Peter James Harris and Jane Maree Harris v WaterNSW

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.

2. [2]

   BELLEW J:

INTRODUCTION

1. [3]

   By amended summonses filed in the Land and Environment Court of New South Wales on 1 February 2019, WaterNSW (the respondent) sought orders against Peter James Harris and Jane Maree Harris (the appellants) that they each appear before a judge of that Court to answer a charge contrary to s 91G(2) of the Water Management Act 2000 (NSW) (the WMA). The charge against each of the appellants was in the following terms: [1]

2. [4]

   The particulars of the charge brought against each of the appellants were as follows:

3. [5]

   Each of the appellants pleaded not guilty to that offence.

4. [6]

   On 19 March 2020, Robson J found each offence proved and convicted each of the appellants. [2]

5. [7]

   The appellants now appeal against their convictions on the grounds more fully set out below.

THE FACTUAL BACKGROUND

1. [8]

   Much of the factual background to the alleged offending was not in dispute. In setting out that background, I have indicated the areas where there were issues between the parties.

The Barwon-Darling river system

1. [9]

   The Barwon-Darling River System is an unregulated river system, or in other words, a river system without major storage facilities or dams. [3] It flows from Mungindi on the New South Wales/Queensland border, to Wentworth in south-western New South Wales, and extends downstream to the Menindee Lakes. The system includes the Barwon River (the river), extending from upstream at Mungindi at the confluence of the Macintyre and Weir Rivers, to where it meets the Culgoa River, at which point the river channel becomes the Darling River. [4]

Beemery Farm

1. [10]

   Beemery Farm (the property) is a parcel of agricultural land located in the Brewarrina Shire in north-western New South Wales. The Kamilaroi Highway runs east/west through the property, which is bordered to the north by the undulations of the river. Cotton growing fields are located within three lots of the property located on the south side of the highway. [5]

2. [11]

   From about the mid-1990s until 2014, the property was occupied by Clyde Agriculture Pty Ltd (Clyde). [6] Since July 2014 the appellants, through Clyde Cotton (a partnership comprising the appellants individually, and PJ & JM Harris Pty Limited) have occupied the property [7] and have operated it as a cotton farm. [8]

The issue of a water licence to Clyde

1. [12]

   Until 4 October 2012 (at which time the WMA became operative), [9] the Water Act 1912 (NSW) (the 1912 Act) governed the protection and management of water sources in NSW. That management included the issue of licences and approvals to the occupiers of land regarding the use of water. Sections 10 and 12 of the 1912 Act allowed an occupier of land to make an application for a licence in relation to “any work to which this Part extends”. Such work was defined to include (inter alia) work affecting the quantity of water flowing in, to, or from, a river or a lake. [10]

2. [13]

   Pursuant to the 1912 Act, Clyde was granted licence number 85SL105059 (the 1912 licence) [11] in respect of the property. [12] The permitted purpose of that licence was irrigation, and the licensed works included the use of a number of centrifugal pumps. [13] The effect of the 1912 licence was to allow the irrigation of the property by those pumps extracting water from the river, through an irrigation channel, to two above ground water storage reservoirs. The water from the reservoirs was then directed to that portion of the property which contains the cotton fields. [14]

3. [14]

   Section 17A(2) of the 1912 Act conferred a power on the relevant statutory authority to (inter alia) modify a licence. On 20 February 2012, Clyde was notified of a variation in conditions (5) and (6) of the 1912 licence which, in their varied form, were in the following terms: [15]

The water sharing plan

1. [15]

   On 4 October 2012, the Water Sharing Plan for the Barwon-Darling Unregulated Alluvial Water Sources 2012 (NSW) (the 2012 plan) commenced. Clause 4 provided that the 2012 plan applied to (inter alia) the Barwon-Darling Unregulated River Water Source. There is no dispute that this water source applied to the river, and thus to water which was drawn from the river at the property during the period of the charges. [16]

2. [16]

   On the same day, the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) (the Proclamation) became operative. Clause 3 of the Proclamation declared that Pts 2 and 3 of Ch 3 of the WMA applied to each “prescribed water sharing plan”. This included the 2012 plan.

3. [17]

   Since 4 October 2012, the WMA has made provision for the issue of water access licences (pursuant to Part 2 of Chapter 3) and approvals (pursuant to Part 3 of Chapter 3).

4. [18]

   The Proclamation enlivened the operation of Sch 10 of the WMA, cl 3 of which specifically provided that any entitlement that was in force under the 1912 Act immediately prior to the appointed day (i.e. 4 October 2012) was taken to have been replaced. The 1912 licence constituted an “entitlement” having regard to the definition of that term in cl 2(a) of Sch 10 of the WMA. Cl 3 was partly in the following terms:

The issue of a replacement licence and approval to Clyde

1. [19]

   By operation of cl 3(1) of Sch 10 to the WMA, the 1912 licence was replaced and separated into two instruments namely: [17]

2. [20]

   Clause 20(2) of Sch 10 provided:

The notification to Clyde of the 235 licence and the approval

1. [21]

   Clause 20(1) of Sch 10 of the WMA required the Minister to give written notice of the terms of any access licence or approval arising by operation of the schedule.

2. [22]

   On 17 October 2012 Clyde was advised that upon the commencement of the 2012 plan, the 1912 licence had been replaced with: [18]

3. [23]

   The correspondence said nothing about the conditions attaching to either, but included the following: [19]

The transfer of the 235 licence and the approval to the appellants

1. [24]

   On 4 July 2014, the appellants’ solicitors wrote to the respondent enclosing a copy of a Notice of Sale which confirmed that the property had been transferred to the appellants on 12 June 2014. [21] The correspondence went on to state: [22]

2. [25]

   That letter attached a schedule setting out the various licences which had been purchased by the appellants from Clyde as part of the sale. That schedule included a reference to both the 235 licence and the approval. [23]

3. [26]

   On 11 September 2014, the respondent wrote to the first appellant stating: [24]

4. [27]

   The reference in that correspondence to “former licence 85SL105059” was a reference to the 1912 licence.

Notification to the appellants of the conditions attached to the approval

1. [28]

   Richard Wheatley, a Senior Water Regulation Officer, gave evidence that shortly after the appellants had purchased the property, he had a conversation with the first appellant to discuss a number of matters regarding licences and approvals. [25] Mr Wheatley gave evidence that the following was said: [26]

2. [29]

   Mr Wheatley also said that, consistent with the terms of this conversation, he sent an email to Mr Adams on 23 September 2015 attaching the approval. [27]

3. [30]

   The email identified by Mr Wheatley was not in evidence. However, Mr Wheatley produced what he described as a “copy of a screenshot from the WLS entry for Approval 85CA753236”. [28] “WLS” was a reference to the respondent’s Water Licencing System database which contained (inter alia) details of licence approvals issued by the respondent from time to time. [29]

4. [31]

   The screenshot was headed “Email history for document ID 258164” and was dated “23-Wed-2015”. [30] The email message was in the following terms: [31]

5. [32]

   Mr Wheatley’s evidence was that an automated response was received from Mr Adams’ email address. [32] It contained a reference to the approval and was in (inter alia) the following terms: [33]

6. [33]

   The response went on to provide alternative contact details in the event of “anything urgent”.

