BMD Constructions Pty Ltd v Stevens (Brisbane City Council) [2007] QDC 97

DISTRICT COURT OF QUEENSLAND CITATION: BMD Constructions Pty Ltd v Stevens (Brisbane City Council) [2007] QDC 097 PARTIES: BMD Constructions Pty Ltd (Appellant) v Stevens (Brisbane City Council) (Respondent) FILE NO/S: D3240/06 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 1 June 2007 DELIVERED AT: Brisbane HEARING DATE: 29 May 2007 JUDGE: Forde DCJ ORDER: 1. The appeal is allowed. 2. The decision of the learned magistrate of 30 June 2005 is set aside. 3. The complaint is dismissed. 4. It is ordered that the respondent do pay the costs, including reserved costs if any, of the appellant of the appeal and the hearing before the learned magistrate to be assessed or agreed. CATCHWORDS: UNSAFE AND UNSATISFACTORY VERDICT – Failure to discharge onus of proof – rejection of uncontested evidence REHEARING – approach following summary hearing – rehearing on the evidence DRY MUCKING – sweeping sediment – shovelling sediment- sediment flow into stormwater drain – hosing sediment Environmental Protection Act 1994 (Qld) s 33. Environmental Protection (Water) Policy 1997 (Qld) s 32. -- 1 of 7 -- Justices Act 1886 (Qld) ss 222, 223, 225. Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Gipp v The Queen [1998] 194 CLR 106 Morris v The Queen (1987) 163 CLR 454 Parsons v Raby [2007] QCA 98 R v Shepherd (1990) 170 CLR 573 Townsville City Council & Anor . v Chief Executive, Department of Main Roads [2005] QCA 226. COUNSEL: Mr B. Farr for the Applicant. Mr W. Cochrane for the Respondent. SOLICITORS: Mr J. Varitimos for the Applicant. Brisbane City Legal Practice for the Respondent. -- 2 of 7 -- Introduction [1] The appellant, BMD Constructions Pty Ltd is a development company. It was developing land for residential use at Calamvale adjacent to a new housing estate and some bushland. From the photographs 1 it appears that the estate was in the final maintenance stages. It appears to be a tidy, landscaped estate with bitumen and gutters in Benhaim Street.2 In fact, the appellant was carrying out a clean up in order to obtain the development approval. After heavy rain, soil and mud were deposited on the roadway in what is described as the proposed Fatima Place. That street runs at right angles to Benhaim Street. The subject stormwater drain is near the truck as shown in Exhibit 1 and Exhibit 2.3 [2] This is an appeal by the appellant against the decision of a magistrate given on 2 November 2006. The appellant was found guilty of depositing sand, silt or mud in a stormwater drain in the proposed Fatima Place, Calamvale on 30 June 2005. The appellant was fined $300.00 and ordered to pay court costs of $68.40 and professional costs of $1,315.00 with no conviction recorded. The prosecution was by Peter Joseph Stevens4 as a public officer employed by the Brisbane City Council. The charge related to a breach of s 32(1)(b) of the Environmental Protection (Water) Policy 1997 (Qld). The Policy is subordinate legislation pursuant to s 33 of the Environmental Protection Act 1994 (Qld). Grounds of Appeal [3] The appeal is brought pursuant to s 222 of the Justices Act 1886 (Qld). The grounds of the appeal are: 1. That the learned Magistrate erred in not accepting the evidence of Shane Smith as to the shovelling and sweeping which the witness said took place before hosing occurred. 2. That the verdict was unsafe and unsatisfactory. [4] In support of the appeal, counsel tendered written submissions5 and made oral submissions. Evidence of Shane Smith [5] Mr. Smith was employed as the foreman at the site by the appellant. He gave an interview to two Council Officers, Mr. Haines and Mr. Forster on 30 June 2005. It was taped6 Also, written notes were taken and signed by Mr. Smith.7 It is noted in Exhibit 5 that instructions were given to Mr. Smith ‘to install 1 Exhibit 1 2 The first photo Exhibit 1 3 Layout Plan Sheet 1; Roads and Drainage Plan Sheet 2 4 the Respondent 5 Exhibit A; Exhibit B are the respondent’s submissions 6 Exhibit 4 and a transcript is on the Record 7 Exhibit 5 -- 3 of 7 -- sediment screens to the area, sandbags and geotextile to the stormwater gully. Road to be dry mucked and hosed onto grass.’ [6] It should be made clear that the road surface described as 109 Benhaim Street is that part in the proposed Fatima Place. It had not been named at that point but as appears from the complaint, it is the roadway on the corner adjacent to 109 Benhaim Street. There was no dispute about that fact on appeal. Mr. Smith gave evidence that before he hosed the road surface in what is the proposed Fatima Place, he caused the sediment to be shovelled and then swept from the roadway. That evidence was not challenged. In fact, on appeal, Mr. Cochrane submitted that it was not really contested that sweeping occurred.8 The respondent’s case was that after sweeping significant sediment remained which was hosed away into the stormwater drain and in breach of s 32(1)(b) of the Policy. [7] In fact, on the day of the inspection, council officers observed that shovelling and sweeping was being carried out at another site. It was thus submitted that the learned Magistrate had no basis upon which to reject the evidence of Mr. Smith. As his evidence was not challenged or contradicted on this point, and given the attitude of the respondent on the appeal, I find that the rejection of Mr. Smith’s evidence was unfounded. 9 This is not the type of case where evidence had to be called on appeal to determine the issue. The learned magistrate having accepted the prosecution witnesses that sediment had flowed into the stormwater drain then immediately proceeded to reject Mr. Smith’s evidence. That was an erroneous approach. It was consistent with the fact that sweeping had occurred for there to be residual sediment on the roadway. In fact, as will be discussed, the learned magistrate erred in finding beyond reasonable doubt that sediment had flowed into the stormwater drain. In those circumstances, the difficulties discussed in the case of Parsons v Raby10 of overturning findings of fact are easily overcome in the present case. This is clear when the respondent accepts that it was not challenging that sweeping occurred, just that it was inadequate.11 [8] However, there was an attempt in the written submissions of the respondent12 to sustain the finding that sweeping had not occurred. There are two answers to those submissions. Firstly, the learned magistrate assumed that because sediment was washed from the roadway into the stormwater drain that it was open to find that no sweeping had occurred. That finding was not really open for the reason also that Mr. Forster accepted that ‘more sweeping probably could have occurred.’ Secondly, the statements by Mr Smith relied upon by the respondent ‘so, as much as we can today and then broom it again in the dry’ or ‘um, once we get it broomed clean, are we allowed to wash it then’ do not support a finding that sweeping had not occurred.13 8 Transcript of appeal (TOA) 38.1 - 28 9 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 26; Townsville City Council & Delfin Lend Lease Limited v Department of Main Roads [2005] QCA 226 at [54 ]– [61] 10 [2007] QCA 98 at [24]-[26] 11 TOA 38.10-20 12 Exhibit B paras 4-7 13 Transcript p 5 being part of Exhibit 4. -- 4 of 7 -- [9] There was evidence that the extent of the sediment or mud was in parts a couple of centimetres deep14 to two to four centimetres.15 Mr. Forster went on to say in relation to the silt or sediment in Fatima Place that ‘you probably could have swept it more’. He was not saying it had not been swept just that it was practicable to ‘sweep it more’. Once the process of shovelling and sweeping or dry mucking had occurred, the next step was to hose it off. In fact, this procedure was envisaged in directions to Mr Smith by council officers after they arrived.16 Defence [10] Section 32(3)(b) of the Policy provides: If a person is charged with an offence against subsection (1), it is a defence to the charge for the person to prove- (a) the release or deposit happened while carrying out a lawful activity; and (b) the person complied with the general environmental duty either by complying with the relevant code of practice (if any) or in some other way. [11] The appellant contends that the defence has been made out. Counsel for the appellant accepted that such steps taken have to be reasonable and that the onus is upon the appellant to prove same on the balance of probabilities.17 This was not contested by the respondent’s counsel. It is contended by the appellant that if Mr. Smith’s evidence had been accepted, that the appellant had discharged its onus in relation to taking reasonable steps. On appeal, the respondent contends that adequate steps were not taken, as there was an admitted failure by the appellant through Mr. Smith that ‘there were no sausage rolls or fences or siltation traps around the gully trap in Fatima Place.18 In view of the other argument on the decision of the learned magistrate being ‘unsafe and unsatisfactory’, it is not necessary to determine the argument by the respondent that further steps ought to have been taken. “Unsafe and unsatisfactory” [12] The appellant relied upon the “unsafe and unsatisfactory” ground of appeal. In determining whether that ground has been established an appellate court “should undertake ‘an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable 14 Haines at 41.5 15 Forster at 15.18;32.32 16 Exhibit 5; Transcript p 6 being part of Exhibit 4. 