I have found Tara Hills Pastoral had been in charge of the paddock and the pit. By operation of the Act, it has been taken to have deposited all the drums in the pit. [420] Having assessed the whole of the evidence, I have been satisfied the only reasonable inference open is that all the drums excavated had been deposited in the pit about three weeks before 22 March 2016, and at the instruction of Mr Rollond. I have drawn that inference. [421] I have, for the reasons explained, excluded any other reasonable explanation that other persons had been responsible for the disposal of the drums containing oil in the pit. [422] In addition, tyres had been put into the pit. Given what had been shown in the Google images, I cannot be satisfied those tyres – found mostly around the edge of the pit and underneath the drums - had all been deposited in a single event in the weeks leading up to or before March 2016. [423] I have been satisfied some of the tyres excavated had been deposited intentionally by Tara Hills Pastoral in the relevant period. I have not been satisfied as to how many tyres precisely had been deposited in the relevant period. I have considered it to be reasonably possible some of the 187 tyres had been deposited prior to 12 November 2015, and 7 January 2016. That is what the Google Images and other evidence had showed. -- 31 of 142 -- [2025] SASC 200 B Doyle J 24 [424] The whole of the evidence I have accepted has satisfied me nonetheless Tara Hills Pastoral had intentionally, within the few weeks up to 22 March 2016, deposited pollution in the pit; being tyres, oil drums containing oil and used truck oil filters. I have also found that Tara Hills Pastoral had been taken to have deposited those items of pollution by operation of the Act. 73 In concluding that THP knew environmental harm would or might result as a consequence of the pollution, the judge concluded (references omitted): [430] I have also been satisfied Mr Rollond had known that the burial of drums containing oil, as he had instructed, would have had a negative impact on the environment. [431] I have relied on both his admissions to that effect and to the circumstantial evidence I have accepted to be so satisfied. [432] Mr Rollond had arranged for waste oil to be taken from the yard by Mr Moss and disposed of. For some years before Mulhern had taken waste oil away. Mr Rollond said in his second interview he had known it had been the wrong thing to do to bury oil in the pit and that would cause damage to the environment. That evidence and his statement goes to knowledge and his state of mind. [433] The state of mind of a person is a fact like any other fact. I have found Mr Rollond had admitted his knowledge and his responsibility. He had instructed the disposal of oil into the pit. Those drums had been open, damaged, and leaking oil. Groundwater had been in the pit and leaked oil had been free in the pit. The pit had been located near a swampy area and creek. The land had sloped toward the creek. [434] I have drawn, as the only reasonable inference as to the state of mind of Mr Rollond attributable to Tara Hills Pastoral, that Mr Rollond had known the disposal of oil in the manner he had instructed would be or would have been potentially harmful to the environment, particularly the swampy area and the creek. [435] Given all the evidence I have accepted about the location of the pit and the state of the drums buried, I have drawn the only reasonable inference open that Mr Rollond had known it had been the wrong thing to do to bury oil in the pit as he had instructed and that it would cause damage to the environment. That inference is attributable to Tara Hills Pastoral. [436] I have been satisfied therefore Tara Hills Pastoral had knowledge of the negative impact of the buried oil in the drums near a swampy area and creek, including as to the actual or potential harm disposal it would actually or potentially have caused to the creek and swampy area. 74 The judge found, and there is no contest, that Mr Rollond was at relevant times the sole director of THP. Consequently, there was a corresponding finding of guilt in respect of count 4 (Reasons [437]-[438]). 75 In respect of counts 5 and 6, relevantly, the judge found that: • counts 5 and 6 were not duplicitous (Reasons [439]-[455]). That conclusion was not directly challenged but by appeal ground 13A the appellants contended that s 99(8) of the EP Act contemplated only a single offence of failing to comply with a given clean-up order; -- 32 of 142 -- [2025] SASC 200 B Doyle J 25 • although proceedings for a summary offence had to be commenced within three years after the alleged commission of the offence, by reason of s 123(2) of the EP Act there was a continuing obligation to comply with the clean-up order even though the date for compliance was 13 February 2017 and 28 July 2017 for the tyres and contaminated soil respectively (Reasons [471]-[477]). This conclusion is challenged by appeal ground 13; • Mr Rollond did not comply with the clean-up order in that the tyres were not delivered to Beaurepaires but were loaded onto a truck driven towards the quarry, where tyres had later been found in the course of excavation work by the EPA (Reasons [480]-[504]). In the course of that reasoning the judge relied by way of circumstantial evidence upon what was found to be a lie by Ms Rollond as indicating consciousness of guilt. That reasoning is the subject of appeal ground 15 and appeal grounds 3 and 14 also concern the judge’s findings about the tyres; • in respect of the contaminated soil, the judge found that the soil had been deposited in the quarry, accepting on the whole of the evidence that Mr Clothier tipped contaminated soil into the quarry (Reasons [506]-[507]). Appeal ground 16 complains of inadequate reasons for this conclusion. 76 Finally, in relation to counts 2 and 3, the judge found that THP failed to comply with the s 87 direction in that the only rational inference to be drawn from the evidence the judge accepted, including the observations of Mr Lewis, was that THP deposited potato waste and later calcrete and waste grass, in breach of that direction. The judge excluded the reasonable possibility that another person or persons deposited the waste (Reasons [509]-[515]). 77 By reason of the verdicts of guilt on counts 2 and 3, the judge found Mr Rollond guilty in respect of counts 7 and 8 (Reasons [516]). C Grounds relating to count 1 (and count 4) 78 Before addressing the particular appeal grounds relating to the convictions relating to these counts, I address the construction of the relevant offence provision and the alternative offences available under the EP Act.11 79 I then address some overarching submissions of the respondent to the effect that, irrespective of the success of certain of the appellants’ grounds of appeal, guilt of the primary or alternative offences was established beyond reasonable doubt. 11 In these reasons, reference will be made to the provision of the EP Act as it stood between 2013 and 2017. -- 33 of 142 -- [2025] SASC 200 B Doyle J 26 80 I then turn to the appeal grounds, dealing first with the admission of the Google Earth images and the statements made by Mr Rollond in his second interview, before dealing with the other appeal grounds concerning these counts. 81 In light of the conclusions I express about the particular grounds, I will consider the consequences of accepting certain of them, the respondent’s alternative contentions, and, as part of that, the question whether the conduct of the case at trial precludes reliance upon any alternative pathways to guilt in respect of counts 1 and 4. The statutory provisions relevant to counts 1 and 4 82 Part 9 of the EP Act is titled ‘General offences’ and contains a number of offence provisions. Counts 1 and 4 concern contraventions of s 79(1), but by reason of s 79(3) and s 81, the lesser offences set out in s 79(2), s 80(1) and s 80(2) also need to be considered. The relevant provisions provide as follows. 79—Causing serious environmental harm (1) A person who causes serious environmental harm by polluting the environment intentionally or recklessly and with the knowledge that environmental harm will or might result is guilty of an offence. Penalty: If the offender is a body corporate—$2 000 000. If the offender is a natural person—$500 000 or Division 4 imprisonment or both. (2) A person who by polluting the environment causes serious environmental harm is guilty of an offence. Penalty: If the offender is a body corporate—$500 000. If the offender is a natural person—$250 000. (3) If in proceedings for an offence against subsection (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subsection (2), the court may find the defendant guilty of the latter offence. 80—Causing material environmental harm (1) A person who causes material environmental harm by polluting the environment intentionally or recklessly and with the knowledge that environmental harm will or might result is guilty of an offence. Penalty: If the offender is a body corporate—$500 000. -- 34 of 142 -- [2025] SASC 200 B Doyle J 27 If the offender is a natural person—$250 000 or Division 5 imprisonment or both. (2) A person who by polluting the environment causes material environmental harm is guilty of an offence. Penalty: If the offender is a body corporate—$250 000. If the offender is a natural person—$150 000. (3) If in proceedings for an offence against subsection (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subsection (2), the court may find the defendant guilty of the latter offence. 81—Alternative finding If in proceedings for an offence against this Part of causing serious environmental harm the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against this Part of causing material environmental harm, the court may find the defendant guilty of the latter offence. 83 The physical or conduct elements of an offence against s 79(1) are causing serious environmental harm by polluting the environment. The mental or fault elements arise from the words ‘intentionally or recklessly’ appearing immediately following that conduct element, and the separate requirement that the conduct be ‘with the knowledge that environmental harm will or might result’.12 84 Section 79(1) differs from s 79(2) which comprises the same physical or conduct elements of an offence against s 79(1) but with no identified fault element.13 85 The grounds of appeal and the parties’ submissions raise issues of the construction and application of the physical and fault elements. Physical elements 86 In order to be guilty of an offence against s 79(1), a person must cause serious environmental harm by polluting the environment. 87 The ‘environment’ means land, air, water, organisms and ecosystems.14 ‘Polluting’ takes its meaning from the definition of ‘pollute’,15 which means:16 12 Section 80(1) has the same structure as s 79(1) save that the harm caused is ‘material environmental harm’, rather than ‘serious environmental harm’. 13 Section 80(2) follows the same form, but with the harm caused being ‘material environmental harm’. 14 EP Act, s 3(1). 15 Legislation Interpretation Act 2021 (SA), s 7. 16 EP Act, s 3(1). -- 35 of 142 -- [2025] SASC 200 B Doyle J 28 (a) discharge, emit, deposit or disturb pollutants; or (b) cause or fail to prevent the discharge, emission, depositing, disturbance or escape of pollutants 88 ‘Pollutant’ is defined to mean:17 (a) any solid, liquid or gas (or combination thereof) including waste, smoke, dust, fumes and odour; or (b) noise; or (c) heat; or (d) anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be a pollutant, but does not include anything declared by regulation or by an environment protection policy not to be a pollutant. 89 ‘Waste’ means:18 (a) any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or (b) anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be waste, whether of value or not. 90 In relation to the responsibility of an occupier, at the relevant time, s 4 of the EP Act provided as follows: 4—Responsibility for pollution For the purposes of this Act, the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited will be taken to have polluted the environment with the pollutant (but without affecting the liability of any other person in respect of the escape, discharge, emission or depositing of the pollutant). 91 There is no dispute that oil drums, oil and old tyres amount to ‘waste’, such that to deposit them in the ground would amount to an act of polluting the environment. 92 The respondent submits, however, that a person may also pollute the environment by virtue of waste being present in the environment. More particularly, the respondent submitted that an occupier of land ‘deposits’ (or is taken to deposit) a ‘pollutant’ (in particular, ‘waste’) when waste remains present on its land. In other words, when and for so long as material remains deposited on 17 EP Act, s 3(1). 18 EP Act, s 3(1). -- 36 of 142 -- [2025] SASC 200 B Doyle J 29 land, the occupier continues to deposit material on that land. On this view of the provisions, if drums were placed or tipped in a pit say, in 2013, and they remained in situ in 2016, the occupier could be said to deposit waste in the environment in 2016. 93 In that regard the respondent relied upon a Dictionary definition of the verb form of ‘deposit’, namely:19 1. to put or lay down; place; put. 2. to throw down or precipitate: soil deposited by a river. 3. to place for safekeeping or in trust. … 94 The respondent contends that a wide interpretation of the word ‘deposit’ is consistent with the wide operation of the EP Act as evidenced by other provisions such as s 4 (as it stood at relevant times). It was submitted that s 4 showed that an occupier may ‘deposit’ waste simply by remaining passive when another person dumps or places the waste on the occupier’s land. That may be accepted, but it does not particularly assist with resolving the question whether the verb ‘deposit’ is used in the broad way the respondent contends. To point to a deeming in s 4 does not shed much, if any, light on what is meant by the act of depositing in other circumstances. Further, s 4 only attributes the physical act of pollution to the occupier, and would not, of itself, obviate the need to prove any mental element attaching to the act of pollution for the purposes of the offences in ss 79(1) and 80(1). 95 If the respondent’s submission is correct, an occupier will pollute the environment if there is material buried in the Land it occupies and which material was first deposited well prior to its occupation. Depending upon the objective seriousness of the harm caused, without more, the occupier would then be liable to be convicted of an offence against ss 70(2) or 80(2) of the EP Act. 96 It is true that the apparently unfair and capricious result that a person might contravene the EP Act in those circumstances may be avoided by a defence under s 124(1) of the EP Act but, in my view, it remains a surprising proposition that an occupier would carry the onus of establishing a defence in such a case. 97 In any event, the issue is primarily to be resolved by reference to the text and immediate context of the relevant words in the provisions. When the verb ‘deposit’ is used in the active sense, to describe the act of the person who deposits, rather than the state of the thing which is the object of that act, it connotes a physical act of placing or causing something to be placed in a location. The act is finished when the thing comes to rest. Unless the thing requires some continuing act or action to prevent the thing from escaping or removing, it does not accord with the ordinary usage of the word ‘deposit’ to say that the person continues to deposit the 19 The respondent relied upon the Macquarie Dictionary (on-line edition). -- 37 of 142 -- [2025] SASC 200 B Doyle J 30 thing. Likewise with intangibles: a person who deposits money in a bank account does not continue to deposit that money until they withdraw it, even though the funds may remain ‘on deposit’. 98 The construction that I would adopt is also more consistent with the surrounding text, and thus the context. The other verbs which come within the meaning of ‘to pollute’ are ‘discharge’, ‘emit’ and ‘disturb’. These verbs connote physical activity and whilst the activity may be undertaken continuously, the activity is not of its nature continuing. Paragraph (b) of the definition of ‘to pollute’ extends the meaning of the expression so that it captures a person who causes or fails to permit the discharge, emission, depositing, disturbance or escape of pollutants. In my view, this express extension makes an expansive reading of the primary definition even less appropriate. 99 Finally, the construction that I would adopt accords with the interpretation given to the verb ‘discharge’ (which was defined to include ‘deposit’ or ‘disposal’) in a policy made under the EP Act in Environment Protection Authority v SA Morgan Pty Ltd (‘SA Morgan’).20 100 In a case where the environmental harm in question involves the deposit of waste on land, the basal physical element required by each of ss 79(1), 79(2), 80(1) and 80(2) is that the defendant put or placed the waste on the land in the location alleged, or, alternatively, caused the waste to be put or placed in that location or failed to prevent that occurring. Conceivably, a prosecution may be conducted on a more narrow or precise basis, but at this stage I am identifying the range of allegations that might be the subject of a prosecution against those provisions. 101 The additional physical element required to be proved by ss 79(1) and 79(2) is that that act of pollution caused ‘serious environmental harm’. In the case of ss 80(1) and 80(2), it is necessary to show that ‘material environmental harm’ was caused. 102 Those concepts were defined in s 5 of the EP Act (as it then stood), which provided: 5—Environmental harm (1) For the purposes of this Act, environmental harm is any harm, or potential harm, to the environment (of whatever degree or duration) and includes— (a) an environmental nuisance; and (b) anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be environmental harm. (2) For the purposes of this Act, potential harm includes risk of harm and future harm. 20 (2017) 129 SASR 554 at [59]-[64] (Blue J, Kourakis CJ and Peek J agreeing). -- 38 of 142 -- [2025] SASC 200 B Doyle J 31 (3) For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm: (a) environmental harm is to be treated as material environmental harm if— (i) it consists of an environmental nuisance of a high impact or on a wide scale; or (ii) it involves actual or potential harm to the health or safety of human beings that is not trivial, or other actual or potential environmental harm (not being merely an environmental nuisance) that is not trivial; or (iii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $5 000; (b) environmental harm is to be treated as serious environmental harm if— (i) it involves actual or potential harm to the health or safety of human beings that is of a high impact or on a wide scale, or other actual or potential environmental harm (not being merely an environmental nuisance) that is of a high impact or on a wide scale; or (ii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $50 000. (4) For the purposes of subsection (3), loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good resulting environmental damage. (5) For the purposes of this Act, environmental harm is caused by pollution— (a) whether the harm is a direct or indirect result of the pollution; and (b) whether the harm results from the pollution alone or from the combined effects of the pollution and other factors. Fault elements 103 The words ‘intentionally or recklessly’ as they appear in s 79(1) might relate only to the act of ‘polluting the environment’, or they might also apply to the causing of ‘serious environmental harm’.21 104 In my view the first of those two alternatives is the correct construction. If the second alternative had been intended it would have been more natural to describe the offence by providing that ‘[a] person who intentionally or recklessly causes serious environmental harm by polluting the environment’ commits the relevant offence. Further, the requirement that the person have ‘knowledge that environmental harm will or might result’ would almost always be redundant if the second alternative were correct. 21 The same question arises with respect to the construction of s 80(1). -- 39 of 142 -- [2025] SASC 200 B Doyle J 32 105 Another question of construction raised by the parties’ submissions is whether proof of ‘knowledge that environmental harm will or might result’ requires proof that the person knew that ‘serious environmental harm’ will or might result, being the environmental harm that was caused by the person polluting the environment. If all that is required is proof that the person knew that environmental harm (whether or not serious, material or otherwise) would or might result from the person’s conduct in polluting the environment, a further question is whether this entails proof of a kind of environmental harm that was caused, or whether guilt could be established by proof of knowledge of a qualitatively different kind of environmental harm would or might result.22 106 The text is more consistent with the knowledge requirement relating to environmental harm and not, in the case of s 79(1), serious environmental harm (nor, in the case of s 80(1), material environmental harm). It is also more consistent with the requirement being simply of knowledge of ‘environmental harm’ whether or not that is of a different kind to the harm actually caused in the given case. The words ‘environmental harm’ are not preceded by the article ‘the’ or the determiner ‘that’, nor are they followed by a qualifier such as ‘of a kind similar to the environmental harm caused’. 107 The provisions requiring interpretation could be said to be penal in nature, though they are also regulatory in character. In any event, as was observed by Kiefel CJ and Keane J in R v A2,23 the old rule that statutes creating offences should be strictly construed has lost much of its importance. As their Honours said, there is a need for caution in accepting a ‘loose’ construction of an offence provision and any ‘real’ ambiguity as to meaning is to be resolved in favour of an accused, but an ambiguity which calls for such resolution is one which persists after the application of the ordinary rules of construction.24 108 The interpretive principle relating to offence provisions is effectively a last resort. Primary consideration should be given to the text, context and purpose of the provision requiring interpretation.25 109 The purpose of the provision emerges from its text and the broad objects of the EP Act as set out in s 10. 110 In order to achieve those objects, the Parliament has considered it necessary to create a suite of offences in order to achieve the EP Act’s objects, including a 22 Again, the same issues arise with respect to the construction of s 80(1). 23 (2019) 269 CLR 507 at [52]. 24 (2019) 269 CLR 507 at [52]. 25 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). In interpreting a provision of an Act, the interpretation that best achieves the purpose or object of the Act is to be preferred to any other interpretation: Legislation Interpretation Act 2021 (SA), s 14(1). By reason of s 14(2), the provision does not operate ‘to create or extend any criminal liability’, but this does not deny its application to offence provisions. -- 40 of 142 -- [2025] SASC 200 B Doyle J 33 number of strict liability provisions.26 As well, there are a number of provisions that facilitate the proof of offences, and by their breadth encourage the taking of proactive steps to avoid environmental harm, by: • deeming an occupier or other person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited to have polluted the environment with the pollutant;27 • permitting the attribution of the conduct and state of mind of officers, employees or agents of a body corporate acting within the scope of their actual, usual or ostensible authority to be imputed to the body corporate, and permitting the attribution of the conduct and state of mind of employees and agents of a natural person acting within the scope of their actual, usual or ostensible authority to be imputed to the person.28 (I return to this provision in more detail in the context of appeal ground 15); • making officers of a body corporate that contravenes a provision of the EP Act liable to the same penalty as may be imposed for the principal contravention when committed by a natural person.29 111 The effect of these provisions is moderated, to a degree, by the general defence available in any criminal proceedings, pursuant to s 124. That section provides as follows: 124—General defence (1) It will be a defence in any criminal proceedings, or in any proceedings for the payment of an amount as a civil penalty, in respect of an alleged contravention of this Act, including— (a) proceedings against a body corporate or a natural person where conduct or a state of mind is imputed to the body or person under this Part; and (b) proceedings against an officer of a body corporate under this Part, if it is proved that the alleged contravention did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature. (2) Without limiting the effect of subsection (1), the defence provided by that subsection includes the defence that the act or omission alleged to constitute the contravention was justified by the need to protect life, the environment or property in a situation of 26 EP Act, ss 79(2), 80(2) and 82(2). See also s 126, which provides that subject to an express provision to the contrary, it will not be necessary to prove any intention or other state of mind in order to establish a contravention of the EP Act. 27 EP Act, s 4 (as it stood at the time of the facts relevant to this matter). An equivalent provision is now made by s 5C of the EP Act. 28 EP Act, s 127(1). 29 EP Act, s 129(1). -- 41 of 142 -- [2025] SASC 200 B Doyle J 34 emergency and that the defendant was not guilty of any failure to take all reasonable and practicable measures to prevent or deal with such an emergency. (3) Where a body corporate or other employer seeks to establish the defence provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof— (a) that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and (b) that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this Act and with all such systems and procedures within all relevant areas of the workforce. (4) A person who would, but for the defence provided by this section, have contravened a provision of this Act is, despite that defence, to be taken to have contravened that provision for the purposes of— (a) any proceedings under section 104 in respect of the contravention; and (b) the issuing or enforcement of any clean-up order or clean-up authorisation under this Act in respect of the contravention; and (c) the making by a court of an order under section 133 in proceedings for an offence in respect of the contravention. 112 A positive defence under s 124 is required to be notified in accordance with s 125 of the EP Act. 113 The EP Act also confers relatively wide investigative and compulsive powers upon the EPA and authorised officers.30 There is a partial abrogation of the privilege against self-incrimination and self-exposure to penalty.31 114 Returning to the construction of s 79(1) of the EP Act, in my view, the knowledge requirement relates to environmental harm and not the particular environmental harm which is said to have amounted to ‘serious environmental harm’. I reach that conclusion because there are obvious means by which, had that been the desired reach of the provision, it could have been expressed. 115 Once it is accepted that the environmental harm the offender must know will or might result need not be the ‘serious environmental harm’ caused by the intentional or reckless polluting of the environment, it is difficult to justify any particular requirement for a connection between the two. 30 EP Act, Part 10, Division 1. 31 EP Act, s 91. In respect of the powers in Division 3, see EP Act, s 98. -- 42 of 142 -- [2025] SASC 200 B Doyle J 35 116 In the law of negligence, the foreseeability requirement relates to the kind of damage ultimately caused, and it is not necessary for the particular course of events causing the harm, or the extent of the harm, to have been foreseeable.32 Even in that context, the ‘comfortable latitudinarian doctrine’ has not escaped a criticism that it leaves the criterion for classification of kinds or types of harm undefined and at large.33 Whatever the justifications for the doctrine in the private law,34 in my view a court should be slow to read into a statutory offence provision a limitation that is not capable of clear expression, or could only be expressed at a level of generality which would be ambiguous in its application. 117 There is no requirement that the environmental harm which the defendant knew would or might occur be of the same character or general nature as the serious environmental harm that is proved to have been caused. A substantial disconnect between the two types of harm might bear on the appropriate penalty to be imposed, but it does not bear on the question of guilt. Having said this, it is necessary to establish that the defendant had the fault element at the time the physical elements are demonstrated to have occurred. 118 In relation to proof of the mental element against a particular defendant, as noted earlier, in the case of a corporate defendant, the state of mind of any officer, employee or agent acting within the actual, usual or ostensible authority of the defendant, will be attributed to the defendant.35 The deeming provision relating to occupiers, however, relates only to the physical act of pollution, and does not extend to the mental state of any person who was responsible.36 119 Again, I emphasise that none of this is to gainsay the possibility that as a consequence of the way in which a prosecution is particularised and conducted the informant might become bound by a particular identification or articulation of the relevant ‘environmental harm’. That is a separate issue to be addressed in this appeal. Need for mental element to accompany or coincide with physical elements 120 The appellants submit, and I accept, that the mental element must be established at the time the physical elements are established. Putting offences involving continuing conduct to one side, in the case of a contravention against 32 See, eg, Chapman v Hearse (1961) 106 CLR 112 at 121 (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ), Hughes v Lord Advocate [1963] AC 837 at 845 (Lord Reid), Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390 (Barwick CJ), 402 (Windeyer J), 414 (Walsh J). 33 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402 (Windeyer J), referring to Jackson, ‘A Kind of Damage’ (1965) 39 Australian Law Journal 3. 34 In the tort context, what is proved is not actual foresight but that the genus of harm was reasonably foreseeable. Remoteness is a control mechanism partly required by virtue of the generally all-or-nothing nature of civil liability and the potential disconnect between the gravity of the negligence (which may be marginal) and the potential enormity of the compensable loss (which may be a matter of happenstance). In the present context, the sentencing court can moderate the consequence that attends a contravention. 35 EP Act, s 127(1)(a). 36 EP Act, s 4. -- 43 of 142 -- [2025] SASC 200 B Doyle J 36 s 79(1), it is not sufficient to show, that, some time after waste was deposited on land resulting in serious environmental harm, the defendant knew that environmental harm would or might result from the depositing of the waste. Overarching contentions of the parties 121 The respondent makes an overarching contention that most of the appeal grounds concerning counts 1 and 4 attack the judge’s specific findings with respect to the precise circumstances relating to the contravention of s 79(1) of the EP Act. 122 Given the uncontested finding that THP was in occupation, and having regard to the deeming effect of s 4 of the EP Act, the respondent contends that the judge’s findings as to how the relevant pollution entered the pit were not necessary in order for the Court to be satisfied of the physical act of pollution. 123 Nor, the respondent submits, were they necessary in order for the Court to be satisfied of knowledge. Once THP is deemed to have polluted the environment by the fact of the pollution being found on the occupied land, the pollution was so obvious that THP must be found to have had knowledge of the harm. 124 Further, at the outset of his oral submissions, the respondent’s counsel emphasised three matters which he submitted should satisfy the Court that the physical elements of count 1 were established and that the dumping occurred, as the judge inferred, in a single event or effort over the weeks of or leading up to March 2016 (Reasons [333]). 125 First, the respondent emphasised unchallenged findings relating to the observations made of the excavated pit (Reasons [163]). I return to these in more detail in the context of particular appeal grounds. The short point, for present purposes, is that the observations were more consistent with a single process or effort than with a site used intermittently for dumping of miscellaneous rubbish. The respondent also emphasised photographic evidence (and video footage) showing things observed immediately prior to and during the excavation of the pit, including: • the tipper-trailer which was observed to have oil and remnants of a drum remaining in it; • soil patterns (apparently stained by oil) consistent with the tripper trailer having been in the vicinity of an area where some drums where located and from which it could be inferred other drums (that had left marks on the ground) had relatively recently been stored; and • the observations made as the EPA commenced to dig test holes at the pit. 126 Secondly, the respondent emphasised what could be observed and inferred from the Google Earth images. These were said to be consistent with the pit being -- 44 of 142 -- [2025] SASC 200 B Doyle J 37 lined with tyres, but not yet containing drums, in early 2016. The admissibility of these images is the subject of a specific appeal ground, to which I will shortly turn. 127 Thirdly, the respondent emphasised a passage in Mr Rollond’s second interview, on 23 March 2016, extracted by the judge, in which Mr Rollond stated that ‘there definitely hasn’t been oil buried before’ and that this was the ‘first time’, and, when asked when it was buried, he responded, ‘Um I’m not really sure, I think it was probably two or three weeks ago’ (Reasons [158]). However equivocal Mr Rollond may have been as to the precise timing, the respondent submits that this evidence also supported the conclusion that there was a single episode or effort of dumping of the drums. The evidence was said to support the judge’s acceptance ‘as Mr Rollond said, that the filling of the pit with oil containing drums had occurred a few weeks before the EPA attended’ (Reasons [381]). 128 Whilst not central to the proof of this issue, the respondent also observed that an explanation for a single episode or effort of dumping of the drums was consistent with the following exchange in Mr Rollond’s third interview, on 15 June 2016, extracted by the judge (Reasons [188]): Lewis: And whose decision was it to remove the tyres and the drums from the land here? Rollond: Well I guess it’s got to be me. I’ve said that we’ve got to tidy up the farm. We’ve … been having to refinance and the bank was doing a few inspections and they said that you know, the place was fairly messy, so I needed to tidy the place so you know, we could get better valuations. 129 In summary, the respondent submitted that the evidence made a finding beyond reasonable doubt that the drums were placed in the pit area between January and March 2016 inevitable. 130 The respondent then emphasised that, whatever attack might be made on the findings about Mr Rollond’s knowledge of and responsibility for the dumping, it was apparent from Reasons [419] (and the final sentence in Reasons [424]) that the judge had, independently, been satisfied that by reason of s 4 of the EP Act, THP was taken to have engaged in the relevant act of pollution. 131 In relation to the question of alternative pathways to guilt, the appellants emphasised the allegations made in the information. In respect of count 1, the information stated as follows: As to the First Defendant – Tara Hills Pastoral Pty Ltd 1. In or around March 2016, on land located at 171 John Rollond Road, Tungkillo in the State of South Australia (“Land”), the first defendant caused serious environmental harm by polluting the environment intentionally or recklessly with the knowledge that environmental harm would or might result. Contrary to s79(1)(a) of the Environmental Protection Act 1993 (SA). -- 45 of 142 -- [2025] SASC 200 B Doyle J 38 This is a minor indictable offence. Particulars 1.1 On or around 1 March 2016, in an area on the Land known as the sandpit (“Sandpit”), the first defendant caused the disposal of one hundred and eighty three (183) 44 gallon drums containing no less than 1665 litres of hydrocarbons, used truck oil filters and no less than 144 used tyres (collectively “Contaminated Waste”). 1.2 The disposal of Contaminated Waste referred to in particular 1.1 caused environmental harm, namely potential harm, in that the hydrocarbons in the Contaminated Waste had the potential to enter the nearby Harrison Creek and be toxic to aquatic life in the creek. 