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Supreme Court of New South Wales - Court of Criminal Appeal |
Last Updated: 9 August 2021
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Court of Criminal Appeal Supreme Court New South Wales
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Case Name:
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Peter James Harris and Jane Maree Harris v WaterNSW
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Medium Neutral Citation:
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Hearing Date(s):
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28 September 2020
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Date of Orders:
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9 August 2021
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Decision Date:
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9 August 2021
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Before:
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Hoeben CJ at CL [1]
Bellew J at [2] Beech-Jones J at [225] |
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Decision:
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The appeals against conviction are dismissed.
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Catchwords:
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CRIMINAL LAW – Appeal – Appeal against conviction –
Appellants charged with an offence of contravening a condition
of an approval
issued under the Water Management Act 2000 (NSW) – Allegation
contravention constituted by taking water from the Darling River when the flow
of the river was equal to
or less than a stipulated flow – Whether the
primary judge erred in finding that all elements of the charge were established
– Whether the trial judge reversed the onus of proof – Whether the
trial judge erred in accepting evidence of a conversation
between the first
appellant and an officer of the respondent – No error established –
Appeal dismissed
EVIDENCE – Whether the trial judge erred in admitting evidence of measurements of flow rate of the Darling River which had been taken by officers of the respondent - Whether such evidence was properly regarded as opinion evidence – Distinction between evidence of opinion and evidence of observations – Where the evidence of recorded observations did not involve reaching any conclusion or forming any judgment by applying a process of reasoning from the facts observed – Evidence was not opinion evidence – No error established |
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Legislation Cited:
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Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW) Water Act 1912 (NSW) Water Management Act 2000 (NSW) Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) Water Sharing Plan for the Barwon-Darling Unregulated Alluvial Water Sources 2012 (NSW) |
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Cases Cited:
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Allstate Life Insurance Company Ltd v Australian and New Zealand Banking
Group Limited (No. 5) (1996) 64 FCR 73; (1996) 136 ALR 627
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Director of Public Prosecutions (Vic) v Iliopoulos (No. 2) [2016] VSC 47 Hodgson v Amcor Limited; Amcor Limited v Barnes (No. 3) [2011] VSC 272 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 RW Miller & Co Pty Limited v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 Seltsam Pty Limited v McNeill [2006] NSWCA 158 WaterNSW v Harris (No.3)  [2020] NSWLEC 18  |
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Category:
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Principal judgment
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Parties:
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Peter James Harris and Jane Maree Harris – Appellants
WaterNSW – Respondent |
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Representation:
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Counsel:
B Walker SC, M Elliott SC and G Lewer – Appellants M Wright SC and M Machonachie – Respondent Solicitors: Horton Rhodes Lawyers - Appellants Norton Rose Fulbright – Respondent |
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File Number(s):
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2018/73936; 2018/73940
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Publication Restriction:
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Nil
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Decision under appeal:
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Court or Tribunal:
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Land & Environment Court of NSW
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Jurisdiction:
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Class 5
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Citation:
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Date of Decision:
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19 March 2020
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Before:
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Robson J
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File Number(s):
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2018/73936; 2018/73940
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JUDGMENT
INTRODUCTION
[B]etween 22 June 2016 and 27 June 2016, at the property known as Beemery Farm located at 6104 Kamilaro Highway, Brewarrina, 2839 consisting in total of 4 lots within the Parish of Stonehenge, County of Clyde, being Lots 1/751597, 5/1147705, 2/1147705 and 3/1147705 in the State of New South Wales (Beemery Farm), the [appellant] committed an offence against s 91G(2) of the Water Management Act 2000 in that a term or condition of an approval of which (s)he was a co-holder was contravened by a person.
Approval: [The appellants] are the landholders and occupiers of Beemery Farm and the co-holders of:
• Water Access Licence 33692 [reference 85AL753235] (WAL 33692); and
• Water Supply Works and Water Use Approval 85CA753236 (the Approval).
Manner of contravention: Water was taken in contravention of a term or condition of the Approval in that:
(a) It was a term or condition of the Approval that water is prohibited from being taken when the flow in the Darling River at the Bourke gauge is equal to or less than 4,894 ML/day.
(b) Approximately 3147 ML of water was taken in the 2015/2016 water reporting year by means of the water supply works nominated under the Approval and situated on the landholders’ land.
(c) In the period 22 June 2016 to 27 June 2016, water was taken at times when the flow in the Darling River at the Bourke gauge was less than 4,894 ML/day.
THE FACTUAL BACKGROUND
The Barwon-Darling river system
Beemery Farm
The issue of a water licence to Clyde
(5) SUBJECT TO CONDITION (6) THE LICENSED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENSED AREA OR ANY PART THEREOF UNLESS THE DISCHARGE OF THE DARLING RIVER AT THE BOURKE GUAGE [sic] EXCEEDS 4894 MEGALITRES PER DAY.
(6) THE LICENSED/AUTHORISED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATION UNLESS THE FOLLOWING FLOW CONDITIONS EXIST:-
THE BARWON RIVER FLOW EXCEEDS 760 MEGALITRES PER DAY AT THE CULGOA RIVER JUNCTION (UPSTREAM) GAUGE AND 840 MEGALITRES PER DAY AT BREWARRINA GAUGE.
The water sharing plan
3. Access licences and approvals arising from former entitlements
(1) Subject to this Schedule, an entitlement that, immediately before the appointed day, was in force under the 1912 Act, the 1948 Act or the 1994 Act is taken to have been replaced:
(a) to the extent to which it entitles any person or body to take a specified quantity of water, by an access licence held by that person or body (subject to such of the conditions of the entitlement as are applicable to an access licence):
(i) for the quantity of water so specified, or
(ii) if the relevant management planned, and regulations made for the purposes of this paragraph, indicate that a different quantity of water calculated in accordance with a specified methodology may be taken under an access licence issued in relation to the water management area or water source to which the management plan applies – for a different quantity of water calculated in accordance with that methodology, and
(b) to the extent to which it entitles any person or body to use a specified water management work, by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and
(c) to the extent to which it entitles any person or body to use water on any land, buy a water use approval held by that person or body in respect of that land (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and
(d) to the extent to which it entitles any person or body to carry out a specified activity, by an activity approval held by that person or body in respect of that activity (subject to such of the conditions of the entitlement as are applicable to an approval of that kind).
The issue of a replacement licence and approval to Clyde
(i) a water access licence, number 85AL753235 (the 235 licence); and
(ii) a water management work and water use approval 85CA753236 (the approval).
(2) a replacement access licence or approval:
(a) is to include any mandatory conditions that are required to be imposed on the licence or approval, and
(b) may include such other conditions (“discretionary conditions”) as the Minister thinks fit, including (but not limited to) conditions relating to the protection of the environment.
The notification to Clyde of the 235 licence and the approval
(i) the 235 licence; and
(ii) the approval.
Following consultation on its development, I am writing to inform you that the Water Sharing Plan for the Barwon Darling Unregulated & Alluvial Water Source (the Plan) commenced on 4 October 2012.
Water sharing plans and water access licences issued under the Water Management Act 2000 establish clear and secure rights for access to water by water users. Water access licences are held separate from land and have an independent title.
Approvals are different to access licences. Approvals give holders the right to construct and operate water supply works and to use water on land. Approvals continue to be tied to the land.
...
The commencement of the Plan means that your former entitlement/s 85SL105059[20] issued under the Water Act 1912 has now been replaced with the following access licence/s and approval/s:
Water Access Licence: 85AL753235
Approval/s: 85CA753236
...
