PORT ADELAIDE SALVAGE PTY LTD v STEPHEN BARRY [2024] SASC 7

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE HEFFERNAN) ERD-21-000047 First Appellant: PORT ADELAIDE SALVAGE PTY LTD Counsel: MR J MARCUS - Solicitor: GROPE HAMILTON LAWYERS Second Appellant: MAURIZIO CORSARO Counsel: MR J MARCUS - Solicitor: GROPE HAMILTON LAWYERS Respondent: STEPHEN BARRY Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 17/11/2023 File No/s: SCCRM-23-022103 B 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. PORT ADELAIDE SALVAGE PTY LTD & ANOR v BARRY (A PUBLIC OFFICER) [2024] SASC 7 Judgment of the Honourable Justice Hughes 18 January 2024 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE ENVIRONMENT AND PLANNING - POLLUTION - LAND POLLUTION AND WASTE - OFFENCES STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES EVIDENCE - ADMISSIBILITY - EXCLUSIONS: DISCRETIONARY AND MANDATORY - GENERALLY Port Adelaide Salvage Pty Ltd and its sole director Mr Corsaro (the appellants) carry on a business demolishing residential buildings and removing and disposing of the waste materials. In about mid- 2016, Mr Corsaro entered into an arrangement with Mr Seidel, a landowner at Sedan, to deposit materials gathered from construction sites at two sites on Mr Seidel’s land. Neither the appellants nor Mr Seidel held a licence or authorisation to conduct a waste depot. The appellants were convicted of offences under the Environment Protection Act 1993 (SA) (“EP Act”) following a trial in the Environment, Resources and Development Court, and challenge these convictions on appeal. The offences relate to conducting a waste depot and assaulting an officer of the Environment Protection Authority (EPA). The appeal was directed at three discrete issues: -- 1 of 29 -- • The Trial Judge’s failure to exclude the out of court statements of Mr Seidel, who died prior to the trial, admitted under s 34KA of the Evidence Act 1929 (SA); • The Trial Judge’s construction of the terms “undertake” and “conduct” as they relate to the offence of “undertaking a prescribed activity of environmental significance”, namely the conduct of a waste or landfill depot without authorisation under s 36 of the EP Act; and • The Trial Judge’s factual findings underpinning the conviction entered in relation to the assault of the EPA officer. Held: 1. The power to exclude evidence under s 34KD of the Evidence Act 1929 is discretionary. The appellants have not established that the Trial Judge’s exercise of the discretion involved a House v King error. 2. The Trial Judge has not been shown to have erred in concluding that the relationship between the appellants and the activities amounted to the conduct of a waste depot. 3. The appellants have not established a basis for disturbing the findings of the Trial Judge in relation to the assault of the EPA officer. 4. The appeal is dismissed. Criminal Procedure Act 1921 (SA) ss 49, 57, 101, 104; Environment Protection Act 1993 (SA) ss 3, 36, 90; Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) s 34K, 34KA, 34KD; Environment, Resources and Development Court Act 1993 (SA) s 30, referred to. Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7; R v Haines [2016] SASC 96; Mullen v DPP [2020] SASC 10; House v King [1936] HCA 40; (1936) 55 CLR 499; Question of Law Reserved (No 1 of 2016) R v Yau [2017] SASCFC 4; Noble v Noble [2014] SASC 156; Evangelista v Development and Investment Commission [2004] SASC 324; Ashton Valley Fresh Pty Ltd v Dolan [2021] SASC 44; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Johnson v Police [2017] SASC 87, considered. -- 2 of 29 -- PORT ADELAIDE SALVAGE PTY LTD & ANOR v BARRY (A PUBLIC OFFICER) [2024] SASC 7 Criminal – Appeal to a Single Judge 1 HUGHES J: Port Adelaide Salvage SA Pty Ltd (first appellant, “the company”) and its sole director, Maurizio Corsaro (second appellant), carry on a business demolishing residential buildings and removing and disposing of the materials from the building sites. 2 They were charged on an information issued out of the Environment, Resources and Development Court (“ERD Court”) under ss 49, 57, 101 and 104 of the Criminal Procedure Act 1921 (SA) with various offences under the Environment Protection Act 1993 (SA) (“EP Act”).1 3 The offences in relation to which the company was charged were: • Two counts of undertaking a prescribed activity without a licence (counts 1 and 4). 4 The prescribed activity refers to the conducting of a waste depot, contrary to s 36 and cl 3(3) of Schedule 1 of the EP Act. 5 The offences in relation to which Mr Corsaro was convicted were: • Promoting or acquiescing in an offence under s 36 of the EP Act (count 2); • Being an officer of a company that contravenes the EP Act (count 5); and • Assaulting an officer in the exercise of powers under the EP Act (count 16). 6 They were each convicted in the ERD Court and appeal their convictions. A Judge of the ERD Court issued reasons for decision on 17 May 2023.2 7 The appellants challenge the convictions. This decision considers their appeal. Factual Background 8 Mr Corsaro is the company’s sole director and secretary. 9 In about mid-2016, Mr Corsaro entered into an arrangement with Mr Seidel, a landowner at Sedan, to deposit materials gathered from construction sites at two sites on Mr Seidel’s land. The arrangement initially entailed leaving wood and, 1 It was not in dispute that the relevant version of the EP Act for the purposes of these proceedings including this appeal is that which was in force between 28 November 2017 and 21 February 2018. 2 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7. -- 3 of 29 -- [2024] SASC 7 Hughes J 2 later, mixed construction materials, at the premises for a fee of $100 per deposit. The arrangement endured for approximately two years. Aerial and ground-level photographs depict numerous piles of deposited materials at the two sites. 10 The informant (and respondent in the appeal) is a public officer of the Environment Protection Authority (“EPA”). The informant’s contention was that the appellants deposited mixed construction waste, some of which was contaminated with asbestos, at the two sites over multiple occasions. The informant contended that the circumstances of the arrangement and the deposits constituted the conduct of a waste depot. 11 There were two sites on the Seidels’ property at Sedan at which the offending was alleged to have occurred. One is referred to as the Battens Road site, and the other the Pipeline Road site. 12 There was no dispute that mixed construction materials had been deposited at the two sites. Items located in the deposits were identified as having their origins in various homes that the appellants agreed they demolished. 13 The agreed facts at trial relevant to the appeal are as follows: • Mr Corsaro directed the operations of the company. The company’s activities were undertaken by him, or undertaken by employees or contractors at his direction; • Vehicles registered to Mr Corsaro were used by the company to perform its activities, including a prime mover, a “lusty loader”, a trailer for the prime mover with a 20 tonne capacity, and two trucks, one of which had a 10 tonne capacity; • The company held a licence to conduct a waste transport business but neither appellant has ever held a licence or authorisation to operate a waste depot at either of the two Sedan sites; • The Battens Road and Pipeline Road sites were on the property of Mr and Mrs Seidel, neither of whom held a licence or authorisation to conduct a waste depot; • In early 2018 the EPA became aware of suspected illegal dumping at the Battens Road site; • Between 27 October 2017 and 31 May 2018 there were in excess of 100 piles of waste located in two areas at the Battens Road site, containing mixed demolition waste including timber, bricks, concrete, metal, wiring, carpet and other fabrics, gyprock, green waste, tiles, and general household waste; -- 4 of 29 -- [2024] SASC 7 Hughes J 3 • The Battens Road site was put under video surveillance and that produced evidence as to several occasions in May 2018 of the appellants’ vehicles entering the property and depositing waste; • Items of waste deposited at the site were agreed to have come from various residential properties in relation to which the appellants had undertaken demolition; • An inspection of the Battens Road site on 28 May 2018 identified asbestos amongst the waste; • EPA officers visited the Pipeline Road site on 21 June 2018 and located two piles of mixed construction and demolition waste, amounting to approximately 50 tonnes; • Some of the material in the deposits at the Pipeline Road site was traceable to a residential property that the appellants had contracted to demolish; • The Pipeline Road site deposits contained asbestos. 