1.3 The environmental harm was serious in that it resulted in actual loss of an amount in aggregate of approximately $61,612. 1.4 The disposal of Contaminate Waste referred to in particular 1.1 caused actual or potential environmental harm of a high impact or on a wide scale. 1.5 At the relevant time, the first defendant was the occupier and person in charge of the Land at which the Contaminated Waste was disposed. 132 The appellants contend that having regard to the way in which the information is framed and in view of the running of the case, the informant had to prove: • in or around March 2016, THP caused or permitted a significant number of drums containing a significant volume of oil, used truck oil fillers, and a large number of used tyres, to be disposed of in the pit. The appellant accepts that as occupier THP could be deemed to have carried out these acts if they were shown to have occurred during the relevant time period;37 • this had the potential for hydrocarbons to enter the nearby Harrison Creek and to be toxic to aquatic life in the creek and, that amounted to ‘serious environmental harm’ (in the case of the s 79 offences), or alternatively ‘material environmental harm’ (in the case of the s 80 offences); • in order to establish the more serious offences in s 79(1) or alternatively s 80(1), THP intended or was reckless as to the identified waste being disposed of in the pit, and, at the time it occurred, THP knew that environmental harm would or might result. For those purposes, THP’s state of mind must be proved by establishing Mr Rollond’s state of mind, because: (a) the deeming provision in s 4 does not apply to mental states, and (b) whilst s 127 of the EP Act contemplates attribution of the state of mind of employees and agents, the informant’s case focused upon Mr Rollond. 37 This is consistent with exchanges in the informant’s opening: Tr 29.26-30.37, 32.11-34. -- 46 of 142 -- [2025] SASC 200 B Doyle J 39 133 The appellants’ counsel accepted that the evidence established beyond reasonable doubt, or was capable of establishing beyond reasonable doubt, that over 140 drums had been removed from the pit following the EPA’s investigation. It was also accepted that the evidence, taken its highest, was capable of establishing beyond reasonable doubt that in the period in or immediately leading up to March 2016, around 40 – 60 drums were deposited in the pit. 134 These concessions, which were properly made, mean that the appellants are not in a position, on appeal, to resist a conclusion that, by the deeming effect of s 4, THP was shown to have polluted the environment in or around March 2016. Subject only to a question whether the deposit of 40 – 60 drums could be shown to have had the potential to cause ‘material environmental harm’, the consequence is that the evidence was capable of establishing that THP contravened s 80(2). That is the offence provision which involves no mental element, and, because it alleges ‘material’, rather than ‘serious’ environmental harm, it attracts a lower maximum penalty than the s 79(2) offence. 135 However, the appellants maintained that in order for the appellants properly to have been found guilty of the more serious offences, and, in particular, those with a mental element, viz, ss 80(1) and 79(1), it was necessary to establish beyond reasonable doubt that: • in the case of either offence, at the time the dumping occurred, Mr Rollond knew about it and knew that environmental harm would or might occur (and, specifically, harm in the form of hydrocarbons affecting aquatic life in the creek); • in the case of the s 79(1) offence, the harm that was caused was actual or potential harm of a high impact or on a wide scale or which resulted in actual or potential loss of property damage in amounts exceeding $50,000. 136 The appellants submit that if the judge could only properly have found that 40 to 60 drums were dumped in the period alleged in the information, it could not safely be concluded that the dumping of those drums resulted in serious environmental harm. It could not be safely concluded that the oil in that smaller quantity of drums was at risk of causing the kind of harm about which the experts expressed an opinion, particularly allowing for the fact that many of the oil drums were likely damaged during extraction and might otherwise have remained in tact if left undisturbed. 137 Alternatively and in any event, they submit that if the judge could only properly have found that Mr Rollond had knowledge of that extent of the dumping of drums containing oil, neither THP nor he could be found to have known that environmental harm would or might occur. 138 If Mr Rollond could not be shown to have been aware of the dumping of 40 – 60 drums when it was occurring, the appellants contend that there was no -- 47 of 142 -- [2025] SASC 200 B Doyle J 40 other means, consistent with the way in which the prosecution had been conducted, by which it could be concluded that THP (or Mr Rollond) caused environmental harm by polluting the environment intentionally or recklessly, nor that it (or he) did so ‘with knowledge that environmental harm will or might result’. The appellants contend that the prosecution was not conducted on the basis, for instance, that the state of mind of Mr Reekes-Parsons was to be attributed to THP pursuant to s 127(1) of the EP Act. 139 To the extent necessary, I will return to these overarching contentions respecting counts 1 and 4 after first considering the particular appeal grounds. Admission of Google Earth images (ground 5) 140 The informant tendered and the judge received, over objection, a number of exhibits comprising Google Earth images. These were mainly relevant to and relied upon in respect of count 1 (and thereby count 4).38 Because it goes to the admissibility of significant evidence, it is convenient to consider appeal ground 5 before the others relating to counts 1 and 4. 141 Assuming for present purposes the accuracy of the dates on the images, the most relevant and important Google Earth images comprised aerial images depicting: • the yard area between 2015 and 15 October 2017;39 and • the pit area between 6 November 2013 and 6 October 2016.40 142 It is apparent that the judge placed reliance on these images. For instance, the images relating to the pit area comprised seven images over the period identified above. In the second image (bearing a date of 12 November 2015) and each of the subsequent images, there appears to be a pit in varying states. In the first image (bearing a date of 6 November 2013), the Land appears undisturbed in the same area. Whilst the judge’s conclusions were not necessarily reached based on the images alone, he obviously had regard to the images in concluding that the pit had not been excavated as at 6 November 2013 (Reasons [79] and [355]). 143 By way of further example, the images relating to the yard area comprised ten images over the period identified above. The images comprise five pairs of photographs (each pair comprising an image of the yard area and then a blown up or magnified image of the part of the yard appearing to show drums). The judge relied on the differences between the images in finding, at Reasons [335], that the 38 Objection was also taken to a photograph of a Beaurepaires truck dated 1 January 2014 (Exhibit I15), but that image is relevant, if at all, to the counts 5 and 6. In light of the conclusion I have reached about those counts, it is not necessary separately to consider the admissibility of Exhibit I15. 39 Exhibit I24. 40 Exhibit I25. -- 48 of 142 -- [2025] SASC 200 B Doyle J 41 Google Earth images of the yard and pit showed no drums had been moved from the yard and that nor had any drums been in the pit as of November 2015. 144 As relates to the pit, the judge plainly had regard to the fact that the pair of images of the pit area bearing the date 12 November 2015 appear to depict tyres in or in the area of the pit but drums are not (obviously) apparent. 145 The images were obtained by the EPA officer Mr Lewis, in May 2022, shortly prior to trial. He did so using the software package ‘Google Earth Pro’. Some information relevant to Google Earth images and their provenance was contained in a Google Earth document (‘How images are collected’) tendered during his evidence.41 146 The document explained that images are collected over time from providers and platforms. It went on: When images are collected • Some images list a single acquisition date, which is defined by the image provider. • If an image is a mosaic or multiple satellite or aerial photos taken over days or months, a date range with a start date and an end date is displayed to show the dates the images were collected between. • If little or no date information is supplied by the data provider, a start and end date are shown for the range within which we can be reasonably certain the image was taken. 147 Examples of the date ranges are given and the document then continues: If you’re looking for more information about when an image was collected, contact the original provider of that dataset. Image providers are shown in copyright dates. Google is not able to provide any more information about imagery it owns beyond what is displayed in Google Earth and Maps. Why image dates change Images closer to the ground are usually made up of one image. The date displayed in these cases should stay the same wherever you move the cursor. Aerial images are usually made up of a mosaic of several images. The date may change as you move your cursor around the map. No date is shown where there is no date information available for the image or when your cursor is over the seam of two images. More about image types & their collection dates Satellite & aerial images 41 Exhibit I26. -- 49 of 142 -- [2025] SASC 200 B Doyle J 42 The satellite and aerial images in Google Earth are taken by cameras on satellites and aircraft, which collect each image at a specific date and time. Those images can be used in Google Earth as a single image with the specific collection date, but sometimes: The images are combined into a mosaic of images taken over multiple days or months. These images are displayed as one seamless image and the date may change as you move your cursor around the map. There is limited information about the image collection and the date displayed reflects the start date of a date range when the image was most likely collected. When the ‘3D Buildings’ layer is turned on, the detailed terrain and building images are derived from aerial images collected over multiple dates, so Google Earth does not display a collection date. The collection date information is lost or inaccurate due to human error or other issues. 148 The document then set out information about ‘Street View images’ and ‘3D images’ (neither of which are relevant here) and continued: Historical images When viewing historical images, the date indicated on the time slider means that the images shown were captured on or before that date. • If the database contains two overlapping images of a place collected the same day, only one of them will be viewable in Google Earth. • Sometimes the date shown on the time slider and in the status bar are off by one day due to timezone differences between the image collection date/time and the timezone of the computer. • By default, Google Earth uses the host computer’s time zone, but this can be changed to UTC or any other time zone through Date and Time Options. 149 The exhibits in question were received pursuant to s 53 of the Evidence Act. This is known as the ‘business records’ rule. In its current form, it provides: 53—Admission of business records in evidence (1) An apparently genuine document purporting to be a business record— (a) is admissible in evidence without further proof; and (b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence). (2) A document must not be admitted in evidence under subsection (1) if the court is of the opinion— (a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or -- 50 of 142 -- [2025] SASC 200 B Doyle J 43 (b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or (c) that it would be otherwise contrary to the interests of justice to admit the document in evidence. (3) For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters. (4) In this section— business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality; business record means— (a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or (b) any reproduction of any such record by photographic, photostatic, lithographic or other like process. 150 There is no dispute on appeal that the images comprise business records. The debate concerning admissibility focuses upon the exceptions in s 53(2). 151 In respect of s 53(2)(a), the judge did not consider it necessary for the person who had prepared the documents to be called, observing that the documents stated when the images had been taken and that there was nothing in them or otherwise which indicated that they had been inaccurate. He observed that witnesses who had been called could have been cross-examined about that (Reasons [87]). 152 The appellants submitted that the information contained in the document described earlier led to the conclusion that Google ‘knew nothing about the accuracy of the displayed collection date’, could not vouch for the image acquisition date, and acknowledged that sometimes the collection date displayed was inaccurate. They submitted that the publication indicated that ‘if you wanted more information about when an image was collected, you should contact the original provider of that dataset’. In those circumstances, the appellants submitted that the persons who collected the images should have been called. Otherwise it was not in the interests of justice to receive the images. 153 The appellants contended it was wrong to say that the witnesses who were called could have been cross-examined about them. The images apparently depicted the locations in question between 2013 to 2016, and the trial was in 2023. That made it unrealistic to think that the witnesses could make meaningful comment on the accuracy of the photographs. -- 51 of 142 -- [2025] SASC 200 B Doyle J 44 154 In respect of s 53(2)(b), the judge considered that the images possessed significant weight on the question of the state of the Land, the yard and the pit at relevant times, and that direct oral evidence as to what was depicted would have been relevant and admissible. Although it is not made express in the Reasons, it may be inferred that because the judge had concluded there was nothing in the documents or otherwise that indicated they were inaccurate, it could not be concluded either that their evidentiary weight was slight or that it was outweighed by prejudice that might result. 155 The appellants submitted that the judge’s analysis of the evidentiary weight of the document wrongly assumed their accuracy as to the date the images were obtained. Counsel conceded that if the accuracy of the record were to be assumed for the purposes of admeasuring evidentiary weight, it could not be said to be slight. 156 The appellants made the overarching submission that these were not business records in a conventional sense in that the business (Google) was not really producing the images based on their own knowledge or processes; they were instead simply publishing the material obtained from others. The records themselves were not suggestive of any safeguards as relates to the accuracy of dates. In the appellants’ submission, the judge failed to bring this to bear as required by s 53(3). 157 In respect of the broader ‘interests of justice’ ground in s 53(2)(c), counsel acknowledged that this raised the same or similar considerations to the other two grounds. 158 Finally, the appellants pointed to the production and provision of the documents so long after the dates apparently depicted in them and so shortly prior to trial. They submitted that was a factor that went both to prejudice for the purposes of s 53(2)(b) and to the interests of justice in s 53(2)(c). This was not a matter the judge had been to consider as relevant to admissibility. 159 The respondent submitted that to point to the fact that the record here may convey information not directly known to or verifiable by the business that produces the record (such that it involves, in that sense, second hand or even more remote hearsay) is not significant. That is inherent in the structure of s 53, and marks a contrast with s 52. It reflects a legislative assessment that, as a class, records produced in the ordinary course of a business are sufficiently reliable to justify the conclusion that, unless one of the exceptions applies, the efficiency to be gained by permitting their admission will outweigh the risks of inaccuracy. 160 In my view, those propositions, so far as they go, are consistent with Lander J’s analysis of the predecessor provision in Southern Equities Corp Ltd (in liq) v Bond (‘Southern Equities’).42 The use of evidentiary aids such as s 53 in 42 (2001) 78 SASR 554 at [164]-[191]. -- 52 of 142 -- [2025] SASC 200 B Doyle J 45 criminal proceedings is no longer regarded with the scepticism that it once may have been.43 161 Next, the respondent submitted that the acknowledgment in the Google Earth document that dates might be inaccurate was no more than an explicit statement of what must be implicit in almost every business record. For instance, a bank statement might potentially reflect a mistaken keystroke entry by a teller. Further, the reference in the explanatory document to seeking more information about when an image was created was not, in context, to be understood as relevant to images that bore a specific date. Approach on appeal 162 In my view, the correctness standard, rather than the deference standard associated with House v The King,44 is applicable to appellate consideration of a decision not to exclude the evidence under one of the three grounds set out in s 53(2). That is because, although those grounds involve evaluative questions, they call for a unique outcome.45 163 However, the matter is not free from doubt,46 and the fact that the sub-section is framed by reference to the ‘opinion’ of the court may be a matter that militates in favour of the deference standard.47 I need not resolve the question of the appropriate standard because, as will be seen, adopting the correctness standard, I consider the evidence was admissible. Section 53(2)(a) 164 The appellants pointed, by way of example, to the reference on one of the images, to ‘CNES / Airbus’. They contended that this must refer to the entity or business that obtained the photograph and provided it to Google. Presumably it was a person associated with that entity or business that they submitted ought to have been called. 165 There are a number of difficulties with the submission and, indeed, the operation of this aspect of the section when applied to the vast array of business documents produced by businesses in the modern world. 43 Athans v The Queen (No 2) [2022] SASCA 70 at [200] (Livesey P), referring to R v Collie (1991) 56 SASR 302 at 321 (Cox J). 44 (1936) 55 CLR 499. 45 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [49] (Gageler J), [150] (Edelman J); R v Bauer (a pseudonym) (2018) 266 CLR 56 at [61] (the Court), Moore (a pseudonym) v The King (2024) 98 ALJR 1119; [2024] HCA 30 at [15] (the Court), Helensburgh Coal Pty Ltd v Bartley (2025) 99 ALJR 1185; [2025] HCA 29 at [76] (Edelman J). See also the discussion in Young v The King [2024] SASCA 47 at [136]-[137] (Doyle JA, Kourakis CJ agreeing) and [157] (David JA). 46 See the discussion in Alzuain v The King [2025] SASCA 67 at [120]-[121] (Kourakis CJ, Livesey P and Bleby JA). See also Adams (a pseudonym) v The Queen [2021] SASCA 147 at [42] (Livesey P, Doyle and Bleby JJA). 47 R v Riley [2020] NSWCCA 283 at [99]-[101] (Bathurst CJ). See also Helensburgh Coal Pty Ltd v Bartley (2025) 99 ALJR 1185; [2025] HCA 29 at [80], [82] (Edelman J). -- 53 of 142 -- [2025] SASC 200 B Doyle J 46 166 In the case of a business record such as a Google Earth image, it is not obvious who, if anyone is, ‘the person by whom, or at whose direction, the document was prepared’. 167 In context, because the question to which the provision directs attention is whether they should be called as a witness, the section must contemplate a natural person. But some documents may be prepared other than by or at the direction of a natural person. If the relevant act of preparation of the document is the taking of the photograph or photographs upon which the Google Earth image is ultimately based, it could well be (although there is no evidence on this topic) that photographs are taken by a device located on a satellite or aircraft by an automated process (and not by the manual ‘taking’ of a photograph). If the relevant act of preparation of the document is treated as being the uploading of the images from the image provider in question to Google’s database (or similar) so that it can be made accessible using Google Earth Pro, again, there may not have been a natural person who directed the particular image to be uploaded. 168 On either basis it might be possible to identify a person, or perhaps multiple people, who set the automated train in process, or who were causally significant in some other way. An employee of the image provider may have decided to cause the satellite or aircraft to commence taking photographs in a region of the world at the time in question. An employee of Google Earth may have decided to acquire the bank of images. 169 Construing the provision purposively,48 it should be taken to mean that if there is a (natural) person by whom, or at whose direction, the document was prepared, and that person can and should be called by the party tendering the document to give evidence of the matters contained in the document, the document must not be admitted under s 53(1).49 170 Nice questions of onus might arise in a case where it is on the cards that there must be a person who prepared or directed the preparation of the document and it is on the cards that they could give meaningful evidence in respect of the ‘matter contained in the document’, but there is no evidence about the inquiries that have been made (if any) as to the person’s identity and availability to be called. 171 In the present case, I do not consider that it is on the cards that there is likely to be any person who should be called to give evidence of matters contained in the document. I am not persuaded it is on the cards that if there was a person who was directly causally involved in the act of taking the photographs or causing them and others to be taken on the relevant occasions, or if there was a person who was directly causally involved in the act of acquiring or uploading this photograph or a bank of photographs of which the photographs in question formed part, they are likely to be able to give evidence of the matters contained in the document. I also 48 See, in relation to a similar part of the predecessor to s 52 of the Evidence Act (namely, s 45B of that Act), The Queen v Calabria (1982) 31 SASR 423 at 431 (King CJ). 49 Conceivably, the document may be admissible on other grounds. -- 54 of 142 -- [2025] SASC 200 B Doyle J 47 consider that based on the volume of images likely to be held by Google, and the likely number and scale of the image providers who supply it, the inquiries that would be necessary to identify the identity of any persons involved in that way in the taking or uploading of the relevant photographs are likely to be so involved that it would be difficult to conclude that they can and should be called. Section 53(2)(b) 172 In the course of submissions a question arose as to the meaning of ‘evidentiary weight’ in s 53(2)(b). As noted earlier, the appellants accepted that if it was to be approached similarly to the now-accepted interpretation of ‘probative value’ in the context of the uniform evidence legislation, it could not be said the evidentiary weight of the images was slight. 173 The approach taken to ‘probative value’ is that it is to be measured by assuming that the evidence is ‘accepted’ as truthful and reliable – it is the capacity of the evidence to assist the trier of fact to decide the contentious issues in the case that is the measure of its probative value.50 That approach entails some subtlety, as the ‘foggy night identification’ example given in IMM v The Queen51 immediately revealed, and later decisions regarding expert evidence52 and hearsay53 have confirmed. 174 In my view, this approach does not apply to s 53(2)(b). First, the language of the provision is quite different. ‘Evidentiary weight’ conveys a different meaning to ‘probative value’ (as defined in the uniform evidence legislation). Secondly, it appears as part of a suite of ‘safeguards’ concerned, inter alia, with the risk of unreliability that may arise where business records are received into evidence.54 Having regard to the concern of the safeguards, it makes little sense to curtail the analysis of ‘evidentiary weight’ to the capacity of the document (if accepted as to the truthfulness and reliability of facts asserted in it) to assist in proving an ultimate fact in issue. Thirdly, s 53(3) supports the view that ‘evidentiary weight’ includes a consideration of whether the document is likely to be a reliable record of the facts asserted in it or to be inferred from it. That provision is concerned with determining the evidentiary weight of a document ‘admitted in evidence under subsection (1)’. For that reason, it appears only to apply in terms after evidence has been received (and therefore after any consideration of exclusion under subsection (2)). That question was not squarely considered in Southern Equities,55 but it appears to have been the view of Lander J in respect of a predecessor provision.56 Justice Kimber recently considered s 53(3) on the footing that it applies to evidence that has not been excluded, and has 50 IMM v The Queen (2016) 257 CLR 300 at [50]. 51 (2016) 257 CLR 300 at [50] (French CJ, Kiefel, Bell and Keane JJ). 52 Lang v The Queen (2023) 278 CLR 323. 53 Moore (a pseudonym) v The King (2024) 98 ALJR 1119; [2024] HCA 30. 54 Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554 at [191] (Lander J). 55 Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554. 56 (2001) 78 SASR 554 at [148]. -- 55 of 142 -- [2025] SASC 200 B Doyle J 48 already been received.57 Accepting this, it is quite clear that the concept of ‘evidentiary weight’ in s 53(3) is one that invites attention to reliability and accuracy (as distinct from the significance of the facts asserted or inferred from the document in the scheme of the case). It is unlikely that the legislature used the same expression (‘evidentiary weight’) in a quite different way in s 53(2)(b). 175 Accordingly, whilst s 53(3) does not in terms apply at the stage of considering the admission of a business record under s 53(2)(b), it may well be necessary, in a given case, to consider, based on what is known about the source from which the document is produced and any safeguards that may have been taken to ensure its accuracy, whether its evidentiary weight should be considered ‘slight’. That is part of a consideration of the apparent reliability of the document, or the weight that may be given to it in establishing a fact said to be stated in or apparent from the document. 176 In my view, when considering that issue, it was relevant to have regard to the Google Earth publication summarised earlier, but the respondent is right to submit that the fact that the risk of error in some cases was acknowledged should not be treated as conveying that the dating of the images is so unreliable that its evidential weight is slight. It is reasonable to proceed on the basis that Google Earth Pro ascribes the dates (supplied to it by the image suppliers) to the images it makes available through its product because it believes and expects them to be generally reliable. Further, in considering the general reliability of the dates shown on the images, in my view, it is legitimate to compare the images with one another, and to consider whether, by reference to events that are not in issue, or are not likely to be controversial, there is anything which throws doubt on the accuracy of the dates. 177 In this regard, I observe that: • the images bear dates that appear at least to be in sequence with events that are likely to be uncontroversial. For instance, the image of the pit area that shows no, or no obvious, disturbance to the Land, bears the earliest date; • the image of the yard area that post-dates the EPA’s attendance appears to show fewer drums than the images of the yard area in late 2015; • the image of the pit area that shows a plastic bund that was used in the clean- up operation bears a date which correlates with the time that process was taking place. The appearance of the image dated 30 April 2016 also seems consistent with the pit area having been covered over by that time. 178 These observations are not conclusive as to the reliability of the dates displayed on the images, and the mere fact that some photographs may be independently inferred to be correctly dated does not discount that others might, 57 PA v Abrotonite [2024] SASC 130 at [44]. -- 56 of 142 -- [2025] SASC 200 B Doyle J 49 for random reasons, be incorrect. However, such indications as there are as to the various photographs do not give rise to any obvious concern about the accuracy of the dates. 179 In all the circumstances, I am not persuaded that the acknowledged risk that dates may be inaccurate due to human error is a reason to conclude that the evidentiary weight of the photographs is slight. That is sufficient to conclude that the images were not required to be excluded under s 53(2)(b). Section 53(2)(c) 180 I do not consider that any other considerations, such as the unlikelihood that witnesses might meaningfully be cross-examined with a view to testing the reliability of the dates in the images, is such that there is unfair prejudice, or that it is contrary to the interests of justice to admit the document in evidence. 181 There were a number of witnesses called who worked on the Land including for some time prior to 2016 and who were familiar with the area where the pit in question was dug and later filled.58 I do not accept the appellants’ attack upon the judge’s conclusion (expressed at Reasons [86]) that there were witnesses who could have been cross-examined with a view to testing the accuracy of the dates shown in the photographs by reference to the state of the Land. Nor, in the circumstances of this case, did the fact that the images were provided shortly before trial render this admission contrary to the interests of justice. Conclusion 182 In my view, the images were not required to be excluded by reason of s 53(2) of the Evidence Act. 183 The appellants’ written submissions appear also to advance a contention (not strictly raised by the notice of appeal) that the judge did not, in using the evidence, give due regard to the question whether there were safeguards to ensure the accuracy of the evidence.59 It can be accepted that the judge’s reference to South Australia v Crossley,60 concerns risks of a different kind. But this does not, in my view, entail that the judge did not give consideration to the reliability of the evidence. He was alive to the possibility they were inaccurate, but considered there was nothing in them or otherwise that indicated they were in fact inaccurate (Reasons [81], [86]). 58 These included Messrs Keatley, Doddrell, Reekes-Parsons, Williams and Elliot. 59 The written submissions refer to s 52(5) of the Evidence Act, but it is likely the intention was to refer to s 53(3). 60 [2020] SASCFC 128 at [30]-[33] (Peek J). -- 57 of 142 -- [2025] SASC 200 B Doyle J 50 Treatment of statements of Mr Rollond when interviewed (ground 9) 184 Appeal ground 9 asserts that the judge erred in his consideration of and the findings he made in relation to statements made by Mr Rollond when he was spoken to by EPA officers on 23 March 2016. The following particulars are given: 9.1 At [276] the trial judge erred by stating that Mr Rollond had ‘… said he had instructed that drums containing oil be put into the pit and he acknowledged he had known it to be harmful to put oil in the pit near a creek’. 9.2 At [285] the trial judge erred by finding that ‘Mr Rollond had expected his instructions to have been followed … specifically in respect of the … disposal of oil drums containing oil in the pit’. 9.3 At [362] the trial judge erred by finding that ‘Mr Rollond repeatedly said in the second interview it had been his decision to bury oil in the pit’. 9.4 At [369] the trial judge erred by finding that: 9.4.1 Mr Rollond gave a clear account in his second interview. 9.4.2 In his second interview, Mr Rollond ‘… had volunteered that he had instructed the disposal of oil in the pit’. 9.5 At [376] the trial judge erred by finding that Mr Rollond ‘… had volunteered that he had instructed that [disposal of oil in the pit] be done’. 9.6 At [377] the trial judge erred by finding that ‘… the instruction which had been given by Mr Rollond has been the one he elaborated on the second interview; that oil should be put in the pit as part of the general clean-up’. 9.7 At [378] the trial judge erred by finding that Mr Rollond admitted that his instruction to clean-up the yard included putting oil drums containing oil into the pit. 9.8 At [381] the trial judge erred by finding that Mr Rollond said ‘… that the filling of the pit with oil containing drums … had been done on his instruction’. 9.9 At [389] the trial judge erred by finding that ‘It had been Mr Rollond who said the tipper had been used on his instruction’. 9.10 At [392] the trial judge erred by finding that Luke Reekes-Parsons had loaded the tipper truck with oil drums as instructed by Mr Rollond, in so far as this implies Mr Rollond expressly told him to load oil drums containing oil. The instruction from Mr Rollond to Luke Reekes-Parsons was simply a general instruction to clean-up the yard (T1014). 9.11 At [413] the trial judge erred by finding that in the second interview Mr Rollond ‘… admitted to instructing the oil be put in the put’. 9.12 At [414] the trial judge erred by finding that in the second interview Mr Rollond ‘… had said two or three loads had been taken to the pit’ and ‘… that approximately 30 drums had been in the tipper for each of those trips’. In fact, from the language he used, Mr Rollond at best ‘guessed’ at what might have happened. -- 58 of 142 -- [2025] SASC 200 B Doyle J 51 9.13 At [432] the trial judge erred by stating ‘I have found Mr Rollond had admitted his knowledge and his responsibility. He had instructed the disposal of oil in the pit’. 9.14 At [434] and [435] the trial judge erred by finding that Mr Rollond instructed the manner of disposal of the oil in the pit. 185 As earlier noted, Mr Rollond was spoken to by Mr Lewis on three occasions and recordings and transcripts of these interviews were received into evidence. The first occasion was on 22 March 2016.61 The complaints about the judge’s findings relate in large part to the second interview on 23 March 2016.62 That occurred in a paddock near the pit. The third interview occurred on 15 June 2016.63 On each occasion, Mr Rollond was cautioned. Overview of contentions 186 The appellants submit that when the EPA officers spoke with Mr Rollond on 23 March 2016 he was extremely upset and emotional. They submit his answers were odd and at times irrational. 187 The appellants contend that in particular respects the judge misstated or misapprehended what Mr Rollond had actually said and, in other respects, he erred by accepting at face value apparent admissions that were inconsistent with denials or other statements in the first and third interviews. 188 In particular, the appellants contend that when Mr Rollond gave answers in the second interview which appeared to concede that he knew that drums containing oil had been taken by the tipper and dumped in the pit and that this was the result of his instruction to his workers to clean up the yard, he did so in an emotional state. 189 The appellants submit that his answers are more consistent with him accepting responsibility after learning what had occurred, than they are with revealing his actual knowledge or responsibility of what had occurred. They point out that he had been shown oil residue in the tipper the previous day and that, on the day of the second interview, he had observed the EPA retrieving oil drums from the pit. When he used language along the lines of ‘It’s got to be me, yeah, it’s me that’s done it’, he should be understood as ‘taking the blame’ rather than authentically relating any prior knowledge or conceding that he had in fact given an instruction to his workers to dump drums containing oil in the pit. They submit that the statements made in the second interview need to be viewed in light of the fact that in the first and third interviews, Mr Rollond stated he had not in fact known of this occurring. 190 The respondent, by contrast, points to aspects of each of the three interviews capable of supporting a conclusion that the concessions made in the second 61 A transcript of the first interview comprises Exhibit I1 at Tab 5. 62 Two (largely identical but in minor respects differing) transcripts of the second interview comprise Exhibit I1 at Tab 6. The audio recording, to which I have listened, comprises Exhibit I29. 