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(Holmes and Muir JJA and McMeekin J - 16 December 2014)
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Environment and Planning – pollution – water pollution – offences – particular offences – where the applicant was convicted by a magistrate of an offence of unlawfully depositing a "prescribed water contaminant" in stormwater drainage, contrary to s 440ZG of the Environmental Protection Act 1994 (Qld) – where the applicant carried out works on a construction site - where the development approval permitted the release of water from the site only where its concentration of total suspended solids did not exceed 50 milligrams per litre – where evidence indicated the water contamination at 600 milligrams per litre – where a District Court judge dismissed the applicant's appeal against conviction – where the applicant contends that the evidence was not sufficient to exclude the possibility that the water contamination level of the sample did not accurately represent the concentration of suspended solids in the water released from the site – whether the judge had erred in not finding that there existed a rational possibility consistent with innocence – whether leave should be granted to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld)
Facts:The applicant was convicted by a magistrate of an offence for unlawfully depositing a "prescribed water contaminant" into stormwater drainage which was contrary to section 440ZG of the Environmental Protection Act 1994.
The applicant had been carrying out works on a construction site pursuant to a development approval which allowed for the release of water from the site only where its concentration of total suspended solids did not exceed 50 milligrams per litre.
The complainant Council, had carried out an inspection of the site during heavy rainfall and had noticed highly turbid water leaving the site where it was being mixed with water from a culvert collecting water from upstream. The Council had taken a sample of the water just below the entrance of the culvert and adjacent to the pipes releasing water from the site.
The offence alleged by the Council was for the discharge of water with a solids concentration of 600 milligrams per litre from the boundary of the land on which the subject site was located (based on the sample taken). It had been concluded by the Magistrate that although some less turbid water had come from the culvert, the "predominant contamination of water" flowed from the sediment basin pipes on the site and that there was no evidence of it having been contaminated from any other location.
The applicant then appealed the Magistrate's decision to the District Court. The District Court noted that the Magistrate appeared to have overlooked the burden of proof and that it was accordingly necessary for the prosecution to prove that a concentration of at least 50mg per litre of solids had been released from the boundary of the land.
Having regard to the analysis of the sample, the evidence of the topography of the channel and the appearance of the turbid water flowing to and beyond the boundary of the land, His Honour decided that the inference could be drawn, beyond reasonable doubt, that the concentration of suspended solids in the water at its release at the boundary was greater than 50 milligrams per litre. His Honour thus concluded that there existed no rational possibility that the water was not contaminated to at least that level.
The applicant then sought leave to appeal to the Court of
Appeal. In seeking leave, it was submitted that it was not
sufficient to exclude the possibility that the sample did not
represent the concentration of suspended solids in the water as
released from the site and that the level may have been in fact
less than 50 milligrams per litre.
In its submissions the applicant noted the following:
- that the methodology was flawed and that the taking of a single sample left uncertainty as to the composition of water when it left the land;
- that the sample was taken adjacent to the culvert, at a time when there had been a significant rain event;
- there had been no assessment as to the turbidity of the water as it was leaving the subject land and that it was entirely possible that vegetation in the channel may have reduced the concentration of the suspended solids.
The applicant claimed that the District Court Judge had erred in not finding that there existed a rational possibility consistent with innocence.
Decision: The Court held, in refusing the application:
On the evidence adduced it was not considered that any reasonable possibility consistent with innocence remained.
- The limited amount of water emerging from the culvert at the time the sample was taken had been described as only slightly turbid and certainly less turbid than the water emerging from the PVC pipes.
- There was no reasonable possibility that something had occurred in its course to reduce the concentration of suspended solids at the sample site.
- The evidence as to the water's contamination did not leave open other rational possibilities.
- The proposed appeal ground could not be made out.