14 Mr Seidel, whom EPA officers had interviewed about the waste deposits on 28 May 2018, died on 23 August 2018. Procedural History 15 The company was charged with various offences including, relevantly, two counts of undertaking a prescribed activity of environmental significance without a licence. Mr Corsaro was charged with various offences including, relevantly, one count of promoting or acquiescing to an offence against s 36 of the EP Act and one count of being an officer of a body corporate which contravenes a provision of the EP Act. 16 When the EPA’s officers attended at Mr Corsaro’s home to return seized property and serve a clean-up notice, there was a video-recorded exchange between those officers and Mr Corsaro and his wife. The informant alleges that Mr Corsaro assaulted one of the officers during that exchange. This led to a charge under the EP Act of assaulting an authorised officer in the exercise of his powers under the Act. 17 Leave to bring the appeal is not required as the appeal proceeds as if it is an appeal under s 42 of the Magistrates Court Act 1991 (SA) in respect of which leave against a conviction of a criminal charge is not required. 18 The appellants seek an extension of time (6 days) to bring the appeal. The extension is not material and I grant leave in that regard. 19 Other charges initially brought against the appellants were the subject of pleas or withdrawals before or during the trial and are not relevant to the appeal. -- 5 of 29 -- [2024] SASC 7 Hughes J 4 The Judgment 20 The Trial Judge delivered written reasons on 17 May 2023. These included reasons for a voir dire ruling made in the early stages of the trial on an application by the appellants to exclude evidence of Mr Seidel’s out of court statements. The Trial Judge allowed the application in respect of evidence of such statements overheard by EPA officers, and of statements made by Mr Seidel to his wife, but refused the application in respect of the video-recorded interview between Mr Seidel and EPA officers, which was therefore received into evidence. The ruling is the subject of ground 2 of the appeal. 21 The Trial Judge considered the elements of the offence of undertaking a prescribed activity of environmental significance without a licence, which relate to counts 1 and 4. The proper construction of the offence provision is the subject of ground 1 of the appeal. 22 The prosecution case was supported by a range of physical and electronic evidence including photographs, surveillance video and phone records. 23 The Trial Judge summarised the evidence of each witness and made an assessment of that witness and made findings. 24 His Honour accepted the evidence of Mrs Seidel,3 and of the EPA officers4 and various expert and lay witnesses,5 but found Mr Corsaro’s evidence to be self- serving and to contain lies.6 25 The Trial Judge described the arrangement between the appellants and Mr Seidel as “extremely casual”.7 The frequency of dumping varied from two loads per week to three per fortnight.8 Mr Seidel was often not present when the waste was deposited and did not inspect the loads. No records were kept. No receipts were given. The Trial Judge found, contrary to the evidence of Mr Corsaro, that no other person or entity had been dumping waste at the site.9 No issue was taken with this finding on appeal. The key question for the Trial Judge was whether the appellants’ actions in carrying out the arrangement on Mr Seidel’s land constituted the “conduct of a waste depot” by the appellants. 26 The judgment is discussed further below under the various grounds of appeal. 3 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [146]. 4 Ibid, at [99] (Adam Lewis), [116] (Dion Buring) and [128] (Craig Tonks). 5 Ibid, at [119] (Brett Pfeffer), [131] (Mario Greco), [136] (Paul Warren) and [138] (Steven Kuhn). 6 Ibid, at [199]-[206]. 7 Ibid, at [158]. 8 Ibid, at [159]. 9 Ibid, at [166]. -- 6 of 29 -- [2024] SASC 7 Hughes J 5 The Appeal 27 There was no challenge brought to the Trial Judge’s rejection of Mr Corsaro’s evidence. Rather, the appeal was directed at three discrete issues: • The Trial Judge’s failure to exclude the out of court statements of Mr Seidel; • The Trial Judge’s construction of the statutory provision the appellants were alleged to have breached; and • The Trial Judge’s factual findings underpinning the conviction entered in relation to the charge of assault of Mr Buring. Grounds of Appeal 28 It is convenient to reverse the order of grounds 1 and 2 as stated in the Notice of Appeal, as the parties agreed that ground 1 was most easily understood by reference to each party’s position in relation to ground 2. 29 Ground 2 asserts that the Trial Judge erred in declining to exclude the evidence of Mr Seidel, admitted under s 34KA of the Evidence Act 1929 (SA). The reasons for the ruling are contained in the Trial Judge’s reasons for judgment. This ground of appeal is relevant to counts 1, 2, 4 and 5. 30 Ground 1 challenges the Trial Judge’s construction of the terms “undertake” and “conduct” as they relate to the offence of “undertaking a prescribed activity of environmental significance”, namely the conduct of a waste or landfill depot, without authorisation under s 36 of the EP Act. This ground is relevant to the convictions entered in respect of counts 1, 2, 4 and 5. 31 Ground 3 contends that the Trial Judge erred in finding proved beyond reasonable doubt that Mr Corsaro assaulted an authorised environmental officer, in circumstances in which the finding was not supported by Mr Buring’s body- worn video footage. This ground is relevant to the conviction entered on count 16. 32 The respondent filed a notice of contention in relation to ground 3. The respondent asserted that even if the Trial Judge erred in not excluding the evidence, the findings underpinning the convictions establish beyond reasonable doubt the guilt of each of the appellants in respects of grounds 1, 2, 4 and 5 respectively. 33 The parties filed comprehensive written submissions and referred to a book of selected exhibits produced for the Court’s assistance on the appeal. Principles of Appeal 34 An appeal is brought pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (SA), which provides that an appellant’s position is the same as if the appeal was instituted against a judgment in a criminal action -- 7 of 29 -- [2024] SASC 7 Hughes J 6 under the Magistrates Court Act 1991. It is an appeal to a single Judge of the Supreme Court, as of right. 35 An appeal is by way of rehearing and in this case proceeded on the trial documents. The appeal must involve a “real review” of the trial and the Trial Judge’s reasons.10 Issues of law or inferences from uncontested facts are matters about which the appellate court is in as good a position as the original decision- maker to determine. In relation to challenges to factual findings, it is necessary for this Court to acknowledge the distinct and obvious advantages, as compared with this Court, that the original decision-maker enjoys when forming a view about the credit and reliability of the witnesses. The question in that instance is whether the findings are contrary to incontrovertible facts or uncontested testimony which are glaringly improbable or contrary to compelling inferences available from other evidence.11 Ground 2: The ruling admitting Mr Seidel’s out of court statements 36 The appeal challenges the exercise of the discretion by the Trial Judge on 23 September 2022 to refuse to exclude various out of court statements by Mr Seidel, who died prior to trial. 37 Mr Seidel’s out of court statements were contained in: • A video recorded interview under caution between EPA officers and Mr Seidel on 28 May 2018; • Oral statements of Mr Seidel overheard by EPA officers but not recorded electronically; • Statements of Mrs Seidel in respect of statements made to her by Mr Seidel on various occasions. 38 Mr Seidel’s evidence was admissible under s 34KA(2)(c) of the Evidence Act 1929 as at the time of the trial, he was deceased. His evidence was inculpatory of both defendants in the charged offending. 39 At trial, the appellants sought exclusion of his evidence under s 34KD on the basis that the evidence was more prejudicial than probative, and it was unfair to both appellants to admit the evidence when Mr Seidel could not be cross- examined. 40 The Trial Judge’s ruling was made in relation to the statements made to Mrs Siedel after she was examined in chief. Reasons were provided with the judgment at paragraphs [26] to [38] inclusive. 