63 A transcript of the third interview comprises Exhibit I1 at Tab 7. -- 59 of 142 -- [2025] SASC 200 B Doyle J 52 interview were in fact admissions of personal involvement, knowledge and responsibility. Furthermore, the respondent submits that the judge’s conclusions about what flowed from the concessions in the second interview were not made by reference to the words of the interview alone, but reflected the judge’s consideration of how those statements fitted with the other evidence in the case. 191 In order to consider these contentions, it is necessary to detail some aspects of the three interviews. The first interview 192 In the first interview, Mr Rollond’s answers revealed an awareness that rubbish from the yard had been deposited in the pit. In relation to waste oil, however, he said that he did not know of it being buried. He said waste fuel was removed from the property by a tanker which sucked waste fuel out of drums. When it was then put to him that to the best of his knowledge there had not been any oil, or oil drums, put in the holes that had been dug on the property, he responded that ‘[t]here might be drums’. He followed up by saying: ‘[t]here might be emptied drums’. He then said: ‘But not oil, but there could have been, because we were scrapping them, empty drums, we were scrapping them’. In relation to removal of waste oil, Mr Rollond could not say how many litres had been taken away, or how regularly the man who used to remove the waste fuel attended. 193 Mr Rollond was then questioned about the area where new soil had been placed on top of the Land and about a tipper which looked to have a lot of oil in the back of it. He said that was normally a rock trailer but had been carrying a bit of scrap metal and some tyres. He was asked why it would have a 44-gallon drum that was a bit crushed and oil cartridges and oil through the back of it. He said he was not sure and had not looked in it. He stated that ‘basically we’re cleaning up the yard, trying to clean up the yard here …’. 194 A little later, when asked what had been put in the holes that had been dug on the property, the following exchange occurred: A Just rubbish from here, like I said before, just the, anything light gauge, yeah, same as what I said, from the house. It’s just, anything light gauge. The only reason, well, oh that one might be filled in too. I want to put a crop in there, that’s why it would be, it should be all levelled off. Both those, I think there’s another one down the other end of that paddock that we want to have it levelled off so that we can crop it. Q Okay. So, in summary then, the area that we looked at this morning, which is adjacent to, like the water course, and a bit of a reedy area. And down by the shed and the silos, that one is still open. But you’re telling me that the only material that’s gone into these is material, general waste from the burnt out house, some light gauge steel, some concrete. A Yeah, yeah. Yep. Yeah. There could be a few, they’re, I know there was some truck tyres loaded up from here, which I said that, no, not to put them in there, but I know some truck tyres did go in there which weren’t meant to. Just general, you know, timber, yeah. -- 60 of 142 -- [2025] SASC 200 B Doyle J 53 Q And how do you know that the tyres went in there? A Oh, I saw them gone from here and they were on the, in the yellow tip trailer wherever it is, little yellow tip trailer. Q And who would be carting this general waste that you’re referring to, into these holes? A Probably, yeah, Kevey, he did a little bit of it. But it’s sort of been open all the time. I’ve been, just, yeah, anyone really. If they’ve got any spare time to clean up. 195 A little later, Mr Rollond said that while the holes had been dug for a long time, light steel had only been going in there since ‘October, November, because of the scrap thing’. That was a reference to it having become uneconomical to scrap metal. Mr Rollond said that the hole near the water course had been levelled off ‘could be a couple of weeks, three weeks ago’ by someone he named as ‘James Reekes’ who was now working in the mines. When asked whether ‘Luke’ might have had involvement in putting waste in the hole, he said, ‘Oh, don’t know, might have, not sure’. 196 In the course of the interview, Mr Rollond’s attention was directed to the state of a tipper trailer. The following exchange occurred: Q Looking at it, it’s got oil staining underneath. When you look under the trailer, the trailer’s currently on jacks. When you have a look under the trailer, there’s a couple of rusted through holes, on the bottom of the trailer, and it looks as though oil is leaking from it. And when you come down to the rear of the trailer, the tailgate’s open. When you look into the rear of the trailer, you’ve got oily rags, you’ve got filters, there’s a small drum there, there’s a bit of soil in there, and dirt, and the sides are fairly heavily stained. Tell me how it’s gotten into this state. A Yeah, I don’t know, that’d be carting rubbish up to the back property probably, and, yeah, it’s probably been cleaning up around the workshop, I guess. Q So you’re saying now that, there has been oil, and oily material, and oily drums buried? A No, I’d, no, nothing like that, that I know of, that’s been buried. A lot of that stuff, yeah, I don’t know how much is really there. There’s a few filters and that up there. 197 At the conclusion of the interview, when asked if there was anything he wanted to add, Mr Rollond said ‘No, well if we, if we’ve done the wrong thing, well we need to know and whatever we’ve gotta do, we’ll do. If we’ve got to clean something up, or whatever we’ve gotta do, we’ll definitely do it’. The second interview 198 The second interview took place the following day, in the afternoon, shortly after Mr Rollond arrived in his ute at the pit area, where the EPA had been excavating. It was apparent that oil drums containing what appeared to be oil were being dug up, although, as I later explain, only around 19 drums were extracted that day. -- 61 of 142 -- [2025] SASC 200 B Doyle J 54 199 Mr Rollond was asked whether there was anything he wanted to say about that and he responded ‘No, no, just that anything I can do to help with the clean up or with any part of it, I will’. When asked if he knew how the drums had come to be there he said ‘No, no, no it’s, not sure what’s gone on but I just want to clean it up’. 200 Shortly after this it is apparent that Mr Rollond became emotional. He then said: A I’ve had the wrong thing happen and, yeah, it’s, I’m sorry. 201 There was then a discussion about securing the area from sheep and about the possible backfilling of the holes that had been excavated. The following exchanges then occurred: Q Okay, now just while we’ve got you here, is there any other locations on the property where liquid waste, oils have been buried that we need to know about? A I think, I guarantee there’s not. Q Okay. A Yeah, there’s definitely not, I can guarantee it’s not, but there is other dumps that are similar to those and I’m quite happy to go and show you where they are. Q Okay, alright, well what … A But definitely, there definitely hasn’t been oil buried before. Q So this is the first time? A Yeah. Q When was it that this was buried? A I’m not really sure, I think it was probably two or three weeks ago. Q And whose decision was it that the oil was to be buried here? A Yeah, it’s got to be me, yeah, it’s me that’s done it. Q And when you say it was me that’s done it, what did you mean by that? A Oh well, yeah … Q Just take a minute to gather yourself there, Phil. A Yeah well, yeah, no-one else is to blame but me. Q So [whose] decision was it to bury the oil here? A Oh, yeah it’s got to be me. Q And who did you tell to bury the oil? -- 62 of 142 -- [2025] SASC 200 B Doyle J 55 A Oh no-one. Q Do you know how many drums of oil have been buried here then? A No I don’t. Q How was the oil transported out here? A I guess they were in the tipper. Q When you say you guessed they were in the tipper, what do you mean by that? A Yeah they would have been, yeah, yeah, you know, it’s just, yeah, I’ve done the wrong thing. Q How many loads of drums in that tipper were brought out here? A Probably about two or three. Q Two or three loads, and would that tipper have been full when they were brought out here? A Wouldn’t have been full but, yeah, would have been a few in it. Q Okay, so if it wasn’t full how many do you reckon would you fit in that tipper to bring out here? A Oh probably 30 odd drums in a tipper. Q Thirty odd? A Yeah. Q So if you’re talking two to three loads, are we talking somewhere between 60 and 90 drums out here? A Could be 60, yeah. Q And would all of those drums have contained oil? A I don’t know, you know, I really don’t know. Q When you say the tipper, are you talking about the blue tipper in the yard that you described to us yesterday? A Yeah, it would have been the tipper. Q The one that had the black oil in the bottom of it? A Yep. Q Who would have loaded up that tipper, Phil? A Oh, I don’t know, probably me. Q Okay, was here anything else other than oil that’s been put in there? -- 63 of 142 -- [2025] SASC 200 B Doyle J 56 A Tyes and …. Q What about oil cartridges or oil filters? A … Q Have they only been put in this location, then? A Yeah, yeah, definitely guarantee it’s never been done before. Q So the drums that were loaded onto the back of that tipper that we looked at yesterday … A The banks wanted to close me up. Q Sorry mate, sorry, Phil? A [Silence] Q Gather yourself, mate, its okay. A Doesn’t matter. Q Doesn't matter? A Its my problem. Q Okay. You can tell me, I’m happy to listen. A No it’s alright. Q Okay. A Nah I’ve, I’ll do what I have to. … Q Yeah, okay, so just to summarise, then, you’ve told me that it’s been two or three weeks ago that you’ve made the decision that you were going to bury drums of oil and you’re not sure if they all contained oil or not, and you think that you have loaded them onto the back of that semi tipper, and approximately 30 drums would fit into the back of the tipper and that you think perhaps two to three loads were brought out here and so following that you’ve covered it over what was the purpose of covering it over. A Yeah so we could crop it. Q Who covered it? A I think James Reeves. Q Was the hole full after you put the drums in there? A No I don’t know, I don’t think so. Q Okay, how were the drums taken off the tipper? -- 64 of 142 -- [2025] SASC 200 B Doyle J 57 A Oh it was tipped off. Q It was tipped off? What do you mean by that? A Just tipped up and tipped off. Q So is it fair to say that, from what you’re saying the semi tipper has a hydraulic lift to it, and as it lifts up, the drums come out the back of it. A Yeah. … Q You told me yesterday that you used to get someone come out, they use to suck it out of the drums. A That’s right, they call in and suck it out of the drums. Yeah. Q Is there any reason why that didn’t happen on this occasion, to. A I don’t know. I don’t know why they don’t come out anymore. I don’t know. I really don’t know. Q Okay. Do you what, what did you think the impact is on burying this, the drums with oil at this location? What do you think the impact is of that? A No, no, it’s not good. Q When you say not good, what do you mean? A Well, I know it’s on our land, it’s still, never ever have done it before. Won’t do it again. Yeah. Q When you put it in the hole, did you have any concerns about oil leaking out of the drums? A Yeah I’m not happy about it. Q Okay. Did you know it was the wrong thing to do? A Yeah. The third interview 202 The third interview occurred about three months after the second. Again, Mr Rollond was cautioned. Early in the interview, Mr Lewis recounted what he understood to have been accepted by Mr Rollond in the previous interview. He then asked Mr Rollond, without leaving anything out, to tell him everything he knew about the burial of drums and oil on the Land. 203 Mr Rollond answered: A I didn’t know there was drums of oil buried. I knew that there was some tyres, which I told them to stop, not to bury any tyres. I knew that there was metal and … some half-drums and just squashed drums that were basically for scrap metal, but it just -- 65 of 142 -- [2025] SASC 200 B Doyle J 58 wasn’t worth taking any scrap metal down. I basically, I wanted to get the yard … cleaned up, because it was worrying me for some time that the yard was so messy. We were doing a lot of scrap metal last year, but just the price just crashed but I didn’t actually know there was any oil going into the hole. That’s yeah, basically it. 204 Later, he added: A … But you know, I feel bad of what happened, I should’ve been watching what was actually happening before you know, just letting basically everyone, just … throw things in there. I should’ve been keeping more of a control on things but yeah, you know, I feel bad about it. 205 The interview continued, with Mr Rollond saying that he knew of some items going into the pit. The following exchange then occurred: Q … Okay so Phil you were saying about tyres, drums, half drums which maybe contained bolts and nuts and so forth. A Yeah, and I was only aware of you know, a handful of tyres – nothing like what I’ve seen, that’s come out. Q So was that all of what you have indicated that’s come from this property here, to the hole? A Yeah. Q And whose decision was it to remove the tyres and the drums from the land here? A Well, I guess it’s got to be me. I’ve said that we’ve got to tidy up the farm. We’ve ... been having to refinance and the bank was doing a few inspections and they said that you know, the place was fairly messy, so I needed to tidy the place so you know, we could get better valuations. Q So how was it identified on the property here, what was to be buried? A Oh, it wasn’t really. I just … basically just yeah, said we had to start cleaning things up. Q Okay, so in terms of cleaning things up, who did you actually tell about the yard being needed to be cleaned up? A Pretty much everyone that was working for me then, at that stage. We didn’t have a lot of other work on, so I guess it was pretty much everyone that was working for me, but since then I’ve put a few more off. So yeah, you know, it was something I should’ve been managing better. Q So who was it at the time, back in February March, who was employed here that you would’ve told? A I can’t recall, I don’t know. Q Okay, but you recall that, you’ve said it was yourself who has indicated to your employees here that the bank has done some inspections, the yard has been untidy and that we need to clean it up. -- 66 of 142 -- [2025] SASC 200 B Doyle J 59 A Yeah. Q And so what exactly did you tell your staff then about what needed to be cleaned up? A Yeah, well, I can’t remember what I actually said, what I told you know. Just basically we had to start tidying things up. Make it look neater. Q So would that have included the tyres and the drums that you referred to which, you known, where used to contain bolts and nuts and so forth? A Not directly, no. Q Okay. Well what did you mean by it? A Well that sort of stuff shouldnt’ve went into a heap for … scrap metal, to eventually be taken for scrap metal. Q Okay. A I was chatting about the amount of scrap metal I had around the place, but you know, it’s just like we did … a hundred odd tonne last year, but just the price has come down that much that it just, we just couldn’t afford to cart it to Adelaide. Q Okay, so in relation to the waste or the metal and so forth that you know, you’ve told your staff that had to be cleaned up – what exactly did you want to be cleaned up then? A Yeah, mainly just well, the oil that should’ve went to, which we couldn’t find their name, but the crowd that used to come here and collect the oil was Marello’s or Morelli’s or something. But we finished up, we got hold of somebody else that come and pumped the oil out. A month ago, or three weeks ago, and you know they pay us for the oil, six cents a litre I think it was, but so you know, yeah it wasn’t done on you know … it was something that should never have happened because you know, we could’ve got paid for it and they would’ve pumped it out. But, and you know, I didn’t, I basically didn’t manage none of it properly, and that’s why it turned out to be such a mess. Q So just coming back to my previous question though, when you say that you told your staff to clean up the yard, what exactly did you want them to clean up? A Yeah, I don’t know. I don’t know. Q Was it your instruction that, as part of the clean up, material was to be buried? A Yeah, I’m not sure. 206 Whilst the answers have to be seen in context and with a recognition that Mr Rollond likely found these exchanges stressful, it must be said that the answers are unimpressive. Having in the first interview been clear that he had given instructions for a clean up but denied knowledge that to his knowledge it extended to oil in drums, and then in the second interview having appeared to accept responsibility for a decision to bury the oil (and purporting to be in a position to guarantee that that was the only occasion on which that had occurred), when Mr Rollond was asked what was to be encompassed by his direction to staff to -- 67 of 142 -- [2025] SASC 200 B Doyle J 60 clean up the yard (by dumping rubbish in the pit), he found it difficult to articulate what was intended. He was unable to give any detail of the way in which the instruction was communicated. 207 These difficulties were evident in the exchanges that followed. Q Who did you talk to? A Everyone, I can’t … point out anyone, but it would’ve been you know everyone that was working for me at the time. You know, I can’t even remember then what you know, would have to … give you who was working for us then. I honestly you know, can’t remember who I was talking to. Q Tell me how the discussion took place. A Oh, I can’t even remember you know … nah. I honestly, I couldn’t remember that. I wouldn’t remember whether it was you know, morning or afternoon, or you know what day it was. 208 There was then a discussion of the dumping of tyres and Mr Rollond repeated his earlier statement to the effect that he had been informed by one of the workers (‘Paul’) that tyres had been taken to the pit (which he referred to as ‘the dump’), with Mr Rollond then allegedly saying words to the effect of ‘they’d better not be’. 209 Later, the following exchange occurred: Q … In relation to the oil and the drums of oil, you indicated to me back on the 23rd of March when I interviewed you, you told me that a tipper trailer, which is just located outside the office here, was used to transport drums of oil, or drums, out of that area that’s known as the sandpit. And that it may have had 20 to 30 drums of oil on each occasion, that has been taken out to the pit. A I can’t recall that. Q When did you first become aware then, that drums and drums of oil were being taken to the pit? A Yeah I don’t know, I can’t remember. I don’t know. I honestly yeah, I don’t know. 210 Mr Rollond was then asked when he first learned that drums and drums of oil had been removed from the yard and dumped and he was not able to say. For instance, he could not say that it was the first or second day that he had spoken to the EPA. The following exchange occurred: Q Well you indicated to me in the last interview that drums were placed into the pit simply by tipping off the back of that tipper trailer. A I don’t know, I can’t remember that. Not that I can remember. I’ve got no idea. I can’t remember that. Q You indicated to me in the last interview that you thought approximately 60 to 90 drums potentially containing oil, you weren’t sure whether or not all those drums contained oil or not, were placed into that pit down there. Tell me about that. -- 68 of 142 -- [2025] SASC 200 B Doyle J 61 A Yeah I don’t know. I don’t know. I can’t remember. Yeah I don’t know. I can’t remember. Just had that much going on, just yeah. You know, yeah look … I’m not happy about something like that happening on a property that I’ve you know been in generations a long time, and you know, I just don’t know what’s … how I’ve let things happen. Q You told me previously that you recall James Reeves drove the truck, to take the drums and drums of oil from this area, your workshop area, your yard, out to the pit. Tell me about that. A I don’t know. I can’t even recall that. Like, James Reeves did a bit of work for me but that was on levelling out the pig manure. I don’t know, I can’t remember that. Yeah, and he hasn’t been back here since, but I really can’t remember, yeah I don’t know why I would’ve said that. I don’t know. Q So how often do you go out into your yard here? A Hard to say. Might be yeah, couple of times a day. You know, may not be for a few days, might be yeah, four or five times a day. You know, it just varies. Q So did you ever notice drums not being in your yard where they were previously? A No. You know, you know what it’s like out there, it’s a bloody mess, and you know, we’ve lost machines out of there that we haven’t realised for three or four weeks and you know like that’s an actual machine we’ve lost. So you know … I just wouldn’t be thinking about something like that. 211 The interview continued for some time. Later, when it was raised with him that in the second interview he had taken responsibility for the decision to bury oil in the pit, the following exchange occurred: A Well, I should’ve been managing things properly, like you know, I just haven’t been looking after the company properly and that’s why we’re in such a mess. So you know, I can’t blame anyone else. I can’t blame my mother, you know, so … Q I asked you who loaded up the tipper, and you said it was probably me. A Yeah well, you know damn well it wasn’t me. But look I’ve got to take the wrap for it. I bloody, you know, if I was looking after things properly, managing things properly, you know, it wouldn’t have happened. So yeah look, I’m not going to blame other people when I’m not managing them properly. Yeah, you know, let things slip … it’s pretty much all I can say about it. Consideration 212 In light of answers of the kind just set out, the appellants submit that the better reading of Mr Rollond’s statements in the second interview is that they were not in fact an acknowledgment that he had requested that drums containing waste oil be dumped in the pit or known that it was occurring. Instead, his responses were an acceptance that he, rather than his workers, should ‘take the blame’ for what he had subsequently learnt had occurred. -- 69 of 142 -- [2025] SASC 200 B Doyle J 62 213 Whilst some of the statements in the second interview could be so understood, in my view, there are also cogent reasons, particularly when considered in light of the other evidence in the case and the inherent probabilities of the matter, to treat them as revealing and reflecting a more direct involvement and responsibility. 214 Against the proposition that Mr Rollond’s concessions in the second interview were only an emotional acceptance of blame rather than a revelation of direct involvement or knowledge is the fact that Mr Rollond made statements suggestive of a more specific awareness of events. He referred to there probably having been two or three loads, the truck not being full, and the drums having been tipped off the back of the trailer into the dump. At the time of making that statement, fewer than 20 drums had been extracted in the course of the excavation. He said this happened probably two or three weeks ago. More relevantly, he effectively guaranteed that there were not other locations where liquid waste or oils had been buried, something he could not offer absent some knowledge of what his staff or contractors had been doing. As well, in the course of relating his knowledge of events, he proffered that ‘the banks wanted to close [him] up’. That answer was suggestive not of a person who was taking responsibility for the mistakes or misconduct of others but of a person who was explaining the pressures he had felt and which were part of the explanation for what had occurred. 215 Further, there are difficulties with the proposition that the second interview is to be seen as an aberration, with Mr Rollond’s answers in the first and third propositions being treated as the more consistent and reliable narrative. In the first interview, Mr Rollond appeared to accept he had been aware of some tyres having been buried in the pit, and gave an explanation that that was at least in part because he saw they were gone from the yard. He said, however, that no oily material or oily drums had been buried to his knowledge. When asked in the third interview when he first became aware of drums and drums of oil being taken to the pit, he could not say. If he had not intended by his comments in the second interview to convey earlier knowledge or responsibility for oily drums being dumped in the pit, then it would seem to follow that he must have become aware of that having occurred just before the second interview. Yet, in the third interview, he was not able to give a meaningful answer to the question of when he had first learned of oily drums being taken to the pit. He also said in the third interview that whilst it varied, he would sometimes be in the yard four or five times a day. Despite this, and despite what he had said about noticing tyres missing in the first interview, he said in the third interview he did not notice oil drums being missing from the yard. He was also quite unable in the third interview to give any sensible explanation of the way in which he had conveyed to his workers or contractors that the yard needed to be cleaned up. If it was not the tyres and drums and oil filters and cartridges, what was Mr Rollond expecting would fill the pit? 216 I do not suggest that these forensic observations are themselves definitive. Ultimately, the statements made across the three interviews need to be considered in the context of the other evidence in the case and the inherent probabilities. -- 70 of 142 -- [2025] SASC 200 B Doyle J 63 217 If, as is clear, a very large number of drums (many containing oil) were deposited in the pit, and if, as Mr Rollond indicated, he had wanted the yard cleaned up, it is inherently unlikely that: • a number of workers (with no personal incentive to do so) would have taken it upon themselves, without instruction or approval, to dump a large quantity of drums containing used oil in a pit (notwithstanding the fairly obvious risk of environmental harm); and • Mr Rollond, who was for all practical purposes the hands-on boss of the enterprise, would not have been aware this was occurring. 218 The farming and other operations being conducted from the Land64 were not so vast that the owner or manager might fail to be aware of the movement of a fairly significant quantity of oil drums involving multiple trips. The photographic evidence from the EPA’s attendance on 22 March 2016 fairly clearly shows that near the area from which oil drums were collected there was what appeared to be fresh sand or soil and signs of truck tracks.65 The trailer that was evidently used to move at least some of the oily drums was filthy.66 When Mr Lewis arrived at the yard on 22 March 2016, the tailgate of the trailer was open and the trailer contained a drum, rubbish and what looked and smelt of an oily sludge.67 If, as Mr Rollond said, he was keen to have the yard cleaned up in advance of bank re-valuations, it is unlikely he would have been unobservant of these things.68 219 Further, if it is accepted, consistent with the information given by Mr Keatley to EPA officers on 21 December 2017, that he had been asked by Mr Rollond to make the pit bigger and had spent several hours on an excavator doing so,69 it may 64 At the relevant time, THP had 12 employees or contractors: Exhibit I3, Tab 60. 65 Exhibit I4, Tab 85, pp 380G and 380H. Mr Lewis described a surface that appeared ‘to have fresh soil laid on the surface of the ground’: Tr 103. Mr Damian Vears, a senior investigator at the EPA, gave evidence of what he described as ‘fresh truck tracks’: Tr 417. 66 Exhibit I4, Tab 85, pp 380E and 380F. 67 Tr 103. 68 In making these observations, I am not treating any exculpatory statements in the first and third interviews as lies which are circumstantial evidence of guilt. I am simply considering the credibility and reliability of statements made by Mr Rollond. 69 Exhibit I52 and Exhibit MFII53, adopted as true and correct by Mr Keatley: Tr 1563.11. The witness subsequently resiled or equivocated in respect of aspects of what he had said during the interview. Having read the entirety of Mr Keatley’s evidence, it is clear he was a very unimpressive witness. He resiled from his evidence that what had been said about the use of a blue 12 tonne Kobelco excavator to expand the hole that was later the subject of a clean up following the EPA’s attendance. Whilst he accepted he had been told by Mr Rollond to enlarge a hole he said it was with a 6 tonne Hitachi excavator and was not the same location that was later the subject of a clean up. This was after being shown Exhibit I25, which depicted a similar looking excavator next to the hole at a time it contained numerous tyres. The witness claimed not to be able to clearly identify tyres in the images, even with the aid of a magnifying glass. That evidence detracted from his credibility. His evidence as to why he had told EPA officers in December 2017 that the area he had later levelled off was the same area he had earlier excavated was simply ‘I don’t know’: Tr 1628.13 and see also Tr 1637-1638 (‘I’ve made big mistakes here’). When speaking to the EPA officers he described the location of the pit he excavated as being near a reedy swampy area. The proposition that that was a wrong recollection, and that by the time of trial in 2022, Mr Keatley had a clearer recollection, is fanciful. His claim at Tr 1639.25 that he gave -- 71 of 142 -- [2025] SASC 200 B Doyle J 64 be accepted that Mr Rollond was anticipating disposing of a large quantity of material in that pit. However, because the status of that aspect of the evidence is unclear,70 I indicate my conclusions are not dependent upon that observation. 220 Further still, if it is accepted that, very shortly after the drums were dumped in the pit, Mr Rollond directed that the pit be covered and pig manure spread and levelled, it is inherently unlikely that he would have given that direction without some awareness of the state and extent of the clean up that he had wanted to take place. In the course of satisfying himself that the clean up was at a point where the pit should be covered up, it is hard to imagine that he would not have been aware of the absence from the yard of a significant number of drums containing oil. If he was aware of that, there is no reason to suppose that he would have believed they had been disposed of in some other, less problematic way, without his knowledge. 221 The proposition that Mr Rollond directed the workers to clean up the yard including the drums containing used oil is also consistent with Mr Reekes-Parsons’ evidence. The judge’s treatment of that evidence will be separately considered under appeal grounds 1 and 2. 222 Subject to a consideration of the other grounds of appeal, I am not persuaded that the judge erred in finding, partly in reliance on the concessions made in the second interview, that Mr Rollond directed or in any event knew that his direction to clean up the yard was being interpreted as an instruction to dispose of the drums containing oil in the pit. 223 The appellants contend, however, that even if that finding might properly be made beyond reasonable doubt, the judge erred by treating Mr Rollond as having made a distinct admission that he gave a specific instruction in relation to the drums. That is the gist of the complaint in most of the particulars of appeal ground 9 extracted earlier. 224 I accept that in several of the paragraphs referred to in the appellants’ particulars in respect of appeal ground 9 the judge expressed himself in terms which could be read as overstating what Mr Rollond had in terms admitted to in the second interview. However, reading the passages as a whole, I consider that the issue is one of inapt expression in the Reasons, rather than rank error. 225 The judge’s reasons, as extracted at some length earlier, and especially at Reasons [359]-[368], [379] and [413], reveal an appreciation of the differing the answers ‘under pressure’ was not credible. When it was put to him that nothing emerging from the recording suggested he was under pressure, he said ‘Well, it didn’t sound like any pressure but when you’ve been under what I’ve been under, there was pressure’: Tr 1642.38-1643.1. The far more likely explanation is that at the time he gave the interview he was considering working elsewhere but, by the time of trial, he in fact remained in the employ of Mr Rollond. That proposition was put at Tr 1647. Further, the location in which he had claimed to have dug a hole did not accord with photographic evidence, as explained at Reasons [58]. 70 Tr 1731-1732, cf. Tr 1563.11. -- 72 of 142 -- [2025] SASC 200 B Doyle J 65 interpretations of the interviews urged by the parties and a familiarity with the precise phrasing or framing of some of Mr Rollond’s answers. It is most unlikely that the judge simply misapprehended the terms or sense of any individual answer given. The judge referred to the answers in the second interview as making more sense when considered in the context of the balance of the evidence (Reasons [375]). 226 In my view it is reasonably clear that the judge appreciated that Mr Rollond’s statements in the second interview did not in terms go as far as stating that he had on a particular occasion or occasions told staff or contractors to dispose of drums containing oil in the pit using the tipper. Rather, in my view, the judge treated the second interview as a truthful admission of knowledge of and responsibility for the fact that his instruction to clean up the yard was intended and understood as extending to not only the tyres and other waste but drums filled with used oil. Put another way, the judge treated the statements in the second interview as giving the lie to the earlier interview in which, whilst acknowledging that he had instructed that a clean up occur, he said he was only aware of some tyres, and not used drums containing oil, being taken to the pit. Treatment of evidence of Mr Reekes-Parsons (ground 1) 227 Mr Reekes-Parsons gave evidence that he had been a contractor for THP. He said that a couple of weeks before the EPA attended he had been involved in loading up a trailer (identified from photographs as the trailer that was observed by the EPA to be heavily stained with oil) with ‘rubbish, drums, tyres’ including what he described as 205 litre drums (approximately equivalent to 44-gallon drums). Those drums contained old oil and old water, some of which were empty, some full and others half-full. He loaded them into the trailer using an excavator (a ‘drum grab’). He stated that he was accompanied by Matthew Rollond and Kevvy Skeyhill. Later in his evidence he said Mr Doddrell was also involved in helping clean up the yard. 228 He said it had been Mr (Phil) Rollond who told him to put the 205 litre drums and the other things into the tipper. He later referred to having been told ‘just clean up the yard’. 229 Mr Reekes-Parsons said it had been Matthew Rollond who drove the truck out of the yard. He was told by Mr Rollond to go to the sand pit and ‘knock all the heaps over and level the paddocks out’. He did that using a dozer and/or a backhoe. 230 Before he started pushing sand into the hole he observed tyres, rubbish and drums there. He could not say off the top of his head how many drums he observed, but he estimated some 50 drums. He affirmed that it had been Mr Rollond who instructed him to push sand into that pit. -- 73 of 142 -- [2025] SASC 200 B Doyle J 66 231 In cross-examination Mr Reekes-Parsons was played the recording of an interview of him conducted by EPA officers in which he had denied any involvement in or knowledge of burial of drums containing drums.71 232 He said that at the time he had been scared to say anything. He disagreed with any suggestion he had lied to protect his father, saying his father had nothing to do with it. He said he had just been a kid at the time and was scared of being prosecuted and worried about the ‘safety of losing my job, scared of my boss’. It emerged that he had been provided with a letter from the EPA indicating they would not prosecute him.72 233 The appellants made two main contentions under appeal ground 1. The first was that by stating that he had, when assessing the evidence of Mr Reekes-Parsons, directed himself that he had been an accomplice, the judge wrongly assumed the truth of Mr Reekes-Parsons’ evidence. The second was that the reasons did not in any event show that the judge had properly directed himself about the dangers of Mr Reekes-Parsons’ evidence (assuming for that purpose that he was to be considered an accomplice). 234 In this State, the common law position prevails with respect to the giving of a corroboration direction relating to the evidence of an alleged accomplice. 