A notice containing the details of the water access licence/s and approval/s and conditions will be mailed to all licence and approval holders. Until then, licence and approval holders continue to be the subject to the conditions of their former licence that apply to either an access licence or an approval.
The transfer of the 235 licence and the approval to the appellants
Please note that all further correspondence in relation to their Licences which have been acquired as part of this transaction should be forwarded to the following:-
Mr & Mrs PJ Harris
PO Box 20
BOURKE NSW 2840
You have recently become the holder of the above licence or approval resulting from your purchase of a water access licence (WAL) or the purchase of lands benefitted by approvals.
Licences and approvals issued under the Water Management Act 2000 operate under a set of terms and conditions which are imposed and regulated by NSW Office of Water. Licence conditions define when and how much water you can extract. Approval conditions authorise water supply works – and the circumstances and location of where the water can be used.
We have attached information relevant to the above matter as indicated by the following tick boxes.
☒ We have attached a copy of your Water Act 1912 licence.
☒ The NSW Office of Water is currently finalising the conversion process with reference to approvals and conditions for the BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES. As soon as this process is finalised, a notice containing details of the WAL and/or approval/s conditions that apply will be mailed to you. Until then, licence and approval holders continue to be subject to the conditions of the former licence 85SL105059.
Further information on licences and approvals under the Water Management Act 2000 can be obtained from the Office of Water’s website go to: www.water.nsw.gov.au – Water licensing.
Please direct any questions regarding this correspondence to Water Advisory Services on 1800 353 104.
Notification to the appellants of the conditions attached to the approval
WHEATLEY: A guy called Mark Adams has made a request in relation to your and [the second appellant’s] licences and approvals. Is this something you were aware of and are you happy for Mark Adams to lodge papers, make requests and deal with your licences and approvals?
FIRST APPELLANT: Thanks Richard, yes that's fine. Mark is [sic] employee of ours who helps out in the office. On behalf of [the second appellant], Budvalt and I, I give consent and authority for Mark to deal with all of our licences and approvals. Mark has authority to send and receive documents on our behalf by email and post.
WHEATLEY: Thanks [first appellant]. I will let the Dubbo team know.
Please find attached an updated copy of the Statement of Approval for 85CA753236. If you have any questions, please reply to this email.
Please be advised that I am on leave from Thursday 10/09/15 returning Wednesday 29/09/15.
Schedule 2 – Water supply works
Part A: Authorised water supply works
Subject to the conditions of this approval, in relation to each numbered work in the table, the holders of this approval are authorised to construct and use a water supply network of the type shown at the location specified:
Work 1
Specified work – 660MM CENTRIFUGAL PUMP x 4
Specified location – 1//751597 Whole Lot
Water Management zone (if applicable) – BREWARRINA to CULGOA RIVER JUNCTION MANAGEMENT ZONE
Water source – BARWON DARLING UNREGULATED RIVER WATER SOURCE
Water sharing plan – BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES
Work 2
Specified work – 610MM CENTRIFUGAL PUMP
Specified location – 1//751597 Whole Lot
Water Management zone (if applicable) – BREWARRINA TO CULGOA RIVER JUNCTION MANAGEMENT ZONE
Water source – BARWON DARLING UNREGULATED RIVER WATER SOURCE
Water sharing plan – BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES
Schedule 3 – Water Use
Subject to the conditions of this approval, the holder(s) of this approval is authorised to use water for the following purpose(s) and location(s):
Purpose 1
Specified purpose – IRRIGATION
Specified location – 1//751597
5//1147705
2//1147705
3//1147705
Schedule 4 – Conditions
The approval is subject to the following conditions:
Plan conditions
Water sharing plan – Baron [sic] Darling Unregulated and Alluvial Water Sources
Take of water
MW0655-00001 – Any water supply work authorised by this approval must take water in compliance with the conditions of the access licence under which water is being taken.
MW1916-00001 – Water must not be taken when the flow of the Darling River at the Bourke gauge (425003) is equal to or less than 4,894 ML/day.
Water management works
MW0491-00001 – When a water supply work authorised by this approval is to be abandoned or replaced, the approval holder must contact DPI Water in writing to verify whether the work must be decommissioned.
The work is to be decommissioned, unless the approval holder receives notice from the Minister not to do so.
Within sixty (60) days of decommissioning, the approval holder must notify DPI Water in writing that the work has been decommissioned.
Monitoring and recording
MW0484-00001 – a logbook must be kept and maintained at the authorised work site or on the property for each water supply work authorised by this approval, unless the work is metered and fitted with a data logger.
MW2338-00001 – The completed logbook must be retained for five (5) years from the last date recorded in the log book.
MW0484-00001 – Before water is taken through the water supply work authorised by this approval, confirmation must be recorded in the logbook that cease to take conditions do not apply and water may be taken.
The method of confirming that water may be taken, such as visual inspection, internet search, must also be recorded in the logbook.
If water may be taken, the:
A. date, and
B. time of the confirmation, and
C. flow rate or water level at the reference point in the water source
must be recorded in the logbook.
MW2337-00001 – The following information must be recorded in the logbook for each period of time that water is taken:
A. date, volume of water, start and end time when water was taken as well as the pump capacity per unit of time, and
B. the access license number under which the water is taken, and
C. the approval number under which the water is taken, and
D. the volume of water taken for domestic consumption and/or stock watering.
MW0482-00001 – Where a water meter is installed on a water supply work authorised by this approval, the meter reading must be recorded in the logbook before taking water. This reading must be recorded every time water is to be taken.
Reporting
MW0051-00001 – Once the approval holder becomes aware of a breach of any condition on this approval, the approval holder must notify the Minister as soon as practicable. The Minister must be notified by:
A. email – water.inquiries@dpi.nsw.gov.au;
or
B. telephone: 1800 353 104. Any notification by telephone must also be confirmed in writing within seven (7) business days of the telephone call.
Other conditions
Use of water
DK1542-00001 – The approved work must not be used for the purpose of irrigation unless the following flow conditions exist: the Barwon River flow exceeds 760 ML/day at the Culgoa River Junction (upstream) gauge and 840 ML/day at Brewarrina gauge.
Water management works
DK1642-00001 – Native vegetation may be cleared only to the minimum extent necessary for the construction and maintenance of the authorised works, that is, the minimum area of clearing to permit access for appropriate mechanical implements to maintain the works. Clearing of land for irrigation must be in accordance with the provisions of the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003.
DK1215-00001 – The holder of the approval must not construct or install works used for conveying, distributing or storing water taken by means of the approved work that obstruct the reasonable passage of floodwaters into or from a river.
Additional conditions
DK1362-00001 – The approval holder must not allow any tailwater or drainage water to discharge, by any means including surface or sub-surface drains or pipes, from the approval holders property, into or onto:
– any adjoining public or [C]rown road
– any other persons land
– any [C]rown land
– any river, creek or watercourse
– any groundwater aquifer
– any area of native vegetation as described in the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003
– any wetlands of environmental significance
– any identified site of [A]boriginal significance
– any identified site of cultural significance.
Glossary – Cease to take – Cease to take conditions means any condition on this approval, or on the access licence under which water is proposed to be taken, that prohibits the taking of water in a particular circumstance
......
General notes
All conditions on an approval require compliance. An appeal to the Land and Environment Court against a decision to impose certain conditions on an approval can be made within 28 days after the date the decision is made. Conditions identified with the first letter “D” are those that can be appealed during the appeal period.
The words in this approval have the same meaning as in the Water Management Act 2000
Note: The words in this approval have the same meaning as in the WMA.