7. [34]

   In light of the evidence of Mr Wheatley as to the automated response, the trial judge found that the reference in the screenshot to “23-Wed-2015” was in fact a reference to 23 September 2015. [34] His Honour accepted that Mr Wheatley had sent the email to Mr Adams on that day.

8. [35]

   The terms of the approval which Mr Wheatley identified as having been sent to Mr Adams included the following: [35]

9. [36]

   There was a significant issue before the trial judge arising from Mr Wheatley’s evidence concerning his conversation with the first appellant. Whilst the first appellant did not give evidence, his position was that the conversation did not take place.

10. [37]

    Mr Wheatley was cross-examined at length, in the course of which he was asked: [36]

11. [38]

    The cross-examination specifically addressed Mr Wheatley’s recollection: [37]

12. [39]

    Mr Wheatley was then taken to his account of the terms used by the first appellant and was asked: [38]

13. [40]

    It will be evident from those passages that part of the thrust of the cross-examination was that Mr Wheatley did not have a clear recollection of the precise words that the first appellant was said to have used in the conversation. Whilst that proposition was put, in varying forms, on a number of occasions, Mr Wheatley’s consistent position was that whilst he could not remember the precise words, he could certainly remember the effect of what had been said. [39] By way of example, he was asked: [40]

14. [41]

    The cross-examination then continued on the same theme: [41]

15. [42]

    The cross-examination culminated in the following: [42]

Gauging stations operated by the respondent

1. [43]

   Andrew Cutler has been employed by the respondent as a Hydrometric Coordinator since 2009. In that capacity, his responsibilities have included the management of hydrometric field staff who monitor surface water and groundwater flows. Prior to 2009, Mr Cutler held the position of a supervising Hydrometric Officer which involved performing fieldwork, including recording river gauge readings. [43] Mr Cutler swore three affidavits which formed part of the evidence before the trial judge. It is important to emphasise that his evidence was not the subject of any substantive challenge.

2. [44]

   Mr Cutler’s evidence established that the respondent owns, operates and maintains a network of gauging stations along the river. Each gauging station is located on the top of the river bank, and houses a number of different instruments which measure the river height level at 15 minute intervals. The instruments include: [44]

3. [45]

   In explaining how the instruments operate at a gauging station, and the nature of the data which is collected as a result, Mr Cutler said the following: [45]

4. [46]

   Mr Cutler expanded on that process as follows: [46]

5. [47]

   The data collected by the instruments at a gauging station contributes to the calculation of river flow data, or in other words, the quantity of water flowing at a particular point of the river at a given point in time. [47] That process is discussed in further detail below. Importantly, given the challenge which is made to the accuracy of the data on which the calculation of the flowrate is based, Mr Cutler’s evidence was that gauging stations are inspected at two monthly intervals, and that the instruments are re-surveyed for accuracy every two years, and are usually calibrated every three years. [48]

The Bourke gauge

1. [48]

   The particulars of each of the charges centred upon the flow of the river at the Bourke gauge, which was one of the gauging stations operated by the respondent. The Bourke gauge is located approximately 100km downstream from the property, and 6 km upstream from the Bourke Weir, [49] a man-made weir constructed in 1897. [50]

2. [49]

   Between 17 and 20 May 2016 the Bourke gauge was relocated approximately 50 to 100m upstream of its previous location. The re-located gauge was formally commissioned on 7 June 2016, [51] and thus a short time before the commencement of the period of the alleged offending.

The process of conducting gaugings

1. [50]

   Mr Cutler explained that at the time of the inspection of a gauging station (which, I have noted, is at two monthly intervals) hydrometric field staff employed by the respondent perform what is referred to as a “gauging”. That process entails: [52]

2. [51]

   Mr Cutler specifically explained the process of conducting gaugings at the Bourke gauge: [53]

3. [52]

   In light of the matters raised in ground 1 of the present appeal, and notwithstanding Mr Cutler’s reference to “my hydrometrics team and I”, his evidence was that he did not attend each site visit, and that his staff were responsible for recording the relevant data. [54] None of those staff were called to give evidence before the trial judge as to what was done at a particular gauging.

4. [53]

   Mr Cutler also explained the nature of the data obtained from gaugings conducted at the Bourke gauge: [55]

5. [54]

   The historical data to which Mr Cutler referred was contained in a spreadsheet which formed part of the evidence before the trial judge. [56]

The application of Quality Codes

1. [55]

   As noted above, [57] Mr Cutler explained that at the time of conducting a gauging, the officer(s) of the respondent record the data obtained in a field inspection sheet, samples of which formed part of the evidence before the trial judge. [58] The completion of those documents incorporates the use of what are referred to as “Quality Codes” which are applied for the purposes of calculating the flowrate of the river.

2. [56]

   The respondent published a document entitled “Hydrometric time series quality codes.” [59] That document includes the following: [60]

3. [57]

   The document defines and prescribes the selection of quality codes [61] whilst a separate document also published by the respondent, entitled “Gauging quality codes” addresses the use of quality codes in reliably measuring the flowrate in a way which conforms to “AS3778”. [62]

Compiling of a rating table and a rating curve

1. [58]

   With the use of the real time data collected at the gauging station, along with the data obtained in carrying out the process of gauging, the respondent compiles a rating table [63] which correlates the expected flowrate of the river with the height of the river observed by hydrometric staff. [64] The “rating” is the mean fit relationship between the: [65]

2. [59]

   The rating table is created by a software program called “Ratings Workbench”, and involves that program plotting the data obtained during a gauging as a series of node points on a graph. The graph depicts the stage on one axis, and the river discharge on the other axis.

3. [60]

   The process of creating a rating table was explained by Mr Cutler as follows: [66]

4. [61]

   The rating table therefore represents a pre-calculated flowrate which corresponds to a particular level of stage, based on the observed relationship between stage and discharge. [67]

5. [62]

   Bearing in mind the operation of the gauging station, when data is received from a gauging station it is stored in the Hydstra database. Hydstra automatically determines the flowrate for the river at 15 minute intervals by applying the data obtained from the gauge as an input in the rating table and then determines the flowrate that corresponds to the height of the river at that time. [68] That process produces what is known as real-time flow data.

6. [63]

   For the purposes of confirming the accuracy of the real-time flow data, the real-time height data for a particular date or period is then compared to the height recorded by way of physical inspection. In instances where the river height measured by the gauging station differs from the actual height observed at an inspection by the respondent's staff, the data will be adjusted to produce what is known as adjusted height data. [69] Mr Cutler explained that: [70]

7. [64]

   Mr Cutler also explained that the respondent assumes that the adjusted flow data which is generated from adjusted height data remains subject to a 10% margin of error which may be due to: [71]

8. [65]

   Mr Cutler’s evidence was that the current rating table used in respect of the Bourke gauge is rating table 300.14. [72] By reference to that rating table, Mr Cutler prepared and produced a number of spreadsheets. They included:

9. [66]

   The second of those spreadsheets demonstrated that on each of the days within the period of the charge alleged against the appellants, the flowrate of the river was substantially less than what was contained in the conditions of the approval, and less than that stipulated in the charge, namely 4,894 MLD. [75] It was the position of the respondent before the trial judge that this evidence established that the recorded flow at the Bourke gauge was at least one billion litres per day less than the flowrate of 4,894 MLD specified in each charge.