235 There is no requirement at law that an accomplice’s evidence may only be acted on if corroborated, but a judge must warn a jury of the danger of acting on the uncorroborated evidence of accomplices who give inculpatory evidence against an accused,73 and identify for the jury the main sources of unreliability and so explain the reason why it is dangerous to act on the uncorroborated evidence.74 The main source of unreliability is the tendency to minimise the accomplice’s role and exaggerate the role of others, as explained in Kanaan v The Queen.75 The judge must identify the evidence which is capable of providing corroboration.76 In order to be corroborative, the independent evidence need not extend to every facet of the crime, but must support the accomplice’s evidence in a material particular.77 236 If it is unclear whether a person is an accomplice, the judge should inform the jury that they may disregard the accomplice warning if they are satisfied that the person is not an accomplice and, sometimes, the jury may need to be given assistance on the question.78 71 The audio of the interview is Exhibit D32 and Exhibit MFI D33 comprises a transcript of the interview. 72 The letter dated 6 May 2022 stating that Mr Reekes-Parsons would not be prosecuted was tendered as Exhibit I34. 73 Pollitt v The Queen (1991) 174 CLR 558; (2004) 211 ALR 116 at 599 (Dawson and Gaudron JJ). 74 Jenkins v The Queen (2004) 79 ALJR 252 at [30] (Gleeson CJ, Gummow, Hayne, Hayne, Callinan and Heydon JJ). 75 [2006] NSWCCA 109 at [165] (Hunt AJA, Buddin and Hoeben JJ). 76 R v Sherrin (No 2) (1979) 21 SASR 250 at 255-256 (King CJ, White and Cox JJ agreeing). 77 R v Murch (2014) 119 SASR 427 at [61] (Vanstone, David and Parker JJ). 78 R v Matthews [2005] SASC 289 at [36]-[44] (Duggan J, Debelle and Layton JJ agreeing). -- 74 of 142 -- [2025] SASC 200 B Doyle J 67 237 In the case of a trial by judge alone, it may not be necessary for the judge to direct themselves as prescriptively as might be the case had they been sitting with a jury. It nevertheless remains important that the judge proceed in a way that is consistent with the warning. If the judge’s reasons do not reveal, expressly, or by necessary implication, that the judge has, in effect, heeded the essence of the warning that would have been required to be given to the jury, error may be established.79 238 As to the first main contention, I am not persuaded that there was an error of law or a miscarriage of justice arising from the judge directing himself on the basis that Mr Reekes-Parsons was an accomplice, without expressly stating that that would only be the case if he were, at least in some respects, telling the truth about being involved in the disposal of the drums. 239 It is one thing to recognise that if a judge directs a jury that they must scrutinise a witness’ evidence on the basis that they are an accomplice, the jury might be wrongly encouraged to assume the truth of the witness’s evidence, if that is the basis for a conclusion that they are in fact an accomplice. But in the case of a judge sitting alone, the judge is hardly likely to mislead themselves in that respect. The judge’s reasons show that he well understood that Mr Reekes- Parsons’ evidence was generally challenged, and it is apparent that the judge gave that matter consideration. It is unrealistic to think that he assumed, or was influenced to accept the proposition, that parts of his evidence were true simply as a result of having labelled him an accomplice for the purposes of giving himself a direction. 240 In my view, a fair reading of the relevant passage of the judge’s reasons is that the judge directed himself that he needed to bear in mind, before he could accept the parts of Mr Reekes-Parsons’ evidence that inculpated the appellants (and, particularly, Mr Rollond), that if, as he claimed, he had been involved in the disposal of the drums, he had himself potentially committed an offence, giving rise to a credibility risk in respect of the surrounding circumstances and any finger- pointing which could lessen his culpability. 241 As to the second main contention, the appellants contend that the judge’s reasons do not permit a conclusion that the judge acted consistently with the warning that would have been appropriately given to a jury. It is correct that the judge did not give himself a direction in detailed terms, but he did say that he had directed himself that Mr Reekes-Parsons had been an accomplice and, in doing so, made reference by way of footnote to Pollitt v The Queen80 and Kanaan v The Queen.81 Although the latter case arose under the uniform evidence legislation, the part of the judgment to which reference was made was concerned with the risks 79 Betts v Hardcastle (2001) 23 WAR 559 at [40]-[48] (Roberts-Smith J), Fleming v The Queen (1998) 197 CLR 250. 80 (1991) 174 CLR 558. 81 [2006] NSWCA 109. -- 75 of 142 -- [2025] SASC 200 B Doyle J 68 associated with the evidence of an accomplice and, particularly, one who had been given an assurance by a prosecuting authority.82 242 In my view, these references are sufficient to show that the judge was alive to the need to treat the evidence with caution for the reasons identified in those authorities, especially if it was uncorroborated.83 If the reasons fall short, that is in relation to an articulation of the evidence capable of corroborating Mr Reekes- Parsons’ evidence. But as to that, in my view, it is appropriate to look more broadly at the reasons. If the judge elsewhere accepted evidence that, properly analysed, was corroborative, I do not consider that any error associated with a failure to articulate what amounts to corroboration involves material error, or if it does, I would not consider that, standing alone at least, the error would warrant allowing the appeal. 243 The respondent submits that the important features of Mr Reekes-Parsons’ evidence are corroborated by other independent evidence. • In respect of Mr Reekes-Parsons’ evidence that he, with the help of Matthew Rollond and Mr Skeyhill, loaded up a tipper truck several times with oily drums and other rubbish, the respondent submitted that this was partly corroborated by Mr Doddrell’s evidence (which was accepted by the judge) of seeing the truck driving out of the yard laden with drums (Reasons [34], [382]) and, subject to the construction taken of it, Mr Rollond’s second interview. • In respect of Mr Reekes-Parsons’ evidence that he had been instructed to by Mr Rollond to clean up the yard, this was corroborated by what Mr Rollond had said in his interviews. • In respect of Mr Reekes-Parsons’ evidence that Mr Rollond had been around when oil drums were loaded onto the tipper truck, there is debate (addressed under appeal ground 2) about whether that was the effect of Mr Reekes- Parsons’ evidence but it was, in the respondent’s submission, consistent with Mr Doddrell’s evidence. 244 In my view, the judge accepted other evidence and made findings that in relevant respects corroborated Mr Reekes-Parsons’ evidence.84 Accordingly, no material error arose from the fact that the judge did not distinctly identify in the Reasons the evidence considered to be capable of corroborating that evidence. 82 The particular paragraph (paragraph [165]) cited from Kanaan v The Queen [2006] NSWCA 109 is referred to in the South Australian Criminal Trials Bench Book at [276] in the part dealing with accomplice warnings. 83 This case is more analogous to R v HS (2004) 90 SASR 28 at [62] (Besanko J) (cf at [100] (Anderson J)) than it is with Betts v Hardcastle (2001) 23 WAR 559. 84 It is also the case that in a part of his affidavit which he did not resile from, Mr Keatley described Mr Reekes-Parsons cleaning up the yard: see Exhibit I56 at [1]-[18]. -- 76 of 142 -- [2025] SASC 200 B Doyle J 69 Error in finding Mr Reekes-Parsons had said Mr Rollond was present during loading of drums (ground 2) 245 The appellants submit that the judge erred by finding (at Reasons [411], extracted earlier) that both of Mr Reekes-Parsons and Mr Doddrell had said they had seen Mr Rollond in the yard at the time the drums were loaded. They submit that the finding at Reasons [395] lacked an evidentiary foundation. 246 The appellants emphasise that whilst Mr Doddrell did say he had seen Mr Rollond at the rear of the yard on the morning that some oil drums were driven away in a tipper truck, he had not himself claimed to see drums being loaded and that his evidence was equivocal and unreliable. Mr Reekes-Parsons had not given evidence that Mr Rollond was physically present when the drums were being loaded. 247 It is useful to briefly summarise Mr Doddrell’s evidence. He was a mechanic employed by THP. He said that he heard the excavator running towards the rear of the yard. He was curious as to why and walked out of the workshop to see, towards the rear of the yard, Matthew Rollond, ‘Phil’ (Mr Rollond) and Luke ‘Stewart’ (Mr Reekes-Parsons) ‘down there’, where drums were being loaded onto a truck. The truck subsequently left the yard. He thought Matthew Rollond was driving the truck on the ‘first load’. When it returned it was making a rattling noise suggesting it was empty. On a subsequent trip undertaken by the truck he saw three drums across the back and, when the truck bumped, a little bit of oil came out the back. The truck sounded as though it was loaded. This was a couple of weeks before the EPA attended. 248 In cross-examination, by reference to what he had first said when EPA officers attended on site, he appeared to accept that he may not have actually seen drums being loaded onto the tipper. It was put to him that, from where he was standing, he could not actually see who the people were who were down by the excavator and the truck. He agreed he could not see their faces, but said he recognised their shape or form, and confirmed it was Mr Reekes-Parsons, Matthew Rollond and Mr Rollond. When it was suggested to him that Mr Rollond was not down there he said ‘Must have been someone who looked a lot like him’. Later in the cross-examination, it was put to him that Mr Reekes-Parsons’ father (Mr Rob Stewart) had a similar build to Mr Rollond at the time, in terms of height and build, but it was not specifically put to him that the person he had seen had been Mr Rob Stewart. In the course of cross-examination he also said he saw Mr Reekes- Parsons in the truck. 249 In my view, whilst Mr Doddrell ultimately wavered on whether he actually saw drums being loaded, the effect of his evidence was that he saw someone he recognised as and believed to be Mr Rollond down by the excavator when it was running and shortly before a truck he observed to be carrying drums containing oil departed from the area. In those circumstances there was no error in describing -- 77 of 142 -- [2025] SASC 200 B Doyle J 70 the effect of Mr Doddrell’s evidence as being that he observed Mr Rollond in the vicinity when the drums were being loaded. 250 It was, however, not correct to suggest that Mr Reekes-Parsons’ evidence was to that effect, albeit it was not necessarily inconsistent with it. I return to the significance of the error below. Erroneous consideration of Matthew Rollond’s evidence (ground 4) 251 Appeal ground 4 complains that the judge erred in his consideration and assessment of Matthew Rollond and provided inadequate reasons why he accepted the evidence of Mr Reekes-Parsons and Mr Doddrell in so far as it was directly contradicted by Matthew Rollond’s evidence (which the judge did not say he rejected). 252 Matthew Rollond was presented as a witness by the informant but was not asked any substantive questions in chief. When questioned by the appellants’ counsel as to whether there was an occasion when he drove a truck loaded with oil barrels, whether his father had ever asked him to load up a truck with oil barrels, or whether he ever saw a heap of oil drums in a paddock or pit or a hole in a paddock of the farm, he answered in the negative. 253 As has been noted, Mr Doddrell said he saw Matthew Rollond driving a truck with oil drums in it and Mr Reekes-Parsons said that Matthew Rollond had been with him in the yard when he loaded up the truck with oil drums. 254 As appears from Reasons [391]-[393] as earlier extracted (and also Reasons [43]), the judge was obviously alive to the effect of Matthew Rollond’s evidence and that it was inconsistent with the evidence of Mr Doddrell and Mr Reekes- Parsons. 255 The appellants’ complaint is encapsulated by the following written submissions: [84] The trial Judge failed to make any credibility finding in respect of Matthew Rollond, and provide any explanation for why he … had not made any finding about his evidence. Given the importance of Matthew Rollond’s evidence, the trial Judge needed to do so. The trial Judge’s failure to do so was an error of law. His reasons are inadequate. [85] The trial Judge said at [393] that as Matthew Rollond said he had not been present in the yard, accordingly, he could not have assisted him about who had been present. This missed the point entirely. [86] If Matthew Rollond was not present when the things the other witnesses said had happened whilst [he] was present, and Matthew Rollond’s evidence was accepted or at least not rejected by the trial Judge, that affected the credibility of the evidence of Doddrell and Reekes-Parsons and the ability of the trail Judge to accept their evidence and make findings of fact beyond reasonable doubt in reliance upon it. -- 78 of 142 -- [2025] SASC 200 B Doyle J 71 256 The submission made in paragraph [86] anticipated the respondent’s written submissions in respect of this ground of appeal, namely that the reason why the judge gave no explanation of why he had not accepted Matthew Rollond’s evidence was because he had in fact accepted the evidence. 257 In the course of oral submissions the appellants’ submission was to the effect that the judge was obliged to state with clarity whether he rejected or accepted Matthew Rollond’s evidence and that the reasons were inadequate accordingly. I would not accept that proposition, because I do not accept that the judge was required to make a binary choice between accepting and rejecting Matthew Rollond’s evidence. The obligation to give reasons cannot rise higher than the required subject matter of the reasoning in a particular case. 258 There are of course cases in which a verdict of guilty cannot be reached without having positively accepted a witness’ evidence, be they the complainant or a key witness. It may also be that a finding of guilt cannot be reached without distinctly rejecting the accused’s account, if it discloses an innocent hypothesis.85 But a verdict of not guilty may often be reached in a case turning on a complainant’s evidence in circumstances where the trier of fact neither positively accepts nor rejects that witness’ evidence. Ultimately a trier of fact has to decide whether they can make findings to the requisite standard urged by the party who carries the onus of proof of an issue. They need not accept or reject every contentious piece of evidence. As is observed in Cross on Evidence:86 [T]he process of trial fact finding is not to be formalised. … All the evidence must remain available for such use as is properly to be made of it. But that does not mean that each of item of evidence must be reviewed and considered formally and step by step. What is required will depend on the significance each item of evidence has in relation to the issue of fact then being considered. 259 Indeed, even in a civil case, where the balance of probabilities prevails, a judge is not bound always to make a finding one way or the other on an ultimate issue, much less a particular item of evidence. In a passage cited with approval by the Court in Kuligowski v Metrobus,87 Lord Brandon of Oakbrook said:88 [T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. 260 The contrary position reflects a misconception of what proof on the balance of probabilities requires. It requires not an assessment of the relative preponderance of evidence produced by the proponent over that produced by its 85 Although, even then, the rejection of that evidence will entail a consideration of the other evidence: Mead (a Pseudonym) v The King [2025] SASCA 3 at [56] (S Doyle and Bleby JJA, B Doyle AJA). 86 Heydon, Cross on Evidence, 14th Aust ed (2024), p 436 [9125] (‘Evaluation of factual finding’). 87 (2004) 220 CLR 363 at [60] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). 88 Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955. -- 79 of 142 -- [2025] SASC 200 B Doyle J 72 opponent, but a sense of persuasion of a fact on balance including with reference to the inherent probability of the fact having occurred.89 261 The respondent submitted that the judge’s acceptance of Matthew Rollond’s evidence explained why the judge observed, in the final sentence in Reasons [392], that the witnesses had been giving evidence about things that had occurred in 2016. In other words, what the judge was expressing was that although acceptance of Matthew Rollond’s evidence meant that to some extent, Mr Reekes-Parsons’ account and Mr Doddrell’s account were inaccurate, this did not cause the judge to doubt the essential proposition that they had been involved in and observed, respectively, the loading and carting of the drums from the yard to the pit, and, further, that the loading of the drums was in the presence or at the direction of Mr Rollond. The judge’s observation that Matthew Rollond could not have assisted him about who had been present was to be understood in that light. In other words, the judge was saying that accepting that Matthew Rollond was not there did not preclude that Mr Rollond was. His evidence, standing alone, was neutral as to whether Mr Rollond had been present or had directed the loading of drums containing oil onto a trailer for dumping elsewhere on the Land. 262 In my view, the preferable view of the judge’s reasons is that he neither positively accepted nor positively rejected Matthew Rollond’s evidence. His comment about the passage of time since 2016 was made in respect of ‘[a]ll of’ Matthew Rollond, Mr Reekes-Parsons and Mr Doddrell. In my view, the judge’s reasons are to be understood as explaining that even allowing for the reasonable possibility that Matthew Rollond’s evidence was correct, it did not cause him to doubt the evidence of Mr Reekes-Parsons and Mr Doddrell with respect to the matters identified (even though it might follow that surrounding details they had recalled were wrong on that hypothesis). Of course, if Matthew Rollond was wrong (because he was mistaken or perhaps consciously or subconsciously protecting his father), the position was a fortiori. That is a legitimate way to reason. 263 I am satisfied that it is apparent from the paragraphs in question and those that followed (extracted earlier) that the judge ultimately took the view that: • whilst the passage of time might explain an error (if there was one) about the presence and involvement of Matthew Rollond, it was less likely that Mr Reekes-Parsons could be mistaken about his own involvement and why he loaded the drums onto the tipper for disposal and then ultimately covered up the pit; • the observations of Mr Doddrell were otherwise essentially consistent with the balance of the evidence; 89 Heydon, Cross on Evidence, 14th Aust ed (2024), p 406-407 [9015] (‘Failure to meet a standard does not establish contrary’). -- 80 of 142 -- [2025] SASC 200 B Doyle J 73 • the essential elements of both witness’ accounts and the common theme that Mr Rollond was involved was consistent with the inherent probabilities and the construction that the judge was inclined to place upon the statements made by Mr Rollond in the second interview. 264 In my respectful view, the judge’s reasons were not inadequate in showing that this was the judge’s reasoning process. The judgment has to be read as a whole. When that is done, it is apparent that the judge’s treatment of individual parts of the evidence was influenced by its overall consistency with other aspects of the evidence. That is as it should be. Findings about timing and number of drums dumped in and retrieved from the pit (grounds 7, 8 and 6) 265 Appeal ground 7 complains that the judge erred in finding beyond reasonable doubt that all the oil drums found in the pit had been deposited by THP in a single event or effort in the weeks of or leading up to March 2016 (Reasons [333]), and that all the drums excavated had been deposited in the pit about three weeks before 22 March 2016 (Reasons [420]). 266 The appellants contend that the informant’s evidence, taken at its highest, could only prove that about 40 to 60 oil drums had been deposited in the pit in the weeks of, or leading up to, March 2016. Their further submission is that the only case they came to trial to meet was that all the drums that were excavated had been deposited in the period shortly prior to March 2016. 267 The appellants submit that: • Mr Doddrell’s evidence (albeit framed only as a rough estimate) was that there had been about 60 drums down at the rear of the yard before March 2016. Whilst his evidence was consistent with the tipper truck making more than one journey from the yard, his evidence did not clearly suggest more than two such trips; • Mr Reekes-Parsons had agreed with an estimate of 60 drums in the rear of the yard in cross-examination; • the Google Earth images of the rear of the yard as at 12 November 2015 and 7 January 201690 appear to be consistent with approximately that number of drums being located towards the rear of the yard at that time; • when EPA officers attended on 22 March 2016, they saw about 20 drums remaining at the rear of the yard;91 90 Exhibit I24, images 1A and 2A. 91 This was the effect of the evidence of Mr Lewis: Tr 94, Tr 104. The photographic evidence (Exhibit I4, Tab 85, p 380H) might suggest that there were slightly fewer than 20 drums, but I have proceeded on the basis of Mr Lewis’ evidence. -- 81 of 142 -- [2025] SASC 200 B Doyle J 74 • the statements by Mr Rollond in the second interview, taken at their highest, did not support any more than 60 oil drums being taken from the rear yard and put into the pit in around March 2016. 268 As to the last of these propositions, some care is required. As set out earlier, Mr Rollond referred to ‘probably about two or three’ loads and had also said that there might have been about ‘30 odd’ drums in a tipper even when not fully loaded. It is correct that when the range of 60 – 90 drums was put to him, he said ‘Could be 60, yeah’, but read as a whole the evidence is equally consistent with an acceptance that up to 90 drums were transported from the rear of the yard. 269 More significantly, perhaps, Mr Rollond appeared to suggest that the drums had been buried ‘probably two or three weeks ago’ and he proffered that ‘there definitely hasn’t been oil buried before’. That could be taken as revealing some knowledge that however many drums had been dumped it had occurred in recent times. 270 Relatedly, appeal ground 8 complains that the judge erred by finding that the evidence had established that there had been no oil drums present in the pit as of January 2016 (Reasons [417]). The appellants submit that the only evidence which could possibly demonstrate that fact was the Google Earth aerial photographs,92 which I have decided were admissible. It is said they were incapable of providing what was beneath the surface area of the paddock where oil drums were subsequently found. 271 Subject to appeal ground 6, which contends that the judge ought not to have found that more than 145 drums were later retrieved from the pit, it is clear that considerably more than 40, 60 or even 90 drums were deposited in the pit at some stage. In the respondent’s submission, there was a basis to conclude that there had not been any (or at least not a material number) of oil drums in the pit before it was filled and the area levelled in the early part of 2016. It therefore follows, in the respondent’s submission, that more than 60 – 90 drums, and between 145 and 183 drums, were deposited in the weeks or months immediately prior to March 2016. Whilst the evidence did not directly reveal where the drums had come from, the compelling and only rational inference was that just as Mr Rollond had known about and was responsible for the dumping of the drums loaded into a tipper from the rear of the yard, he was also responsible for the balance. 272 Appeal ground 6 contends that the judge erred by finding that at least 183 44- gallon oil drums were removed from the pit (Reasons [179]) when the evidence and contemporaneous notes of the persons in charge of the removal of the drums established that 145 drums were removed. 273 The appellants accepted that, in isolation, success on appeal ground 6 would not see the convictions in respect of counts 1 and 4 overturned. They 92 Exhibit I25, images 2, 2A, 3 and 3A. -- 82 of 142 -- [2025] SASC 200 B Doyle J 75 acknowledged that whilst the findings that might underpin an appropriate sentence might be affected, it could not be said that any of the findings relevant to the elements of guilt of an offence against s 79(1) of the EP Act would turn on the difference between 145 and 183 drums. They did contend, however, that if the evidence could only justify a finding that some 60 or so drums had been dumped, then this would bear on the safety of the judge’s findings with respect to ‘serious environmental harm’. 274 These three appeal grounds are somewhat interrelated. It is convenient to consider in more detail some of the evidence relevant to their disposition. Evidence relevant to these grounds 275 As has been explained, amongst the Google Earth images tendered by the informant at trial were photographs depicting: • the yard area between 2015 and 15 October 2017;93 and • the pit area between 6 November 2013 and 6 October 2016.94 276 Focusing on the blown up photos of the rear of the yard on 21 November 2015 and 7 January 2016, I would accept the appellants’ essential submission that in the area located between three large trees, they depict approximately 60 drums. It is difficult to be precise. There may be more barrels or drums scattered around the vicinity, and it is possible that some barrels might have been stacked vertically. The number could well be higher than 60, but is very unlikely to exceed 100 in my assessment. 277 Mr Lewis gave evidence of observations of oil ring marks in other locations around the yard either on the ground or on pallets which would support a finding that there were other drums or barrels located in smaller numbers around the yard.95 278 Turning to the photographs of the pit area, in my view, the larger scale images bearing the dates 12 November 2015 (image 2A) and 7 January 2016 (image 3A) are of a fair to good quality, so far as satellite images go, and are clearer in resolution that the images of the same area bearing the dates November 2013 (image 1) and later in April and October 2016 (images 4 and 5). 279 Image 2A shows a pit of a smaller area (and likely a lesser depth) than image 3A. Machinery, likely an excavator,96 can be seen in image 2A, in the vicinity of the north eastern corner of the pit. In image 2A, a number of tyres are visible. It 93 Exhibit I24. 94 Exhibit I25. 95 Tr 104-109. 96 There is a similarity between the machinery shown and the excavator depicted in other better photographs taken by the EPA and which was identified as a Kobelco excavator once owned by Mr Reekes-Parsons (Stewart) or his father and often used on the Land. See, eg, the evidence of Mr Keatley on this topic at Tr 1596.26. There was evidence to suggest that when the Stewarts had to sell their machinery, some of it including an excavator ended up at the Land: Tr 1595-1597. -- 83 of 142 -- [2025] SASC 200 B Doyle J 76 is possible some other rubbish is present, but not in significant quantities. It is also likely that there is some pooling of water in a southern pocket of the pit. In image 3A, the pit is larger and, consistent with that, there appear to be larger piles of removed soil in the area surrounding the pit. In this image, there is a greater number of tyres visible than in image 2A. There is also an area of the pit that contains water, on the north eastern side of the pit. It is not possible to tell whether, below the water, there are more tyres. Again, it might be that there is other rubbish, possibly even including some drums, in the pit, but the image is not clear enough to permit a firm conclusion about that. What can be said is that if there was a material quantity of drums present in the pit as of early January 2016, they must have been located below the tyres or below the water level, and thus, in either case, well below the level of the tyres. 280 It is then necessary to turn to the evidence about what was found when the pit was excavated. Mr Lewis gave evidence about the steps taken, and observations he made, during the excavation. He was the one directing the works on 23 March 2016. Later, he was observing works carried out by LBW including with the assistance of THP contractors and machinery. 281 On 23 March 2016, a number of test holes (seven in total) were dug using an excavator to a depth of about two to three metres. It was in the seventh hole that a different colour of soil was detected in the sandy loam layer. Black and grey mottling was observed in the soil profile. When that soil was examined, hydrocarbons could be smelt. Photographs show that 44-gallon drums covered in oil were located.97 So was a tyre and some vehicle oil filters. 282 The hole was then lengthened to determine the extent of the area in which relevant material was deposited, and was dug to the depth of the clay layer. As the process continued, more drums were located. They were in various conditions. Some were contorted, old and rusted, and others appeared to have no caps or plugging of the ends. The drums appeared to be leaking black and odorous oil. The digging continued until 19 drums and 11 vehicle tyres had been removed. Mr Lewis became concerned because groundwater was flowing into the pit from the walls of the pit, above the clay layer. It was on this occasion that Mr Rollond arrived in his ute and the ‘second interview’ took place while he was in the vehicle. 283 Mr Lewis attended the site again briefly the following day and again on 8 April 2016, when he issued the ‘clean-up order’. The photographs taken on that occasion show,98 and Mr Lewis by his oral evidence confirmed, that the pit area remained in essentially the same state that it had been in March 2016. 284 Mr Lewis’ next attendance was on 11 May 2016. By this stage, Mr Rollond had engaged a consultant and was planning to commence a clean-up operation. The consultant was LBW. The actual digging was carried out by Mr Reekes- 97 Exhibit I4, Tab 86, pp 388A-388F. 98 Exhibit I4, Tab 88. -- 84 of 142 -- [2025] SASC 200 B Doyle J 77 Parsons using an excavator that had previously been on site. The process involved enlarging the (seventh) pit that had been dug earlier in March. A black plastic bund was established adjacent to the test pit. Mr Lewis observed drums being extracted from the pit as it was dug, and they were leaking oil. The oil coming out of some drums was thick, in other cases, less so. There were drums, tyres and some vehicle parts located. Mr Lewis’ evidence was that he counted 36 drums, 19 of which had been extracted earlier in March. 285 Mr Lewis returned on 12 May 2016. The works appeared to have migrated to a different phase. Whereas the digging on 11 May 2016 was effectively like a ‘moat’ delineating the area in which contaminants were located, by 12 May 2016, the workers were progressing into the area defined by the moat. Photographs demonstrate the scale of the works.99 According to Mr Lewis, some 103 drums were removed on 12 May 2016, including drums leaking oil. 286 Mr Lewis was also present on 13 May 2016, when he recorded the removal of a further 36 drums. He again observed black oily like liquid coming out of some of those drums. Some puncturing occurred during removal but Mr Lewis’ evidence was that other drums were damaged, and some were uncapped, prior to removal. A pump and hoses were used with a generator to suck a mixture of oil and groundwater into intermediate bulk containers. A significant volume of fluid was removed into the containers. Mr Lewis observed a number of tyres in the pit on 13 May 2016. 287 Mr Lewis also observed eight further drums and tyres being removed on 17 May 2016. 288 Importantly, having described his observations across the days he attended at the site, Mr Lewis then gave evidence that: During the course of the clean-up, it was apparent to me that more drums came out earlier in the clean-up. On this last day they were predominantly tyres. 289 Mr Lewis said the drums had come predominantly from a more central location within the pit, whereas the tyres were located from around the edge but also from underneath the drums. In total, he observed 178 drums being removed, but understood that five further drums had been removed when he was not present. He said that in excess of 100 tyres had been extracted. Mr Lewis’ evidence was that many or most of those tyres were removed from a greater depth than the drums had been located, ‘Down in towards that clay layer’. 290 Having viewed various of the video recordings of the dates upon which the excavation work was carried out,100 I consider that they are consistent with 99 Exhibit I4, Tab 89 (11 May 2016) and Tab 90 (12 May 2016). 100 Exhibits I18, I19, I20, I21 and I22. -- 85 of 142 -- [2025] SASC 200 B Doyle J 78 Mr Lewis’ evidence. The excavation exercise was a substantial one, and the quantity of oil that can be seen in the pit is plainly significant. 291 I interpolate that, as mentioned earlier, the judge made findings that the tyres had been around the pit edge and bottom, and the drums covered the tyres in the centre of the pit (Reasons [163]). Those findings were not directly challenged on appeal. Consideration 292 As has been noted, appeal ground 6 concerns the finding that at least 183 drums were removed from the pit. The appellants submit that the best evidence on this topic comes from the LBW consultants who had been present, in particular Ms Jennifer Catherine. The appellants say that her evidence and contemporaneous notes and diagrams should be accepted as accurate, as should the notes of Mr Nick Brewer (‘Mr Brewer’). Together they are said to establish that 145 drums were removed, of which 138 were put into a semi-trailer later driven to a Cleanaway waste disposal facility at Wingfield to dump them. The respondent submitted that Mr Lewis’ count should not be accepted. 293 The appellants’ contention that Mr Lewis was not present during the entirety of the process does not particularly assist them, given that on the occasion when it is suggested Mr Lewis may have double counted drums extracted on an earlier occasion, his evidence was that he conducted his count of drums as they were coming out of the pit and being placed into a converted shipping container. If he was absent for any period it would only make his count too low. Further, as the respondent points out, that shipping container does not appear to have been present on 23 March 2016 when a number of drums were extracted before LBW was present. A different truck is visible in photographs taken on 23 March 2016.101 Further, in my view, it is not self-evident that the notes of LBW included a count of drums removed on 23 March 2016 or 11 May 2016. Ms Catherine’s evidence did not shed much light on the question; she lacked an independent memory of events. 294 In the circumstances, I see no basis to reach a different conclusion than the judge with respect to the drum count. I would not find that he erred by finding that approximately 183 drums were excavated from the pit. However, in the event that I am wrong, I will consider the implications of a finding of approximately 145 drums. 295 Returning then to appeal grounds 7 and 8, the position may be summarised in these terms. Notwithstanding that 183 (or, on the appellants’ submission, about 145) drums were found in the pit when it was excavated, the evidence does not support a finding that that many drums could have been removed from the yard as part of the clean up that Mr Rollond directed in or in the period preceding March 2016. First, the evidence does not appear to support a conclusion that, in late 2015 101 Exhibit I4, Tab 87, p 388C. -- 86 of 142 -- [2025] SASC 200 B Doyle J 79 or early 2016, there were that many drums at the rear of the yard. And secondly, the direct evidence of drums being transported to the pit from the yard, such as it is, is more consistent with between 60 and 90 drums being transported over a handful of trips. 296 I accept that there is an absence of direct evidence as to where the balance of the drums came from, and how they were deposited in the pit. However, in my view, the judge was not wrong to find that the drums were deposited over a relatively confined period and, relatedly, that there were no (or at least not a material number) of drums in the pit before early 2016. 297 My reasons for considering the finding to be sound are that: • as I concluded earlier, the Google Earth images suggest that in early January 2016, if there were drums in the pit, they must have been located below the tyres or below the water level, and thus, in either case, well below the level of the tyres; • Mr Lewis’ unchallenged evidence about the relative location of drums and tyres in the pit, and the sequence of their removal during excavation, suggests that the tyres were below and around, rather than above, the drums; and • Mr Rollond himself said in the second interview that the drums had been deposited in the pit about two to three weeks before the EPA’s attendance. Whilst it could be said he was referring to the dumping of a lesser quantity of drums, the possibility that other drums from elsewhere on the property were deposited at around the same time was consistent with his accepted desire for a clean up of the property, and he claimed to be confident that there were not other locations or occasions on which drums were dumped. 