Q. Did you call him or did he call you?
A. I believe I would have called him in relation to some applications on another couple of properties on the Macquarie I think it was – –
Q. You say you believe you would have called him. You don't actually remember who called who?
A. No.
Q. Although you swore on affidavit saying you telephoned [the first appellant], the truth is he may [have] called you?
A. Yeah.
Q. Is that right?
A. It's very likely that I called [the first appellant].
Q. That's speculation, isn't it? You don't actually remember.
A. I don't remember [the first appellant] actually ringing me on any occasion.
Q. You say you discussed a number of matters in relation to licences and approvals. What matters were they?
A. Some applications that were afoot for some properties on the Macquarie, Lochinvar and Wombulian(?) and – –
Q. What were the matters?
A. There were some applications that were lodged.
Q. Yes?
A. We were discussing advertising of them, there were a number of objections, I needed some plans and designs. Things of that nature.
Q. You say Mark Adams made a request to you at this time.
A. Mark Adams had been in contact with one of my staff I believe and it was in that context that I asked [the first appellant] who he was or if it was appropriate that he be making enquiries into approval or licences.
Q. Did you talk to Mr Adams at this time?
A. Not at that point, no.
Q. What was your understanding of the matters that he raised? What was the request he raised at the time?
A. I think he was actually lodging some dealings or something saying they needed copies or approval numbers and access licence numbers and things.
Q. You think but you're not sure?
A. I wasn't the one dealing with the applications. I was – made the enquiry as to whether it was appropriate for him to be asking questions of the Harris – –
Q. But you can't rule it out?
A. – – or Budvalt licences.
Q. I'm sorry. You can't remember now the actual request was, can you?
A. I believe it was about dealing. I – to which property or which licence? No.
Q. You don't have a clear recollection of the conversation you had with [the first appellant] in 2014, do you?
A. The one that I am saying may have happened plus or minus five – you know – six or eight months before the purchase of the properties?
Q. Yes, that one.
A. Yes, No, No I didn't – don't have any – any diary notes or anything to that conversation. I said it was just part of a discussion.
Q. You don't have a clear recollection of precisely what it was that [the first appellant] said to you during this conversation, do you?
A. He said that Mark Adams worked for him and that it was – –
Q. I'm asking you a very specific question. You don't have a clear recollection as you said in the witness box today, four and half years later as to precisely what [the first appellant] said to you during this conversation, do you?
A. He said words to the – yes, I do – words to the effect of – –
....
Q. You don't have a clear recollection as to the precise words that [the first appellant] used in this conversation, do you?
A. Not a verbatim – –
Q. No.
A. But I have a very good understanding of what he said.
Q. What you're trying to do is to reconstruct the conversation based on your general understanding or recollection of what was said at the time. Correct?
A. Not reconstruct but – –
Q. So Mr Adams had made a request and then you were contacting [the first appellant], weren’t you? To ask whether you could deal with Mr Adams in relation to that request. Correct?
A. As I told you, I was contacting [the first appellant] in regards to other matters and I raised it in the – in the conversation.
Q. And the conversation didn't extend beyond that, did it? Namely you asking [the first appellant] whether you could deal with Mr Adams in relation to the request that he had raised. Correct?
A. It didn't extend beyond that.
Q. The sequence of events was Mr Adams had made a request, you wanted to find out from [the first appellant] whether you could deal with Mr Adams in relation to that request and you asked [the first appellant] whether you could do so. Correct?
A. That was part of it. Yes.
Q. That was the extent of it.
A. I was calling [the first appellant] on the same day that we got the enquiry. Conversely, my colleague could have emailed [the first appellant] but I was – you know – going to talk to him anyway, it seemed appropriate to mention it.
Q. – – – Now, you don't seriously suggest you remember [the first appellant] saying those words, do you?
A. Words the effect, yeah.
Q. That's not how [the first appellant] speaks, is it, in your experience.
A. I've had plenty of conversations with [the first appellant], yeah.
Q. He doesn't speak in this way, does he? “On behalf of [the second appellant], Budvalt and I, I give consent and authority for Mark to deal with all of our licences and approvals." That doesn't sound like the way he would talk, does it?
A. It's in the context of the way that I pitched the question, yes, probably was.
Q. You can't actually remember the words that [the first appellant] actually used, can you?
A. Words to that effect, yes.
Q. That was your understanding, was it, of what he said?
A. Understanding and interpretation of the words that he said, yeah.
Q. You might have misinterpreted or misunderstood what he said.
A. Certainly not.
Q. You can't remember what he actually said, how can you discount that as a possibility?
A. Like I said, words to that effect.
Q. You said that was your understanding or interpretation of what he said. You may have been wrong about that. Correct?
A. Well, in the ensuing months, Mr Adams lodged several papers on behalf of [the first appellant] that [the first appellant] had signed so I don't think there was any misunderstanding or misinterpretation.
Q. But you're not able to form a view about whether you misunderstood or misinterpreted what [the first appellant] said because you don't actually remember the precise words he used, do you?
A. If I had to quote the words verbatim, no.
Q. You may have misunderstood or misinterpreted what he actually said. Correct?
A. No, I don't – don't agree.
Q. Mr Wheatley, you do not remember [the first appellant] actually getting to the level of detail of talking about whether correspondence could be sent by email and post, do you? You don't actually remember that.
A. Words to that effect were used. This is the words that I have put in my affidavit and I'll stand by them.
Q. You don't actually remember as you sit here now, four and a half years later, that [the first appellant] in this conversation got right down to the level of detail where he was talking to you about the modes of communication that could be employed including email and post?
....
Q. You don't remember that as you sit there now, do you?
A. And that's why I've used the words, “words to that effect,” and haven't put him in quotes to, you know, quote him as saying – –
Q. Because you can't remember? Correct?
A. Can't remember him saying words to this effect? I certainly do. That's why I've written it.
Q. But not about whether it could be email or post. That level of detail doesn't come back to you now, four and a half years later, does it?
A. If I had to dwell on it, certainly may not have used the word “post". But we were using “email".
Q. “May not have used the word ‘post’ but may have used ‘email’”. And your basis for saying that is the fact that email was being used at the time. Is that right?
A. Well, it adds weight to my recollection. Yes.
Q. You didn't have such a conversation with [the first appellant], did you?
A. I did.
Q. If you had such a conversation, you would have notified persons of the kind that generate these documents on behalf of the department. Correct?
A. Not the extensions and things, no, it's not. And had I of notified them, they still may not have changed it. They would of just used the customer ID that was in the system of which [the first appellant] holds several licences at that one mailing address.
Gauging stations operated by the respondent
(a) a series of gauge lines within the river;
(b) a pressure line to the river;
(c) a pressure sensor;
(d) a logger;
(e) a modem;
(f) a transmission antenna; and
(g) a power source (which is generally solar).
[11] Gauging stations measure and record river heights at their individual locations along the river. Their purpose is to contribute to the production of river flow data, which is the quantity of water flowing at a particular point of the river at a given point in time. The data collected by gauging stations over the last few minutes or hours is referred to as ‘real time or near real-time’ river height data or raw height data. Real time height data collected by gauging stations is transmitted to a central data program known as Hydrotel. Based on the river height information at each point in time, real-time flow data is automatically generated based on ‘rating/calibration tables’ (Rating Tables)....
[15] ...... Real-time river height data is automatically collected by gauging stations and transmitted to a central data distribution system known as Hydrotel. Hydrotel is a telemetry network system which automatically collects and automatically transmits hydrological data from telemetry-enabled gauging stations to WaterNSW’s Hydstra database.