10 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 11 Johnson v Police [2017] SASC 87. -- 8 of 29 -- [2024] SASC 7 Hughes J 7 41 The Trial Judge dismissed the application to exclude in relation to the video and the statements from Mrs Siedel, but allowed it (and therefore excluded the evidence) in relation to the statements by the officers as to what they had overheard.12 The challenge on appeal is only in relation to the failure to exclude the video recorded interview by the respondent’s officers with Mr Seidel at his home on 28 May 2018. On appeal, the appellants submitted that the decision not to exclude the evidence of the interview was wrong or, in the alternative, the reasons for refusing to exclude it were inadequate. 42 The discretion to exclude arises under s 34KD of the Evidence Act 1929 which provides: 34KD—Court's general discretion to exclude evidence (1) In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if— (a) the statement was made otherwise than in oral evidence in the proceedings; and (b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. (2) Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise). (3) In this section— prescribed proceedings means— (a) proceedings for a criminal offence; or (b) proceedings under the Serious and Organised Crime (Control) Act 2008. 43 The Trial Judge observed that he had had an opportunity to view the record of interview and that the second appellant had had the opportunity to make submissions about its content.13 The Trial Judge considered that this diminished the forensic disadvantage that would otherwise have attached to admission of the statement without the opportunity for their testing.14 44 The Trial Judge reflected on the nature of the dispute as it had been framed by the parties, and gave weight to the appellants’ position that their case was that there were other persons dumping at the site. Ultimately, this was rejected by the Trial Judge. 12 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [26]-[38]. 13 Ibid, at [28]. 14 Ibid. -- 9 of 29 -- [2024] SASC 7 Hughes J 8 45 The Trial Judge reflected on the fact that the statutory scheme in s 34K of the Evidence Act 1929 contemplates that there will be a balancing act to be performed in determining whether to exclude such evidence and that the test is not whether forensic disadvantage will accrue but whether it creates an unfairness that warrants exclusion. After weighing various factors, the Trial Judge concluded that the application for exclusion had not been made out. Appellants’ contentions 46 The appellants submitted that the Trial Judge understated the forensic disadvantage to them of being precluded from cross-examining the witness. In particular, Mr Seidel was not an ordinary witness but a participant in a joint enterprise. In those circumstances, the disadvantage was exacerbated because the reliability of the witness was inherently doubtful. The loss of the opportunity to cross-examine in such circumstances was an insurmountable disadvantage. The Trial Judge later made reference to the need to be cautious about Mr Seidel’s evidence given that he could be characterised as an accomplice, but failed to bring that caution sufficiently to the decision as to whether to exclude his out of court statements altogether. 47 More particularly, the appellants contended that their disadvantage arose from their inability to cross-examine Mr Seidel on his out of court statements regarding: • His alleged dissatisfaction with the manner in which Mr Corsaro was carrying out the arrangement over time, and whether such dissatisfaction was communicated to Mr Corsaro; • His offer to Mr Corsaro of a new dumping site on his property (the Pipeline Road site) when Mr Seidel learned that the Battens Road site had attracted some attention from authorities. Respondent’s contentions 48 The respondent submitted on appeal that the decision not to exclude the evidence of the record of interview was squarely within the range of decisions available to the Trial Judge in the circumstances. The respondent emphasised that establishing disadvantage does not automatically translate into exclusion. In this case, it was submitted that the balancing act was undertaken and the Trial Judge’s decision is not liable to be overturned. 49 The respondent submitted that the matters about which the appellants said they had lost the opportunity of cross-examination were not matters upon which the convictions rested. The respondent submitted that Mr Seidel’s understanding of the precise terms of the agreement struck between Mr Seidel and Mr Corsaro, beyond what the evidence already disclosed, were irrelevant to the appellants’ culpability. The critical propositions in the charge of conducting a waste depot -- 10 of 29 -- [2024] SASC 7 Hughes J 9 were that Mr Corsaro approached Mr Seidel and not the other way around, and that Mr Corsaro chose when and what to deposit. Neither was disputed. 50 It was the respondent’s case that there was nothing to be gained from cross- examining Mr Seidel on these issues. Further, establishing doubt as to Mr Seidel’s credit would have no effect on the question of whether the appellants were conducting a waste depot, when it is properly understood that the wording of the relevant provision does not preclude the possibility that both the appellants and Mr Seidel were conducting a depot. It was not a case of choosing between two possible accounts of what occurred, based on Mr Seidel’s account and that of Mr Corsaro. 51 Counsel for the respondent maintained that it was unnecessary for the Trial Judge to consider, on the exclusion application, whether Mr Seidel’s evidence required the Trial Judge to determine whether Mr Seidel was an accomplice as this was not determinative of the exclusion application. In any event, it is clear from the Trial Judge’s later treatment of Mr Seidel’s evidence that he was approaching his evidence with the caution appropriate to the evidence of an accomplice. Consideration 52 In respect of the discretion to exclude evidence of out of court statements in circumstances in which the witness is not available to give evidence, the Trial Judge referred to the authorities of R v Haines15 and Mullen v DPP.16 Counsel on appeal agreed that these were appropriate authorities from which to understand the relevant principles. 53 In R v Haines, Kourakis CJ ruled on an application by the accused in a murder trial for the statement of a witness to be excluded pursuant to s 34KD of the Evidence Act 1929. The statement was made by the accused’s mother who was an eyewitness to the events leading to the victim’s death. The witness was too ill to give evidence and the prosecution sought to rely upon s 34KA for her statement to be admitted. The statement was a sworn and witnessed statement made to police. 54 Kourakis CJ said:17 My initial view was that the statutory discretion conferred by s 34KD is a wide one which encompasses considerations relevant to the common law discretions. However, s 34KD of the Evidence Act mirrors clause 15 of the Criminal Evidence Bill recommended by the English Law Commission Report “Evidence in Criminal Proceedings: Hearsay and Related Topics”. It is apparent from that report that the statutory discretion is designed to prevent the waste of time which was feared might result from the tender of a multitude of written statements of little value. The particular considerations mentioned by s 34KD, waste of time and the value of the evidence, are specific to the admission of statements pursuant to s 34K and s 34KA. However, s 34KD of the Evidence Act preserves the general unfairness 15 [2016] SASC 96. 16 [2020] SASC 10. 