298 The possibility that a third party, coincidentally or otherwise, but without the knowledge or approval of Mr Rollond or an agent or contractor of THP, dumped drums (or drums containing oil) in the pit either earlier or at around the same time that the drums from the rear of the yard were dumped in the pit, is not, in my view, a reasonable one. There was a suggestion made during the course of the trial that the tipper may have been hired by Mr Reekes-Parsons’ father, Mr Rob Stewart, but that proposition was not put to Mr Reekes-Parsons. It was properly rejected by the judge (Reasons [409], [410]). And in my view the judge’s conclusion that Mr Rollond (and therefore THP), rather than a third party acting without his imprimatur, was responsible for the drums containing oil being deposited in the pit (Reasons [417]-[421]) is not shown to be wrong. 299 However, in the event that I am wrong in this conclusion, and that it was only appropriate for the judge to be satisfied beyond reasonable doubt that somewhere in the order of 60 or so drums were deposited in the pit around that time, I will later consider the implications of such a conclusion. It suffices for present purposes to observe that, given the observations of Mr Doddrell, the state of the -- 87 of 142 -- [2025] SASC 200 B Doyle J 80 tipper truck and the quantity of oil observed during the excavation, it can safely be concluded that those 60 or so drums contained a not insubstantial amount of used oil. THP’s knowledge of environmental harm (ground 10) 300 In order to find that THP was guilty of an offence against s 79(1) of the EP Act, it was necessary that it be established beyond reasonable doubt that the act or acts that constituted polluting the environment were done intentionally or recklessly and with knowledge that environmental harm will or might result. 301 For the reasons I gave earlier, on the proper construction of s 79(1) in the context of the scheme of the EP Act, it was not necessary to show that the act or acts constituting pollution were done intending, or reckless as to the causing of, serious environmental harm. 302 It was necessary to demonstrate that the acts were accompanied by knowledge that environmental harm will or might result. However, for the reasons I gave earlier, there was no need to establish knowledge that the particular environmental harm addressed by the experts in this case would or might result. Subject to a defendant having fair notice of the case it has to meet, there is no necessary linkage between the actual or serious environmental harm caused and the knowledge requirement. 303 The knowledge requirement entailed proof of THP’s knowledge (and not merely knowledge on the part of a reasonable person in THP’s position), but actual knowledge may, in some circumstances, be inferred from the same circumstances that would lead to a finding that a reasonable person in that person’s position would have the relevant knowledge. That is to say, there will be cases in which knowledge of the act of pollution would inevitably lead to a finding of knowledge that environmental harm will or might result. That is particularly so given the very broad definition of environmental harm in the EP Act. Still, care is required where knowledge is found purely by inference from surrounding circumstances. It must be the only rational inference available.102 304 Finally, where a corporate defendant who is also the occupier is concerned, whilst acts occurring on the Land may be attributed to the occupier pursuant to the provision then located in s 4, that does not entail the attribution of knowledge or any other mental state. By contrast, s 127(1) of the EP Act may result in the attribution of the conduct and state of mind of an officer, employee or agent of the body corporate acting within the scope of their actual, usual or ostensible authority. 305 Against that background, I turn to appeal ground 10. 102 See, eg, Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 3 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ). -- 88 of 142 -- [2025] SASC 200 B Doyle J 81 306 The appellants contend that the judge erred by finding it proved beyond reasonable doubt that at the time the 44-gallon drums containing oil were put in the pit in around March 2016, THP knew that environmental harm would or might result from this (Reasons [430]-[436]). 307 The appellants submitted that: (1) the finding is premised on the judge’s erroneous findings that Mr Rollond had admitted that he had instructed THP’s employees to bury drums containing oil in the pit; (2) the finding was erroneously based upon the judge having treated Mr Rollond’s answers in the second interview as amounting to an admission that he had appreciated, when it was occurring, that burying oil in the pit would cause environmental damage; (3) the finding wrongly proceeded on the basis Mr Rollond had admitted instructing or having knowledge of the disposal of drums containing oil near the swampy area and creek. 308 For reasons I have given in relation to other grounds of appeal, I consider that the judge did not err in finding that, assessed in light of all the evidence of the case, Mr Rollond intended or at least knew that his instruction to clean up extended to the disposal of a number of drums containing oil into the pit that he admitted had been created for the disposal of rubbish. Mr Rollond obviously knew where the pit was, and that it was close to a creek. 309 In my view, it is high likely, maybe inevitable, that any person within a normal range of intelligence and experience, who had given that instruction or who had that knowledge would know that environmental harm would or might result. For these purposes, it is important to recall that ‘environmental harm’ includes any potential harm to the environment of whatever degree or duration, and ‘potential harm’ includes the risk of harm and future harm. Indeed, even if Mr Rollond were only treated as having had knowledge that in the order of 60 drums, many containing oil, were to be put in the pit, it is highly unlikely that he would not have known that this ‘might’ cause environmental harm (including, ‘potential harm’ of any degree or duration). As I have earlier concluded, it was not necessary to prove that Mr Rollond appreciated the risk of the very same environmental harm as that which the objective evidence now suggests. That said, the image from January 2016 and, probably, November 2015, shows the pooling of water in the pit. The risk that waste oil would not remain contained but might spread and cause environmental harm would be patent to anyone seeing the pit, particularly if some drums were uncapped or damaged in the course of dumping. 310 Whilst for reasons expressed earlier I consider that the second interview did contain damaging admissions contrary to Mr Rollond’s interests in several respects, even if his statements regarding the problematic nature of the dumping -- 89 of 142 -- [2025] SASC 200 B Doyle J 82 in the second interview were not treated as statements of his knowledge at the time drums were dumped, his statements that the ‘wrong thing’ had happened, that the impact was ‘not good’ and that he was ‘not happy’ are inconsistent with Mr Rollond being a person who, for some idiosyncratic reason or lack of intelligence, simply did not appreciate that there may be harm to the natural environment if used oil was dumped in a pit and covered over.103 There is no reason to think that the recognition expressed by Mr Rollond in the interview of the problematic nature of the dumping of drums containing oil was based on some thought process or learning that had only occurred after his knowledge of and involvement in the instruction to his staff to clean up. For the reasons I will give later, I do not consider the respondent was required by the way in which the case was particularised or run to prove knowledge on Mr Rollond’s part that hydrocarbons would in fact reach the creek and harm aquatic life there. 311 In my view, the judge’s finding at Reasons [435], drawing on all the evidence as it did, was not wrong. Serious environmental harm? (ground 11) 312 Appeal ground 11 complains that the judge erred in finding (Reasons [321]) that the burial by THP of drums containing oil in the pit had involved ‘actual environmental harm of a high impact or on a wide scale’ so as to amount to ‘serious environmental harm’. 313 The judge considered and made findings as to each of the two limbs of the definition of ‘serious environmental harm’ in s 5(3)(b) of the EP Act. The first limb involves, inter alia, ‘actual or potential environmental harm (not merely being an environmental nuisance) that is of a high impact or on a wide scale’. 314 The respondent contends that, in context, the impugned finding, whilst expressed in terms of ‘actual or potential environmental harm’ of the relevant kind, was not intended to constitute a finding of actual, as distinct from potential, environmental harm, of the relevant kind. Rather, the judge was simply expressing a finding in terms of the compound expression found in s 5(3)(b)(i). 315 In my view, when the reasons of the judge culminating in the relevant passage are set out, it becomes clear that the respondent’s submission should be accepted and, further, that even if it were not, the point goes nowhere because on the unchallenged basal findings made in those paragraphs, a finding of ‘potential harm’ of the relevant kind was inevitable. In those circumstances, the appellants’ submissions, to the effect that Mr Goonan’s evidence was that there was no actual serious environmental harm caused to the receiving environment of Harrison Creek, is unavailing. 103 It may also be observed that in the first interview Mr Rollond had claimed to have been concerned to hear that tyres had been dumped in the pit. -- 90 of 142 -- [2025] SASC 200 B Doyle J 83 316 These are the relevant passages in the Reasons (references omitted): Had there been actual or potential environmental harm of a high impact or on a wide scale? [296] The informant relied on experts Mr Goonan and Mr Hassam to establish actual or potential environmental harm of a high impact or on a wide scale. [297] The defendants submitted Mr Goonan had not concluded the waste in the pit had caused any actual serious environmental harm to the environment of the creek. [298] The defendants submitted the amount of oil in the pit had been unknown as there had been insufficient evidence any oil had or would enter the creek. [299] Further, submitted the defendants, it had not been proved any substantial oil would have escaped from the drums, absent their disturbance by excavation. [300] Particularly, submitted the defendants, Mr Goonan’s opinion that if the drums had remained, they would have leaked hydrocarbons in the future into the creek, had lacked a sufficiently proved factual foundation. [301] The expertise of Mr Goonan or Mr Hassam had not been challenged. While that is so, I am not bound to accept their expert opinions. In this case, there being no reason not to do so, I do accept their expert opinions. They were qualified and experienced, had attended the site and had opined based on their observations and the facts given to them. [302] While their opinions are only as valuable as those facts and may have either limited or no value at all if those facts had not been established in this case, I do accept the informant had established the disposal of the drums which contained oil in the pit near the creek had the potential to cause serious environmental harm to the creek and that oil in the creek would cause significant harm of a high impact or on a wide scale. [303] I have accepted Mr Goonan’s expert opinion about the potential of oil to cause serious environmental harm to the creek and that oil in the creek would have caused significant harm on a wide scale to aquatic life. [304] While I have accepted some piercing of the drums in the pit had occurred during removal (as LBW noted) and I have not been able to conclude the precise the volume of oil that had been deposited in the pit, a factual basis had been established by the informant to support that opinion. That is, I have rejected the defendant’s submission, the informant had not established oil deposited by Tara Hills Pastoral would have flowed into the pit or would likely have. [305] Uncapped, damaged, and leaking drums of oil had been disposed of into the pit. The observations of Mr Lewis, Mr Vears and the compelling video evidence of the extraction and excavation had showed a significant quantity of oil in the pit which had escaped from those drums. I have been satisfied 17500l of mixed oil and groundwater had been pumped from the pit. [306] In respect of the potential for serious environmental harm to the creek from that oil, I am satisfied that any oil which would have entered the creek would have spread on the wide scale, as opined by Mr Goonan. -- 91 of 142 -- [2025] SASC 200 B Doyle J 84 [307] I have accepted the expert opinion of Mr Hassam that oil in the pit would have migrated into the groundwater and into the creek and the areas around it. [308] I have accepted the opinion of Mr Hassam that the unconsolidated sandy loam in the pit would have allowed for the infiltration of water through that soil to the underlying clay layer. [309] I also have accepted his opinion the clay layer in the pit would have acted as a confining layer to restrict the movement of liquid (including oils, water, or a mixture) deeper into the ground. [310] I have accepted his opinion that the water in the pit would have sat above the clay layer in an unconfined aquifer and would have moved horizontally. I have accepted also that any water or oil or water mix would have flowed from the higher hydraulic head to the lower; from the pit to the creek and swampy area. [311] Given my findings about what had been in the pit and the expert evidence I have accepted, I am satisfied that oil and water above the confining clay layer in the pit would have moved horizontally towards and into the creek. As the creek had been lower than the pit and as the creek area had been at the level of the unconfined aquifer, that oil would have infiltrated the creek. [312] I have also accepted the expert evidence that a second method of movement is relevant; the infiltration of rainwater in the paddock to increase the hydraulic pressure at the pit. I am satisfied that would have increased the flow of groundwater from the higher topographic elevation of the pit and paddock to the lower elevations of the swamp and creek. [313] I am satisfied that altogether, those dynamics and interactions, would have increased the spread of oil from the pit and would have ‘potentially result[ed] in an increased risk of the oil and contaminants entering groundwater and subsequently [the] Creek’. [314] I have accepted that not only [would] groundwater has been impacted by hydrocarbons but there had been a significant potential that should the hydrocarbons have remained in the soil, there had been significant risk that the hydrocarbons may migrate into the surface water of the creek. [315] I have accepted Mr Hassam’s opinion those mechanisms of groundwater infiltration and contamination had been not dependent on any volume of oil in the pit. That had been the case because any liquid contaminants which would have been mobilised by the potential horizontal movement would have been increased, and would have been recharged, by rainfall infiltrating the porous sandy loam soil. [316] I have accepted that would have increased the flow and speed of oil movement and ultimately the migration to and actual or potential contamination of the creek. [317] I have accepted the opinion of Mr Goonan oil would have killed invertebrates which had floated on the surface of the creek because it would have created a film which would have blocked those invertebrates from breaching the surface. [318] Mr Goonan said that when he attended the creek, he had observed aquatic invertebrates that would have been killed by even lightweight oil in the creek. His observations and opinion, which I have accepted, was that the destructive effect of any hydrocarbon sheen would have needed to only have been a millimetre in width. -- 92 of 142 -- [2025] SASC 200 B Doyle J 85 [319] Given the sheen required, I have accepted the opinion of Mr Goonan that just tens of litres of hydrocarbon would have created 100m of contamination. [320] I am satisfied just a small amount of oil would have had fatal consequences over as little an area as 10m2. I have found that only tens of litres of hydrocarbons would have potentially been needed to have been free in the pit, due to the disposal of open, uncapped, and damaged drums containing oil. [321] Having assessed all that evidence which I have accepted, and the expert opinions based on that evidence which I have accepted, I have found the drums containing oil buried in the pit by Tara Hills Pastoral had involved actual or potential environmental harm of a high impact or on a wide scale and that had been serious environmental harm. [322] I have also found that if the drums which had leaked oil had remained in the pit, they would have continued to leak and would have entered the creek and, oil would have killed air-breathing invertebrates. [323] I have also accepted the expert evidence that the heavy end hydrocarbon fractions found in the soil and water of the pit had been representative of motor oil and that such heavy end hydrocarbons had been less likely to volatize and would have persisted in the soil and groundwater in the pit for up to 30 years. Conclusions in relation to counts 1 and 4 317 In respect of the grounds concerning the dumping of drums previously located at the rear of the yard and Mr Rollond’s knowledge and involvement, I have concluded that: • the Google Earth images were admissible (appeal ground 5); • the judge did not err in his treatment of Mr Rollond’s admissions (appeal ground 9); • the judge did not generally err in respect of the evidence of Mr Reekes- Parsons in view of the possibility or fact that he was an accomplice (appeal ground 1); • the judge did not err in respect of his consideration of Matthew Rollond’s evidence (appeal ground 4). 318 I have found, however, that the judge erred inasmuch as he stated that Mr Reekes-Parsons’ evidence placed Mr Rollond at the rear of the yard when the tipper was being loaded with drums (appeal ground 2). 319 It is necessary that I consider whether that error requires the appeal to be allowed in respect of counts 1 and 4. The question is whether absent that error the judge would inevitably have convicted THP and Mr Rollond in respect of those counts. -- 93 of 142 -- [2025] SASC 200 B Doyle J 86 320 In contending that the answer to that question is ‘no’, the appellants emphasised the importance of Mr Reekes-Parsons’ evidence and pointed out that Mr Doddrell had not given evidence that Mr Rollond had directed that the drums be disposed of in the pit. 321 The respondent submits that the error is explicable on the basis that the judge likely conflated Mr Reekes-Parsons’ evidence about having been instructed to clean up the yard with Mr Doddrell’s evidence that Mr Rollond was present when Mr Reekes-Parsons was loading the drums onto the tipper. 322 The respondent contends that the misdescription of the evidence matters not because it is apparent that the judge accepted Mr Doddrell’s account and was in a good position (having seen Mr Doddrell give evidence and having participated in a view which enabled him to understand what would have been Mr Doddrell’s vantage point) to assess the certainty and quality of his identification evidence. 323 In my view, accepting that the error in question was a misapprehension of the evidence rather than inapt expression in the Reasons, the judge would have reached the same conclusion of guilt with respect to counts 1 and 4 had he correctly apprehended the effect of Mr Reekes-Parsons’ evidence. The judge may well have been prepared to find that Mr Rollond was physically present on the occasion in question based on Mr Doddrell’s evidence, but even if he had not been, the evidence of Mr Reekes-Parsons about the instruction given by Mr Rollond, corroborated by Mr Rollond’s admissions in the second interview, and considered in the light of the inherent probabilities to which I have referred, supported a finding beyond reasonable doubt that Mr Rollond knew and intended that the drums containing oil would be dumped in the pit. In view of the judge’s acceptance of the relevant aspects of the evidence that support that reasoning, I conclude that the judge would have reached the same conclusion irrespective of the error. 324 In respect of the grounds of appeal concerning the timing and extent of the disposal of drums in the pit, I have concluded that, based on my independent review of the evidence: • the finding that 183 rather than some 145 drums were extracted from the quarry has not been shown to be wrong (appeal ground 6); • the findings that the drums were not present in the pit in January 2016 and were dumped in the pit over a relatively short period in or leading up to March 2016 have not been shown to be wrong (appeal grounds 7 and 8). 325 Despite this, I will consider whether, had I been persuaded that those findings were wrong, it would result in the appeal against counts 1 and 4 being allowed. 326 Standing alone, I do not consider that upholding appeal ground 6 has any material impact upon the judge’s findings of the elements of a contravention of -- 94 of 142 -- [2025] SASC 200 B Doyle J 87 s 79(1). At most, it might bear on the appropriate sentence in respect of those counts. 327 However, if I had been persuaded that it was not proved to the requisite standard that the drums extracted from the pit were not (to any substantial extent) deposited in the pit as part of what I might call the early 2016 clean up operation, I would have needed to consider, first, whether, on the assumption that they were deposited in the pit between November 2013 and late 2015, it was open to conclude that the dumping of those drums formed part of any proved contravention by THP and, if not, the impact of this conclusion on the judge’s findings that: • THP engaged in pollution that caused ‘serious environmental harm’; • THP did so knowing that the pollution would or might cause environmental harm. 328 I have earlier rejected the notion that the mere presence of additional drums in the pit comprised an act of pollution by THP. Whilst the deposit of drums by a third party at an earlier time on land occupied by THP would be attributed to THP by reason of s 4 as it then was, first, that would not address the fault elements required in respect of s 79(1) (or indeed s 80(1)) and, secondly, the appellants contend that that was not the basis upon which the prosecution was particularised or run. 329 The counts as particularised were set out earlier. In opening, the informant’s counsel emphasised that the reference to count 1 having occurred on or around 1 March 2016 was only a particular, not the charge. Counsel emphasised that on the informant’s case March 2016 was when at least the vast bulk of the material was deposited. However, he went on to say:104 Some of it might have been a little bit earlier in February/March, some of it might have been earlier in ´15 or ´14. It doesn’t really matter, because the point is in March was when this was discovered. 330 Immediately following the opening, the appellants’ counsel raised an objection to a case being advanced based on earlier acts of pollution. He said he had come prepared to defend a case based on the count as particularised and he did not accept that the informant could rely on barrels that ‘might have been deposited in 2014’.105 The judge said to the informant’s counsel that he was ‘on notice’. Counsel for the informant foreshadowed a submission about what the elements of the offence were, to which the appellants’ counsel argued that the point was one of fair notice and that, in some circumstances of which this was submitted to be one, dates become material particulars binding on the informant.106 The matter was left there but returned to in closing submissions. 104 Tr 33. 105 Tr 62. 106 Tr 63. -- 95 of 142 -- [2025] SASC 200 B Doyle J 88 331 Had it been necessary to decide this issue I would have concluded that in the particular circumstances of this case, no application to amend the particulars having been made, it would be unfair to permit the informant to rely upon conduct before the latter part of 2015. I would treat the reference to ‘on or around 1 March’ as embracing the ‘clean up’ period starting in late 2015 and continuing into early 2016, but I consider that a case based on some earlier unrelated episode or episodes of dumping to be so far outside the case as particularised that it would oppressive or unfair to permit the informant to rely upon it.107 332 If attention is confined to the dumping of the drums that had been located at the rear of the yard, and thus to a dumping of somewhere between 40 (on the most conservative basis) and 90 (on the least conservative basis) drums, many of which contained oil, the question is then whether the findings on the two matters identified above would or should have been made. 333 As to the first of those matters, the respondent emphasises that s 5(5)(b) of the EP Act invites attention to the harm that results from the pollution alone or from the combined effects of the pollution and other factors. In the present context it is therefore arguable that the impact of the dumping of the lesser number of drums cannot be disentangled from the impact of the deposit of additional drums and rubbish at an earlier time. Bearing in mind that for these purposes the act of pollution includes the tyres, I consider there is merit in this submission. In particular, with reference to the second limb of s 5(3)(b)(ii), I would conclude that it was not possible to clean up and address the harm caused by any dumping of drums and tyres in early 2016 without also addressing any material that may have been dumped prior to that time in the same location. The aggregate loss associated with the relevant act of pollution combined with any earlier act of pollution exceeded $50,000. 334 As to the second of those matters, there may be room to doubt whether, assuming Mr Rollond only knew about the dumping of the lesser quantity of drums, together with a number of tyres in the pit, it should be found that he knew this would cause the extent of risk to the aquatic life in the nearby creek addressed in the expert evidence. However, I consider that it is inevitable that he knew that there was a relevant risk of some environmental harm, if only to the immediate vicinity of the pit. Whilst the appellants submitted that knowledge of soil contamination was not a case run at trial, and emphasised paragraph 1.2 of the particulars in the information (set out earlier), in my view, that paragraph is designed to provide notice of the basis upon which the informant was seeking to establish ‘serious environmental harm’, and did not limit the basis upon knowledge that environmental harm would or might be caused from dumping the rubbish in the pit. The informant’s closing submissions included a case based upon soil contamination.108 Whilst the appellant submitted in closing that a different view 107 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484 (Gleeson CJ, Ireland and Bruce JJ agreeing), Kyriakopoulos v Police (2006) 46 MVR 343; [2006] SASC 71 at [10] – [11] (White J). 108 Informant’s Written Submissions, [53]. See also Tr 1946-1947. -- 96 of 142 -- [2025] SASC 200 B Doyle J 89 should be taken of the conduct of the case, I am satisfied that it was open to the informant to rely on THP’s knowledge that depositing drums containing oil, some of them uncapped or damaged, would or might cause environmental harm in the form of soil contamination. I do not consider the particulars given narrowed the means by which the informant could establish knowledge of environmental harm arising out of the particularised acts of pollution. There was no unfairness to the appellants in allowing the informant to rely upon more immediate or localised environmental harm associated with the contamination of the soil with used oil, short of actual pollution of the nearby creek. 335 Accordingly, even if I had accepted that error was established in the manner contended for under appeal grounds 7 and 8, I would not have set aside the convictions. For completeness, I indicate that had I formed a different view about that last proposition, or had I upheld any other appeal ground so as to require the setting aside of the convictions on counts 1 and 4, I would, consistent with the parties’ invitation, have entered alternative verdicts of guilty of offences against s 80(2) (against THP and Mr Rollond) rather than direct a retrial of counts 1 and 4. D Grounds relating to counts 5 and 6 336 Counts 5 and 6 on the information were framed as follows. As to the Second Defendant – Philip John Rollond … 5. Between 2 September 2017 and 2 September 2020 the second defendant failed to comply with a Clean Up Order (CUO) issued on 8 April 2016. Contrary to s 99(8) of the Environment Protection Act 1993 (SA). This is a summary offence. Particulars: 5.1 On 8 April 2016 the Environment Protection Authority issued the CUO to the second defendant. 5.2 On 13 January 2017 by conference process in the Environment, Resources and Development Court the CUO was varied to include Requirement 2(b)(ii)(a), which required the second defendant to dispose of all oil drums, vehicle parts and tyres to an appropriately licenced waste facility in accordance with a Plan by 13 February 2017. 5.3 As at 2 September 2020, the second defendant had failed to comply with the requirement particularised in paragraph 5.2. 6. Between 2 September 2017 and 2 September 2020 the second defendant failed to comply with the CUO. Contrary to s 99(8) of the Environment Protection Act 1993 (SA). -- 97 of 142 -- [2025] SASC 200 B Doyle J 90 This is a summary offence. Particulars: 6.1 Particular 5.1 is repeated. 6.2 On 13 January 2017 by conference process in the Environment, Resources and Development Court the CUO was varied to include Requirement 2(b)(ii)(b), which required the second defendant to dispose of all remaining waste including the contaminated soil to an appropriately licenced waste facility in accordance with a Plan by 13 March 2017. 6.3 On 14 June 2017 by conference process in the Environment, Resources and Development Court the CUO was varied to require compliance with Requirement 2(b)(ii)(b) by 28 July 2017. 6.4 As at 2 September 2020, the second defendant failed to comply with the CUO as varied and particularised in paragraph 6.3 above. 337 In order to consider the grounds of appeal concerning these counts, it is useful to set out s 99 of the EP Act. 99—Clean-up orders (1) Where the Authority or another administering agency is satisfied that a person has caused environmental harm by a contravention of this Act or a repealed environment law, the Authority or other administering agency may issue a clean-up order to the person requiring the person to take specified action within a specified period to make good any resulting environmental damage. (2) A clean-up order— (a) must be in the form of a written notice served on the person to whom it is issued; (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); (c) must specify the contravention alleged to have caused the environmental harm; (ca) may include requirements for— (i) preparing, in accordance with specified requirements and to the satisfaction of the Authority or other administering agency, a plan of action in relation to the environmental harm; and (ii) complying with such a plan of action to the satisfaction of the Authority or other administering agency; (d) may include requirements for action to be taken to prevent or mitigate further environmental harm; (e) may include requirements for specified testing or environmental monitoring; -- 98 of 142 -- [2025] SASC 200 B Doyle J 91 (ea) may include requirements for furnishing to the Authority or other administering agency specified test, monitoring or compliance reports; (eb) may include requirements that the person to whom it is issued appoint or engage a person with specified qualifications to prepare a plan or report or undertake tests or monitoring required by the order; (f) must state that the person may, within 14 days, appeal to the Environment, Resources and Development Court against the order. (2a) Where a proposed clean-up order (except an emergency clean-up order) or a proposed variation of a clean-up order would require the undertaking of an activity for which a permit would, but for section 129 of the Natural Resources Management Act 2004, be required under that Act, the Authority or other administering agency must, before issuing or varying the order, give notice of the proposal to the authority under the Natural Resources Management Act 2004 to whom an application for a permit for the activity would otherwise have to be made inviting the authority to make written submission in relation to the proposal within a period specified in the notice. (2b) The period of the notice referred to in subsection (2a) must be— (a) in the case of an order to confirm an emergency clean-up order—at least 24 hours; (b) in all other cases—at least 14 days. (3) Where an authorised officer is satisfied that a person has caused environmental harm by a contravention of this Act or a repealed environment law and is of the opinion that urgent action is required, the authorised officer may issue an emergency clean- up order containing requirements of a kind referred to in the preceding provisions of this section. (4) An emergency clean-up order may be issued orally, but, in that event, the person to whom it is issued must be advised forthwith of the person's right to appeal to the Environment, Resources and Development Court against the order. (5) Where an emergency clean-up order is issued to a person, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written clean-up order issued by the Authority or another administering agency and served on the person. (6) The Authority, another administering agency or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other clean-up order a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. (7) Where a clean-up order has been issued to a person by the Authority or another administering agency, the Authority or other administering agency (as the case may be) may, by written notice served on the person, vary or revoke the order. (8) A person to whom a clean-up order is issued must comply with the order. Penalty: -- 99 of 142 -- [2025] SASC 200 B Doyle J 92 If the offender is a body corporate—$120 000. If the offender is a natural person—Division 1 fine. (9) It is not an excuse for a person to refuse or fail to provide information in response to a requirement imposed by a clean-up order on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (10) If compliance by a prescribed person with a requirement to provide information imposed by a clean-up order might tend to incriminate the person or make the person liable to a penalty, then the information given in compliance with the requirement is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement). 338 Putting to one side the conditions that must exist before one can be issued, the essential features of a clean-up order are that the order require the recipient to take ‘specified action within a specified period’ to make good any resulting environmental damage: s 99(1). The recipient must comply with the order failing which they are exposed to a penalty of up to the amounts prescribed by s 99(8). 339 Section 101 of the EP Act facilitates a process of registration of clean-up orders in respect of land to which they relate. By those means the obligations can bind subsequent owners and occupiers. 340 Section 102(1) provides that if the requirements of a clean-up order are not complied with, the Authority or, if the order was issued by another administering agency, that administering agency, may take any action required by the order. Under s 103(1), the reasonable costs and expenses of taking action on non- compliance with a clean-up order may be recovered as a debt from the person who failed to comply with the requirements of the order. Whether counts 5 and 6 properly charge continuing offences (ground 13) 341 Section 131(2) of the EP Act provides that: Proceedings for a summary offence against this Act may be commenced at any time within three years after the date of the alleged commission of the offence or, with the authorisation of the Attorney-General, at any later time within 10 years after the date of the alleged commission of the offence. 342 There is no suggestion that the Attorney-General authorised the commencement of a prosecution more than three years after the date of the alleged commission of offending against s 99 of the EP Act. This explains why the conduct the subject of counts 5 and 6 is alleged to have occurred during the three year period preceding 2 September 2020, when the information was filed. 343 The question raised by appeal ground 13 is whether an offence was committed during that period, even assuming that Mr Rollond did not, during that period, do the things required by the clean-up order. Put another way, the question -- 100 of 142 -- [2025] SASC 200 B Doyle J 93 is whether the EP Act rendered it an offence to fail to take the action specified in a clean-up order under s 99 after the expiry of the specified period. 