[16] The Bourke Gauge is one of the telemetry-enabled gauging stations linked electronically to Hydrotel.
[17] River height data is collected automatically in real-time by gauging stations and then transmitted to the Hydstra database via the Hydrotel system. Once this data has entered into the Hydstra database, it can be viewed and adjusted by my team and I ....
[18] The Hydstra database stores the real-time height data collected by gauging stations (including the Bourke Gauge) for each 15 minute period. Once the real-time data has been automatically collected by gauging stations in the field, it is automatically transferred to Hydstra via Hydrotel. Once the data is transferred to Hydstra, it is automatically recorded within a sub- program called ‘Data Managers Workbench’. As soon as the data has been stored in the Data Managers Workbench, it can be exported to various different formats (such as Excel spreadsheets and PDFs) using the Hydstra sub-program called ‘HYCSV’.
The Bourke gauge
CALCULATING THE FLOWRATE OF THE RIVER
The process of conducting gaugings
(i) carrying out a physical inspection of the river;
(ii) determining, by reference to gauge posts located within the river, the height of the river at the time;
(iii) inspecting upstream and downstream for items which may influence the natural characteristics of the river flow, such as the presence of large fallen trees; and
(iv) by the use of instruments, including an Acoustic Doppler, measuring the volumetric flowrate of the river, or in other words, the rate at which water moves in the river (such measurement being expressed in megalitres per day (MLD)).
[50] When performing gaugings at the Bourke Gauge, my Hydrometrics team and I:
a) insert a flow measuring device into the water (such as an Acoustic Doppler, Flow Tracker and/or Mechanical Current Meter, depending on which device is chosen on the day);
b) read the velocity and depth measurements produced by the measuring device;
c) record observations and some of the measurements onto hardcopy inspection sheets and save data from the measuring devices onto field laptops or USB drives;
d) once the team member has returned to WaterNSW’s office, the electronic measurement data collected using the measuring device is then transferred into Hydstra by the following process:
i) downloading the gauging logger file to the computer;
ii) inspecting the logger file via on the computer screen;
iii) if the measuring device:
1. is a Flow Tracker or Mechanical Current Meter: importing the file to the Hydstra Gaugings database via the HYGAUGE sub-program; or
2. is an Acoustic Doppler: creating a summary report via the proprietary software and manually enter the gauging summary report details into the Hydstra Gaugings database;
iv) manually entering any additional comments into the Hydstra Gaugings database which are relevant to the gauging; and
v) saving the raw gauging logger files to Hydstra as a reference to the new entry within the Hydstra Gaugings database; and
e) store the gauging data collected within Hydstra as a record of the gauging for that date, which can be retrieved on command at a later time.
[51] The Hydstra database also stores records of gaugings recorded by my staff at particular gauging stations...... and entered into the Hydstra database following the these site visits. This data is used within the Hydstra ‘Ratings Workbench’ sub-program for the purpose of preparing Rating Tables.
[54] The gauging data for the Bourke Gauge... shows the Hydstra database’s records of each gauging performed and recorded since 28 January 1895 at the Bourke Gauge, including the following information:
a. date of the gauging;
b. start time of the gauging;
c. end time of the gauging;
d. start gauge height observed during the gauging;
e. end gauge height observed during the gauging;
f. mean gauge height observed during the gauging;
g. flowrate ML per day measured during the gauging;
h. type of flow measuring device used and the measuring device's number....; and
i. person(s) who performed the gauging.
The application of Quality Codes
1. Principle of quality codes
Clients need to understand whether results are measured or estimated, actual or adjusted.
Modellers need to know how to quantify model uncertainty. Resource managers need to know how close the recorded value is to a fixed reference. The fixed reference for stage may be a gauge height, which has been levelled to a recognised benchmark. For a water quality parameter a value may have been measured by a portable instrument, which has been checked against a traceable standard.
Manufacturers generally specify accuracy in terms of a percentage of the full scale range of the equipment, rather than specifying a standard error. Their calibration procedures require that all test readings are within the specified tolerances, and instruments are rejected if they do not meet specifications. For example, Campbell Scientific Australia has advised that this corresponds to a 95% confidence interval.
Thus, provided that instruments are calibrated regularly according to standard procedures, and that calibration check indicate results are within manufacturers' specification, quality codes 1, 3, 5, 7 , 9 can be interpreted to indicate that results are within a 95% confidence interval of the true value as far as instrument calibration is concerned.
Compiling of a rating table and a rating curve
(i) river height, as recorded at the time that it is physically observed at a gauging station (known as stage); and
(ii) the volumetric flowrate of water that is physically measured as passing the gauging station expressed in MLD (known as discharge).
[39] Rating tables are created and adjusted within the “Ratings Workbench” sub-program within Hydstra, using the following process:
a. river height versus discharge measurements (also called gaugings, which reflect the relationship shown in the applicable rating curve) are entered into the Hydstra database and appear in the “Ratings Workbench” software on a pre-determined graphing plot;
b. in the Ratings Workbench software, the height versus discharge measurements are assessed by my staff and I for their uniformity of fit with other sequential measurements;
c. the Ratings Workbench software plots the gaugings on a graph, which enables my staff and I to use the program to view the mean fit of the gaugings as they have been sequentially recorded;
d. the Ratings Workbench software allows my team to create a curve of mean fit through these gaugings to adjust an existing relationship of mean fit or to create a new relationship when gaugings begin to deviate from the mean fit previously recorded in Hydstra;
e. when height versus discharge measurements do not uniformly fit with previous sequential measurements, the height versus discharge relationship in the current Rating Table is assessed and adjusted by my staff and I for either an adjustment of the:
i. the current mean fit of the rating curve relationship, or
ii. if a new hydraulic relationship of height versus discharge has been determined, then this is substituted in place of the previous mean fit measurements; and
f. Ratings Tables are created within Hydstra and labelled with a prefix and a suffix convention. The prefix is the rating table number and the suffix is the series release or adjustment number of the mean fit.
[40] The Hydstra database stores the Ratings Tables for individual gauging stations as used in real time and as retrospectively adjusted – this includes a record of the current Rating Table for each gauging station, as well as previous versions used for each gauge. My staff and I are able to access and export both kinds of ratings tables using the Hydstra database. The database stores ratings tables (used both in real time and as adjusted) for the Bourke Gauge.
(i) this will usually only occur when the variance between the figures exceeds approximately 10mm;
(ii) the precise figure (which is usually around 10mm) is also determined by reference to guidelines provided by the gauge manufacturer; and
(iii) if the actual river height differs by less than 10mm to the height measured by the gauging station, the height data will usually not be adjusted. Mr Cutler explained that adjusted river height data is produced through the adjustment of the real-time height data stored within the Hydstra database by himself and his team through use of the Hydstra software. The adjustment process involves the data collected by the gauging station being assessed against the physical readings taken at the time of an inspection.
(i) the natural deposition of detritus matter compromising pressure sensing;
(ii) instrumental sensitivity errors; and/or
(iii) the process requiring the retrospective and uniform application of the flowrate recorded on a particular inspection date to the preceding two months' real-time height data.
(i) a spreadsheet setting out the data and records for each gauging for the Bourke gauge stored in the Hydstra database for the period of 1895 to September 2018;[73] and
(ii) a spreadsheet setting out the adjusted river flow data generated by the Hydstra database for the period 15 June 2016 to 5 July 2016 (thus encompassing the charge period of 22 June 2016 to 27 June 2016) and which demonstrates the flowrate of the river expressed in MLD.[74]
Australian Standard 3778
Scope
This part of ISO 1100 specifies methods of determining the stage-discharge relation for a gauging station. A sufficient number of discharge measurements, complete with corresponding stage measurements, is required to define a stage-discharge relation to the accuracy required by this part of ISO 1100.