17 Ibid, at [39] et seq. -- 11 of 29 -- [2024] SASC 7 Hughes J 10 discretion and the Christie discretion (prejudicial value exceeds probative value), which are also important. It is the former which is determinate on this application. Plainly enough, the rendering of admissible statements which at common law are inadmissible as rank hearsay, is a fundamental departure from the common law of evidence. It is also a fundamental departure from the common law principle that an accused should be able to test by cross-examination the evidence of witnesses against him or her in open court. The abrogation of those important common law protections by s 34KA of the Evidence Act is not unqualified but is subject to the discretions conferred and preserved by s 34KD of the Evidence Act. The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include: • The value of the evidence. • The significance of the statement to the prosecution case overall. • Whether the statement is supported in material respects by other prosecution evidence. • Whether the statement constitutes a major part of the prosecution case. • The reliability of the evidence that the statement was made. • The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken. • The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement. • Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify. The loss of the procedural right to cross-examine a prosecution witness in open court places an accused in a position of significant forensic disadvantage. It must be accorded substantial weight in the application of the general unfairness discretion. The more complex the subject matter of the statement, and controversial the circumstances in which it was taken, the greater will be that unfairness. (Footnotes omitted) 55 In Mullen v DPP,18 an appeal from the decision of a Magistrate, Lovell J (as he then was) found that the Magistrate did not err in admitting statements of a witness who could not be called to give oral evidence. The charge was an assault on a person with dementia in a nursing home. The witness shared a room with the complainant. The witness died after giving two statements to police but before the trial. The victim could not give evidence due to her dementia. 56 Lovell J observed19 that as the exclusion was discretionary, the appellant had to establish that the exercise of the discretion involved an error in the House v King 18 [2020] SASC 10. 19 Ibid, at [22]. -- 12 of 29 -- [2024] SASC 7 Hughes J 11 sense i.e. a process error such as an irrelevant consideration, a mistake as to the facts, or failure to take into account a material consideration. Alternatively, an appellant might demonstrate an outcome error, i.e. that the exercise of the discretion could not have been properly undertaken on that evidence to produce the particular outcome, and that a substantial wrong had occurred. The fact that the statements were made in the formal circumstances of being given to police provided the Court with some confidence as to their reliability. 57 The out of court statements made by Mr Seidel regarding the arrangement between he and Mr Corsaro were significant to the Trial Judge’s findings about the arrangement, and those findings in turn formed the basis of a conclusion as to whether the appellants’ role in the arrangement amounted to “conducting a waste depot”. There can therefore be no doubt that the decision as to whether or not to exclude the evidence was important to the disposition of the proceedings. The Trial Judge acknowledged that.20 58 The Trial Judge found a number of factors to be determinative of the exercise of the discretion. One was the fact that Mrs Seidel was available to give evidence which corroborated that of Mr Seidel.21 His Honour observed that this provided an opportunity to attack Mr Seidel’s statements via cross-examination of Mrs Seidel, ameliorating the disadvantage of being unable to cross-examine Mr Seidel to some extent. Mrs Seidel’s evidence was not tainted by any interest in avoiding being charged. The Trial Judge found her to be impressive as a witness, and that she gave direct and unaffected evidence. His Honour found her not to be reconstructing or exaggerating and accepted her evidence. In addition, Mr Seidel’s evidence was corroborated by the electronic evidence of surveillance and the physical evidence from the piles of waste.22 59 Secondly, Mr Seidel’s out of court statements were made in a recorded interview with officers of the EPA, under caution. Police officers were also present.23 The risk that attaches to assessing the reliability out of court statements made in the circumstances of ordinary exchanges between people in their everyday lives was diminished by the circumstances of the interview. 60 Thirdly, the Trial Judge found Mr Seidel to “lack guile” in the interview and this provided the Trial Judge with some comfort that the out of court statements did not present a fabricated account that might be dismantled under cross- examination.24 61 These were all relevant matters in the exercise of the discretion to exclude. 20 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [30]. 21 Ibid, at [31]. 22 Ibid, at [35]. 23 Ibid, at [36]. 24 Ibid. -- 13 of 29 -- [2024] SASC 7 Hughes J 12 62 The appellants seek to have the Court find on appeal that the Trial Judge’s exercise of discretion not to exclude the video footage evidence constituted an error of law. The principles governing consideration of such a complaint are well- established. Whether a discretion has been properly exercised is a question to be approached by reference to the principles of appellate restraint enunciated in House v King.25 Summarising various authorities on the appellate function in respect of a challenge to the exercise of a discretion, Sulan J said in Noble v Noble:26 … the exercise of a judicial discretion may be vitiated by a judge’s failure to give sufficient weight to a relevant factor. The proposition that the appeal court may consider whether sufficient weight has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction. An appeal court needs to view this ground of appeal with considerable caution. 63 The appellants’ submission that the Trial Judge failed to properly assess the significance of Mr Seidel’s evidence, and in particular that it should have been treated as the evidence of an accomplice, must be rejected. There was no need, at the ruling stage, to embark on that characterisation task. What was required was an assessment of the effect on the appellants of the denial of the opportunity to cross-examine Mr Seidel. It was evident that this was undertaken. The Trial Judge properly acknowledged that the inability to cross-examine Mr Seidel caused disadvantage to the appellants. 64 However, there is force to the respondent’s observation that the issues upon which Mr Seidel would have been cross-examined were, in themselves, unlikely to be determinative of the appellants’ culpability with respect to the charges. Mr Seidel’s evidence about the arrangement with the appellants did not determine whether the appellants had contravened s 36 of the EP Act. The disadvantage experienced by the appellants was the loss of the ability to cast doubt on Mr Seidel’s honesty or recollection. As the respondent contended, this was not directly probative of matters that were exculpatory to the appellants. A further difficulty with the appellants’ contention is that the Trial Judge found Mr Seidel to lack guile,27 and it is apparent that much of what the Trial Judge found about the arrangement between he and Mr Corsaro was inferred or derived from other sources of evidence. 65 Whilst there was undoubtedly disadvantage to the appellant in being denied the opportunity to cross-examine Mr Seidel, I do not accept that the disadvantage was not properly identified and considered by the Trial Judge. The circumstances in which it was made ameliorate the disadvantage to a significant degree because Mr Seidel’s statements have the ‘three-dimensional’ quality provided by video, 25 Question of Law Reserved (No 1 of 2016) R v Yau [2017] SASCFC 4 at [138], [177]-[179] citing House v King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. 26 [2014] SASC 156 at [38]. 27 Ibid. -- 14 of 29 -- [2024] SASC 7 Hughes J 13 providing greater scope for comment as to what can properly be understood from them. 66 There is no basis for interfering with the exercise of discretion that occurred. Ground 2 does not succeed. Ground 1: Meaning of “undertake” a prescribed activity and “conduct a waste depot” 67 Ground 1 concerns the manner in which the Trial Judge construed the provisions that describe the offence that is relevant to counts 1-5 inclusive. 68 The relevant provision is s 36 of the EP Act which provides: 36—Requirement for licence (1) A person must not undertake a prescribed activity of environmental significance except as authorised by an environmental authorisation in the form of a licence under this Part. Maximum penalty: (a) in the case of a body corporate—$120 000; (b) in the case of a natural person—$60 000. (2) The Authority may, by notice in writing, exempt a person undertaking a prescribed activity of environmental significance from subsection (1) if the Authority is satisfied that— (a) another person who is principally responsible for the activity will be authorised in accordance with that subsection to undertake the activity; and (b) the activity can be properly regulated through the authorisation granted to that other person. (3) The Authority may, by notice in writing, revoke an exemption under subsection (2). (4) The subsequent Divisions of this Part do not apply to an exemption under subsection (2). 