10. [67]

    Following the preparation of the rating table, a “curve of mean fit”, known as a rating curve, is produced. The rating curve is a graphical representation of the rating for a particular gauging station, with the gaugings recorded in the Hydstra database being plotted on a graph so as to show a stage/discharge relationship. [76] The curve is therefore the mean fit of a series of physically measured river height versus discharge measurements. [77]

Australian Standard 3778

1. [68]

   The reference to “AS3778” is a reference to Australian Standard 3778 which sets out the protocols and procedures to be followed when collecting data. Clause 1 of Pt 2.3 of AS3778 is in (inter alia) the following terms: [78]

2. [69]

   Clause 5.2.6 is in the following terms: [79]

3. [70]

   Clause 6 of the Standard is headed “Stage-discharge calibration of a gauging station”. Clause 6.1 is in the following terms: [80]

4. [71]

   Clause 6.2 addresses the general preparation of a stage discharge relation. Clause 6.2.1 is in the following terms: [81]

5. [72]

   Clause 6.2.2 is in the following terms: [82]

6. [73]

   Clause 6.3.3 is in the following terms: [83]

7. [74]

   Clause A.2.1 of Annexure A is in the following terms: [84]

The expert evidence as to the calculation of flowrate

1. [75]

   Glenn McDermott, a Consultant in Hydrology and Hydrometric practice, provided a report which was relied upon by the respondent, in which he explained the difference between a calculated flowrate and a true flowrate: [85]

2. [76]

   Mr McDermott explained that any calculation of flowrate carried with it what he described as an associated “uncertainty of measurement”, and that the standard, and widely accepted, hydrometric practice is to calculate flowrate by reference to the 95th percentile confidence level. [86] Mr McDermott undertook his own assessment of the flowrate of the river by reference to rating table 300.14 and concluded that any uncertainty was at that confidence level. [87] In carrying out that assessment, having analysed the data underlying the 20 gauge points on the rating curve nearest to a flowrate of 4,894 MLD, [88] Mr McDermott concluded that: [89]

3. [77]

   In cross examination, Mr McDermott expressed the view that because the points on the rating curve were quality coded they were not lacking in measurement uncertainty or integrity. [91] When asked for the basis of that opinion, he said: [92]

4. [78]

   Daniel Martens, a Geotechnical Engineer and Environmental Scientist, provided a report which was tendered in the appellants’ case. [93] Dr Martens’ evidence was that the calculation of the flowrate of a river was often a technically difficult and time consuming task, and one which, in his opinion, was subject to various sources of error. [94] Dr Martens made reference to the fact that there were available devices which could be installed into a river for the purposes of directly measuring the flowrate at a particular point, and expressed the view that if a series of devices were installed at appropriate locations across a cross-section of the river, and on the assumption that each device was always correctly calibrated and functioning without error, data would be produced that would enable a calculation to be undertaken to produce an estimate of the flowrate at that cross section. [95]

5. [79]

   In expressing his opinions, and in proceeding on the understanding that the respondent had not installed such equipment and had instead relied upon a rating curve based upon underlying data, [96] Dr Martens’ evidence was that the respondent’s approach necessitated adopting a number of core requirements, including: [97]

6. [80]

   Dr Martens expanded upon this by saying: [98]

7. [81]

   Dr Martens expressed the opinion that there were “numerous sources of uncertainty and error” associated with rating curves, in terms of both the measurements incorporated in them, and the process of their actual compilation. [99] He cited a number of factors which, in his opinion, affected (or at least had the capacity to affect) the validity of a rating curve, including: [100]

8. [82]

   Dr Martens went on to identify what he described as “various sources of error” that in his opinion contributed towards uncertainty of the flowrate based upon river height at the Bourke gauge, including: [101]

9. [83]

   In specifically addressing the rating table prepared in relation to the Bourke gauge, Dr Martens noted the following: [102]

10. [84]

    I have previously made reference to the evidence surrounding the movement of the Bourke gauge, along with the evidence of Mr Cutler that approximately every two months, members of his Hydrometrics team attended the Bourke gauge to perform maintenance on the instruments, and to carryout gaugings. The effect of the movement of the Bourke gauge on the reliability of data obtained by the respondent to calculate the flowrate of the river was a matter of dispute between the experts.

11. [85]

    Mr McDermott was aware of the fact that the Bourke gauge had been moved but did not address that issue in his report. When asked why he had not done so, Mr McDermott explained that in his opinion, such movement had no bearing on the data which was collected by the gauge: [103]

12. [86]

    Although Dr Martens took issue with Mr McDermott’s opinion in this respect, [104] he said the following when cross-examined: [105]

13. [87]

    A further issue between the experts was the effect, if any of the Bourke weir on the calculation of the flowrate. In addressing this issue, Mr McDermott said: [106]

14. [88]

    Dr Martens took a different view, saying: [107]

15. [89]

    When asked about this aspect of Dr Martens’ opinion, Mr McDermott said: [108]

16. [90]

    Mr McDermott was then asked: [109]

17. [91]

    When directed to the opinion of Dr Martens, Mr McDermott explained why he did not agree with it: [110]

18. [92]

    In commenting on the opinions of Mr McDermott, Dr Martens, said: [111]

19. [93]

    When asked to explain what he meant by “catchment area factors”, Dr Martens said: [112]

THE FINDINGS OF THE TRIAL JUDGE

1. [94]

   It is appropriate at this point to set out the principal findings of the trial judge as they relate to each of these grounds.

Ground 1 – Proof beyond reasonable doubt of the fourth element of each offence

1. [95]

   The trial judge commenced by identifying the four elements which the respondent was required to prove in order to establish the charge against each appellant, the fourth being that during the relevant period, water was taken when the flow of the river at the Bourke gauge was equal to or less than 4,894 MLD (the fourth element). [113] In doing so, his Honour noted (inter alia) that: [114]

2. [96]

   His Honour summarised the evidence of the process of calculating the flowrate, [115] before identifying three particular issues in relation to the fourth element, namely: [116]

3. [97]

   In identifying those issues, his Honour emphasised the need to consider the evidence as a whole, and not in a piecemeal fashion. [117]

4. [98]

   As to the reliability of the underlying data used to calculate the flowrate, his Honour concluded: [118]

5. [99]

   His Honour went on to say: [119]

6. [100]

   In addressing the accuracy and reliability of the rating curve and the calculated flowrate, his Honour said: [120]

7. [101]

   His Honour’s reasons for accepting Mr McDermott’s methodology were that: [121]

8. [102]

   His Honour then continued: [122]

9. [103]

   As to the suggested impact of the Bourke weir, and the movement of the Bourke gauge, on the reliability of the data, his Honour concluded: [123]

10. [104]

    Ultimately, his Honour concluded: [124]

11. [105]

    Finally, his Honour determined: [125]

Ground 2(a) – Failing to understand the evidence of Dr Martens

1. [106]