344 That question is complicated by s 123(2), to which I will return. However, it is convenient first to consider whether, s 123(2) aside, assuming Mr Rollond failed to take the action specified in the clean-up order within the specified periods, that offence was, or those offences were, committed ‘once and for all’, or whether, instead, the obligation to take the specified action continued (and the failure to do so amounted to continuing offending) after those periods expired. 345 In Sloggett v Adams,109 Street CJ said that:110 The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis, by Sir Francis Jeune, who said: "The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue." Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s 472 of the Local Government Act 1919 (NSW); it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. At that moment the offence was complete and concluded, and thereafter it existed only in the past. If the offence were a continuing one, it would be one which could be remedied after 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future…Section 473 places a specific burden upon a specific owner or occupier of land to comply with a specific notice, and it’s the failure to comply with that notice, which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1951, arrived… (footnotes omitted) 346 A number of more recent authorities relevant to this issue were conveniently summarised by Corboy J in the following passages of his reasons in Hunter v City of Joondalup,111 which I gratefully adopt:112 Whether a statutory provision creates a continuing offence is, self-evidently, a matter of construction. O'Bryan J observed in R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459 that: 109 (1953) 70 WN (NSW) 206. 110 (1953) 70 WN (NSW) 206 at 208. 111 (2015) 257 A Crim R 299; [2015] WASC 444. 112 (2015) 257 A Crim R 299; [2015] WASC 444 at [29]-[43]. -- 101 of 142 -- [2025] SASC 200 B Doyle J 94 Whenever the expression, 'continuing offence' is applied to an offence which consists of a continuing failure to perform an obligation a limitation period will begin to run only from the time when the obligation is performed. Whether a particular offence is a continuing one, in this sense, turns upon the proper construction of the law creating the offence. If the true characterization of the law is that it imposes an obligation which continues until it is observed, then the offence may constitute a continuing one, but if on the other hand, the true characterization of the law is that it specifies a time for the doing of the act, then the limitation period commences to run from that specified time and this is so whatever the nature of the obligation (462). That distinction accords with Lord Roskill's analysis of the statutory offence created by the Town and Country Planning Act 1971 that was considered in Hodgetts v Chiltern District Council. The Act made it an offence to not comply with an enforcement notice issued by a local authority. Lord Roskill observed that two types of enforcement notice could be issued: a notice requiring the owner of land to do something ('do notices') and a notice requiring the user of land to stop doing something ('desist notices'). The offence in the case of non-compliance with a 'do notice' was complete once and for all when the period for compliance had expired. The offence was not a continuous offence. However, non-compliance with a 'desist notice' constituted a single offence committed over a period of time (the period of non-compliance). Consequently, non-compliance with a desist notice constituted a continuing offence in the second sense identified earlier. In Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221, Dixon J drew a distinction between a covenant in a licence that premises be kept insured, which imposed a continuing obligation, and a covenant to put premises in repair, which was broken once and for all if a reasonable time for putting the premises in repair had elapsed without the licensee doing so. His Honour said: If the covenant names a time for the doing or completion of a definite act, it is clear that failure to do the act within the time involves a breach once [and] for all, and … the same conclusion will follow where no time is limited but a specified thing is to be done and a reasonable time elapses for the performance of the covenant (237). Owen J provided one reason for why an offence that consists of a failure to act within a specified period is not a continuing offence in Sloggett v Adams (1953) 70 WN (NSW) 206. As the offence comprises a failure to do something within a period, the offender could never stop committing the offence if the offence was characterised as a continuing offence; there would be nothing that the offender could do after the period had expired in compliance with the direction to act within the specified period (208). The New South Wales Court of Appeal further considered Sloggett v Adams and related authorities in Environmental Protection Authority v Alkem. The Environmental Protection Authority (EPA) had issued a notice to Alkem requiring the removal of drums from its premises by a specified date. The drums held chemicals, were in poor condition and were considered to be a potential source of water contamination. The notice was issued under cl 21(1) of the Clean Waters Regulations 1972 (NSW). Alkem did not remove the drums. Clause 21(3) of the Clean Waters Regulations provided that: An occupier of premises who does not comply with a requirement of a notice referred to clause (1) … is guilty of an offence and is liable -- 102 of 142 -- [2025] SASC 200 B Doyle J 95 (a) if a corporation - to a penalty not exceeding $4,000 and, in the case of a continuing offence, to a further penalty not exceeding $1,000 for each day the offence continues. The EPA charged Alkem with an offence under cl 21(1) and cl 21(3) of the Clean Waters Regulations. The charge alleged that Alkem had not complied with the requirements contained in the notice issued by the EPA on and from the first day after the specified period had expired 'and continuing until' a date approximately 4 months later. Alkem pleaded guilty to the charge. The presiding judge held that the offence was not a continuing offence for the purpose of imposing a penalty. The EPA appealed by way of a stated case. Foster AJA, with whom Dunford J agreed, held that the offence to which Alkem had pleaded guilty was not a continuing offence. The offence had been committed once and for all at the expiry of the period specified in the EPA's notice for compliance and, consequently, the charge as formulated could not be sustained (the prosecution was remitted to the Land and Environment Court to consider whether the EPA should be permitted to amend the charge). Foster AJA considered that Sloggett v Adams, and an earlier decision to the same effect (Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99), stood in the way of the EPA's contention that the offence allegedly committed by Alkem was a continuing offence. His Honour cited extensively from the judgments of Street CJ and Owen J in Sloggett v Adams and noted that there had never been any departure from that case or from Ex parte Schaefer. He considered that the decisions were 'sound both in policy and logic' [11]. Smart AJ dissented, holding that the offence was a continuing offence. His Honour considered that there were powerful policy reasons for construing cl 21(3) as creating a continuing offence; in particular, that the alternative construction could affect the ability of the EPA to enforce a requirement after a period specified for compliance had expired. However, Foster AJA considered that there were two persuasive answers to that concern. First, it had been open to the EPA to formulate the notice in such a way as to impose a continuing obligation rather than impose a requirement which 'if not complied with produced a once and for all offence' [13]. Second, the Land and Environment Court was empowered by the Environmental Offences and Penalties Act 1989 (NSW) to order a person who has been convicted of an offence to take steps to remedy any harm caused by the offence or to prevent the continuation of the offence. In Welsh v Cornfoot [1973] VR 21, Lush J observed that: [A]s a general rule when a time for compliance with a statutory requirement is fixed, the offence of non-compliance is complete at the end of that time and the offence is not a continuing one (26). That proposition encapsulates the effect of the cases discussed above. However, there are statements that might be thought as tending the other way. So, for example, King CJ in Leydon v Forrest (1980) 23 SASR 364 said: In general, it is to be expected that a failure to do some act which the person is required by law to do will be a continuing offence. The offence of non-compliance with a continuing statutory duty will continue so long as the non-compliance continues. The provisions of the statute, however, may indicate, expressly or by implication, that the offence is a once and for all offence (375). The respondent in Leydon v Forrest had been charged with failing to submit to the liquidator of a company within 14 days of the date of a winding-up order a statement as to -- 103 of 142 -- [2025] SASC 200 B Doyle J 96 the affairs of the company, contrary to s 234(5) of the Companies Act 1962 (SA). Section 234 of the Act created the obligation to provide the statement and s 234(5) created an offence in the following terms: Every person who, without reasonable excuse, makes default in complying with the requirements of this section shall be guilty of an offence against this Act. King CJ and Sangster J held that the offence created by s 234(5) was a continuing offence. Their Honours emphasised the object of the obligation to provide a statement of affairs to the liquidator, Sangster J observing that 'I find it impossible to understand how the passing of 14 days or any other precise time can be regarded as eliminating the liquidator's need for the statement, or the officer's obligation to provide it' (380). The fact that the obligation was conditioned by the words 'without reasonable excuse' was also significant. The company officer would not be in breach of the obligation for so long as he or she had a reasonable excuse for failing to submit the statement. Their Honours could see no reason for construing the sentence in a way that would allow a person who had a reasonable excuse for failing to submit the statement within 14 days to neglect the obligation with impunity after the excuse had ceased (376). The line of authority represented by Sloggett v Adams was cited to the court. King CJ explained the effect of that line of authority as follows: Three of the cases cited to us, namely Nottage v Tarac Manufacturers (Adelaide) Ltd [[1941] SASR 102]; Ex parte Schaefer; Re Field and Sloggett v Adams, are cases of non-compliance with a notice. In each case, the offence created by the statute was non-compliance with a notice. In none of them was absence of an excuse an element of the offence. It was held in those three cases that the offence of non-compliance with the notice was complete at the expiration of the period of the notice and that the limitation period for the commencement of proceedings ran from that date. I think that the decisions are distinguishable from the present case. The offence was failure to comply with the notice. The notice did not seek to impose a continuing obligation, but directed that the required action be taken within the specified time. The prohibited omission therefore occurred immediately the time expired and the notice could not be complied with thereafter. The legal result might not be the same if the statute made absence of excuse an element of the offence (372). 347 An offence against s 99(8) of the EP Act involves a failure to comply with a clean-up order which, by reason of s 99(1), will have required the taking of specified action within a specified period. Plainly, an offence cannot be complete prior to the expiry of the specified period. If, which I need not determine, a clean- up order could validly require specified action continuously throughout a specified period, that was not the case here. 348 The feature that King CJ considered significant in Leydon v Forrest113 is not present in s 99. That section does not make the absence of an excuse an element of the offence. Nor do any considerations of policy persuade me that the obligation to comply with a clean-up order must continue after the specified period has expired in order to maintain the efficacy of the legislative scheme. If a person has 113 (1980) 23 SASR 364. -- 104 of 142 -- [2025] SASC 200 B Doyle J 97 not complied with a clean-up order within the specified period, they will be subject to prosecution and punishment. 349 The variety of requirements that may be imposed by way of a clean-up order also militates against a construction of the section that treats the obligations imposed by such an order as continuing after the specified period. For instance, the requirements include testing and monitoring, and mitigatory steps. The reasonableness of, and need for, particular requirements, may be time-sensitive or time-limited and may have been factored into the nominated specified period. 350 Further, in my view, there is no reason to consider that the statutory scheme will be undermined if a person does not continue to commit an offence following the expiry of the specified period. I see no reason why a further clean-up order could not by issued by the Authority in an appropriate case. Additionally, ss 102 and 103 enable the Authority or another administering agency to step in and undertake the required work, and to recover the costs and expenses from the defaulting party. Finally, s 133(1) confers a variety of powers on a court where there is a finding of a contravention of the EP Act that has resulted in environmental harm. 351 And, as explained further below, if there is no question about whether the proceeding has been instituted within time, s 123(1)(a) may result in a penalty that exceeds that in s 99(8). Leaving to one side the possible effect of s 123(2), to which I turn momentarily, I do not consider that there remains a continuing obligation, the failure to comply with which amounts to an offence against s 99, once the ‘specified period’ in a clean-up order has expired in respect of the relevant ‘specified action’. 352 Section 123 of the EP Act provides as follows. 123—Continuing offences (1) Where an offence against a provision of this Act is committed by a person by reason of a continuing act or omission— (a) the person is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continues of not more than an amount equal to one-fifth of the maximum penalty prescribed for that offence; and (b) if the act or omission continues after the person is convicted of the offence, the person is guilty of a further offence against that provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continues after that conviction of not more than an amount equal to one-fifth of the maximum penalty prescribed for that offence. (2) For the purposes of this section, an obligation to do something is to be regarded as continuing until the act is done notwithstanding that any period within which, or time before which, the act is required to be done has expired or passed. -- 105 of 142 -- [2025] SASC 200 B Doyle J 98 353 The two paragraphs of s 123(1) address two distinct circumstances. 354 In the first, ‘in addition to the penalty otherwise applicable to the offence’, the person is liable to a penalty for each day during which the act or omission continues (of not more than an amount equal to one-fifth of the maximum penalty prescribed for that offence). 355 In the second, a person has been convicted of ‘the offence’ but the act or omission has continued. In that case, the person is guilty of a further offence against that provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continues after that conviction of not more than an amount of one-fifth of the maximum penalty prescribed for that offence. 356 In the first circumstance, the continuation of the act or omission results in the potential for the imposition of a penalty for ‘the offence’ that exceeds that to which the person is otherwise liable. 357 In the second circumstance, the fact of a conviction opens the way for the continued act or omission to be regarded as involving the commission of a further offence. In determining the penalty for every subsequent day during which the act or omission continues, the person is liable to a maximum daily penalty calculated on the same basis as in the first circumstance. 358 Confining attention to the text of s 123(1), the provision only takes effect in the two circumstances described above ‘[w]here an offence against a provision of [the EP Act] is committed by a person by reason of a continuing act or omission’. For the reasons I have given, on proper construction, an offence against s 99 is not committed by a person by reason of a continuing act or omission, or at least not in the case of a clean-up order that requires the disposal or removal of identified waste by a particular date. Confining attention to s 123(1), the provision therefore has no operation in respect of alleged offending against s 99 by reference to the clean- up order issued to Mr Rollond. The question is whether s 123(2) alters the position. 359 Section 123(2) provides that ‘[f]or the purposes of this section’ an obligation to do something is to be regarded as continuing until the act is done notwithstanding that any period within which, or time before which, the act is required to be done has expired or passed. 360 When it applies, s 123(2) must have the consequence that an omission to comply with an obligation to do something which would otherwise have been regarded as time-limited continues until the required act is done. If it did not have that consequence, it would have no consequence at all. The real question is when and for what purposes the sub-section applies. What, precisely, do the qualifying words ‘[f]or the purposes of this section’ mean? 361 In my view, the answer is to be found in recognising the limited field of operation of the two circumstances earlier identified in s 123(1). -- 106 of 142 -- [2025] SASC 200 B Doyle J 99 362 The result is that, in connection with a prosecution for failure to comply with a clean-up order, s 123(1)(a) – as augmented by s 123(2) – stipulates that if: • the defendant is liable for an omission (viz, by failing to take the specified action within the specified period); then • they are liable, ‘in addition to the penalty otherwise applicable’ to the offence (pursuant to s 99(8)), to a penalty for each day after the end of the specified period unless and until the specified action has been taken. 363 In that case, the penalty for ‘the offence’ would potentially exceed the penalty prescribed by s 99(8). But there would be no new offence committed after the expiry of the specified period. Importantly, the premise for the first circumstance is that the person ‘is liable’ to a penalty absent the operation of the provision. In my view, it follows that the person is liable to prosecution for having committed an offence against s 99. They will only be so liable if a proceeding is brought consistently with the requirements of s 131(2) of the EP Act. If they are not otherwise liable to the imposition of a penalty on that basis, there is no occasion for the determination of an additional penalty pursuant to s 123(1)(a). In my view, s 123(2) does not alter the date upon which the or a relevant offence is committed for the purposes of s 131(2). Had s 123(2) been expressed in unqualified terms, or prefaced with the words ‘[f]or the purposes of this Part’, or ‘[f]or the purposes of the Act’, a different conclusion might follow.114 Even if I were persuaded that the words actually used reflected an inadvertent failure to express what the legislature had intended, it would not be appropriate to disregard the words used and interpret the provision so as to extend the scope of criminal liability.115 364 Section 123(1)(b) works differently. In respect of a failure to comply with a clean-up order, as augmented by s 123(2), it has the effect that if: • the defendant had been convicted of an offence of failing to take the specified action within the specified period; and • after the conviction, their omission to take the specified action has continued; then: • they are guilty of a further offence (in effect, created by s 123(1)(b)); and • in the event they are prosecuted for and convicted of that breach, the penalty for which they are liable may include one-fifth of the maximum penalty that 114 cf. section 71 of the Interpretation Act 1984 (WA), considered in Hunter v City of Joondalup (2015) 257 A Crim R 299; [2015] WASC 444. See also s 242 of the Protection of the Environment Operations Act 1997 (NSW), considered in Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [128]-[136] (Pepper J). 115 Krakouer v The Queen (1998) 194 CLR 202 at [62] (McHugh J). -- 107 of 142 -- [2025] SASC 200 B Doyle J 100 would otherwise apply to the foundational offence, for each day during which the omission continues. 365 Plainly, s 123(1)(b) has no operation here. Nor, for the reasons expressed, does s 123(1)(a), because the respondent cannot demonstrate the premise for its operation, which is that Mr Rollond is liable to a penalty calculated under s 99(8) for having contravened s 99(1). That is because the information was filed more than three years after the date by which any offence against s 99(1) occurred, and without the authorisation of the Attorney-General. Had the information been commenced within three years of the expiry of the specified periods, there would have been scope to impose a penalty that exceeded the penalty in s 99(8), by reason of the combined operation of s 123(1)(a) and s 123(2). 366 In Circelli v The Corporation of the City of Adelaide (No 2) (‘Circelli’),116 Judge Cole said that:117 It is clear that the operation of s 123(2) is confined to the consideration of the possible imposition of a penalty calculated daily. It does not assist the complainant in relation to the question of whether counts 1 and 2 are out of time. At best, its existence is an indication that some of the offences provided for under the Act are capable of being continuing offences. 367 In my respectful view, it is correct that s 123(2) does not, in a case like the present, ‘assist’ an informant who complains of a failure to comply with a clean- up order where the proceeding is instituted more than three years after the expiry of the specified period in the relevant order. By reason of the potential operation of s 123(1)(b), it may be that her Honour’s observation that the operation of the sub-section is confined to the consideration of the possible imposition of a penalty calculated daily goes too far. For the purposes of the particular issue raised in this appeal, however, I substantially agree with the approach in Circelli. 368 The judge ultimately resolved this issue in favour of the respondent. With reference to s 123(2) of the EP Act, he concluded (Reasons [476]-[477]): The Act had provided that where an offence against a provision had been committed, an obligation to do something had to be regarded as continuing until the act had been done, notwithstanding that any period within, or time before which, the act had been required to be done had expired or passed. In other words, Counts 5 and 6 had been continuing offences. Given the offences charged in counts 5 and 6 had been continuing offences, each of the charged offences had been laid within time and had been valid. 369 For the reasons I have given, my respectful view is that the judge erred in reaching this conclusion. The convictions in respect of counts 5 and 6 must therefore be quashed. 116 [2015] SAERDC 52. 117 [2015] SAERDC 52 at [64]. -- 108 of 142 -- [2025] SASC 200 B Doyle J 101 370 Whilst that makes it strictly unnecessary to consider the other grounds relating to counts 5 and 6, I express my views about them below. Whether the information impermissibly charged two offences (ground 13A) 371 Count 5 alleged a failure to comply with that part of the clean-up order that required disposal of oil drums, vehicle parts and tyres to an appropriately licensed waste facility by 13 February 2017. Count 6 alleged a failure to comply with that part of the clean-up order that required the disposal of all remaining waste including contaminated soil to an appropriately licensed waste facility by 28 July 2017. 372 I granted leave to the appellants to amend the notice of appeal to include ground 13A in these terms. 13A. The trial judge erred by convicting Mr Rollond on both Counts 5 and 6 and his conviction for one of the counts must be set aside. Particulars 13A.1 The provision in s 99(8) of the Act creates a single offence in relation to non-compliance with a Clean Up Order (CUO), regardless of the number of ways in which the same CUO is not complied with. 13A.2 The particulars of non-compliance in Counts 5 and 6 alleged non- compliance with the same CUO, which if proved resulted in the commission of the same, single offence. 13A.3 Mr Rollond does not oppose Count 5 being amended by the Court on appeal, to add the Count 6 particulars 6.2 to 6.4 to it, when the conviction on Count 6 is set aside and Count 6 is dismissed. 373 The respondent contends that the question whether only one offence can permissibly be charged in relation to a single clean-up order is to be answered by considering the principles relating to pleas in bar (or the equivalent rule that applies in summary jurisdictions118) and abuse of process. I agree. 374 There is (rightly) no contention of abuse of process in the present case.119 The focus must be on whether a conviction in respect of either of the two charges would entitle Mr Rollond to raise that conviction as a bar to prosecution in respect of the other charge. A plea in bar (autrefois convict or autrefois acquit) may be available 118 In courts of summary jurisdiction, where there is no record, the court gives effect not to the technical pleas but to the maxim which is reflected in the double jeopardy rule: Pearce v The Queen (1998) 194 CLR 610 at [61] (Gummow J). 119 In circumstances where the counts were tried together and in view of the appellants’ contingent concession that if ground 13A were to be upheld, the particulars relating to one count could be taken as alleged within the other, there could be no suggestion of vexation, oppression or unfairness: cf. Pearce v The Queen (1998) 194 CLR 610 at [29]-[31] (McHugh, Hayne and Callinan JJ). -- 109 of 142 -- [2025] SASC 200 B Doyle J 102 where the elements of one offence are the same as, or are included in, the elements of an offence for which the accused has been tried to conviction or acquittal.120 375 For these purposes the elements include not only conduct elements but circumstance or consequence elements.121 The real question in this case is whether the conduct (or omission) or circumstance elements the subject of counts 5 and 6 are, for these purposes, different. The circumstance element in each case is the relevant requirement in the clean-up order. Whether the circumstance element in each case differs or is the same turns upon the level of specificity or generality at which the circumstance is identified. The conduct (or omission) element in each case inheres in the failure to undertake the particular required action by the specified date. 376 The structure of s 99 of the EP Act contemplates that a clean-up order may, indeed commonly will, comprise separate and distinct requirements. There is no reason to doubt that the clean-up order in the present case validly imposed separate specified periods for the distinct requirements. That suggests that the EP Act contemplates that separate and distinct requirements under a clean-up order constitute separate and distinct circumstances, requiring separate and distinct conduct in order to avoid exposure to penalty under s 99(8). Put another way, the elements of an offence against s 99(8) are: • that the person has been issued a clean-up order that requires the person to take specified action; and • that the person has not taken the specified action within the specified period relating to that specified action. 377 On this basis, the elements of count 5 and 6 are different. It would only be if the elements were to be conceptualised at a high level of abstraction (being issued a clean-up order and not complying with its requirements) that the elements of count 5 and 6 could be said to be the same. Whilst questions of fact and degree may arise where specified action subject to a single specified period could be seen to consist in a number of similar constituent acts, the present case is clear enough. 378 To conclude that the clean-up order in this case could only be contravened ‘once’ would be to deny practical force and significance to the distinct species of action specified in the clean-up order. It would also result in practical inconvenience and tend to encourage the proliferation of multiple clean-up orders. 379 In my view, appeal ground 13A therefore fails. 120 See the discussion in Police v Hill (2022) 140 SASR 482 of the decisions in Pearce v The Queen (1998) 194 CLR 610 and Island Maritime Limited v Filipowski (2006) 226 CLR 328. 121 Police v Hill (2022) 140 SASR 482 at [10] (Kourakis CJ). -- 110 of 142 -- [2025] SASC 200 B Doyle J 103 Whether the judge erred in his consideration and assessment of the evidence of Mr Clothier (ground 3) 380 The evidence of Mr Clothier was principally relevant to count 6, and the allegation that Mr Rollond failed to comply with the requirement to dispose of contaminated soil to a licensed facility, but it was also relevant to count 5. Whilst count 5 alleged a failure to comply with the requirement to dispose of all oil drums, vehicle parts and tyres to a licensed facility, in the way in which the prosecution was conducted, the focus was upon the disposal of tyres removed from the pit during the excavation. 381 Under appeal ground 3, the appellants have particularised six complaints respecting the judge’s treatment of Mr Clothier’s evidence. Particulars 3.1, 3.2, 3.3 and 3.5 concern his evidence relative to count 6 and particular 3.4 concerns evidence relevant to count 5. Particular 3.6 is not directly relevant to either count but is perhaps relevant to the question of Mr Clothier’s reliability and evidence as a witness. Particular 3.1 382 Particular 3.1 concerns an aspect of the judge’s observation in the introductory part of his Reasons that: [44] Brian Clothier had been employed on the land, initially as a sheep shearer and later as a truck driver, and later in doing general farm duties. He said in March 2017, Mr Rollond had told him to take contaminated dirt with 44-gallon oil drums in to a dump in Wingfield and that he had later returned to pick up that contaminated load from the same dump as instructed by Mr Rollond. 383 Mr Clothier had not given evidence that he had been instructed to return to pick up that load of waste, although, as the judge’s reasons in other places reflect, he was involved in taking soil to IWS at Dublin which was rejected and returned with it a second time only to have it rejected again. 384 The erroneous proposition in Reasons [44] was not repeated later in the judge’s findings on the key issues, nor is it likely in and of itself to have had any significant influence on the judge’s assessment of other aspects of the evidence. It is in the category of errors about which it can be said, had it not been made, the judge’s conclusions on the ultimate issues would inevitably have been the same. Particular 3.3 385 The same observations apply to particular 3.3, which concerns the statement in Reasons [206] (extracted later in these reasons in the context of appeal ground 16) to the effect that before depositing a particular load of soil at IWS, ‘Mr Clothier had a soil test done’ when, in fact, the test had been done by Mr Pedicini a few days earlier. This may have been infelicitous expression, rather than a misapprehension of the evidence, but whichever is the explanation, it does not have a material bearing on the critical issues. -- 111 of 142 -- [2025] SASC 200 B Doyle J 104 Particular 3.2 386 Particular 3.2 complains of the judge’s statement, in the same paragraph, that the ‘evidence of Mr Clothier, that he had then taken clean [s]oil to IWS, is supported by weighbridge receipts’. As the appellants point out, the weighbridge receipts did not say anything about whether the soil was clean. I consider that all that the judge meant was that Mr Clothier’s evidence that he had made a further delivery was supported by the weighbridge receipts; hence the word ‘then’. To the extent that this particular identifies an error, it is immaterial. Particular 3.5 387 Particular 3.5 is that the judge ‘failed to provide any reasons which explained why he could ignore the established inconsistencies in Mr Clothier’s evidence about when he clamed he dumped the first load of soil he collected from Brinkley into the quarry’.122 388 In his evidence in chief Mr Clothier said that on Mr Rollond’s instructions, he had dumped the first load of soil he collected from Brinkley into the quarry. When asked when this was, he responded that he was not 100% sure and if it was not on the same day, it would have been around the same time.123 389 The appellants submit that, in cross-examination, Mr Clothier agreed he had said in an affidavit in 2018 that after the first load of contaminated soil had been separated by the people at Brinkley, he had taken it from there to a waste depot at Dublin at Mr Rollond’s instructions. In my view, however, that overstates what Mr Clothier acknowledged in cross-examination. Mr Clothier was clear that he never took a load straight from Brinkley to Dublin. He said that everything went back to Tara Hills. He was cross-examined on an affidavit he had made in the presence of a Detective in January 2018. The following exchange occurred: Q I suggest you told him this, this is what you put in the affidavit that you swore for him, para 10: ‘On Tuesday, 23 May 2017 Rollond instructed me to take the fully loaded blue tipper semitrailer to the waste depot at Dublin which is part of the Cleanaway company north of Adelaide. I don’t quite recall, but I think this is the first load of contaminated soil I took out of the Brinkley waste depot after it had been separated by the people at the waste depot’. A If I said that, it must have been then, yeah. Like I said, it was a long time ago, so yeah. Back then my memory was a lot better. Q Did you say that. A I would have said it otherwise it wouldn’t be written there and I wouldn’t have, yeah, so like I said I must have. It was a long time ago. 122 The appellants refer to Tr 1079-1080 and Tr 1122-1125. 123 Tr 1079-1080. -- 112 of 142 -- [2025] SASC 200 B Doyle J 105 Q So what you said before wasn’t right, that is, you didn’t take a load directly from Brinkley to Dublin. A No, I never took a load directly. 390 There was then an objection and exchange with the judge before the questioning resumed. Q Do you still deny that you took a load of soil from Brinkley on the same day down to Dublin. A Yes because I never went – never did it in the one day. Q Might you have done it on the next day. A I honestly couldn’t honestly say. Q But it’s your evidence that the first load you picked up from Brinkley you took back to Tara Hills and put straight into the quarry, isn’t it. A Yeah, that’s how I remember it, but obviously I remember that wrong. I’m not trying to sort of – Q Is that wrong, is it. A If it says there I did, the first load’s Dublin so it might be right. Like I said, that was a long time ago and I’m only trying to recall that happened in 2017, that’s five years ago. 391 It is important to appreciate, as the judge found (Reasons [203]) that five loads were returned from Brinkley.124 The judge accepted that one load was taken to Dublin (Reasons [205]). He found that three loads were deposited into the quarry (Reasons [211]). The judge did not make a positive finding as to whether the load taken to Dublin was the first of the loads returned from Brinkley. It is difficult to see, therefore, how the issue pursued in the cross-examination might lead to a different finding. 392 To the extent that the submission is that it was necessary to form a view about whether the line of cross-examination reflected adversely on Mr Clothier’s credibility or reliability, there are a number of responses that may be made. 393 First, there is no significant inconsistency between what Mr Clothier said in chief and what he accepted he had stated in an earlier affidavit. His evidence in chief was to the effect that the first load that came back from Brinkley may not have been dumped in the quarry immediately. As supplemented by his oral evidence in cross-examination, the account in the affidavit is consistent with the first load having returned to Tara Hills and then being taken subsequently to Dublin, either that day or shortly thereafter. In circumstances where Mr Clothier agreed that at least one load was ultimately taken to Dublin, the fact that his 124 Exhibit I3, Tab 27. -- 113 of 142 -- [2025] SASC 200 B Doyle J 106 recollection about which of the loads was dealt with in that way was vulnerable is not a reason fundamentally to question his reliability on matters such as whether he was instructed by Mr Rollond to dump some of the returned soil in the quarry, nor does the exchange suggest a witness whose credibility has been damaged by the inconsistency or his response to it. 394 Secondly, the judge acknowledged elsewhere in his reasons that Mr Clothier had been subject to strong challenge in cross-examination but he was nevertheless satisfied that Mr Clothier had been trying to tell the truth (Reasons [191]). In the circumstances I do not think the judge’s reasons are inadequate and nor, given the obvious advantage that the trial judge had, am I persuaded that a different view should be taken of those parts of Mr Clothier’s evidence that the judge accepted and upon which he acted. Particular 3.4 395 The appellants submit that the judge erred (Reasons [240]) by using Mr Clothier’s evidence that a truck loaded with tyres had driven out of the yard and ‘across the land towards the quarry’, when finding that the tyres from the pit had been dumped into the quarry. They contend that the last point at which Mr Clothier saw the truck was a long distance from the quarry and his cross- examination made clear that the effect of his evidence was based on hearsay.125 396 The appellants submit that the last point at which Mr Clothier said he had seen the truck was a considerable distance from the quarry, as much as two kilometres as the crow flies.126 Between those two locations there were other places including a junkyard (just near the yard) where the tyres could have been dumped. Of course, dumping the tyres in any of these locations would not have amounted to compliance with the clean-up order, but the appellants argued that the case against them had resolved to a contention that the tyres had been dumped in the quarry. 