69 The relevant prescribed activity of environmental significance in this case is set out in Schedule 1, clause 3(3) of the EP Act as follows: (3) Waste disposal the conduct of— (a) a landfill depot, being a depot, facility or works for the disposal of waste to land; or -- 15 of 29 -- [2024] SASC 7 Hughes J 14 (b) a liquid waste depot, being a depot, facility or works for the reception and disposal of liquid waste, or the reception, treatment and disposal of liquid waste; or (c) an incineration depot, being a depot, facility or works for the disposal, by incineration, pyrolysis or gasification by high temperature chemical decomposition, or thermal oxidation using fuel burning equipment, of solid waste, a listed waste or quarantine waste, but excluding a prescribed approved activity or an activity in respect of which the Authority is satisfied, having regard to the prescribed factors, that an environmental authorisation is not justified. 70 The contention in ground 1 was ventilated at the trial and was considered by the Trial Judge at paragraphs [208] to [216] of the judgment. The Trial Judge accepted that the purpose of the legislative scheme was as described by Duggan J in Evangelista v Development and Investment Commission (“Evangelista”),28 namely one that was directed at protecting, restoring and enhancing the quality of the environment through the requirement of licensing or authorising for activities of environmental significance, and that “the treatment and disposal of waste features prominently in the activities controlled through the licensing system.”29 The Trial Judge canvassed the parties’ arguments as to how “conduct” in the context of “conduct a waste depot” should be construed, and accepted the respondent’s contention that it should be construed broadly as that would be consistent with the text and with the statutory scheme for the regulation of activities that create a risk of environmental harm.30 71 The Trial Judge applied the reasoning in Evangelista, by which a broad effect was given to the word “depot”, to the approach to be taken to the meaning of “conduct”, and concluded: …using a depot for the storage of waste could depending on the facts amount to ‘conducting’ a depot in the relevant sense. In my view, the actions of the defendants went further than simply using a depot. In this case, the defendants did not merely use a depot. The reality was that the defendants had found an easy mark in Mr Seidel, and control over what was dumped, when it was dumped and how much was dumped was entirely in their hands. They were conducting a depot in the ordinary meaning of that word. Had Mr Seidel been stronger, more astute and had he less of a drinking problem, it is most unlikely that the defendants dumping of mixed construction and demolition waste would have continued for as long as it did if, at all.31 Appellants’ contentions 72 On appeal, the appellants’ counsel observed that “undertake” is defined broadly by s 3 of the EP Act as “includes commence or proceed with an activity or cause, suffer or permit an activity to be commenced or to proceed”. It was 28 [2004] SASC 324. 29 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [214] quoting Evangelista v Development and Investment Commission [2004] SASC 324 at [19]. 30 Ibid, at [213]. 31 Ibid, at [216]. -- 16 of 29 -- [2024] SASC 7 Hughes J 15 argued that the term captured such an array of activity that it was necessary to bear this in mind when construing the undefined word “conduct” in the phrase “conduct a waste depot”. 73 The appellants contended for the purpose of the offence under s 36 the terms “undertake” and “conduct” require organisational control over the relevant activity and not mere engagement in the relevant activity. The construction adopted by the Trial Judge, it was argued, was inconsistent with the scheme of the EP Act and led to absurd results. 74 It was submitted that to accept the interpretation adopted by the Trial Judge would entail that mere use of a waste depot without knowledge that it is unlicensed, constitutes an offence against s 36. It was submitted that it could not have been the intention of the legislature to capture mere use of an unlicensed waste depot by the offence of “conduct a waste depot”. 75 The appellants’ counsel reminded the Court that there are other offence provisions within the EP Act to deal with acts of environmental harm. These include causing serious environmental harm by polluting the environment intentionally or recklessly with the knowledge that environmental harm will or might result (s 79(1)), causing serious environmental harm by polluting the environment (s 79(2)), causing material environmental harm by polluting the environment intentionally or recklessly and with the knowledge that environmental harm will or might result (s 80(1)), causing material environmental harm by polluting the environment (s 80(2)), causing an environmental nuisance by polluting the environment intentionally or recklessly and with the knowledge that an environmental nuisance will or might result (s 81) and causing an environmental nuisance by polluting the environment. These offences are directed at the acts of pollution which, it was argued, assists in concluding that the offence of failing to have a licence for a prescribed activity is one that is directed at the management or operation of the activity, rather than the mere doing of the activity. 76 The appellants submitted that the narrower interpretation of what is captured by s 36 is assisted by the principle that penal provisions are to be construed narrowly where there is ambiguity. 77 The appellants submitted that the conduct of a waste depot requires a degree of control that was not present on the evidence. If the evidence of Mr Seidel’s interview was excluded, then some of the factual findings made by the Trial Judge as to the arrangement would not be available. Even as received, the appellants argued that the evidence pointed to control by Mr Seidel, in terms of owning the land, giving the permission, receiving the fee and re-directing the appellants away from the Battens Road site to the Pipeline Road site when it appeared that the activity may be being investigated. In this sense, the appellants contended that the Trial Judge’s reasons for the factual findings were inadequate in failing to address certain aspects of the evidence. -- 17 of 29 -- [2024] SASC 7 Hughes J 16 Respondent’s contentions 78 The respondent contended that the appellants’ arguments on this ground could not succeed because the factual findings made at trial were consistent with the appellants exerting a sufficient degree of control over the arrangement to establish the elements of the offence. It was submitted that it was not necessary to consider the outer boundaries of the circumstances that might constitute the offence. 79 The respondent submitted that the key authority is Evangelista.32 The respondent submitted that it had satisfied the Trial Judge that, in order to establish the charges against the appellants, it did not have to establish that the depot operated: • As a commercial dump; • As a public dump; • By way of indefinite and continuous activity; • For commercial gain; • With a minimum amount of material; • Under the sole or exclusive conduct by the appellants; • In a manner that entails control, direction or management by the appellants; or • As something that was being developed by the appellants, or on the appellants’ land. 80 It was submitted that “conduct” is to be given its ordinary meaning which is “to carry on”. Neither control nor direction are required for that to occur. The respondent contended that, in any event, the evidence did establish sufficient control of the arrangement by the appellants to amount to conducting a depot for the purposes of s 36. 81 The respondent contended that the factual findings about the arrangement for the depositing of the waste made by the Trial Judge, which are reliant to a large extent on the out of court statements of Mr Seidel in the record of interview, support the conclusion that the appellants were conducting the depot. Consideration 82 The Macquarie Dictionary defines conduct, when used as a verb as it is in this context, as: 32 [2004] SASC 324 per Duggan J (Doyle CJ and Gray J agreeing). -- 18 of 29 -- [2024] SASC 7 Hughes J 17 To direct in action or course; manage; carry on… To direct as leader… To lead or guide; escort. To serve as a channel or medium for (heat, electricity, sound, etc.). To act as conductor. 