   The trial judge observed that although the respondent had acknowledged that both the real time flow data and the adjusted flow data was subject to a 10% margin of error, [126] Dr Martens’ opinion was that the margin of error was much larger, and therefore could not be used to confidently estimate the flowrate. His Honour specifically addressed this aspect of Dr Martens’ opinion as follows: [127]

2. [107]

   His Honour went on to observe that Dr Martens had given evidence that: [128]

3. [108]

   His Honour generally considered the evidence of Dr Martens on the basis that such submissions “simply hypothesise possible errors which, even if the case, would yield a relatively minor result…”. [129]

4. [109]

   Having noted the dispute between Dr Martens and Mr McDermott as to the rating curve, his Honour concluded: [130]

Ground 2(b) – The failure of Dr Martens to identify practical alternatives

1. [110]

   In relation to this ground, his Honour concluded: [131]

Ground 2(c) - Admission of the evidence of gauge node points

1. [111]

   His Honour identified the issues relevant to this ground [132] and concluded that: [133]

2. [112]

   His Honour went on to say: [134]

3. [113]

   In respect of s 147 the EA which was relied upon by the respondent, his Honour found that the conditions of admissibility under that section were satisfied, and that the provisions of s 147(3) had no application. [135]

Ground 2(d) – The evidence of Mr Cutler

1. [114]

   His Honour identified the general nature of Mr Cutler's evidence [136] before saying: [137]

2. [115]

   Having noted the evidence of Mr Cutler and Mr McDermott regarding the quality codes and other procedures that applied to the collection of data: [138]

3. [116]

   His Honour summarised the evidence of Mr Cutler regarding the calculation of flowrate and, [139] against that background, reached the following conclusions regarding Mr Cutler's evidence: [140]

4. [117]

   Importantly, in reaching these conclusions, his Honour was specifically cognisant of the fact that the respondent had not called any officer who had undertaken a gauging. So much is evident from the following passage of his Honour’s reasons: [141]

Ground 2(e) – The evidence of Mr McDermott

1. [118]

   His Honour summarised the general nature of Mr McDermott’s evidence [142] and in doing so noted that Mr McDermott had: [143]

2. [119]

   In considering the issues to which Mr McDermott's evidence related, his Honour said: [144]

3. [120]

   In accepting the evidence of Mr McDermott, his Honour found that: [145]

4. [121]

   In doing so, his Honour specifically addressed the proposition that Mr McDermott had simply assumed the reliability of the data, and concluded that such a proposition significantly understated the evidence of Mr McDermott who had adopted a statistically appropriate methodology to quantify the extent of any error present in the data. [146] His Honour accepted the evidence of Mr McDermott regarding the effect of the Bourke Weir, and also accepted Mr McDermott’s evidence that the movement of the Bourke gauge had no bearing on the reliability of the underlying data. [147]

5. [122]

   His Honour's conclusions in respect of the fourth element included the following: [148]

Ground 1

1. [123]

   The primary submission advanced on behalf of the appellants in support of this ground, was that the respondent had failed to adduce any evidence to establish the underlying data upon which the calculation of the flowrate depended was reliable, and that the trial judge had erred in not accepting that to be the case, and thus in finding that the fourth element had been established. In summary, the submission of the appellants was that the trial judge had erred in concluding that the fourth element of each charge had been established beyond reasonable doubt, given that the respondent had called no direct evidence of what had been done at any gauging, and in circumstances where:

2. [124]

   Fundamental to the appellants’ case in support of ground 1 was the proposition that the flowrate of the Bourke gauge could not be reliably assessed by reference to the flow curve, in circumstances where no officer who had undertaken any gauging had been called in order to prove what had actually been done at the time of a gauging, and thus prove that the data on which the flow curve was based, was reliable.

3. [125]

   Senior counsel submitted that the trial judge's error in this respect had arisen as a consequence of a series of factors, including the failure of Mr McDermott to address the unreliability of the data on which the flow curve depended. It was further submitted that although the gaugings were meant to be undertaken at the Bourke gauge, the limited evidence adduced by the respondent demonstrated that this had not occurred, and that gaugings had been undertaken at different locations which were significant distances away from the Bourke gauge. This, it was submitted, necessarily affected the data used to establish the flowrate.

4. [126]

   It was further submitted that the evidence of Dr Martens had established that gauging was a complex process, and one that involved a series of steps, which included:

5. [127]

   It was submitted that as a result of these factors, a properly conducted survey was required before any judgment could be exercised about the point at which a flowrate measurement could be taken, and that such a survey necessarily involved not just a physical inspection and measurement, but the correct use of a properly calibrated echo sounder.

6. [128]

   It was submitted that having regard to the evidence of Dr Martens, the accuracy of any survey of the cross-section of the river depended upon a variety of factors, including:

7. [129]

   Senior counsel submitted that the trial judge ought to have accepted Dr Martens' opinions, and that the failure to do so was a critical error.

8. [130]

   It was submitted that in all of these circumstances, in order to satisfy the trial judge that the rating curve was a sufficiently accurate and reliable tool on which to be satisfied that the flowrate of the river of the Bourke gauge was less than 4,894MLD, it had been necessary for the respondent to adduce evidence to establish, beyond reasonable doubt, that the data obtained from the gaugings, and upon which the flow curve depended, had been properly undertaken and could be relied upon. Senior counsel emphasised that Dr Martens had explained how even a minor error in a gaugings exercise had the capacity to lead to significant errors in the calculation of the flowrate, and had identified that it was critical to know, and to be able to assess, what had actually been done by the officers at the time of the gaugings. It was submitted that the evidence adduced by the respondent going to these issues had been confined to:

9. [131]

   Finally, senior counsel emphasised that although the trial judge had apparently placed some emphasis on the AS3778, no evidence had been led by the respondent which demonstrated that the requirements set out in the standard were actually followed by the field officers when undertaking the gaugings, let alone complied with in a way which would render the outcome of the gaugings reliable.

Ground 2(a)

1. [132]

   Senior counsel for the appellants submitted that the conclusions reached by the primary judge in relation to the evidence of Dr Martens encompassed four principal findings, namely that Dr Martens:

2. [133]

   It was submitted that such findings reflected a failure on the part of the trial judge to understand, and recognise the purpose of, Dr Martens' evidence, which had been directed towards identifying the absence of evidence sufficient to establish the fourth element of each charge beyond reasonable doubt.

3. [134]

   It was submitted, in particular, that the reasoning of the trial judge reflected a failure to appreciate the inherent unreliability of the gauging process, which was consequent upon a failure on the part of the trial judge to appreciate the significance of Dr Martens' evidence. It was submitted that Dr Martens had identified what the respondent had been required to, but did not do, in order to discharge the onus that it bore, and that rather than recognising that circumstance, the trial judge had erred by effectively reversing the onus of proof. A related error was said to stem from the trial judge’s assessment of the evidence of Mr McDermott which forms the basis of ground 2(e).