17 Appeal transcript p 4.10-5.5 18 103.20-30 -- 5 of 7 -- doubt as to the guilt of the accused.’”19 A similar approach can be taken following a summary hearing. It is a rehearing on the evidence.20 [13] The appellant contends that there was no evidence placed before the court to establish that any sand, mud or silt was in fact deposited in the stormwater drain. The respondent in argument referred to some evidence which pointed in the opposite direction. Before referring to that evidence, it is necessary to put the evidence in context. When the council officers, Mr. Forster and Mr. Haines arrived, the water truck was using its spray and subsequently its hose to wash the remaining silt or sediment off the proposed Fatima Place roadway.21 As shown in Exhibit 1 there is a grass strip adjacent to an edge of concrete which is parallel to the bitumen. By that time the dry mucking had ceased and the final hosing was taking place. The position of the water tanker is shown in Exhibit 1. The photographs were taken when the said officers arrived. Mr. Forster observed out of the rear mirror of his car that the tanker was in the middle of Fatima Place and had turned on one of his rear washing ports.22 The port was washing across the street. There was one stormwater drain adjacent to the grass strip as shown in the third photo of Exhibit 1. [14] In cross examination, Mr. Forster initially said that he observed sediment being washed into or towards the stormwater drain. The fire hose was being used at that stage.23 The water had to travel across the grass to reach the drain. No tests were undertaken to determine the extent or presence of sediment. Those tests were taken on other occasions.24 Mr. Forster was able to see some water trickling through the grass into the drain. Mr. Haines in cross examination25 agreed that tests could be undertaken. On that occasion he could not determine the clarity of the water. It was therefore contended that the prosecution had failed to prove that any sediment had travelled with the water into the drain. It was suggested that the grass acted as a filter to prevent silt or sediment moving towards the drain. In any event, says the appellant, even if it was a reasonable inference that some sediment could reach the drain, it was also open to infer that no such deposit occurred. In that event, the appellant says that that was not the only rational inference to draw and that the prosecution has failed to prove its case as it had not excluded the reasonable inference consistent with innocence.26 [15] Apart from the equivocal evidence of the eyewitnesses, the respondent relied upon the evidence of the expert, Mr. Paten, Erosion and Sediment Control Officer with the Brisbane City Council. His evidence was that the silt being hosed away would not be stripped out of the water by grass. Mr. Paten did not 19 per Callinan J. in Gipp v The Queen [1998] 194 CLR 106 at 164 applying the earlier decision of Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ; see also Gaudron J in Gipp at 114. 20 S 223. A District Court sitting in its appellate jurisdiction can confirm or set aside the primary decision; s 225. 21 36.20-32 22 14.1-15 23 28.1-15 24 28.40 25 40.40-60 26 R v Shepherd (1990) 170 CLR 573 at 578 -- 6 of 7 -- observe the volume of water nor the direction in which it was being disposed of. 27 The eye witnesses could not speak of the clarity of the water and there was no acceptable evidence that silt or sediment was in fact carried into the stormwater drain. Tests could have been carried out on water samples. The final evidence of Mr. Haines and Mr. Forster was equivocal and in the end not convincing proof to the level required of an essential element of the charge. Mr Paten’s theoretical evidence cannot be given such weight as to override that of the eye witnesses.28 In my view, a jury or tribunal of fact properly instructed about the approach to be adopted could not be satisfied beyond a reasonable doubt that the onus of proof has been discharged. [16] Therefore, if there is a failure to prove that any sediment or silt found its way into the stormwater drain, the failure to provide other measures to prevent it going there becomes irrelevant. Orders 1. The appeal is allowed. 2. The decision of the learned magistrate of 30 June 2005 is set aside. 3. The complaint is dismissed. 4. It is ordered that the respondent do pay the costs, including reserved costs if any, of the appellant of the appeal and the hearing before the learned magistrate to be assessed or agreed. 27 Mr Paten’s evidence in cross-examination on this is at 52.1 – 53.52 28 The possibility or likelihood of sediment or silt travelling into the drain is not proof beyond reasonable doubt. -- 7 of 7 --