[R]egardless of the measuring method, the discharge through the discharge measuring section or reach shall be the same as the discharge normal to the reference stage gauge over the entire range of discharge rates. At a gauging station, different measuring sections or different methods may be used to cover the discharge range.
6.1 General
The primary object of a stage-discharge gauging station is to provide a record of the discharge of the open channel or river at which the water lever gauge is sited. This is achieved by measuring the stage and converting this stage to discharge by means of a stage-discharge relation, which correlates discharge and water level. In some instances, other parameters such as index velocity, water surface fall between two gauges, or rate-of-change in stage may also be used in rating calibrations. Stage-discharge relations are usually calibrated by measuring discharge and the corresponding gauge height. Theoretical computations may also be used to aid in the shaping and positioning of the racing curve. Stage-discharge relations from previous time periods should also be considered as an aid in the shaping of the rating.
6.2.1. General
The relation between stage and discharge is defined by plotting measurements of discharge with corresponding observations of stage, taking into account whether the discharge is steady, increasing or decreasing, and also noting the rate of change in stage. This may be done manually by plotting on paper, or by using computerized [sic] plotting techniques. A choice of two types of plotting scale is available, either an arithmetic scale or a logarithmic scale. Each has certain advantages and disadvantages, as explained in subsequent clauses. It is customary to plot the stage as ordinate and the discharge as abscissa, although when using the stage-discharge relation to derive discharge from a measured value of stage, the stage is treated as the independent variable.
6.2.2 List of discharge measurements
The first step before making a plot of stage versus discharge is to prepare a list of discharge measurements that will be used for the plot. At a minimum this list should include at least 12 to 15 measurements, all made during the period of analysis. These measurements should be well distributed over the range in gauge heights experienced. It should also include low and high measurements from other times that might be useful in defining the correct shape of the rating and/or for extrapolating the rating. Extreme low and high measurements should be included wherever possible.
For each discharge measurement in the list the following items shall be included:
a) Unique identification number
b) Date of measurement
c) Gauge height of measurement
d) Total discharge
e) Accuracy of measurement
f) Rate-of-change in stage during measurement, a plus sign indicating rising stage and a minus sign indicating falling stage.
Other information might be included in the list of measurements, but is not mandatory. Table 1 shows a typical list of discharge measurements, including a number of items in addition to the mandatory items. The discharge measurement list may be handwritten for use when hand-plotting is done, or the data may be a computer list where a computerized [sic] plot is developed.
6.3.3 Hydraulic equation curves
The shape of stage-discharge relations can sometimes be defined through the use of hydraulic equations, namely equations (1), (2) and (3). Where section control exists, the weir equation (1) can be used to compute rating curve points. Coefficients of discharge, C, are defined in other International Standards for certain types of weirs and flumes, so that a reasonably accurate rating curve can be computed that will conform to correct hydraulics. For natural section controls, such as rock outcrop or sand bar, the coefficient of discharge can be estimated on the basis of calibration measurements. Widths and depths can be determined from a surveyed cross-section of the control section.
For segments of the rating curve that are influenced by channel control, the shape of the rating can be defined through the use of equation (2) or (3). An average or typical cross-section in the control reach is surveyed to define the channel characteristics of cross-section area and hydraulic radius. The Manning rugosity, n, or the Chezy C is estimated from field observations. The friction slope is estimated from channel surveys, maps, or calibration measurements. Equation (2) or (3) can then be used to compute discharge for a few selected gauge heights to define the shape of the rating curve. This is a simplified procedure which assumes steady, uniform flow. More complex situations involving non-uniform flow can be analysed with various techniques of backwater curve computation. Computer programs are available for such analyses.
For either case, section or channel control, the rating computed by the hydraulic equations is used only for defining the hydraulic shape of the rating. The correct position of the rating is defined by the calibration measurements. This procedure can also be used to aid in determining when measurements define a new rating position, such as may be the result of a shifting control.
A.2 Statistical analysis of the stage-discharge relation
A.2.1 The stage-discharge relation, being a line of best fit, should be more accurate than any of the individual gaugings. The equation of the relation may be computed as detailed in 6.1.3.2, which assumes that the relation plots as a straight line on logarithmic paper.
The expert evidence as to the calculation of flowrate
[35] It is necessary to distinguish between calculated flowrates and true flowrates. These are as follows:
a) A true flowrate is the volume of water which has actually passed a measuring point in a given time period. It is measured with 100% confidence and there can be no statistical doubt as to its value. In practical terms, I am unaware of any river measuring device in Australia which operates at an 100% level of confidence and has a 0% measurement uncertainty at all times. Calculating the true flowrate of a river is, in my view, a practical impossibility.
b) A calculated flowrate is simply the best estimate of the true flowrate, which is calculated using data and industry-accepted methods. By definition, these estimates are subject to some degree of uncertainty at each step in the measurement/estimation process. In practice, the calculated flowrate of water may be slightly greater or less than the true flowrate. Accordingly, widely-accepted hydrometric industry practice is to calculate the upper and lower confidence limits about the calculated flowrate, within which it can be said with 95% confidence that the true flowrate lies.
(i) the largest deviation was 13.02%;
(ii) there was a standard deviation of 6.18%; and
(iii) the true flowrate of the river was within a range of 4,351 MLD to 5,437 MLD.[90]
Looking at the Water New South Wales quality coding system, they've classified each gauging as basically very accurate – very accurate to fairly accurate but they've put a number of it. So plus minus 5% so about a third of the gaugings in our interest period are very accurate – better than plus minus 5%, and they actually state that in the information on each gauging. So I didn't sort of go into that. I accepted that that's the best they could do with the technology they had in a large river, and none of them are sort of worse than plus minus 10%.
(i) an accurate survey of the river channel;
(ii) measuring the river flow velocity with a measuring device, such as an impeller or doppler device; and
(iii) calculating the discharge by reference to an established mathematical equation.
Given the nature of the process I have just described, the calculation to be undertaken is one which should involve the individual exercising judgment about which segments across a channel are similar, and how to combine or treat separately different measurements at different points on the cross-section in order to produce one single figure for flow in the river at that location [even though there will inevitably be different flow rates at different parts of the river’s cross-section at that location]. This means that the data points on flow curve graphs that are a record of the “measured” relationship between height and flow of the river at a particular point on a particular day are not records of some empirical facts, but instead represent opinions based on judgments made based on data gathered. Mistakes and errors in judgment or calculation will therefore cause the single figure ultimately chosen to be wrong, in the sense of not reflecting the precise actual flowrate of the river at that location on that day.
(i) an inaccurate survey of the river bed and bank conditions during gaugings;
(ii) an inaccurate or insufficient measurement of river flow velocities and heights across a channel section;
(iii) changes to channel cross-section due to scour and fill;
(iv) growth and decay of aquatic vegetation, log and debris; and
(v) variable backwater conditions.
(i) inherent equipment uncertainty, “in-situ” factors such as the presence of unknown flow obstructions, and the variation in flow at a given point in time;
(ii) the form of the channel, due to its shape and its condition;
(iii) sampling errors, and associated failures to follow necessary processes; and
(iv) the rating curve itself, arising from the uncertainty of the river level.
(i) the gaugings used to create the ratings curve and table had been taken from within an 11 km reach of the river;
(ii) almost no gaugings were reported to have been taken at the Bourke gauge;
(iii) some gaugings were taken downstream of the Bourke weir, and some upstream; and
(iv) at each separate gauging location there would be an expected different discharge and river stage/height relationship.