4. [135]

   Senior counsel for the appellants submitted that the evidence of Dr Martens focused upon the inherent uncertainty in the correctness of the flow curve, and the practical improbability of calculating the true flowrate at any point. It was submitted that whilst Mr McDermott had identified and employed certain techniques to address that issue, he had not purported to provide any mechanism that would serve to address the unreliability of a flow curve in the event that there had been any error in the approach taken by an individual officer when undertaking a gauging, irrespective of how that error may have arisen. It was submitted that any analysis undertaken by Mr McDermott necessarily assumed that any gauging had been undertaken diligently, in accordance with appropriate standards, and with the use of properly calibrated equipment. It was pointed out that Mr McDermott had expressly confirmed that he had assumed that the data reported by the gaugings were reliable, and had accepted the accuracy of a rating curve dependent upon the gaugings actually being performed in accordance with the required procedures.

Ground 2(b)

1. [136]

   Senior counsel submitted that the finding of the trial judge that Dr Martens had not identified any practicable alternatives demonstrated further error because, apart from reversing the onus of proof, the question of whether or not there were practicable alternatives for measuring the flowrate was irrelevant to the determination which the trial judge was required to make.

Ground 2(c)

1. [137]

   It was submitted that the evidence of the gauging node points, and evidence based upon that data, should have been excluded by the trial judge, either on the basis that it constituted inadmissible opinion evidence, or alternatively on discretionary grounds pursuant to s 135 of the EA.

2. [138]

   Senior counsel submitted that the evidence amounted to unexplained statements of opinion of the respondent’s officers as to the appropriate flowrate figure, and that in admitting this evidence, the trial judge had incorrectly categorised the data as objective facts.

3. [139]

   It was further submitted that the determination of the trial judge that the evidence was admissible pursuant s 147 of the EA demonstrated a further error. It was submitted that this provision was not directed towards circumstances of the present kind, and could not operate to overcome the absence of the evidence in the respondent's case as to the reliability of the gauging node points.

Ground 2(d)

1. [140]

   Senior counsel for the appellants submitted that the trial judge had erred in evaluating the evidence of Mr Cutler. It was submitted that, rather than recognising that the respondent had failed to adduce evidence as to what its officers had actually done at the time of performing the gaugings, the trial judge had made findings in terms which indicated that his Honour had proceeded on the basis that such evidence had, in fact, been given.

2. [141]

   In advancing that submission, it was emphasised that Mr Cutler had unequivocally accepted that he had viewed the data only after it had been reported and put into the database and that, properly understood, Mr Cutler had done nothing more than give evidence of the respondent’s documented procedures, and had said nothing about such procedures having actually been carried out. It was submitted that in these circumstances, the trial judge had overstated the evidence of Mr Cutler, and had treated his evidence as having filled a critical gap in the respondent’s case.

Ground 2(e)

1. [142]

   It was submitted that Dr Martens had identified a number of reasons to doubt the reliability of the flow curve. It was further submitted that quite apart from the absence of evidence demonstrating the correctness in the approach and decision-making of the field officers who undertook the gaugings, there were a number of supplementary reasons which gave rise to reasonable doubt as to the reliability of the flow curve as an instrument for assessing the flowrate.

Ground 1

1. [143]

   Senior counsel for the respondent identified the primary complaint in support of ground 1 as one which centred upon an asserted failure of the respondent to prove the reliability of the underlying data upon which the flow curve depended, and an associated failure on the part of the trial judge to recognise that this meant that the charges could not be established.

2. [144]

   It was submitted that ground 1 should be rejected because:

3. [145]

   It was submitted that a combination of these factors demonstrated that the trial judge had not erred in his conclusion that the fourth element of each offence had been established beyond reasonable doubt. This was particularly in circumstances where the entirety of the evidence relied upon by the respondent to establish the fourth element had been compiled using the appropriate equipment and applying an industry-accepted methodology, all of which was verified by regular physical examination. It was submitted that in all of these circumstances, the evidence had properly been accepted by the trial judge.

Ground 2(a)

1. [146]

   Senior counsel for the respondent submitted that this ground of appeal overstated the effect of the evidence of Dr Martens, and mischaracterised what the respondent was required to prove in terms of the fourth element. It was emphasised that for the purposes of that element, the respondent was required to establish, beyond reasonable doubt, that water was taken when the flow of the river at the Bourke gauge was equal to, or less than, 4,894MLD, and that it had not been incumbent on the respondent to establish the actual flowrate of the river during the charge period, in circumstances where the evidence established (and the experts agreed) that was impossible to measure the precise flowrate of any section of the river.

2. [147]

   It was submitted that the assessment of Dr Martens' evidence by the trial judge was both accurate and fair, and reflected his Honour having fully appreciated its nature and effect. Senior counsel pointed out that the trial judge had specifically referred to concerns expressed by Dr Martens about the processes used to obtain the rating table and that having carefully addressed the competing views of Dr Martens and Mr McDermott, his Honour had properly concluded that the fourth element of each offence was made out. It was submitted that in reaching this conclusion, his Honour had properly concluded that the evidence of Dr Martens had not given rise to any reasonable doubt as to the veracity of the rating table and flow curve relied upon by the respondent.

3. [148]

   It was further submitted that nothing in the reasons of the trial judge indicated that he had reversed the onus of proof. It was submitted that, having analysed the evidence, his Honour had determined that the data was not unreliable to the point where the flowrate at the relevant time could not be ascertained. It was submitted that it was evident that the trial judge had considered the possible sources of error identified by Dr Martens, but had properly concluded that they were accounted for by the margin of error applied by Mr McDermott. Senior counsel emphasised that even when that margin of error was applied to the flowrate during the period of the alleged offending, the flowrate remained significantly below the threshold.

4. [149]

   Finally, it was further submitted that there was nothing within his Honour’s reasons which indicated a lack of understanding of the effect of Dr Martens’ evidence. It was submitted that his Honour had considered that evidence, and had properly dismissed the concerns that Dr Martens had expressed. It was further submitted the trial judge had given careful reasons for preferring the evidence adduced by the respondent over that of Dr Martens, and that the rejection of his evidence did not amount to an appellable error.

Ground 2(b)

1. [150]

   Senior counsel for the respondent submitted that the observations of the trial judge that Dr Martens had failed to identify any practicable alternatives to measuring flowrate amounted to nothing more than a recognition of the fact that Dr Martens had done little more than hypothesise as to why the data underlying the flow curve might be inaccurate. It was further submitted that any suggestion that the approach advanced by Dr Martens would have provided a more reliable means of measuring flow was properly rejected because:

2. [151]

   It was submitted that in circumstances where the evidence of Dr Martens amounted to nothing more than the formulation and expression of a series of hypotheses, there was no proper basis for a complaint that the trial judge had erred in rejecting it.

Ground 2(c)

1. [152]

   Senior counsel for the respondent submitted that in light of the evidence of Mr McDermott, the obtaining of data in the gauging process did not involve the formation of any opinion on the part of any officer of the respondent.

2. [153]

   It was further submitted that the unchallenged evidence of Mr Cutler as to what was done when performing a gauging, did not involve drawing any inference as to what data was to be recorded, but involved a process conducted in accordance with AS3778 and the procedures which had been described by Mr Cutler. It was submitted that to the extent that any officer in carrying out a gauging made any kind of determination, such a determination did not amount to an opinion but was simply the recording of data by reference to a method which was designed to ensure that the process was being undertaken accurately.