83 The above dictionary meanings embrace both of the contended definitions. The appellants emphasise the leadership and management connotations of the word. The respondent emphasises the synonym of “carry on”. 84 The context is required to determine whether the leadership or management connotations are intended to be conveyed in this particular use. The word does not appear in an ordinary sentence but rather in a list of prescribed activities, and so the immediate context is of little assistance and it is necessary to look more broadly to the purpose of the legislative scheme. 85 As the appellants contended, the legislative scheme makes provision for responses to individual acts of environmental harm (in ss 79-81), and separately for regulating conduct, usually but not necessarily within business, through authorisation of activity by licence (in s 36). That distinction indicates, according to the appellants, that to “conduct a waste depot” should not be given a meaning which would overlap entirely with the acts of environmental harm provided for in ss 79-81 of the EP Act. Rather, the word “conduct” should be construed in its more “managing” and “controlling” sense. 86 On the other hand, however, there is force in the respondent’s caution against straining the ordinary use of the language in order to create a perceived coherence of policy outcome. The respondent submits that “conduct” should be given its ordinary meaning, and that there is no basis for assuming that the various offence provisions should be construed so as not to overlap. 87 In Evangelista, the Court was required to consider whether the appellant was conducting a waste depot, for the purposes of a Development Act 1993 (SA) application. The appellant in that case was the owner of vacant land. His proposal was to transport unwanted building and construction materials to use as fill for a gully in the land. The proposed activity was firstly found to constitute the conduct of a waste depot, even though the materials were not intended for subsequent removal or use, which might be thought to be connoted by the term “depot”. The Court proceeded to consider the meaning of the word “conduct” in that context. Duggan J, with whom Doyle CJ and Gray J agreed, said:33 The question remains whether the proposed activity can be viewed as “the conduct of a depot” for these purposes. The word “depot” is used throughout the EPA in its ordinary 33 At [17]-[18]. -- 19 of 29 -- [2024] SASC 7 Hughes J 18 meaning of a place where objects or material are deposited. The context provided by Schedule 1 cl 3 indicates that its meaning is not confined to a place to which objects are taken and removed subsequently. This is illustrated by the reference to the conduct of a depot for “disposal of waste”. “Conduct” in this context does not necessarily involve an indefinite and continuous operation. Although the activity envisaged in the present proposal is for a limited time, it is also of an ongoing nature until completion of the task. The EPA does not stipulate that only a commercial operation need be licensed. It is true, as Mr Hayes pointed out, that the nature of the activity described in the schedule must be determined by reference to the totality of the description and not by a consideration of the meaning of the individual words which are used. However, it is my view that the contemplated activity comes within the description of an activity of environmental significance in schedule 1 which requires authorisation in the form of a licence. The activity comes within the ordinary meaning of the words used in the schedule and there is no reason why the words used in this part of the schedule should be read down. (Emphasis added) 88 Duggan J’s statement that the activity need not be enduring indefinitely was accompanied by the observation that it was, in that case, proposed to occur for a period of two years. This suggests that the extent to which the act of depositing is proposed to be, or has been, repeated, is relevant to whether a waste depot is being conducted. Though it is not necessary to decide, repetitive acts may contribute to a finding that a waste depot is being conducted. 89 Matters relevant to whether a waste depot is being conducted will also include evidence of planning, organisation, and scale. 90 In this case, the appellants came and went to the sites as and when they saw fit. They deposited waste without control being exerted by Mr Seidel as to the occasion, the frequency, or the volume. There was evidence, in dispute, as to whether Mr Seidel had sought to limit the content of what was deposited by complaining about the volume of rock in the waste. If so, it was some evidence of an attempt to exert control. However, the appellants denied that this was ever conveyed to them. 91 There was also a relevant feature of commerciality of the arrangement in that the parties to the arrangement exchanged money in relation to the activity, and that the appellants gained a business advantage in avoiding the use of more costly licensed waste depots. In determining whether the circumstances amount to conducting a waste depot, all of the features of the activity must be considered together. In Evangelista, the fact that the depot was proposed for land of which the appellant was the registered proprietor was a significant factor contributing to the conclusion that he proposed to conduct a waste depot. But the lack of that feature, as with the others, is not decisive. It would not be fruitful, and it is not necessary, to attempt to identify the metes and bounds of the circumstances that may constitute the conduct of a depot. In the present case, the Trial Judge has not been shown to have erred in concluding that the relationship between the appellants and the activities amounted to the conduct of a depot. The offence -- 20 of 29 -- [2024] SASC 7 Hughes J 19 provision was construed appropriately and the factual findings were consistent with the evidence. 92 In particular, the factual findings as to the arrangements and activities were reached with the benefit and advantage of hearing the witnesses. 93 The first ground of appeal does not succeed. Ground 3: The assault 94 Ground 3 of the appeal relates to the second appellant’s conviction of assault of an officer in the exercise of his powers contrary to s 90(2) of the EP Act, which was count 16. Appellants’ contentions 95 The appellants contend that the evidence did not, and could not, exclude beyond reasonable doubt an explanation consistent with the second appellant’s innocence, namely that the contact between the second appellant and Mr Buring did not occur and was concocted by Mr Buring and his colleague Mr Lewis, or that if there was contact, it was accidental. The appellants say that the conviction is unsafe and unsatisfactory. 96 The appellants submitted that the evidence given by Mr Buring was incapable of being reconciled with the body-worn video footage of the events, and inconsistent with the finding that Mr Buring had experienced a “jolt” as a consequence of the contact he alleged Mr Corsaro made with the rear of his left shoulder. Respondent’s contentions 97 The respondent submitted that the Trial Judge’s findings were available to be made and adequately explained in the judgment. The respondent submitted that the Trial Judge squarely addressed the issue of the lack of any apparent movement of Mr Buring’s body at the time the contact was alleged to have occurred. It was argued that this Court should exercise caution before substituting a different finding on the matter given that the finding was one that drew upon the Trial Judge’s assessment of the witnesses’ credit. Consideration 98 I have reviewed the video footage of Mr Buring’s body-worn camera from the attendance of the EPA officers at the second appellant’s home on 21 June 2018,34 and read the transcript of the relevant witnesses. 99 Mr Lewis was a senior investigator who gave evidence of a visit to the Battens Road site on 15 March 2018, and on other occasions as part of the investigation, and of his involvement in surveillance of the Seidel property, and 34 Exhibit P46. -- 21 of 29 -- [2024] SASC 7 Hughes J 20 his attendance with his colleague Mr Buring at Mr Corsaro’s residence on 21 June 2018 to return a mobile phone to Mrs Corsaro and serve an order on Mr Corsaro. 