Because the accuracy of any of these level measuring sites relies on the gauge posts, the series of gauge posts which are hammered in up the bank. And as long as they are the same as wherever they used to be, which is only 30 metres away, they would tend to be the same along the whole 6 kilometre length. Like, that – the – the level pool, particularly in low flows, is a – if you ideally set the gauge posts to that, you know, if it was – it was – if it was 3.98 at the old location, you just set the post and move it up or down till it hits 3.98 at your new location and you are measuring the same thing. Because it's one level pool all the way back. So long as they calibrate their new set of level staff gauges to their old ones, that would be accurate.
Q Can I ask you this. In your report you expressed concern that the moving of the Bourke gauge might have had some effect upon the accuracy of the readings?
A Yes.
Q But if that were the case in the same way, if the Bourke gauge as moved was giving erroneous results, then the gaugings after that point should form a new line, should they not?
A Possibly.
Q But there’s no evidence of a new line on this graph, is there?
A This chart at attachment D is to 25/11/2016. So there are going to be two or three points maybe that would be, if you like, between the charge period when the gauge was moved, between the gauge movement and when this chart was drawn.
Q Yes, but if for example a gauging was taken after that time in that area, then you would expect to see it on this line. Correct?
A Yes.
Q If it was on that line, you could be confident that the gauge was accurate and the movement of it had made no difference.
A I’m not following. If it was on the line, that would mean it would be on the line. It wouldn’t mean that it’s more or less accurate than other measurement made.
Q What I’m saying is if the Bourke gauge was not giving an accurate reading after it was moved, then gaugings taken from that reference point would start to fall off this curve, wouldn’t they, because the relationship between flow and height would be disturbed, because the height would be giving an inaccurate reading.
A Let’s say the gauge was wrong by 20 centimetres.
Q Yes.
A On this chart, that would fall within the scatter that this chart already shows. So I don’t know whether that answers your question. If it falls exactly on the line, it would fall exactly on the line, but the next measurement might be different again.
Q Yes, but you follow my point, don’t you? If the Bourke gauge is inaccurate, the ratings – the readings that it gives and the correlation between the two variables would be disturbed because the height data that the Bourke gauge would be giving would be erroneous.
A It would be disturbed, yes.
Q So the correlation should not fall consistent with the correlation which has existed when the true height was the variable being correlated.
A It would be different – on a different path, yes.
My assessment is that the Bourke Weir controls the water level to discharge relationship (rating) for low and medium flows. I assume that the “weir" control (also termed “section control”) is gazumped or subsumed in high flows. Like most rivers, I assume that during very high flows, the flood breaks out of the channel confinement and overflows sideways.
Hydraulic conditions upstream and downstream of the Bourke Weir are very different because downstream of the Bourke Weir, flows are not modified by a subsequent weir structure.
The practice of the industry recognises that in a weir pool backed up by a large weir like Bourke, you’re measuring the height of some six kilometres back. But when – in any period of steady flow, you can measure the flowrate anywhere. It really doesn't matter where you’re measuring it because it's – you after the flow so you can put one point on the rating curve. And the flow is the same flow in the entire weir pool, and even over the weir. Doesn't matter if – cause it's the same flow. It doesn't – the flowrate during that time you’re gauging doesn’t vary. It’s – it’s – and that's the normal industry practice is you – you pick the spot to do your gauging that's convenient for you, and it can be anywhere, either side of the actual level measuring point, and that's normal practice.
Q. You told his Honour earlier that in a weir pool, you could take flow measurements anywhere within the pool?
A. Yes.
Q. Could you tell his Honour why that is so?
A. Cause throughout the pool, the flowrate is the same cause water is incompressible so it just pushes itself at the same rate. Like in the – in the course of going down the pool, there might be a hump in the bed at a deeper part – another shallower part but continuity principle is the product of velocity in the area so as you go down, it's sort of a faster velocity times a small area when there's a hump and a shallow bit. And then when you come to a deeper pool, it's a slower velocity times a bigger area for the deeper pool but the flowrate is the same. And it really doesn't matter where you pick to do the gauging. You'll get the same flowrate.
Because the flowrate is the same in that entire section of weir pool. It really doesn't matter if you pick a shallow part of the pool or a deep part to do your gauging. You will measure a flowrate which relates to the level back there. It really doesn't matter that it's a different cross section cause of continuity of mass.
Well, a weir pool is the pool that's created behind a weir and it obviously can vary in length. But ultimately, the flow in a channel is governed by the catchment area that drains to that channel, irrespective of the weir pool being present or not. The flow in the channel is also governed by the hydraulic properties of the channel, and what I mean by that, factors such as bridges may arrest the flow of water passing through the bridge, indeed, in the same way that a weir would arrest the flow of water.
Other obstructions such as rocks, boulders, the bed and bank conditions, vegetation, all these are hydraulic considerations that have a very significant impact on the flow at a particular station when it's being measured. So, there are catchment area factors, there are hydraulic, or perhaps I could bundle those into frictional related factors. But then there are, of course, other factors such as evaporation, which over a large weir pool could be quite substantial and varies along the length of the weir pool. And possibly some loss through the bed and the banks of the wetted perimeter of the weir pool into the soil below, and that's to ground water below.
So, there are a number of factors and those factors become more and more relevant with the length of – or the distance along the river. But it's probably worthwhile mentioning the word “weir pool”, or the words “weir pool” are a generic, sort of general term and they tend to apply to the pool that's created behind the weir when the weir is not flowing, because it's difficult to define where the – where the weir pool actually is when the weir is flowing, and ultimately the weir and the pool, and the areas down side of the weir may be merged into one continuous flow.
So in hydrology there is a very strong correlation between the area of a catchment that contributes to the flow at a particular point in a river. And at its extreme if there is no catchment to a river at a particular point there'll be no river because there'll be no water arriving, and as the catchment area increases, the flowrate tends to increase.
And there's a particular field in hydrology where – where catchment area is used as a surrogate for flow, in circumstances where the discharge or the flow in the river is difficult to measure or unavailable. In other words, you could, for example, plot the width of the cross-sectional area of a river against its discharge at that point, and then create a chart at different locations along the river.
But you could equally create the similar chart replacing discharge as, if you like, the X-axis or the Y-axis with catchment area. So there's a very strong relationship between catchment area and flow in a river.
THE GROUNDS OF APPEAL
Ground 1 – The trial judge erred by finding that the [respondent] had demonstrated beyond reasonable doubt that the flow rate at the Bourke gauge was less than 4,894 ML/day in the period 22 June to 27 June 2016.
Ground 2 – In the course of determining that flow issue, the trial judge further erred by:
(a) failing to understand the effect of the evidence of Dr Martens in demonstrating why it was that the evidence upon which the [respondent] relied did not establish the alleged flow rate beyond reasonable doubt;
(b) treating as relevant whether Dr Martens had identified practicable alternatives to measuring flow;
(c) admitting the departmental record of gauge node points, and evidence based upon that record;
(d) treating Mr Cutler as having given evidence as to what the field officers actually did when the gaugings in question were carried out;
(e) failing to recognise Mr McDermott’s treatment of the inherent uncertainty in the calculation of flowrate was one which assumed relevant standards and processes for the gathering of reliable gauge node points had been properly followed.