3. [154]

   It was further submitted that in circumstances where there was an absence of evidence which was sufficient to raise any doubt about the data produced, s 147 of the EA facilitated the admission of the evidence, and that there were no grounds for its discretionary exclusion pursuant to s 135 of the EA.

Ground 2(d)

1. [155]

   Senior counsel for the respondent emphasised that Mr Cutler had given evidence as to the procedures applied in gauging, to which no objection was taken, and about which he was not cross-examined. It was submitted that in these circumstances, the suggestion that the trial judge had overstated Mr Cutler’s evidence by attributing qualities to it that it did not have, was incorrect, and that to the extent that Mr Cutler referred to the implementation of procedures, the trial judge was entitled to rely upon that evidence in circumstances where it had not been challenged.

Ground 2(e)

1. [156]

   Senior counsel for the respondent submitted that the trial judge had considered the evidence of Mr McDermott on its own terms, and by reference to the evidence of Dr Martens, and had properly accepted the evidence of Mr McDermott. It was submitted that in circumstances where the appellants’ true complaint was that the trial judge had preferred the evidence of Mr McDermott to that of Dr Martens, this ground disclosed no legal error and should be rejected.

Ground 1

1. [157]

   Although the submissions advanced on behalf of the appellants encompassed a range of issues, the fundamental proposition advanced was that the trial judge erred in finding the fourth element of each offence proved, in circumstances where the respondent did not call any evidence from any person who had undertaken a gauging to establish what had in fact occurred, so as to establish whether the data underlying the rating curve was accurate.

2. [158]

   The submissions advanced on behalf of the appellants had a tendency to simply assume that the data used in the calculations of the flowrate was unreliable in the absence of further evidence. That assumption entirely overlooks the bases on which the trial judge was satisfied of the accuracy and reliability of the data, all of which were open on the evidence.

3. [159]

   The omission of direct evidence as to the data obtained at the gauging in each case was not fatal to the respondent's case and did not lead to a conclusion that the fourth element could not be proved. It was open to the respondent to prove the reliability of the data, and thus prove the fourth element, in other ways. In my view, the manner in which the respondent chose to do so provided a sound basis for the finding reached by the trial judge and no error has been demonstrated. It is important to recognise that the trial judge was obviously cognisant of the fact that the accuracy of the data underlying the rating table and the flow curve was an issue between the parties. So much is clear from his Honour’s express references to the issue in his reasons. Further, Mr Cutler had made it plain that he did not personally participate in any of the gaugings, and that he had relied upon the data which had been obtained by those officers who did attend. His Honour expressly recognised that fact in his reasons. His Honour was also cognisant of the fact that the respondent had not called any evidence from any officer responsible for conducting a gauging. Once again, that is clear from his Honour’s express reference to what would have been involved in such a process. It follows from all of these factors that his Honour was clearly seized of the issue which had arisen on the evidence, and of the respective positions of the parties in relation to that issue.

4. [160]

   The findings of the trial judge took into account the unchallenged evidence of Mr Cutler. Based upon that evidence, his Honour had regard to the procedures which were in place for the purposes of ensuring the accuracy of the instrumentation used, and the procedures in place for producing, collating and analysing the data collected. There was no evidence to suggest that these procedures had not been consistently followed.

5. [161]

   His Honour also took into account the fact that the data had been obtained by different instruments, at different times, and over a lengthy period, and that all of these factors added to the strength of the rating table as a reference. In addition, his Honour took into account the fact that the data had been validated by the application of a series of scientific processes that accounted for any possible error. Bearing all of these matters in mind, his Honour concluded that the data which was produced had a minimal level of uncertainty. All of those findings were open on the evidence, particularly in circumstances where they were based, in large measure, on the unchallenged evidence of Mr Cutler.

6. [162]

   As far as the movement of the Bourke gauge was concerned, his Honour accepted the evidence of Mr McDermott. He did so in circumstances where the effect of Dr Martens’ evidence in cross-examination was that had there been such an effect, he would have expected to see a different correlation of data. In those circumstances, it was open to his Honour to conclude that the absence of different data of the kind to which Dr Martens had referred, supported a conclusion that the movement of the gauge had no effect, particularly having regard to the evidence of Mr McDermott.

7. [163]

   For all of these reasons, his Honour’s finding as to the fourth element was open and this ground is not made out.

Ground 2(a)

1. [164]

   The trial judge identified the concerns raised by Dr Martens as to the procedure which had been adopted by the respondent for the purposes of calculating the flowrate. In doing so, his Honour specifically analysed those concerns as stemming from what Dr Martens had identified as:

2. [165]

   That preliminary analysis, without more, runs entirely contrary to the proposition upon which this ground is based, namely that his Honour “failed to understand” the effect of Dr Martens evidence. Such preliminary analysis clearly reflects an understanding of the opinions advanced by Dr Marten’s and the basis of those opinions.

3. [166]

   The consideration and assessment of Dr Martens’ evidence which followed that preliminary analysis was comprehensive, and fortifies the conclusion that there was no lack of understanding on the part of the trial judge as to the effect of anything Dr Martens had said. Such analysis reflected a thorough understanding of the nature of the evidence, the propositions which were advanced by Dr Martens, and the basis on which those propositions were advanced.

4. [167]

   His Honour’s ultimate conclusions reflect the fact that, notwithstanding the issues raised by Dr Martens, his Honour remained satisfied that the fourth element had been established beyond reasonable doubt. For the reasons set out in addressing ground 1, that finding was open. To the extent that it was based upon a rejection of Dr Martens’ evidence, his Honour made clear his reasons for reaching that conclusion.

5. [168]

   Like all of the evidence in the case, the acceptance or rejection of the opinions of Dr Martens’ evidence was a matter for the trial judge. There is no suggestion that his Honour’s explanation for rejecting such evidence was inadequate and for the reasons previously set out, there is nothing to suggest that his Honour failed to understand the effect of anything Dr Martens said.

6. [169]

   It follows that this ground is not made out.

Ground 2(b)

1. [170]

   In considering this ground, it is important to bear in mind the context in which the trial judge made the impugned observations.

2. [171]

   Dr Martens made specific reference to what he considered to be the shortcomings in the methods adopted by the respondent for the purposes of calculating the flowrate. In doing so, he raised the fact that there were measuring devices which were available to be installed and used for that purpose, but which had not been used by the respondent. He also expressed the opinion that failures in the instrumentation used by the respondent, coupled with errors by a field officer in judgment or calculation, would have the capacity to give rise to error.

3. [172]

   It was in this context that the trial judge made reference to Dr Martens not having identified an alternative method of calculation other than the installation of the devices to which he referred. In circumstances where the observation of the trial judge stemmed directly from what had been said by Dr Martens, it could hardly be said that those observations were somehow irrelevant.

4. [173]

   Moreover, the observation of the trial judge upon which this ground centres cannot be read and considered in a vacuum. It must be considered having regard to the entirety of his Honour's assessment of the evidence. It will be clear from my finding in respect of ground 2(a) that such assessment was comprehensive, accurate and fair.

5. [174]

   It follows that this ground is not made out.

Ground 2(c)

1. [175]

   There are three aspects to this ground.