397 In my view the judge did not err. He correctly summarised the effect of Mr Clothier’s evidence which was that the truck was driven out of the yard and across the land towards the quarry. Having attended the site on a view, it is unlikely the judge misunderstood the distance involved. He obviously did not treat Mr Clothier’s evidence as amounting to a direct observation that the truck reached the quarry. The evidence was relevant as part of a body of evidence capable of supporting the conclusion that the tyres were dumped in the quarry. Particular 3.6 398 The appellants submit that the judge erred by failing to provide reasons which explained why he could ignore Mr Clothier’s incorrect evidence that there had not been 100 or more oil barrels in the semi-trailer he drove to a Cleanaway waste 125 Tr 1130-1131. 126 Reference was made to Exhibit I4, Tab 71 and Tab 76. -- 114 of 142 -- [2025] SASC 200 B Doyle J 107 facility at Wingfield and dumped there,127 when, so the appellants contend, other evidence provide that 138 barrels were inside the semi-trailer and were dumped at Wingfield. 399 The appellants submit that this was a matter affecting an important witness for the informant whose evidence was hotly disputed in other respects, and needed to be dealt with by the trial judge in the Reasons. 400 The respondent contends that in fact Mr Clothier was equivocal as to how many barrels were in the truck that he took to Cleanaway. He said that he ‘didn’t see 100 oil barrels’ but that he was not counting them either as he was busy hosing out the truck.128 Some of the drums were contorted which would make it hard to count them. Whilst he was resistant to the notion there were over 100, perhaps even 180 barrels in the truck, he candidly said ‘I don’t know, I don’t have the numbers. I don’t, yeah, I didn’t count them’. In those circumstances, this was not so significant a matter that the judge’s reasons were deficient for failing specifically to engage with it. Nor, on my independent review of the evidence, does it provide a cogent reason to consider the judge erred in acting to a significant extent upon the evidence of Mr Clothier. Whether in respect of count 5 the judge erred in finding tyres disposed of in quarry and in using findings of Ms Rollond against Mr Rollond (grounds 14 and 15) 401 It is convenient to address these two counts together. 402 Appeal ground 14 complains of a finding (Reasons [479]) that tyres from the pit were disposed of into the quarry. The gravamen of the complaint is that there was no direct evidence of that fact and that the evidence relied upon circumstantially to establish the fact did not exclude the reasonable possibility that tyres located by the EPA in the quarry were not tyres from the pit. 403 Appeal ground 15 complains about the use by the judge of his finding that Ms Rollond’s dishonest conduct in amending dockets and presenting a photograph of tyres on a Beaurepaires truck could be used as circumstantial evidence demonstrating consciousness of guilt on the part of Mr Rollond with respect to count 5 (Reasons [499]-[503]). 404 Before turning to the contentions in relation to those grounds, it is useful to set out the context in which the impugned passages of the judge’s reasons are located. 405 Under a heading ‘Had Mr Rollond complied with the clean-up order?’, the judge set out his ultimate conclusion (which drew on earlier findings and was explained in more detail in the following paragraphs) in these terms: 127 Tr 1115-1116. 128 Tr 1115-1116. -- 115 of 142 -- [2025] SASC 200 B Doyle J 108 [479] I have found contaminated soil from the pit had been returned from Brinkley, and that tyres from the pit and that contaminated soil had been disposed of into the quarry.129 The quarry had not been a licensed facility and the disposal of contaminated soil and tyres into the quarry had been unlawful and had not complied with the clean-up order. 406 After going on to explain his reasons for finding that Ms Rollond was Mr Rollond’s agent for the purposes of compliance with the clean-up order, the judge made the following findings and conclusions. [485] The conduct and statements of Ms Rollond in that regard, have been imputed to Mr Rollond, within the scope of her authority to ensure compliance with the clean- up order.130 Under s 127 of the Act, those acts had been attributable to Mr Rollond. [486] The emails of 23 February 2017, and 1 March 2017, from Ms Rollond to LBW, had in that respect been relied upon by the informant to establish the facts stated in those emails as attributable to Mr Rollond.131 [487] I have attributed to Mr Rollond that Ms Rollond had said that tyres recorded in three Beaurepaires dockets and depicted in photographs of a Beaurepaires truck had come from the pit, had been subject to the clean-up order and had been disposed of in compliance with that order, to Beaurepaires.132 [488] On 2 March 2017, Ms Rollond had told the lawyers for Mr Rollond tyres from the pit had been disposed of at Beaurepaires.133 She had provided three dockets to show to the recipient 282 tyres had been taken by Beaurepaires and those photographs of tyres contained in the back of a Beaurepaires truck had gone to Beaurepaires.134 [489] I have been satisfied though that the provision of those dockets and those photographs by Ms Rollond had been a deception on her part. [490] The truck depicted in those photographs had not been owned by Beaurepaires. It had been purchased by Mr Rollond from Beaurepaires in 2015.135 That truck had not been registered and could not have been legally driven on a public road.136 That truck had only ever been used since 2015, on the land.137 [491] The truck had been loaded with the tyres depicted in those photographs by Mr Clothier and another.138 Beaurepaires had not been involved. [492] Mr Cummings from Beaurepaires had from time to time picked up used tyres from the yard for trade in. When he had done so, he had used a small truck139 which had only been able hold 30 tyres. Mr Cummings said he had never removed more than 129 Exhibit I65. 130 EP Act, s 127(1)(b). 131 EP Act, s 127(1)(b). 132 Evidence Act, s 53. Exhibits I3 at Tabs 55 and 57. T1364.36-38; T1365.1. 133 Exhibit I6, Tab 108 at [986]; T1361.5-17; T1387.23-31. 134 Exhibit I6, Tab 108 at [987]-[989]. 135 Exhibit I3, Tab 53; Exhibit I4, Tab 98; T1502.22-38; T1503-4; T1503.28-37; Exhibit I5; T231-3. 136 Exhibit I70; Motor Vehicles Act 1959, s 9. 137 T1818.16-18. 138 T1097.27-T1098.15; T1129-T1130. 139 T1485-T1486; T1487.28-35. -- 116 of 142 -- [2025] SASC 200 B Doyle J 109 30 tyres from the yard at any one time.140 He also said he had never picked up more than one or two covered with dirt or oily residue.141 [493] As for Docket A289473, dated 20 January 2017, Mr Cummings said it had recorded 115 truck tyre casings. He said ‘casings’ had been a description used by Beaurepaires for trucks tyres receipted to be recapped or re-treaded.142 Mr Cummings said he would likely have taken only in any single load, 10 “418” tyres and 5 “BH9” tyres, as had been recorded in the docket. He said he would not have taken 115 tyres.143 [494] In respect of Docket A289476, dated 3 February 2017, Mr Cummings said it had recorded 6 tyres for trade, 41 “c grade” tyres and 8 tyres to be capped.144 [495] In respect of Docket A289477, Mr Cummings said it had recorded 112 casings or retreads. He said the word ‘scrap’ had been circled on that docket and the comment “trade & NWR” had been written.145 Mr Cummings thought he had not written the number 112. He said he had never taken 112 tyres from the yard at one time.146 He said he would not normally have made a circle over ‘scrap’.147 [496] I have been satisfied that neither the Beaurepaires truck with the tyres or the tyres depicted had gone to Beaurepaires. Rather it had been driven out of the yard and overland toward the quarry.148 Tyres had later been found in the quarry by the EPA, when they had excavated it. [497] I have drawn what I have considered the only reasonable inference open on all the evidence I accept, that the dockets provided by Ms Rollond had, on their face, been amended from dockets which had been completed or created by Beaurepaires and, that the photographs of the truck had been taken to create a false impression those had been tyres the subject of the amended dockets and that they had been removed from the land by Beaurepaires. [498] I have excluded any reasonable possibility that Mr Cummings or another Beaurepaires employee had made multiple trips in respect of each docket and had collected those tyres for disposal. [499] The informant contended the production and provision of the Beaurepaires truck photographs had been lies which had been attributable to Mr Rollond and circumstantial evidence going to his consciousness of guilt of count 5 from which I could infer Mr Rollond knew he had been guilty of Count 5. [500] I have used that evidence to infer Mr Rollond had known he had been guilty of count 5. I have accepted Ms Rollond had provided those photographs as agent for Mr Rollond to give the impression the tyres from the pit had been disposed of to Beaurepaires; that such statements had been false; that such false statements had been a lie in that she had known it had been false; that her lie had been about an important issue connected with Count 5; and that Ms Rollond had told that lie 140 T1488.2-30. 141 T1505.14-T1506. 142 T1490.10-T1491.21. 143 T1490-T1491; T1498 .1-38. 144 T1494.31-T1495. 145 T1497. 146 T1498.1-36; T1511-1512. 147 T1500-T1501. 148 T1098.19-1099.17; T1130. -- 117 of 142 -- [2025] SASC 200 B Doyle J 110 because she had known telling the truth would have helped show Mr Rollond had committed the offence charged. [501] I have ruled out the possibility Ms Rollond had told the lie for some other reason such as it had an honest account of what had happened or that she had panicked because the tyres had already been lawfully disposed of and she had constructed false photographic evidence to justify that compliance. [502] I have concluded Ms Rollond had told the lie as agent of Mr Rollond and in accordance with her authority because she had known the truth would have tended to implicate her father. I have rejected as a reasonable possibility that Ms Rollond had staged the photographs as the tyres from the pit had already been lawfully disposed of and Ms Rollond had needed proof of that fact. [503] I have only used that lie as circumstantial evidence of guilt to decide whether to infer Mr Rollond had known he had been guilty of Count 5. In that respect, I have excluded the reasonable possibility the conduct had been for some other reason. [504] Nonetheless, having drawn that inference I have still considered all the evidence in being satisfied that the prosecution had proved Mr Rollond guilty of Count 5. [505] Accordingly, I have found Mr Rollond guilty of Count 5. 407 The appellants complain that there was no direct evidence that tyres from the pit were dumped in the quarry. They submit that: • 144 tyres had been removed from the pit by 18 May 2016; • according to the GHD report that was tendered, only a small number of tyres (15 to 20) were located in the quarry when sections of it were excavated in 2018 and they were described in general terms;149 • on the evidence (relevantly, various photos of the yard and surrounds taken in March 2016), there were hundreds or more tyres scattered around the yard or farm; • the quarry had existed for many years before 2016 and the judge’s finding that Google Earth images indicated it had not been in existence in 2002 (Reasons [223]) was wrong; • the evidence of Mr Clothier in relation to stacking tyres on the Beaurepaires truck does not assist, including because the photograph of the truck suggests that the tyres were generally clean and not covered in oily mud or soil as would be expected had those tyres come from the pit. 408 In respect of the conduct of Ms Rollond, whilst the appellants did not formally concede the correctness of the finding that she was relevantly 149 Report of Dilara Valiff and Julian Howard of GHD dated 2 October 2018. GHD was commissioned by the EPA to undertake a contamination assessment of a former rock and shale quarry at the Site. The report comprised Exhibit I5, Tab 106. -- 118 of 142 -- [2025] SASC 200 B Doyle J 111 Mr Rollond’s agent for the purposes of complying with the clean-up order, no positive attack on that finding was made on the hearing of the appeal and counsel accepted the finding was, at the least, open. I consider it to be a sound finding in all the circumstances. The reasonable possibility that Ms Rollond was on a frolic of her own in corresponding about compliance with the clean-up order, and was not doing so with the express or implied authority of the recipient of that order, her father, can be excluded. 409 Further, the appellants did not dispute that Ms Rollond had engaged in a deception by arranging for a photograph of the Beaurepaires truck to be sent to LBW in response to its request for evidence to demonstrate the disposal of the relevant tyres.150 410 The real thrust of the appellants’ complaint on appeal was that: • first, even where the basis for its application is otherwise engaged, s 127(1)(b) of the EP Act does not enable the consciousness of an agent of their principal’s guilt to be attributed to the principal; • secondly, it was not shown that Ms Rollond was lying because she was conscious of Mr Rollond’s guilt in respect of an offence of non-compliance with a clean-up order; • thirdly, at the time of the relevant lie, Mr Rollond could not have been guilty of an offence of non-compliance with a clean-up order because the time for compliance with that part of the order had not yet arrived; • fourthly, even if Ms Rollond was an agent for Mr Rollond in complying with and communicating in respect of the clean-up order, there was no evidence he directed her to do what she did. 411 The premise for the third aspect of the submission is incorrect. The time for disposal of the tyres had arrived by the time of the dishonest communication by Ms Rollond. It was only the compliance date for disposal of remaining waste including the contaminated soil (and thus excluding oil drums, vehicle parts and tyres) that was extended to 28 July 2017. 412 Further, and in any event, I would not accept that, at common law at least, consciousness of guilt reasoning is only available where the person, whose conduct is said to amount to an implied admission, must have known of all the matters that would make them guilty of the relevant offence. 413 Suppose that a suspected sniper, when asked what is in their case as they exit the book depository, answers ‘a trombone’, and independent evidence establishes that they never possessed a trombone. On a charge of murder, it could not be suggested that the lie is ineligible to be used as revealing a consciousness of guilt 150 Exhibit I3, Tabs 56 and 57. -- 119 of 142 -- [2025] SASC 200 B Doyle J 112 because the sniper could not at the time of the lie have known whether the target had suffered fatal wounds (death being an element of murder). The authorities do not suggest or require such a narrow approach; instead the question is whether it can be inferred that telling the truth would implicate the accused in the offence with which he is charged.151 414 If, in the example given, the question whether the accused fired a shot is in issue, then the lie may implicate him in the crime of murder even though it does not demonstrate his knowledge that the bullet killed the victim. The lie need only relate to a material issue in the case.152 415 The requirement that, before out-of-court statements which are exculpatory on their face may be relied upon (other than purely for credibility purposes if the maker gives evidence at trial) against the maker of the statement, it be concluded that lie was told because of a consciousness of guilt or fear of the truth, is what permits the statement to be treated as though it were an admission against interest. The lie, or deceptive conduct, may be considered to be an implied admission against interest, admitted in exception to the hearsay rule notwithstanding the assertive nature of the lie. On another view, the hearsay rule is not engaged because the out-of-court assertion is not relied upon for its truth, but circumstantially.153 416 The reasoning that is engaged where a lie is admissible and able to be used circumstantially against an accused is that: (i) the accused lied; (ii) the lie was told because the accused feared the truth would implicate him in respect of a material issue in the case against him; (iii) the accused knew facts and circumstances that would implicate him in respect of a material issue in the case against him; and (iv) those facts and circumstances occurred. 417 Just as admissions made by agents in communications within the scope of their authority may be tendered in evidence against their principal,154 a lie by the agent which can be found to have been made because of a consciousness that the truth would implicate the principal must be admissible on the same basic principle. Some care, however, will be required in assessing the weight to be given to evidence of that kind if the agent may not be assumed to have complete knowledge of whether the principal has committed a crime or some element of a crime. I return to this consideration later. 418 In response to these grounds of appeal, the respondent emphasises that count 5 required proof that the tyres had not been disposed of to a licensed waste facility by the required time. The proposition that there were tyres located in the quarry 151 Edwards v The Queen (1993) 178 CLR 193 at 198-199 (Brennan J), 209, 211 (Deane, Dawson and Gaudron JJ). See also R v Quist (2017) 127 SASR 471 at [165] (Blue J) (‘a material lie told because the defendant knew the truth of the matter would implicate him or her in the offence or an element of it is admissible as evidence probative of guilt of the offence charged or an element of it …’). 152 Heydon, Cross on Evidence, 14th Aust ed (2024), p 1313-1319 [33435] (‘Admissions by conduct’). 153 R v Quist (2017) 127 SASR 471 at [165] fn 102 (Blue J). 154 Heydon, Cross on Evidence, 14th Aust ed (2024), p 1335 [33540] (‘Agents admissions in general’). -- 120 of 142 -- [2025] SASC 200 B Doyle J 113 was relied upon by the respondent as part of (but not the sole basis for) such a finding.155 The additional evidence relied upon included: • Ms Rollond presented false information relating to the disposal of the tyres; • the Beaurepaires truck had been seen driving in the direction of the quarry; • a witness from Beaurepaires, Mr Cummings, had given evidence that he used to pick up tyres from the Land and would do so in a small truck that could only hold 30 tyres. He said that was the maximum he ever removed from the Land at any one time and he never picked up more than one or two tyres from the Land that had dirt or oily residue on them. The judge described and apparently accepted this evidence (Reasons [240]). 419 In respect of the tyres located in the quarry, the respondent points out that the reason why only 20 or so tyres were found in the quarry is that, as emerges from the GHD report, the test pits covered a fairly limited portion of the area of the quarry. Unlike the pit in which the drums and tyres had originally been located, there was not a comprehensive excavation. 420 In respect of the lies told by Ms Rollond, the respondent contends that: • section 127(1)(b) allows the state of mind of an agent to be attributed to their principal and does not require there to have been a direction by the principal to the agent to lie; • Ms Rollond represented that the tyres from the pit had been disposed of and provided dockets and photographs that created a false impression about that; • the deception arose from a recognition by Ms Rollond that to tell the truth would be inconsistent with having complied with the clean-up order; • that deception, being a state of mind, is attributable to Mr Rollond. 421 That is to say, both her conduct and state of mind are imputed to Mr Rollond. It allowed for the conclusion that he had not complied with the clean-up order. 422 Section 127 is found within Part 15 of the EP Act. It provides as follows. 127—Imputation of conduct or state of mind of officer, employee etc 155 In opening, the informant said that the gravamen of the offending in relation to counts 5 and 6 was non- compliance with the clean-up order with respect to the tyres and contaminated soil without making specific mention that the material had been deposited in the quarry: Tr 52-54. In written closing submissions, the informant invited a finding that the tyres were deposited in the quarry, but the focus of the submissions leading to that conclusion was that the documentation relied upon as evidencing disposal of the tyres was falsified and that Ms Rollond had sought to deceive LBW: see Informant’s Closing Submissions at [70]-[74]. -- 121 of 142 -- [2025] SASC 200 B Doyle J 114 (1) For the purposes of proceedings for an offence against this Act or proceedings for the payment of an amount as a civil penalty in respect of an alleged contravention of this Act— (a) the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate; (b) the conduct and state of mind of an employee or agent of a natural person acting within the scope of his or her actual, usual or ostensible authority will be imputed to that person. (2) Where— (a) a natural person is convicted of an offence against this Act; and (b) the person would not have been convicted of the offence but for the operation of subsection (1), the person is not liable to be punished by imprisonment for the offence. (3) For the purposes of this section, a reference to conduct or acting includes a reference to failure to act. 423 It has been remarked that the section is expressed in wide terms and effects a kind of ‘vicarious liability’.156 424 In understanding the reach of the provision, s 124(1) of the EP Act may be noted. It relevantly provides that it will be a defence in any criminal proceeding, including proceedings against a body corporate or a natural person where conduct or a state of mind is imputed to the body or person under the Part in which s 127 is located, if it is proved that the alleged contravention did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature. The defence created by s 124(1) was evidently thought to be appropriate to ameliorate what might otherwise be an unjust result in a case where a person’s agent has committed the elements of an offence within the scope of their usual or ostensible authority, even though the principal had been assiduous in seeking to avoid the commission of such an offence. 425 A straightforward application of s 127(1) is where an agent (A) of a natural person (D) causes serious environmental harm on D’s land by polluting the environment intentionally or recklessly and with the knowledge that environmental harm will or might result, contrary to s 79(1) of the EP Act. 426 In such a case D is imputed with both the actus reus and the mens rea proved against A. Subject to establishing a defence under s 124(1), D is, effectively (though not technically) vicariously liable for the offending of their agent. D may 156 Ashton Valley Fresh Pty Ltd v Dolan [2021] SASC 44 at [65]-[66] (Lovell J). -- 122 of 142 -- [2025] SASC 200 B Doyle J 115 not be imprisoned, however, if he or she would not otherwise have been found liable. 427 Now suppose that D has two employees who are for these purposes agents, A and B. Suppose that A causes serious environmental harm by polluting the environment by depositing contaminated soil near a creek, but without any appreciation that environmental harm will or might result (because he believed that the soil was clean). Suppose then that B knew nothing of A’s conduct in dumping the soil near the creek but knew that the soil that was loaded onto A’s vehicle contained high levels of hydrocarbons. Is D to be attributed with A’s conduct and B’s knowledge, so as to make D guilty of an offence against s 79(1) on the basis that D is deemed to have known that the soil loaded into A’s vehicle was contaminated, that it was deposited near to a creek, and must therefore have been reckless as to the environmental harm that would be caused? 428 On those facts, neither A nor B would have committed an offence against s 79(1) but, by imputing and then aggregating A’s conduct and B’s state of mind, D might be taken to have committed an offence which neither A nor B themselves committed. It may be wondered, if that is correct, why, if B’s state of mind as to the nature of the soil on the truck can be imputed to D, A’s (innocent) state of mind is not also so attributed? Is the imputation limited to guilty conduct and states of mind? Or is it that, on proper construction, s 127(1) only contemplates the imputation of a state of mind when it accompanies an act which is imputed to the person? 429 Difficult questions of this kind are to be resolved by recognising that the rule of attribution must be construed in the context of the relevant legislation, and in a way which is consistent with the scheme and purpose of that legislation.157 Where the issue is one of fraud or unconscionable conduct it may be inappropriate, and inconsistent with the essence of conduct of that kind, to aggregate knowledge of different persons to reason to a guilty mind which no individual person ever held.158 The broader and protective purposes of the EP Act might conceivably demand a wider approach. 430 The present case does not involve a problem of aggregation of different agents’ knowledge. Instead, it raises a question as to the kinds of conduct or states of mind that may be imputed. 431 Ms Rollond’s conduct in falsifying dockets or misrepresenting that the Beaurepaires truck in a photograph had collected tyres from the pit, resulting in them being disposed of in accordance with the clean-up order, is not conduct which comprises an element of any offence. If she engaged in that conduct because she was conscious that her father had not (to her knowledge) complied with the clean- up order, again, that knowledge per se was not an element of any offence. Indeed, 157 See, eg, Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 at [100] (Edelman J). 158 See, eg, Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 at [113] (Edelman J). -- 123 of 142 -- [2025] SASC 200 B Doyle J 116 proof of contravention of the clean-up order did not require proof that Mr Rollond knew that he had not complied with the order. Putting to one side any positive defences, it simply required proof that he had not complied with the order. 432 The fact in issue in respect of count 5 was whether Mr Rollond had caused the tyres from the pit to be disposed of as required. 433 The potential probative force of Ms Rollond’s conduct was that it was (arguably) capable of founding an inference that, to her knowledge, the tyres had not been disposed of to a licensed waste facility. Depending upon the extent to which she was in a position to know whether that was the case, that in turn had the potential to support or contribute to a finding that the tyres had not been disposed of to a licensed waste facility. As earlier observed, even without the benefit of s 127(1), if, as I think the judge was right to find, Ms Rollond had Mr Rollond’s authority in relation to compliance with and communication with the EPA about the clean-up order, a conclusion that she lied entitled the fact of the lie to be used as admissible evidence as part of a circumstantial case against Mr Rollond. But the weight and significance of the evidence could only be that, to Ms Rollond’s knowledge at the time of her statement, Mr Rollond had not complied with the clean-up order. 434 I am not convinced that s 127(1) contemplates the imputation to a principal of an agent’s consciousness of guilt. Whilst consciousness of guilt could be described as a state of mind, I am not persuaded that s 127(1) is intended to result in the imputation of each and every state of mind held by an agent at any relevant time to their principal simply because it has some connection to the issues in dispute. Practical problems can easily be imagined if that were the case, and if the imputation of states of mind went beyond states of mind accompanying relevant acts or omissions which otherwise might supply elements of an offence. Notwithstanding the broad purposes of the EP Act, and the availability of the defence in s 124, I consider that s 127(1) has a more limited purpose and effect. 435 Further, to my mind, whatever the precise limits to the operation of s 127(1), the section could not result in an attribution to Mr Rollond of some state of knowledge or belief that, when attributed to him, would enjoy some higher or different status. That is to say, the ‘state of mind’ of the agent cannot be abstracted to a higher level of generality, and then applied to the principal. If the agent’s implied admission could only sustain a finding that, so far as the agent had observed, the tyres had not been disposed of, that could not by a process of imputation be treated as akin to Mr Rollond knowing that the tyres had not been disposed of. 436 To the extent that the judge expressed himself as having imputed or attributed what he found to be Ms Rollond’s consciousness of guilt to Mr Rollond, in my respectful view, the judge likely erred. That said, I consider that if it could be concluded that Ms Rollond lied because she feared to reveal the facts as known to her, evidence of her lies was available to be used as part of the circumstantial case -- 124 of 142 -- [2025] SASC 200 B Doyle J 117 against Mr Rollond. It could only demonstrate that, so far as Ms Rollond knew, the tyres had not been properly disposed of. 437 In the end, I think that, despite the apparent reliance upon s 127(1)(b), this substantially reflects how the judge used the evidence. At Reasons [502], he referred to the lie as having a circumstantial use. Further, at Reasons [504], the judge made clear that he considered all the evidence in being satisfied of guilt of count 5. In those circumstances I consider that any error in the judge’s approach to s 127 of the EP Act was such that, had the error not been made, the judge would have reached the same conclusion. 438 On my independent review of the evidence, the judge’s reasoning to that ultimate conclusion has not been shown to be erroneous. True it is that there was no direct evidence that the Beaurepaires truck went to the quarry. The evidence was only that it was seen driving in that direction. True it is that the photograph of the Beaurepaires truck does not appear to depict tyres that are filthy, as one might expect if the tyres had recently been extracted from the pit. Then again, several of them do not appear to be clean. And it is perfectly possible that the tyres were sprayed or left in the rain for some period. True it is that only 20 tyres were found in the quarry, but as the respondent submits, only a limited portion of the quarry was excavated. Given there were a number of tyres in the yard apart from those that were extracted from the pit, it might be debated whether there was a basis to find, beyond reasonable doubt, that each of the 20 tyres found in the quarry was one of the 144 tyres extracted from the pit. But that was not the ultimate fact in issue and that fact did not need to be found beyond reasonable doubt (or, in fact, at all). 439 The ultimate fact in issue was that the 144 tyres removed from the pit had not been disposed of to a licensed waste facility. Whilst the onus of proof remained on the informant, the fact is that the only positive statements made on Mr Rollond’s behalf about disposal of the tyres was to the effect that they had been taken by or to Beaurepaires. In my view the evidence, most importantly including that of Mr Cummings, demonstrated that 144 such tyres had not been received by Beaurepaires. Whilst the onus remained on the informant from beginning to end to negative the reasonable possibility that the tyres had been properly disposed of prior to 13 February 2017, the Court’s assessment of that issue depends upon all the circumstances, and hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when the evidence, if it exists, must be within the knowledge of the accused.159 440 Other evidence in the case suggested that were the tyres to have been properly disposed of, a likely destination would have been Beaurepaires. This was what Ms Rollond had suggested had occurred. Once it was concluded that that had not 159 R v Baden-Clay (2016) 258 CLR 308 at [46]-[51] (French CJ, Kiefel, Bell, Keane and Gordon JJ). -- 125 of 142 -- [2025] SASC 200 B Doyle J 118 occurred, the question was whether alternative possibilities remained reasonable. In my view, weighing all the evidence, the answer is ‘no’. 441 I therefore would not have upheld grounds 14 and 15. Whether in respect of count 6 the judge erred in finding that the low level contaminated soil taken to IWS was not the soil excavated from the pit (ground 16) 442 As my earlier summary of the Reasons indicated, the judge found that after IWS at Dublin rejected loads of dirt from THP, it ultimately accepted a quantity of soil from THP. The judge found that: [206] The evidence of Mr Clothier, that he had then taken clean [s]oil to IWS, is supported by weighbridge receipts.160 They recorded 72.84 tonnes of low-level contaminated waste had been deposited at IWS Dublin on 4 and 7 August 2017, at a cost of $11,217.36.161 The first load taken to IWS had been clean sandy, yellow loam.162 Before tipping it out, Mr Clothier had a soil test done.163 The second load taken to IWS had been of clean brown dirt,164 and before it had been deposited, a test had also been done.165 [207] I am satisfied that soil had to have been taken from areas other than the pit.166 IWS had accepted them. LBW had assessed them as low-level and Mr Pedicini said he had either wrongly accepted the loads had been from the pit or that LBW had been misinformed.167 The contaminated soil, had been high level waste. 443 The appellants complain that the judge gave inadequate reasons for the finding made that the low level contaminated soil taken to IWS was not soil excavated from the pit. In particular they complain that the judge did not give reasons for dismissing the evidence or explanations from Mr Pedicini as to how the level of contamination of the soil from the pit could have changed over time. 444 In the respondent’s submission, the judge acknowledged that the soil had been tested and assessed as low-level. In fact, as the respondent points out, it had been tested as ‘waste fill’, being a lower level of classification than low-level waste, but because Mr Pedicini was told it was the soil that came from the excavation, on a precautionary basis, he classified it as low level contaminated waste. By accepting Mr Clothier’s evidence (Reasons [46], [191], [194], [205]), the judge had accepted that Mr Pedicini had been misinformed about the origin of the soil tested. This made it unnecessary to expressly consider in the Reasons the possibility of a change in the contamination levels of the soil over time. 160 Exhibit I3, Tab 52 at [241]; T1092; T1093.34-T1094.6. 161 Exhibit I3, Tab 52 at [241]; Exhibit I3, Tab 52 at [237]- [240]; T1093-1094; T221.27-38, T222.1-17. 162 T1091.6-1092. 163 T1092.32-33, T1093.19-25. 164 T1097.13. 165 T1097.4-7; Exhibit I6 at [993]. 166 T1094.20-T1096.21; T1128-1129. 167 Exhibit I6 at [992]- [995]; T1374.1-33. Exhibit I3, Tab 37 at [162]; Exhibit I3, Tab 52 at [234]-[241]; T1371.27-T1373.37. -- 126 of 142 -- [2025] SASC 200 B Doyle J 119 445 I accept those submissions and conclude that the Reasons were not inadequate in this respect. E Grounds relating to counts 2 and 3 (and counts 7 and 8) 446 The appellants advance two grounds of appeal in relation to the counts which are founded upon a contravention of the s 87 direction. 447 Appeal ground 18 is that the judge erred by failing to provide reasons why the s 87 direction was not invalid, in circumstances where its validity was the subject of submissions below. The ground is made out, but the appellants accepted that unless the more substantive ground relating to the validity of the direction succeeds (ground 19), the inadequacy of the judge’s reasons would not of itself result in the verdicts respecting counts 2, 3, 7 or 8 being set aside. 