THE FINDINGS OF THE TRIAL JUDGE
Ground 1 – Proof beyond reasonable doubt of the fourth element of each offence
(i) the flowrate of a river can vary across different sections of the river, and at different positions and depths along a channel cross-section;
(ii) these variations in flowrate can result from a variety of factors, including changes in the frictional characteristics of a river, the presence of other hydraulic controls such as the shape of the channel, or by artificial characteristics such as the Bourke weir;
(iii) the experts had agreed that some level of uncertainty in calculation of flowrate, by reason of possible instrument or measurement error, is unavoidable;
(iv) the experts agreed that it is accepted hydrometric practice to assess measurement uncertainty by reference to a 95% confidence level; and
(v) AS3778 provides guidance on how to estimate uncertainty in flowrate measurement.
(i) the reliability of the underlying data;
(ii) the accuracy and reliability of the rating curve and the calculated flowrate; and
(iii) the impact of the movement of the Bourke gauge.
[366] In relation to the reliability of the underlying data, I accept the evidence of Mr Cutler and Mr McDermott and consequently find that the data is not unreliable to the extent that the flow rate cannot be reliably ascertained as being below 4,894 ML per day during the charge period. In making this finding, I note that the combined effect of Mr Cutler and Mr McDermott’s evidence demonstrates that a variety of comprehensive procedures were followed in collecting, processing and analysing flow rate data at the Bourke gauge, which, in any event, produced data with minimal uncertainty as shown by Mr McDermott’s statistical assessment, which I accept.
[370] River flow data extracted from the Department’s Hydstra system by Mr Cutler shows that, in the period from 15 June 2016 to 5 July 2016, the earliest time at which the flow rate of the Darling River at the Bourke gauge reached 4,894 ML per day was 15:30 on 30 June 2016. The river flow data does not, however, allow for a margin of error. Nevertheless, the impact of that margin of error was quantified by Mr McDermott in his report and he indicated that based on his calculations, when the river flow data is adjusted for measurement uncertainty corresponding to at least a 10% margin of error, the flowrate of 4,894 ML per day may have been reached, at the earliest, by 08:45 on 29 June 2016.
[377] Noting the above, I find that an appropriate margin for error is provided in Mr McDermott’s assessment of uncertainty and I accept his calculations which take into account any deviations in gaugings data from Rating Table 300.14 around a flow rate of 4,894 ML per day. Even with this allowance being made, and noting that error is not guaranteed in the first place, or indeed could skew a data point in favour of the [appellants’] position, I accept Mr McDermott’s approach toward calculating flow rate. I find that the McDermott Rating Curve provides independent verification of the conclusions derived from Rating Table 300.14 that the flow rate did not exceed 4,894 ML per day before 29 June 2018, as both the McDermott Rating Curve and Rating Table 300.14 calculated the flow to exceed 4,894 ML per day at a similar time.
(i) Mr McDermott conduced a comprehensive assessment of the uncertainty associated with flowrate measurement;
(ii) in conducting his measurement uncertainty analysis for the Bourke gauge, Mr McDermott specifically examined flowrates around the range of 4,894 MLD in order to prevent very high or low flowrate data from affecting his calculation; and
(iii) any of the possible sources of error identified by Dr Martens had been taken into account by Mr McDermott in his calculations.
[382] As such, I find that Rating Table 300.14, because it is based on gaugings taken by a range of instruments at different times and over a substantial time period, adds to its strength as a reference. To that end, I accept the [respondent’s] position that even if an individual gauging may have been inaccurate, a larger averaging of the data would mean that Rating Table 300.14 would give relatively little weight to an inaccurate gauging despite this not being accepted by Dr Martens. I do not find the [appellants’] argument that errors which are repeated on every gauging occasion would be undetectable as being compelling, and insufficient to contribute a reasonable doubt, given that the data upon which Rating Table 300.14 is based has been recorded over approximately 27 years.
[383] I also accept the analysis of Mr McDermott that the adjusted height data and real time height data for the duration of the charge period were practically identical, as the two data sets contained relatively few discrepancies which, in any event, were limited to 1mm. In consequence, I find that the distinction between adjusted and real-time data therefore has no bearing on the overall accuracy and reliability of the data used to calculate flow rate, or was otherwise accounted for in Mr McDermott’s statistical analysis.
[384] Although the [appellants] submit that Mr McDermott’s evidence offers no assistance as he merely assumes the reliability of the Gauging Log and performs a statistical exercise and, as such, allowing a margin of error of some 10% is irrelevant, and that Mr McDermott did not assess the extent to which the rating curve and Rating Table 300.14 would be incorrect if the Gauging Log was wrong, considering the extent of the analysis conducted by Mr McDermott as described earlier and the existence of estimated uncertainty for each gauging as contained in Gauging Uncertainty Graph, I find that the [appellant’s] submission materially understates the evidence of Mr McDermott. I find that he adopted a statistically appropriate methodology to quantify the extent of errors likely to be present in the flow rate data.
...
[386] Given my findings, I consider that each of the [appellants’] arguments in relation to this aspect simply hypothesise possible errors which, even if the case, would yield a relatively minor result (for example, without trivialising the concerns, failing to notice a log in the river or misreading the river height by a matter of centimetres due to human error or time delay would have a negligible impact) and, in any event, these errors have been accounted for in Mr McDermott’s statistical analysis. As such, I have no reasonable doubt that a combination of these possible errors is insufficient to create a deviation from the recorded flows during the charge period beyond that which was accounted for by Mr McDermott, such that it would approach or exceed 4,894 ML per day.
[387] I therefore accept that the Department’s rating curve and Rating Table 300.14 are capable of determining the relationship between river height and flowrate with sufficient precision for it to reliably prove that the flow rate was below 4,894 ML per day. In light of my findings above, I consequently do not accept the [appellants] submissions that the rating curve is illogical, based upon assumptions which have not been proven, or that the methods used by the [respondent] to demonstrate its reliability lacked in rigour.
[388] For completeness, I also do not accept the [appellants’] submission that the procedure is “primitive”, subjective and prone to error. Although the “system” does depend upon various processes which involve some element of subjective input, these are criticisms that do not, either individually or cumulatively, lead to the view that the system itself or its manner of implementation (especially in relation to adherence to various standards and guidelines) leads to any reasonable doubt in relation to the accuracy of the figures. More particularly, I do not find that the numerous matters raised, considered cumulatively, raise a reasonable doubt in relation to the reliability of the figures.
[402] Although not determinative in my overall findings, I accept the evidence of Mr McDermott in relation to the effect of the Weir, and generally in relation to the “Weir pool”. As such, I accept Mr McDermott’s evidence that the Weir is a unique hydraulic control producing, in effect, a uniform flowrate across the length of the Weir pool which extends up to and including the Bourke gauge during periods of low to medium flow. I also accept Mr McDermott’s evidence in relation to the normal practice in the industry and that consistent flowrate about which he opines is the result of consistency in channel factors throughout the weir pool as well as the incompressibility of water.
[403] In accepting Mr McDermott’s evidence, I find that it is unlikely that the possible introduction of “rocks, scour, logs and vegetation and/or evaporation” could eliminate the controlling impact of a Weir which Mr McDermott described. Further, although there was dispute between Dr Martens and Mr McDermott in relation to the amount of the “scatter” in relation to the rating curve, I accept Mr McDermott’s evidence that, having conducted a statistical analysis of gauging data nearest to a flowrate of 4,894 ML per day, he found that there was a maximum deviation of 12.4% within the gaugings data from Rating Table 300.14, and Despite Mr McDermott’s concession in relation to possible leakage, I accept that potential sources of error such as this have been adequately accounted for in Mr McDermott’s uncertainty analysis.
....