100 He was asked about the conduct that led to the charge of assault being laid in respect of the Mr Buring. He said in examination in chief:35 A: Mr Corsaro, with his right hand, pushed Dion [Buring] into his left shoulder blade and then almost at the same time shoved me with his left hand (INDICATES) on my right arm. Q: And did you actually see that contact made by Mr Corsaro with Mr Buring. A: Yes, I did. Q: And when that contact was made with Mr Buring, how did Mr Buring react. A: I’m not certain how he reacted because I was surprised that I was shoved as well. … Q: How did you react. A: I immediately pulled away and told Mr Corsaro not to touch us. … Q: … How would you describe the level of force of that contact [with Mr Buring]. A: It wasn’t place his hand with his hand to remain in contract, it was a push (INDICATES). Q: Why do you describe it as a push. A: Because it made contact and he withdrew (INDICATES). Q: And how would you describe the nature of the contact with your arm. A: In a similar manner. It wasn’t a grab and hold on. It was a push towards the gate (INDICATES). 101 No charge was laid in respect of alleged contact between Mr Corsaro and Mr Lewis; only the alleged contact between Mr Corsaro and Mr Buring. 102 In cross-examination, Mr Lewis’s evidence was not undermined in respect of his assertion of having seen Mr Buring being pushed. He described it as an open- handed shove. He stated on several occasions that he did not observe whether Mr Buring’s balance was disturbed, because his attention at that moment was on the contact on himself. He expressly rejected the possibility of accidental contact:36 35 Trial transcript in ERD-21-000047, p 79-80. 36 Ibid, p 84-85. -- 22 of 29 -- [2024] SASC 7 Hughes J 21 Q: Is it possible that he [Mr Corsaro] was gesturing at that point. A: No. Q: And accidentally made contact with you. A: Definitely not. It was a deliberate act. … Q: So if I suggested to you that it’s possible that the contact was accidental, what would you say about that. A: Definitely not. 103 After summarising the whole of Mr Lewis’ evidence, the Trial Judge said:37 Mr Lewis gave his oral evidence in a straightforward and cogent manner. The effect of his evidence was not damaged by cross-examination. I regard him to have been an honest and reliable witness and I accept his evidence. 104 Mr Buring gave evidence concerning his role in the investigation including attendance at the Seidel property, gathering data from electronic devices and the operation of the waste industry. Relevant to count 16, he said in examination in chief:38 A: So he told us to get off the property, swearing at us to leave and then as we just obviously decided to leave – we hadn’t told him about the clean-up order at that stage, we had only returned the phone. I returned (sic) around to leave and then I got shoved in the back as I left. Q: Right, and when you say you were shoved in the back could you describe what happened. A: Yep. So I felt a – so my back was towards Maurice who was directly in front of me and Natalie [Corsaro] was behind him – I felt I guess an open hand shove to the backside of my left shoulder blade, is probably the location I could describe it. … Q: Then you’ve told us that you turned around and then the contact was made, did you observe what Mr Lewis did at that point as you were turning. A: Yep. So after I had the shove in the back Adam [Lewis] told Maurice not to touch us and then I turned and saw that Maurice had started going towards Adam. … 37 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [99]. 38 Trial transcript in ERD-21-000047, p 156-158. -- 23 of 29 -- [2024] SASC 7 Hughes J 22 Q: Can I then take you back to that contact you’ve referred to, and your evidence so far has been it was an open hand and a push I think to the left shoulder, how would you describe the level of force of that contact. A: It’s a shove is probably the best way I can describe it. So it wasn’t a tap and it wasn’t a mere sort of, you know, ‘off you go’ sort of thing. It was a (INDICATES) ‘go’. Q: Did that physically affect you at all, that shove. A: Yes, it jolted my body forward a bit. HIS HONOUR Q: What about the position of your feet. A: I was walking so I didn’t fall, so I was already leaving, I guess, so I guess me walking probably would have stopped me from falling over. 105 Mr Buring was shown the video in examination in chief and three times again in cross-examination. Notwithstanding the fact that the video does not show any alteration in the movement of the witness’ body at the time that he identified as being the point of contact, namely 8 minutes and 46 seconds into the video recording,39 he did not materially change his evidence. 106 Mr Buring said in cross-examination:40 A: Yes, it was a shove. Q: When you felt that shove did it move your chest at all. A: It moved my chest forward a little bit but as I said before I didn’t lose my balance. Q: So you were able to continue walking without interruption but your chest moved forward. Is that right. A: It was a shove so it was a bit – it’s hard to describe but yeah, so I kept moving forward because I was already starting to walk. … A: I was shoved and it was enough to make me go ‘I’ve been shoved’. I felt the force in my back and turned around and then Maurice was walking towards Adam. … Q: If I suggested to you that in fact you did not move, that is jolting forward in the way you described when you say you were pushed, do you agree with that. A: No. Your terminology of ‘jolt’, like as in mine, would be that it moves me, I’ve not just stood still and gone like that (DEMONSTRATES). It’s not a mere touch. 39 Trial transcript in ERD-21-000047, p 161-162. 40 Ibid, p 180- 182. -- 24 of 29 -- [2024] SASC 7 Hughes J 23 Mr Ambrose: For the transcript, the witness moved his torso forward a few centimetres in answering that question. 107 The video was shown to the witness and the following exchange occurred:41 Q: If I suggested to you, Mr Buring, that you’ve told us in your evidence that you were shoved to the point of correcting me when I said ‘pushed’ a second ago, but at no point in that footage do we see the book you’re holding in your left hand move forward at all consistent with what you’ve described happened. A: I’m holding the book against myself so it would be unlikely that the book would move unless I drop it. Is that what you’re saying? Q: Yes, that’s exactly what I’m saying. A: I wasn’t shoved to the point that I was getting pushed over, I was shoved as in you could hear him saying ‘chop, chop’ as in ‘get out’. Q: But you’re adamant that your chest moved. You’re wearing a body-camera affixed to your chest, aren’t you. A: Yes. Q: We’ll play the footage again from 8.45. VIDEO SHOWN VIDEO CONCLUDED Q: If I suggested to you that at no point do we see the footage move at all consistent with you wearing a camera on your chest just having been shoved. A: Well, I guess it’s subjective. I felt myself move forward. I’m walking away and I can see that the camera is still. Being a body-worn camera, I’m not sure if you’re familiar with them, that it’s quite shaky regardless of how they’re positioned unless they’re fixed on something that’s not moving, but I believe that it was moving. Q: If I suggested to you that it was fixed to something that was not moving, and that’s your chest because you weren’t shoved, what do you say about that. A: I would say that I was moving. I was walking away. I had my back to him. HIS HONOUR Q: And to the proposition that you weren’t shoved. A: I’d say that’s false; I was touched and shoved. XXN Q: And to the point where it jolted your body. 41 Trial transcript in ERD-21-000047, p 183-184. -- 25 of 29 -- [2024] SASC 7 Hughes J 24 A: That’s correct. And by ‘jolting’ I mean it moved me forward. 108 There were plenty of opportunities for Mr Buring to resile from his evidence when confronted with the video and the questions about it, but he remained steadfast to his evidence that he experienced a shove which jolted him forward. 109 Mr Buring was not cross-examined as to accidental contact or concoction. Mrs Corsaro was not called. Mr Corsaro was not asked whether there might have been accidental contact with Mr Buring in examination in chief. He denied contact. He was not cross-examined on the assault. 110 The Trial Judge used certain evidence of Mr Corsaro’s discreditable conduct when considering the contest between the witnesses as to the assault. The Trial Judge directed himself in relation to the use to which he was entitled to put evidence that Mr Corsaro pleaded guilty with respect to certain other charges concerning a third site at Houghton. In so doing, the Trial Judge directed himself against the use of that evidence in certain regards but allowed its use for the purpose of considering the charge of assault against Mr Buring.42 No issue was taken with his Honour’s directions in that regard. 