448 The factual context for the contentions made under appeal ground 19 is as follows: • following the making of the clean-up order on 8 April 2016, the EPA commenced to investigate allegations of potential contraventions of the EP Act including the unlawful disposal of contaminated soil and oil contaminated waste associated with the order into a quarry located on the Land (Reasons [224]); • on 15 February 2018, EPA officers including Mr Lewis and South Australia Police officers attended in relation to the allegations. Mr Steve Barry (‘Mr Barry’), an officer authorised for the purposes of s 85 of the EP Act, gave a direction pursuant to s 87 of the EP Act to THP through its employee Ms Rollond to cease all activity in the quarry, including any earthwork, the disposal of any object, thing, or material, or entry into the quarry for any purpose other than an emergency (Reasons [225]); • on 16 February 2018, Mr Barry wrote to THP to ‘document’ the directions given (Reasons [225]); • the letter commenced by observing: The Environment Protection Authority (EPA) is investigating allegations of potential contraventions of the Environment Protection Act 1993 (the Act). Those allegations include the unlawful disposal of contaminated soil and oil contaminated waste associated with a Clean Up Order (the Order) issued to you on 08 April 2016 into a quarry located upon 171 John Rollond Road, Tungkillo (the property). • the letter then recorded that pursuant to s 87 of the EP Act, Mr Barry directed THP to: - cease all activity within the quarry, including: • any earthworks within the quarry (excavation, movement or deposition of material) -- 127 of 142 -- [2025] SASC 200 B Doyle J 120 • deposition of any thing, object, or material (including but not limited to soils, rock, potato waste) - do not enter the quarry for any purpose other than for emergency situations for the protection of human life or for the removal of stock from the area. • the letter attached maps which identified the ‘quarry’ and stated that the direction ‘remains in force until such time as it is revoked by the EPA’. It provided that should THP wish to enter the quarry for any purpose, it was required to obtain written consent from the EPA prior to doing so; • the letter went on to state: It is my intention to investigate the allegations further in relation to the disposal of contaminated soil into the quarry. I endeavour to engage earthmoving contractors as soon as reasonably practicable in order to facilitate this process. I will contact you in due course with respect to this. • Mr Lewis returned to the quarry on 9 March 2018 to dig test pits and he observed a stockpile of potato waste (Reasons [226]). The deposit of that waste after the s 87 direction was the foundation for count 2; • approximately one month after the s 87 direction, by letter dated 21 March 2018, Mr Rollond was given an EPO issued under s 93 of the EP Act. The covering letter advised that on 9 March 2018, authorised officers visited the Land and observed the burial of waste including hydrocarbon contaminated vehicle parts, tyres and contaminated soil; • the s 93 EPO stated that its purpose was (i) to secure compliance with s 25 of the EP Act, which states that ‘a person must not undertake an activity that pollutes, or might pollute, the environment unless the person takes all reasonable and practicable measures to prevent or minimise any resulting environmental harm’,168 and (ii) to secure compliance with cl 10(1) of the Environment Protection (Waste to Resources) Policy 2010 (‘the Policy’),169 which the letter described in these terms: • that a person must not dispose of waste except as set out in the clause; • in clause 10(1)(e) that waste must not be disposed of except as required or authorised under an environmental authorisation or as otherwise required or authorised by the Authority; and • in clause 10(1)(f) that, subject to subclause 10(3), waste can be disposed of to land owned or occupied by a person. Subclause 10(3)(a) prohibits disposal to land owned or occupied by a person where the waste is disposed of: 168 EP Act, s 93(1)(a)(i). 169 EP Act, s 93(1)(a)(ii). -- 128 of 142 -- [2025] SASC 200 B Doyle J 121 (a) in a manner that results in environmental harm affecting water occurring naturally above or under the ground or water introduced to an aquifer or other area under the ground; or (b) in a manner that results in site contamination or an environmental nuisance; • the s 93 EPO then set out particulars of non-compliance, in these terms: In relation to your failure to comply with section 25 of the Act, you Phillip John Rollond between 1 January 2017 and 9 March 2018 undertook an activity that pollutes or might pollute the environment at the Site without taking all reasonable and practicable measures to prevent or minimise any resulting environmental harm, in particular: 1. You disposed of by burying at the Site, a large quantity of waste, including but not limited to hydrocarbon contaminated soil, tyres and vehicle parts; 2. On 9 March 2018 EPA officers dug two test pits at the Site and observed in and around those test pits, soil with a strong smell of hydrocarbons; visible hydrocarbon staining of the soil; vehicle tyres containing hydrocarbon contaminated soil; and random items of solid waste; and 3. Any resulting environmental harm, which includes potential harm, might have been prevented or minimised by depositing the waste at an appropriately licensed waste depot and/or by storing the waste in any appropriately bunded or sealed location that would have prevented the mixture of contaminated soil and other waste with the otherwise uncontaminated soil at the Site In relation to your failure to comply with Clause 10(1) of the Policy, you, Phillip John Rollond, between the 1January 2017 and the 9 March 2018: 4. Disposed of by burying at the Site a large quantity of waste including, but not limited to, hydrocarbon contaminated soil, tyres, and vehicle parts; 5. Some or all of the wase disposed of at the Site appears to be the waste that you were previously required to dispose of in accordance with Clean Up Order dated 08 April 2016 and the associated Remediation Action Plan prepared by LBW/Environmental Projects dated 05 May 2016. 6. EPA officers visited the Site on 9 March 2018 and dug two test pits. In those test pits the EPA officers identified hydrocarbon contaminated waste soil; vehicle tyres containing hydrocarbon contaminated soils; and used vehicle parts, including vehicle oil filters; and 7. At no time has the Site been an appropriately licenced or approved waste depot. • the ‘Requirements of Order’ set out in the s 93 EPO were in these terms: You, Philip John Rollond, are hereby ordered to: 1. Cease the disposal of any oil, tyres, contaminated soil, and vehicle parts contaminated with hydrocarbons, at the Site. Compliance date: Immediately upon receipt of this order -- 129 of 142 -- [2025] SASC 200 B Doyle J 122 2. Refrain from moving, remediation or otherwise dealing with any of the waste disposed of at the Site within the Quarry (refer attached Map A) until you have written approval from the EPA to do so. Compliance date: Immediately upon receipt of this order • some months later, on 6 August 2018, Mr Lewis returned to the quarry. On that occasion he saw calcrete material and grass in a pile of soil that he had not seen previously (Reasons [228]). The allegation that this material was dumped in the quarry after the s 87 direction was given was the foundation for count 3. 449 As this chronology reveals, the conduct the subject of count 2 occurred after the s 87 direction was given to THP but before the s 93 EPO was issued to Mr Rollond. The conduct the subject of count 3 occurred after the s 93 EPO was issued to Mr Rollond. It is common ground that the s 87 direction had not been revoked and, indeed, has never been revoked. 450 In considering the validity of the s 87 direction, the parties agree that the relevant source of power against which the contentions are to be assessed is the power in s 87(1)(m) of the EP Act to give any directions reasonably required in connection with the exercise of a power conferred by any of the earlier paragraphs in s 87(1) or ‘otherwise in connection with the administration or enforcement of’ the EP Act. 451 Whilst ultimately the question may reduce to a singular assessment of whether the s 87 direction was ultra vires, the appellants contended that: • first, properly construed, s 87(1)(m) does not authorise the giving of a direction that has the same effect as an EPO that may be made under s 93 of the EP Act; • secondly, any direction under s 87(1)(m) must be ‘reasonably required’ in order to be valid and the s 87 direction was not ‘reasonably required’ because the direction lacked any temporal limit and was not attended by the safeguards that attend an EPO. 452 Section 87 is to be construed by reference to its text, context and purpose.170 Its purpose may be derived from a proper construction of the provision in the broader context of the EP Act; the purpose of a statute resides in its text and structure.171 Within and subject to that overarching framework, various maxims or principles of statutory interpretation may assist in deriving the scope and meaning 170 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). 171 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at [25] (French CJ and Hayne J). -- 130 of 142 -- [2025] SASC 200 B Doyle J 123 of a provision.172 One such maxim, sometimes described as the Anthony Hordern principle, is that where a particular procedure is designated to achieve something, other procedures are thereby excluded. In the decision that gives the principle its modern name,173 Gavan Duffy CJ and Dixon J said:174 Where the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. 453 In R v Wallis, ex parte Employers Association of Wool Selling Brokers,175 Dixon J said that ‘an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course’.176 The principle applies when it is concluded that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.177 454 In other cases, the process of giving the provisions of an enactment a harmonious construction consistent with its text and structure may lead to the conclusion that two powers exist for different purposes, even though it is possible to imagine circumstances in which the same substantive action or result might follow from the exercise of either power (if a purpose that justifies its exercise exists). That is to say, the conclusion that two powers exist for different purposes does not require that there can be no overlapping field of operation. 455 Section 87 of the EP Act provides as follows. 87—Powers of authorised officers (1) Subject to this Division, an authorised officer may— (a) enter and inspect any place or vehicle for any reasonable purpose connected with the administration or enforcement of this Act; (b) with the authority of a warrant issued under this Division or in circumstances in which the authorised officer reasonably believes that immediate action is required, use reasonable force to break into or open any part of, or anything in or on any place or vehicle; 172 Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128 at [79] (Allsop CJ, Griffiths and O’Callaghan JJ). 173 The maxim expressum facit cessare tacitum is understood to have the same application: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [50] (French CJ). 174 Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trade Unions of Australia (1932) 47 CLR 1 at 7. 175 (1949) 78 CLR 529. 176 (1949) 78 CLR 529 at 550. 177 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [59] (Gummow and Hayne JJ). -- 131 of 142 -- [2025] SASC 200 B Doyle J 124 (c) give directions with respect to the stopping or movement of a vehicle as reasonably required in connection with the administration or enforcement of this Act; (d) take and remove samples of any substance or thing from any place or vehicle for analysis as reasonably required in connection with the administration or enforcement of this Act; (e) require any person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act; (f) examine, copy or take extracts from any documents or information so produced or require a person to provide a copy of any such document or information; (g) take photographs, films, audio, video or other recordings as reasonably required in connection with the administration or enforcement of this Act; (h) examine or test any plant, equipment, vehicle or other thing as reasonably required in connection with the administration or enforcement of this Act, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; (i) seize and retain, or issue a seizure order in respect of, anything that the authorised officer reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act; (ia) take onto or into any place or vehicle, and use, any equipment or apparatus (such as drilling, boring, earth-moving, testing, measuring, photographic, film, audio, video or other recording equipment or apparatus) as reasonably required in connection with the administration or enforcement of this Act; (j) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity; (k) require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters, to state the person's full name and usual place of residence and to produce evidence of the person's identity; (l) require a person holding or required to hold an environmental authorisation to produce it for inspection; (m) give any directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs above or otherwise in connection with the administration or enforcement of this Act. (2) An authorised officer may not exercise the power of entry under this section in respect of premises except where— -- 132 of 142 -- [2025] SASC 200 B Doyle J 125 (a) the premises are business premises being used at the time in the course of business; or (b) the authorised officer reasonably suspects that— (i) a contravention of this Act has been, is being, or is about to be, committed in the premises; or (ii) something may be found in the premises that has been used in, or constitutes evidence of, a contravention of this Act; or (c) the exercise of the power is reasonably required for the purposes of assessing the existence or causes of known or suspected site contamination. (3) An authorised officer may not exercise the power to enter or inspect, or to seize, a vehicle except— (a) in relation to a vehicle of a class prescribed by regulation; or (b) where the authorised officer reasonably suspects that— (i) a contravention of this Act has been, is being, or is about to be, committed in relation to the vehicle; or (ii) something may be found in or on the vehicle that has been used in, or constitutes evidence of, a contravention of this Act. (4) Where— (a) a person whose native language is not English is suspected of having committed an offence against this Act; and (b) the person is not reasonably fluent in English, the following provisions apply: (c) the person is entitled to be assisted by an interpreter during any questioning conducted by an authorised officer in the course of an investigation of the suspected offence; (d) where it appears that the person may be entitled to be assisted by an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until the person has been informed of the right to an interpreter; (e) if the person requests the assistance of an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until an interpreter is present. (5) In the exercise of powers under this Act an authorised officer may be assisted by such persons as he or she considers necessary in the circumstances. (6) An authorised officer may require an occupier of any place or a person apparently in charge of any plant, equipment, vehicle or other thing to give to the authorised officer or a person assisting the authorised officer such assistance as is reasonably required by the authorised officer for the effective exercise of powers conferred by this Act. -- 133 of 142 -- [2025] SASC 200 B Doyle J 126 (7) Where a person gives assistance to an authorised officer as required under subsection (6), the person must, if he or she so requires, be reimbursed by the authorised officer or the Authority for any reasonable costs and expenses incurred in giving the assistance. (8) An authorised officer appointed by a council may only exercise powers under this Act— (a) within the area of the council; and (b) within the area of any other council to the extent agreed to, in writing, by the other council. (9) Where the exercise of a power under this section (other than a power exercised with the authority of a warrant) results in any damage, the Authority or, if the power was exercised by an authorised officer appointed by a council, the council must make good the damage as soon as is reasonably practicable or pay reasonable compensation for the damage. 456 Section 87 is located within Division 1 (‘Authorised officers and their powers’) of Part 10 (‘Enforcement’). Sections 85 and 86 provide for the appointment of authorised officers and their identification. Section 88 empowers authorised officers to issue warrants in connection with investigations and s 89 confers seizure powers. It is s 90 that gives teeth to a requirement or direction made or given by an authorised officer under the Division, including pursuant to s 87. Section 90(1)(c) is to the effect that a person who refuses or fails to comply with a requirement or direction of an authorised officer under the Division is guilty of an offence. They are liable to a Division 4 fine. 457 Section 93 is contained within Division 2 (‘Environment protection orders’) of Part 10. It provides: 93—Environment protection orders (1) The Authority or another administering agency may issue an environment protection order under this Division— (a) for the purpose of securing compliance with— (i) the general environmental duty; or (ii) mandatory provisions of an environment protection policy; or (iii) a condition of an environmental authorisation; or (iv) a condition of a beverage container approval; or (v) any other requirement imposed by or under this Act; or (b) for the purpose of giving effect to an environment protection policy. (2) An environment protection order— -- 134 of 142 -- [2025] SASC 200 B Doyle J 127 (a) must be in the form of a written notice served on the person to whom the notice is issued; (b) must— (i) specify the person to whom it is issued (whether by name or a description sufficient to identify the person); (ii) if the order is issued for the purpose of securing compliance with the general environmental duty—state the purpose and specify the environmental harm that it is directed towards preventing or minimising; (iii) if the order is issued for the purpose of securing compliance with mandatory provisions of an environment protection policy, a condition or any other requirement imposed by or under this Act—state the purpose and specify the mandatory provisions, condition or requirement; (iv) if the order is issued for the purpose of giving effect to an environment protection policy—state the purpose and specify the policy; (c) may impose any requirement reasonably required for the purpose for which the order is issued including one or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Authority or other administering agency; (ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action within a specified period or at specified times or in specified circumstances; (iv) a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the Authority or other administering agency, a plan of action to prevent, minimise or control pollution or waste; (v) a requirement that the person comply with such a plan of action to the satisfaction of the Authority or other administering agency; (vi) a requirement that the person undertake specified tests or environmental monitoring; (vii) a requirement that the person furnish to the Authority or other administering agency specified test, monitoring or compliance reports; (viii) a requirement that the person appoint or engage a person with specified qualifications to prepare a plan or report or undertake tests or monitoring required by the order; (d) must state that the person may, within 14 days, appeal to the Environment, Resources and Development Court against the order. -- 135 of 142 -- [2025] SASC 200 B Doyle J 128 (2aa) Despite any other provisions of this section, an environment protection policy may make provision as to the circumstances in which an environment protection order may be issued or as to the requirements or contents of an order. (2a) Where a proposed environment protection order (except an emergency environment protection order) or a proposed variation of an environment protection order would require the undertaking of an activity for which a permit would, but for section 129 of the Natural Resources Management Act 2004, be required under that Act, the Authority or other administering agency must, before issuing or varying the order, give notice of the proposal to the authority under the Natural Resources Management Act 2004 to whom an application for a permit for the activity would otherwise have to be made inviting the authority to make written submission in relation to the proposal within a period specified in the notice. (2b) The period of the notice referred to in subsection (2a) must be— (a) in the case of an order to confirm an emergency environment protection order—at least 24 hours; (b) in all other cases—at least 14 days. (3) An authorised officer may, if of the opinion that urgent action is required for the protection of the environment, issue an emergency environment protection order imposing requirements of a kind referred to in subsection (2)(c) as reasonably required for the protection of the environment. (4) An emergency environment protection order may be issued orally, but, in that event, the person to whom the order is issued must be advised forthwith of the person's right to appeal to the Environment, Resources and Development Court against the order. (5) Where an emergency environment protection order is issued to a person, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written environment protection order issued by the Authority or another administering agency and served on the person. (6) The Authority, another administering agency or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other environment protection order a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. (7) Where an environment protection order has been issued to a person by the Authority or another administering agency, the Authority or other administering agency (as the case may be) may, by written notice served on the person, vary or revoke the order. (8) A person to whom an environment protection order is issued must comply with the order. Penalty: (a) If the order was issued for the purpose of securing compliance with a requirement imposed by or under this Act and a penalty is fixed by this Act for contravention of that requirement—that penalty; -- 136 of 142 -- [2025] SASC 200 B Doyle J 129 (b) If the order was issued in relation to a domestic activity for the purpose of securing compliance with the general environmental duty—Division 9 fine; (c) If the order was issued in relation to a domestic activity in circumstances specified in an environment protection policy or for the purpose of giving effect to an environment protection policy—Division 9 fine; (d) In any other case—Division 6 fine. Expiation fee: (a) If the order was issued for the purpose of securing compliance with a requirement imposed by or under this Act and an expiation fee is fixed by this Act for contravention of that requirement—that expiation fee; (b) If the order was issued in relation to a domestic activity for the purpose of securing compliance with the general environmental duty—Division 9 fee; (c) If the order was issued in relation to a domestic activity in circumstances specified in an environment protection policy or for the purpose of giving effect to an environment protection policy—Division 9 fee; (d) In any other case—Division 6 fee. (8a) It is not an excuse for a person to refuse or fail to provide information in response to a requirement imposed by an environment protection order on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (8b) If compliance by a prescribed person with a requirement to provide information imposed by an environment protection order might tend to incriminate the person or make the person liable to a penalty, then the information provided in compliance with the requirement is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement). (9) A person must not hinder or obstruct a person complying with an environment protection order. Penalty: Division 6 fine. 458 Division 2 also contains s 93A (‘Environment protection orders relating to cessation of activity’) together with machinery provisions for the registration of such orders (s 94) and imposing consequences for non-compliance with environment protection orders (s 95). 459 Division 3 then confers further powers to require or obtain information, but the powers are imposed on the Authority or another administering agency. Division 4 is titled ‘Action to deal with environmental harm’, and comprises ss 99- 103, which have been considered earlier in these reasons. -- 137 of 142 -- [2025] SASC 200 B Doyle J 130 460 In SA Morgan, Blue J (with whom Kourakis CJ and Peek J agreed) considered s 93 in the context of the other provisions in Part 10 of the EP Act. He concluded that:178 The text, context and evident purpose of s 93(1) all indicate that the environment protection order is to be directed to securing immediate compliance with the mandatory provision in question and not to matters such as remediation. This construction is reinforced by the context of s 93 within the Act. The Act contains other provisions empowering the ordering of remediation, namely s 99 empowering the Authority to make clean-up orders and s 104 empowering the Environment Court to make rectification orders. Given the existence of these express powers, there is no call to strain the construction of s 93 to impute a power to make such orders into s 93. The remediation powers conferred by ss 99 and 104 are conditioned on there being environmental damage or environmental harm. It is an unlikely intention to impute to the legislature that the Authority can outflank these conditions by utilising s 93 to make a remediation order regardless of whether these conditions are satisfied. In contrast to s 93, s 93A confers power on the Authority to make an environment protection order that requires rectification but this is conditioned on preventing or minimising environmental harm that may result from a prescribed activity of environmental significance after the activity has ceased. The enactment of s 93A proceeds on the basis that s 93 does not already confer such powers. 461 Returning to the present case, it is true that to some extent the prohibition imposed by virtue of the s 87 direction overlapped with the prohibition imposed by reason of the later s 93 EPO. 462 Even so, several differences may be noted. First, the s 87 direction was imposed by an authorised officer, and was directed to the occupier, THP. By contrast, the s 93 EPO was issued by the EPA itself (by a delegate) and was directed towards Mr Rollond. The s 87 direction required the cessation of all activity within the quarry, and limited access to it. The s 93 EPO was far more limited in its effect. Whilst having a wider geographical operation (to the entire Site), it required the cessation of the disposal of any oil, tyres, contaminated soil, and vehicle parts contaminated with hydrocarbons. With respect to the quarry area, it required only that Mr Rollond refrain from moving, remediating or otherwise dealing with any of the waste disposed of within the quarry until he had written approval from the EPA to do so. 463 There is no great difficulty in ascertaining the purpose for which the powers in s 87(1) may be exercised. The purposes are generally stated within or are self- evident from the paragraphs of the sub-section. Turning to s 87(1)(m), subject to the Division in which it is located, it empowers an authorised officer to: 178 (2017) 129 SASR 554 at [76]-[79]. -- 138 of 142 -- [2025] SASC 200 B Doyle J 131 give any directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs above or otherwise in connection with the administration or enforcement of this Act. 464 Authorised officers are given the role and function, inter alia, of investigating and collecting evidence relevant to suspected contraventions of the EP Act. In my view there can be little doubt that where an authorised officer reasonably suspects that a contravention of the EP Act may have occurred, they may give a direction designed to preserve the integrity of a site in order for that further investigation to be undertaken and evidence collected. A direction issued with that objective would be in connection with the administration or enforcement of the EP Act and authorised by s 87(1)(m), so long as it is ‘reasonably required’ for the achievement of that objective. 465 Moreover, it may be doubted whether a prohibition that preserves the status quo in that way would be properly effected by an environment protection order under s 93 although, in a particular case, there might be scope for doing so if it would secure compliance with another requirement imposed by or under the EP Act: s 93(1)(a)(iv). 466 Purposively, ss 87 and 93 are therefore quite different. The former confers powers of various kinds on authorised officers in connection with the administration and enforcement of the EP Act and, particularly, in connection with investigations under the EP Act. The latter confers powers on the Authority or a relevant administering agency in order to secure compliance with environmental duties, provisions of relevant policies, and other requirements imposed under the EP Act. Those powers are in turn to be contrasted with the rectification and remediation powers in ss 99-104, as explained in SA Morgan. 467 In these circumstances, it does not avail the appellants to point to the safeguards that attend a s 93 EPO, such as the requirement that it state that an appeal may be made within 14 days to the ERD Court. The conditions and safeguards that attend the exercise of power under s 93 do not impliedly or limit the nature of the act or omission that may be required of a person who is the subject of a s 87 direction, at least, not in the way contended for by the appellants. 468 I would accept that if an authorised officer were to fashion a direction pursuant to s 87(1)(m) that is designed to secure ongoing compliance with an environmental duty, that would likely be ultra vires. Such an exercise of power might not be directed towards the administration or enforcement of the EP Act. Or, having regard to the powers available to the Authority (and the conditions and safeguards attending exercise by the Authority) under s 93, it might not be ‘reasonably required’ for that purpose. 469 However, in my view, if a direction made pursuant to s 87(1)(m) is directed towards the preservation of evidence and the integrity of an investigation, it is made for a purpose authorised by that sub-section and extraneous to s 93. The mere fact that such a direction, unlike a s 93 EPO, is not able to be appealed to the -- 139 of 142 -- [2025] SASC 200 B Doyle J 132 ERD Court,179 and may only be judicially reviewed, would not alter that conclusion. As well, the mere fact that in the particular circumstances of this case the dumping of, say, contaminated soil in the quarry would, after 21 March 2018, have contravened both the s 87 direction and the s 93 EPO, is not to the point. I observe, but it is not decisive in my reasoning, that the maximum penalty for contravening a s 87 direction is less than that for contravening a s 93 EPO. 470 Having made these observations, it remains to consider whether the s 87 direction given in this case was ‘reasonably required’ (within the meaning of s 87(1)(m)) or, by contrast, was legally unreasonable, so as to invalidate the exercise of the power. In connection with the concept of legal unreasonableness, the appellants relied upon Minister for Immigration and Citizenship v Li180 (‘Li’). In that case, the Court elaborated upon, and, on one view, reframed what has been described as ‘Wednesbury’s lunacy level’.181 471 In this case, if the appellants cannot demonstrate that the direction was not ‘reasonably required’ within the meaning of s 87(1)(m) itself, it is difficult to see that the direction could otherwise be shown to be legally unreasonable, whether that involves the Wednesbury approach, or may also be demonstrated by the absence of an intelligible justification, or some other articulation of what necessarily remains a stringent test.182 472 In contending that the s 87 direction was not reasonably required the appellants emphasised that the direction was unlimited in time and has never been revoked. In my view, the direction was either valid when given, or it was not. If, by reason of its indefinite operation, the s 87 direction would not be valid, it could not properly be read down so as to operate for a ‘reasonable time’.183 473 The appellants accepted, rightly in my view, that an authorised officer could later countermand or revoke the s 87 direction. The s 87 direction is best characterised as operating until revoked, and, at the time of its issue, for an indeterminate period. 474 No question was raised about whether the lawfulness of the direction could properly be challenged in the appellants’ defence of the prosecution (as distinct from in judicial review proceedings). In my view, it was incumbent on the appellants to demonstrate that the s 87 direction was invalid, and thus that the direction could not be regarded as ‘reasonably required’ in the relevant sense. 475 Words of limitation of that kind have been considered in other contexts.184 Whilst allowance must be made for the context, generally speaking, a narrow view 179 EP Act, s 106(1). 180 (2013) 249 CLR 332. 181 Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (2022, 7th ed) at [6.40]. 182 cf. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [53] (Gageler J). 183 cf. Sunland Group Ltd v Gold Coast City Council (2021) 274 CLR 325 at [60] (Steward J). 184 See, eg, Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 53 ALR 632. -- 140 of 142 -- [2025] SASC 200 B Doyle J 133 of those words has not been taken. Whilst the word ‘required’ could be taken to invite attention to whether some other or lesser form of direction may have been capable of securing the relevant purpose or objective, such a stringent approach has not generally been taken. Similarly, where statutory powers have been conditioned by the word ‘necessary’ or the words ‘reasonably necessary’, it has been recognised that the test is not whether the act or exercise of power was essential or indispensable but rather whether it was conducive to the achievement of the relevant objective or was reasonably and appropriately adapted to that end.185 I would favour a similar approach to the validity of a purported direction pursuant to s 87(1)(m) of the EP Act. 476 In my view, the appellants carried the onus of demonstrating that the s 87 direction was not conducive to the effective investigation of suspected contraventions of the EP Act or was not reasonably or appropriately adapted to that end. 477 The appellants did not demonstrate: • that the quarry was or ought to have been understood at the time of the s 87 direction as being a critical part of THP’s operations such that any, or any lengthy, embargo on accessing the quarry would cause significant financial or other hardship; or • that the authorised officer ought to have known that all investigations at the quarry (having regard, as well, to the likely availability of any necessary earthmoving equipment) would be complete by some particular date, so that a failure to place a limiting date upon the direction was manifestly inappropriate. 478 In those circumstances, merely to posit that a direction that had an end date of, say, nine months, might have been equally likely to achieve the relevant end, was not to demonstrate that a direction that operated indefinitely and until revoked, was not ‘reasonably required’ for the purposes of the investigation. 479 To the extent that there may be any separate content in the concept of legal unreasonableness in this context, I am not persuaded that the s 87 direction was unreasonable in terms of the approach in Wednesbury nor, to the extent that the notion of legal unreasonableness it articulates differs therefrom, in Li. 480 Plainly, the rationale was that at the time of its issue, the authorised officer considered that it was appropriate to limit access to and interference with the site until he was satisfied that the investigation was complete, and that at the relevant time he was not confident that this would be achieved by a particular date. That is an intelligible justification. It was not irrational. It was not legally unreasonable. 185 See, eg, the authorities referred to in Questions of Law Reserved (No’s 1 and 2 of 2023) [2024] SASCA 82 at [359] (Livesey ACJ, Doyle and David JJA). -- 141 of 142 -- [2025] SASC 200 B Doyle J 134 F Disposition and orders 481 The appeal is allowed in part. The appellants’ convictions in respect of counts 5 and 6 will be set aside, and acquittals entered. The appeal is otherwise dismissed. 482 I will hear the parties as to costs, and as to the appropriate course to be taken in respect of an appeal against sentence that was filed after this conviction appeal was argued. -- 142 of 142 --