2. [176]

   The first requires a consideration of what is meant by the term “opinion”. The term is not defined in s 76 of the EA, which contains the opinion rule and provides that evidence of opinion is not admissible. Exceptions to the operation of that rule are to be found in ss 77 – 79.

3. [177]

   In RW Miller & Co Pty Limited v Krupp (Australia) Pty Ltd Giles J (as his Honour then was) considered the distinction between evidence of a fact, and evidence of opinion: [149]

4. [178]

   A similar approach was taken by Lindgren J in Allstate Life Insurance Company Ltd v Australian and New Zealand Banking Group Limited (No. 5) where his Honour said: [150]

5. [179]

   Those observations were cited with approval in Seltsam Pty Limited v McNeill. [151]

6. [180]

   In Hodgson v Amcor Limited; Amcor Limited v Barnes (No. 3) [152] Vickery J concluded that evidence about the workings of a computer was evidence of a fact, and not evidence of an opinion, [153] such that the evidence of a witness describing what he personally did and observed in relation to information derived from the hard drive of a computer was not opinion evidence. [154] In reaching these conclusions, his Honour said: [155]

7. [181]

   A similar approach was taken by Kaye JA in Director of Public Prosecutions (Vic) v Iliopoulos (No. 2). [156]

8. [182]

   I have already set out the evidence of Mr Cutler, which I again note was unchallenged, in relation to the steps undertaken for the purposes of carrying out a gauging. Those steps include a field officer (inter alia) reading the velocity and depth measurements produced by the measuring device which is inserted into the water, recording those observations and measurements in an inspection sheet and transferring the data into Hydstra.

9. [183]

   Bearing in mind those steps, obtaining and/or recording data during and/or subsequent to a gauging is based upon the direct observations of the officer who carries out the gauging. Properly understood, it does not involve the officer forming an opinion, forming a conclusion, or making a judgment by applying a process of reasoning from facts which have been observed. For those reasons, his Honour’s conclusions do not disclose error.

10. [184]

    The second aspect of this ground concerns s 147 of the EA which is in the following terms:

11. [185]

    The Dictionary defines the word “document” as meaning any record of information, including:

12. [186]

    The Dictionary also contains the following:

13. [187]

    By reference to the provisions of s 147, his Honour found that:

14. [188]

    In my view:

15. [189]

    Further, there was no suggestion that at the time of the data being collected, there were any contemplated proceeding and accordingly, the provisions of s 147(3) did not apply.

16. [190]

    In circumstances where all of the findings reached by the trial judge were findings upon which the operation of s 147 is predicated, there is no basis on which to conclude that provisions of that section are somehow directed to circumstances other than those in the present case.

17. [191]

    Finally, an issue is raised as to his Honour's failure to exclude the evidence, in the exercise of his discretion, pursuant to s 135 of the EA. That section is in the following terms:

18. [192]

    In my view, there was no identifiable basis for the evidence to be excluded in the exercise of his Honour's discretion under s 135.

19. [193]

    Firstly, there was no element of unfairness visited upon the appellants as a consequence of the admission of the evidence. The evidence was prejudicial to the appellants only in the sense that it went to prove the respondent’s case. That is not the nature of the unfair prejudice to which s 135 is directed. [157]

20. [194]

    Secondly, in light of the evidence of Mr Cutler and Mr McDermott, the evidence was neither misleading nor confusing.

21. [195]

    Thirdly, it was not suggested at any stage by the appellants that adducing the evidence caused an undue waste of time.

22. [196]

    For all of these reasons this ground is not made out.

Ground 2(d)

1. [197]

   His Honour identified the general nature of Mr Cutler’s evidence as being evidence going to “the procedures in relation to the collection and recording of hydrometric data” and “the processes regarding data extraction from [the Hydstra] database”. Specifically, his Honour observed that Mr Cutler had (inter alia):

2. [198]

   None of those observations suggest, in any way, that his Honour elevated Mr Cutler’s evidence as evidence of what any person had actually done when carrying out a gauging. His Honour's numerous references to Mr Cutler's evidence addressing “procedures” and “processes” are completely at odds with the proposition that he did so. I am fortified in that view by the fact that in the course of his reasons, his Honour made specific reference to the fact that no officer of the respondent had been called to give evidence of what had actually occurred at a particular gauging.

3. [199]

   For these reasons, this ground is not made out.

Ground 2(e)

1. [200]

   There was no evidence before his Honour that the relevant procedures for the gathering of the data had not been properly followed. Mr Cutler gave evidence of the processes that are followed by the respondent. In circumstances where that evidence was unchallenged, it was open to his Honour to proceed on the basis that such procedures had been followed.

2. [201]

   Bearing that in mind, part of the basis on which the trial judge accepted the evidence of Mr McDermott was that it represented a calculation based upon the adoption of such comprehensive procedures. It is also apparent that his Honour placed considerable emphasis on the fact that in performing his calculations, Mr McDermott took into account the fact that the calculation of a true flowrate was a practical impossibility and that he had built into his calculations an appropriate margin for error.

3. [202]

   For these reasons this ground is not made out.

Ground 5 – By reason of the above errors and each of them, the trial judge erred in finding that the respondent had proved beyond reasonable doubt that the appellants’ had committed an offence against s 91G(2) of the Water Management Act 2000 (NSW).

1. [203]

   It will be apparent that these grounds overlap to a considerable degree. Ground 4 is essentially a particularisation of ground 3. Ground 5 encompasses the entirety of grounds 3 and 4 without raising any additional issue[s]. In these circumstances, the entirety of the issues raised by these grounds can be addressed and determined by addressing the matters raised in ground 4. It should also be noted that ground 4(c) will only arise for consideration if grounds 4(a) and (b) are both made out. [158]

Ground 4(a) – The evidence of Mr Wheatley

1. [204]

   The trial judge commenced his assessment of the evidence of Mr Wheatley by making reference to his extensive cross-examination [159] before concluding: [160]

Ground 4(b) – The notice to Mr Adams

1. [205]

   His Honour found that the evidence of Mr Wheatley made it plain that he had been told by the first appellant that Mr Adams had the authority to receive relevant notices and that Mr Adams was his (i.e. the first appellant’s nominated agent. [161] His Honour went on to conclude: [162]

2. [206]

   His Honour subsequently concluded: [163]

Ground 4(a)

1. [207]

   It was submitted that in light of Mr Wheatley's cross-examination, there was a reasonable doubt as to whether or not the conversation given in evidence had in fact taken place. It was submitted that such a doubt emerged from the following specific aspects of his cross-examination:

Ground 4(b)

1. [208]

   Senior counsel for the appellants highlighted the fact that the actual email identified by Mr Wheatley had not been tendered, that there was no evidence called by the respondent which proved precisely what (if anything) had been attached to the email, and that the data in the screen shot which was tendered, particularly as to the date, raised questions as to the accuracy of the entirety of this evidence.

2. [209]

   It was submitted that the trial judge had failed to take into account a Jones v Dunkel [164] submission which had been made regarding the failure of the respondent to call evidence from the person who sent the email to prove precisely what had been sent, and had otherwise failed to take into account the other areas of uncertainty on which reliance was placed. It was submitted that the entirety of this evidence demonstrated that there was a reasonable doubt as to what, if anything, was attached to the email which was purportedly sent to Mr Adams.