111 The Trial Judge summarised the second appellant’s evidence and rejected it after finding him to be evasive and argumentative, and to have lied.43 His Honour expressly rejected the possibilities of accidental contact and self-defence.44 112 Relevant to Mr Buring’s evidence on count 6, the Trial Judge said:45 [Mr Buring] said the second defendant became quite upset, waving his hands around. MC started swearing and was accusing them of ruining the country. He was swearing directly at them. The second defendant started to raise his voice and ‘sort of yell’, stepping forwards towards them and waving his hands a bit. NC was trying to restrain him and tell him to calm down. The second defendant told them to get of the property and they decided to leave. They had not had an opportunity to serve the clean-up order on MC at this stage. [Mr Buring] said that he had turned his back towards the second defendant who had been directly in front of him and he felt “an open hand shoved to the back side of my left shoulder blade”. At the time this happened, Mr Lewis was to the right side of him. He said that after the second defendant shoved him, Mr Lewis told the second defendant not to touch them and at that point he saw MC approaching Mr Lewis. … [Mr Buring] said that when the second defendant shoved him, it jolted his body forward a bit. He did not fall, and the effect of his evidence was that the shove was in the direction that he was moving. Video from the body-cam footage recorded by Mr Buring was tendered and played. Because of the position on his body that the camera was secured, the footage obviously does not depict video of the alleged shove. It depicts the view outwards from Mr Buring’s chest area. Mr Buring identified the point at which he believes he was shoved at about 8.46 minutes into the footage. 42 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [207]. 43 Ibid, at [199]-[200]. 44 Ibid, at [233]-[234]. 45 Ibid, at [110]-[116]. -- 26 of 29 -- [2024] SASC 7 Hughes J 25 … Mr Buring was cross examined about the degree of force which he said had been applied to his left shoulder. His evidence was that the shove had moved his chest forward [a] little bit but that he didn’t lose his balance. He told the court he found it hard to describe, but that when he was shoved, he kept moving forward because he had already started to walk. He said that he was shocked by that incident and the effect of his evidence was that he did not say anything after having been shoved. Counsel for the second defendant directed the attention of Mr Buring to the video footage, suggesting that the orientation of the footage at the relevant time did not support his evidence that he had been shoved. In particular, the footage depicts Mr Buring’s left hand holding a book in which he had been making notes. The book does not appear to move forward or be jolted at the relevant time. The effect of the question was to suggest that had the witness been shoved as he claimed, the force would have caused a corresponding movement to the book which was not apparent on the video. Mr Buring met that assertion with the following answers: “I’m holding the book against myself so it would be unlikely that the book would move unless I drop it…. I wasn’t shoved to the point that I was getting pushed over, I was shoved as in you could hear him saying ‘Chop, chop’ as in ‘Get out’…” When pressed on this issue and shown the footage a second time, Mr Buring gave the following answer: “Well, I guess it’s subjective. I felt myself move forward. I’m walking away and I can see that the camera is still. Being a body-worn camera, I’m not sure if you’re familiar with them, that it’s quite shaky regardless of how their position [sic] unless the fixed on something that is not moving, but I believe that was moving.” He remained adamant that he had been shoved by the second defendant. He said that by the word “jolting”, he meant that it moved him forward. I found Mr Buring to be both an honest and reliable witness. I accept his evidence. When giving evidence as to the alleged assault against him, Mr Buring did not attempt to exaggerate and did not appear to have an axe to grind. I was very much of the impression that he was giving evidence about an event which had actually occurred to him, as best he could. I have considered the question of the asserted inconsistency of the video footage from the body worn camera with Mr Buring’s own account of events. I exclude as a reasonable possibility that the video footage is inconsistent with his version. As he said in his evidence, he was moving forward at the time contact was made with him. He described receiving a jolt but it does not follow that if that had occurred, it would necessarily be reflected in movement of the book he was holding as seen in the video footage. I do not find it remarkable that, having been pushed, shoved or jolted by the second defendant, he did not turn around and immediately remonstrate with him. Firstly, as the witness said, Mr Lewis made a remark of that kind to the second defendant after he saw contact being made with Mr Buring. Secondly, both Mr Lewis and Mr Buring described a sequence of events in which the second defendant became increasingly agitated and ultimately made threats towards them. It is unsurprising that they should have simply turned and left as he said they did. 113 Whilst the Trial Judge did not expressly address the possibility of concoction, there was no need for him to do so. It followed from his Honour’s acceptance of the evidence of the witnesses Mr Lewis and Mr Buring as to the circumstances of the assault. It was consistent with his earlier finding that the second appellant had been untruthful and evasive in his evidence. -- 27 of 29 -- [2024] SASC 7 Hughes J 26 114 In Ashton Valley Fresh Pty Ltd v Dolan,46 Lovell J summarised the well- established principles laid down in Fox v Percy47 and said:48 On issues involving the assessment of the truthfulness, credibility and reliability of a witness, the appellate court must make due allowance for the advantage held by the judicial officer in seeing and hearing the witnesses. However, the appellate courts are not excluded from the tasks of weighing conflicting evidence and drawing their own inferences and conclusions. The fact that a judicial officer may have reached their conclusion by an acceptance of a witness’s evidence does not prevent the appellate court carrying out its statutory function. If the appellate court concludes that the judgment is wrong it must overrule it. 115 On appeal, I consider that no basis for disturbing the finding has been established. The words of Stanley J in Johnson v Police are apt:49 The magistrate had distinct and obvious advantages, as compared with this Court, when forming a view about the credit and reliability of their respective accounts. The magistrate delivered judgment at a time when the impressions made by the various witnesses must have been clear in his mind. At issue is whether the magistrate has misused the advantage he enjoyed in hearing the evidence by making findings contrary to incontrovertible facts or uncontested testimony which are glaringly improbable or contrary to compelling inferences available from other evidence. 116 In this matter, it is particularly relevant that the Trial Judge said of the witness Mr Buring: I was very much of the impression that he was giving evidence about an event which had actually occurred to him, as best he could.50 117 It is evident that the Trial Judge reached this view from observing the witness giving evidence as well as the particular answers he gave. It is precisely what is protected by the caution that is exercised by an appellate court. The Trial Judge is describing the impression that is conveyed when observing a person who is recounting events that are stored in their memory, as opposed to observing an account given by a person who does not convey any outward indicator of that internal process. 118 The appellants have not established a basis for a finding that the Trial Judge’s reasoning failed to justify the exclusion of concoction or accident, and the conviction is not unsafe or unsatisfactory. Ground 3 does not succeed. It is not necessary to consider the respondent’s Notice of Contention. 46 [2021] SASC 44. 47 [2003] HCA 22; (2003) 214 CLR 118. 48 [2021] SASC 44 at [27]. 49 [2017] SASC 87 at [17]. 50 Barry v Port Adelaide Salvage SA Pty Ltd & Anor [2023] SAERDC 7 at [116]. -- 28 of 29 -- [2024] SASC 7 Hughes J 27 Conclusion 119 Grounds 1 to 3 have not been established by the appellants. The appeal is dismissed. -- 29 of 29 --