Ground 4(a)

1. [210]

   Senior counsel for the respondent submitted that there was no error on the part of the trial judge arising from his acceptance of the evidence of Mr Wheatley, and that it was evident that his Honour had:

2. [211]

   Senior counsel for the respondent emphasised that such findings were reached in circumstances where the first appellant had chosen to give no evidence of the conversation at all.

3. [212]

   Senior counsel also relied on the evidence of Mr Wheatley that in the ensuing months, Mr Adams had lodged several documents on behalf of the first appellant. This, it was submitted, provided independent corroboration of Mr Wheatley’s account of the conversation.

Ground 4(b)

1. [213]

   It was submitted on behalf the respondent that there was no question on the evidence that the email of 23 September 2015 had been received by the appellants, as an automated reply had been received by the Department on the same day. It was submitted that this email expressly stated that it had attached the approval that had been created that day and that in those circumstances, the finding of the primary judge that notification of the approval was given at the appellants' verified email address did not disclose error.

Ground 4(a)

1. [214]

   Mr Wheatley was cross-examined at considerable length before the trial judge. It will be evident from the extracts of that cross-examination that I have set out that Mr Wheatley consistently accepted that he did not have a precise recollection of the words used in his conversation with the first appellant. Equally, he consistently said that he had a clear recollection of the effect of what had been discussed. Importantly, he expressly denied the possibility that he may have misunderstood or misinterpreted, anything which had been said by the first appellant. Whilst his evidence as to the conversation was given some five years after the conversation took place, and in circumstances where it was raised for the first time in the third of his affidavits, it was not put to him at any stage of a lengthy cross-examination that his evidence was a recent invention.

2. [215]

   In my view, nothing emerged in the course of Mr Wheatley's cross examination which tended, in any way, to erode the evidence that he had given about the conversation. His Honour had the opportunity to observe Mr Wheatley as he was giving his evidence, and used that opportunity in his evaluation of what Mr Wheatley had said. In this respect, one of the specific factors that his Honour took into account in determining that the evidence should be accepted was Mr Wheatley's preparedness to make concessions.

3. [216]

   Mr Wheatley's acceptance of the fact that he was unable to remember some of the details surrounding the conversation did not mean that his Honour was compelled to reject his repeated statements that he had a clear recollection of the effect of what had been said. It is also important to bear in mind that in the course of cross-examination, Mr Wheatley made specific reference to the fact that, in the months following the conversation, Mr Adams had “lodged several papers on behalf of [the first appellant] that [the first appellant] had signed” as a consequence of which Mr Wheatley did not think “that there was any misunderstanding or misinterpretation”. That evidence provided some independent corroboration of the fact that the conversation had taken place in the terms described by Mr Wheatley in his evidence.

4. [217]

   His Honour addressed the evidence of Mr Wheatley in a comprehensive fashion. His acceptance of that evidence was open and none of the matters relied upon by the appellants disclose any error on the part of the trial judge.

Ground 4(b)

1. [218]

   Necessarily, this ground relies, in part, on the error asserted in ground 4(a) which I have rejected.

2. [219]

   Leaving aside Mr Wheatley's evidence of the conversation, he also gave evidence that he forwarded the email to Mr Adams on 23 September 2015. Although the actual email itself was not in evidence before the trial judge, the history produced by Mr Wheatley makes reference to an email being sent to the email address of Mr Adams at 1:18:16pm on Wednesday, 23 September 2015. The message contained in that email made reference to approval “85CA753236” being attached.

3. [220]

   There was evidence of an automatic response from Mr Adams' email address at 1:17:11pm, which of course is a minute earlier than the time stipulated in Mr Wheatley’s email. However in my view, given that the automatic reply was headed with a reference to the approval, nothing turns upon this temporal discrepancy. In circumstances where both emails made express reference to the same approval number and in circumstances where the reply from Mr Adams was apparently an automatic response, the only available inference is that the email was sent by Mr Wheatley, and that it generated the response from the email address of Mr Adams.

4. [221]

   A finding that the email was sent, and that it attached the approval, was open to his Honour on the whole of the evidence. Quite apart from the matters to which I have already referred, it is not without significance that the statement of approval forwarded with the email bears, on each page, a reference to the fact that it had been printed on 23 September 2015. That, of course, is the same date as that which appears in the email correspondence. Those facts sustain an inference that the approval was sent under cover of the email.

5. [222]

   Bearing all of these matters in mind, his Honour was entitled to conclude that the email attaching the approval was sent by Mr Wheatley to Mr Adams on 23 September 2015.

Ground 4(c)

1. [223]

   Given the conclusions I have reached in relation to those grounds, this ground does not arise for consideration.

ORDER:

1. [224]

   I propose the following order:

   1. (1)

      The appeals against conviction are dismissed.

2. [225]

   BEECH-JONES J: I have had the benefit of reading the judgment of Bellew J. For the reasons given by his Honour as well as for the following brief observations I would dismiss the appeal.

3. [226]

   This is an appeal under s 5AB of the Criminal Appeal Act 1912. As such it is an appeal in the strict sense, that is the appellants must demonstrate that the trial judge made an error of law or applied the wrong principle in the fact finding exercise. [165]

4. [227]

   So far as grounds 3 to 5 are concerned and, as Bellew J demonstrates, those grounds reduce to a challenge to his Honour’s acceptance of the effect of Mr Wheatley’s evidence about a conversation he had with the first appellant and the subsequent sending of an email. Mr Wheatley was cross examined before his Honour and the first appellant did not give evidence. Mr Wheatley adhered to his evidence as to the effect of what was said in his conversation with the first appellant. His Honour had the benefit of observing Mr Wheatley give his evidence and accepted it. No application of an error of law, application of a wrong principle or even misuse of his Honour’s position as the finder of fact was shown by the appellant. That is dispositive of grounds 4(a) and (b). It also follows, that grounds 3 and 5 fail and ground 4(c) does not arise.

5. [228]

   In relation to grounds 1 and 2, I agree with Bellew J’s analysis. The principal point made by the appellant was that his Honour relevantly erred in failing to address the possibility of error in the readings in the gauging logs from which the rating table was formulated. That was raised as a bare possibility by Dr Martens. Four points should be noted about that possibility, all of which were adverted to by the trial judge. The first point was the evidence of Mr Cutler as to the process by which the readings in the gauging logs were prepared. It may be that he did not see them being undertaken but at the very least it was not suggested that any erroneous direction was given to the staff who prepared them. Second, there was relative consistency in the readings for similar river heights produced by 595 readings over 140 years which was suggestive that, at the very least, any random errors in the gauge reading process were not material. [166] Third, there was the margin of error identified by Dr Martens in his evidence and noted by his Honour (at [99] above). Fourth, there was the very large amount by which the calculated flowrate for the period of the charge was less than the threshold specified in the licence condition, namely 4894ML/day. Throughout the period of the charge the highest recorded flowrate was 3814ML/day being the reading at midnight on 28 June 2021. That figure was 77.9% of the threshold level. In these circumstances His Honour did not err in finding beyond reasonable that the licence condition was breached.

6. [229]

   I agree with the orders proposed by Bellew J.