[405] In addition to the above, I find that the taking of gaugings at various points along the river (even away from the physical location of the Bourke gauge) is in accordance with the accepted industry practice in circumstances where the flow remains uniform due to weir control and as confirmed by reference to Pt 2.2 cl 5.2.6 and Pt 3.1 cl 5.1(o) of AS3778 and cl 6.1 of the National ADCP Guidelines to which I have been referred. I do not accept Dr Martens’ evidence in these circumstances that the taking of gaugings away from the Bourke gauge is not in accordance with accepted practice described in AS3778. In making this finding, I note that the presence of the Bourke Weir and its subsequent effect on the hydrology of the relevant river section was critical and I have considered Dr Martens’ concerns in relation to this aspect and accept that, had the factual circumstances of the river been different, these concerns may have manifested a different result.
[406] I also accept the evidence of Mr McDermott that the movement of the gauge would have no impact if the gauge was recalibrated correctly, and that the records of WaterNSW indicate that the relocated site was surveyed prior to the charge period. To the extent that there was further criticism by Dr Martens in relation to Gauge Posts being correctly calibrated, I repeat my finding that the evidence demonstrates that gaugings taken after the Bourke gauge relocation were consistent with the long term trend and were further analysed by Mr McDermott as having a marginal deviation from the rating curve. Further, even if it were the case that the river heights were taken at the gauging location instead of the Bourke gauge, the evidence regarding the weir control and incompressibility of water given by Mr McDermott (which I have accepted) indicates that the calculated flow would remain unchanged.
[407] In relation to the movement of the Bourke gauge in May 2016, the [respondent] relied on gauging records taken after movement of the gauge in order to demonstrate the negligible effect of the relocation. Mr McDermott’s statistical analysis of gauging number 590 and gauging number 557 and their respective deviations from the rating curve of 1.5% and 5.62% adds weight to the [respondent’s] submission that the movement of the Bourke gauge did not impact upon the accuracy and reliability of the rating curve. Further, when questioned in cross examination on the consistency of these data points with the rating curve and Rating Table 300.14, Dr Martens described each as falling within a “scatter” of dots. I consider that the use of statistical methods by Mr McDermott to quantify the extent of uncertainty and variability, which is founded on a scientific basis and outlined in the corresponding Australian Standard, is the approach which ought to be adopted in the circumstances. As such, I have no reasonable doubt that the river height data obtained at the Bourke gauge after its relocation in May 2016 and therefore during the charge period was accurate.
[408] For the above reasons, I find that movement of the Bourke gauge and the taking of gaugings at other locations within the weir pool did not have an impact upon the accuracy of the rating curve, Rating Table 300.14 or the ultimate flowrate calculated at the Bourke gauge beyond the level of uncertainty that was appropriately accounted for by Mr McDermott. Further, I do not accept Dr Martens’ evidence that factors such as friction, evaporation and leakage have a relevant or material effect or were otherwise not accounted for in Mr McDermott’s statistical assessment.
[409] Whilst I have made separate findings above in relation to specific areas of disagreement between the experts, I consider that Mr McDermott did, as the [respondent] submits, provide clear and reasoned explanations for agreeing (and on occasion disagreeing) and included detailed reference to AS3778 and the processes and practices employed by WaterNSW and confirmed the veracity of these practices including the underlying gaugings data.
[410] Both parties made submissions concerning the manner in which the experts had approached and gave their evidence. The [respondent] sought to contrast the evidence of Mr McDermott, who on its submission had provided clear evidence supported by reference to applicable standards that he was well familiar with, with Dr Martens’ evidence which the prosecution submits does not make any hard findings, was based on a limited understanding of the details of the case and the relevant section of river, contained important concessions, and was prepared within a relatively short four day period. Further, the [respondent] submitted, and I accept, that Mr McDermott was also not significantly challenged in cross examination. In response, the [appellants] submit that it is not open to the [respondent] to make something of the date of Dr Martens’ report and the time taken to prepare it given that this was not put to Dr Martens in cross examination. The [respondent] submit that the issues addressed in Dr Martens’ report were not complex in light of his expertise and the limited data available.
...
[412] Although I accept that the [respondent] bears the onus beyond reasonable doubt throughout, I have been presented with the evidence of Mr McDermott which quantifies, in accordance with accepted industry practice and a comprehensive Australian Standard, the full and cumulative extent of error and uncertainty, which in contrast Dr Martens raises as concerns, if not possibilities. As such, I prefer the evidence of Mr McDermott in relation to assessment of error and uncertainty in gauging data and in calculation of flowrate at the Bourke gauge....
[413] In accepting the evidence of Mr McDermott and light of my findings noted above, including in relation to the accuracy and reliability of the underlying data, the accuracy and reliability of Rating Table 300.14, and the evidence in relation to the movement of the Bourke gauge and how gaugings were undertaken, I find beyond reasonable doubt that the flow of the Darling River at the Bourke gauge was below 4,894 ML per day for the duration of the charge period.
[414] The WM Act provides a comprehensive statutory regime for the sustainable and integrated management of the water sources of New South Wales for the benefit of both present and future generations and, relevantly, encourages the sharing of responsibility for the sustainable and efficient use of water between the Government and water users. Despite its noble intentions, the legislative regime is not without complexity.
[415] I have considered all of the evidence closely. The [appellants] bear no onus and the matters that need to be established beyond reasonable doubt are the essential elements of the offence.
[416] For the reasons I have given, I find beyond reasonable doubt, first, that the [appellants] were holders of a Water Supply Works and Water Use Approval applying to the Barwon-Darling Unregulated River Water Source during the charge period; second, that the Approval contained a condition that water must not be taken when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day; third, during the charge period the [appellants] took water from the water source; and, fourth, that that water was taken when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day.
Ground 2(a) – Failing to understand the evidence of Dr Martens
[340] The [appellants] rely on the evidence of Dr Martens, who raises concerns regarding the Department’s procedures used to calculate flow rate and the nature of the data used to create Rating Table 300.14. Dr Martens deposes that the assessment of river flow is subject to a range of possible sources of error and uncertainty.
[341] Dr Martens’ concerns may be broadly grouped within three primary categories:
(1) Uncertainty derived from instrument and equipment error and sensitivity;
(2) The effect of human intervention and judgment, including: first, human error and the subjective nature of data collection; second, channel form uncertainty in relation to how channel surveys have been undertaken; third, inconsistent gauging locations and movement of the Bourke gauge in May 2016; and, fourth, the reliability of historical data; and
(3) The calculations and processes used to produce Rating Table 300.14 and the rating curve from which that table is derived, which result in uncertainty in flow velocity, rating curve uncertainty, and uncertainty in calculated flowrate.
(i) each of the measured inputs required to assess flowrate were necessarily inexact;
(ii) an inadequate assessment of the nature of the river channel could generate unreliable data;
(iii) the locations at which the gaugings were taken varied;
(iv) there was significant “scatter” above and below the rating curve;
(v) uncertainty may result when calculating flowrate as a consequence of inappropriate or unrepresentative flow velocity sampling; and
(vi) the respondent’s own procedures considered and recognised levels of uncertainty and error.
[403]... I accept Mr McDermott's evidence that, having conducted a statistical analysis of gauging data nearest to a flowrate of 4894ML per day, he found that there was a maximum deviation of 12.4% within the gauging data from Rating Table 300.14 and despite Mr McDermott's concession in relation to possible leakage, I accept that potential sources of error such as this have been adequately accounted for in Mr McDermott’s uncertainty analysis.
Ground 2(b) – The failure of Dr Martens to identify practical alternatives
[411] Despite the [appellants’] submission that Dr Martens did not merely express “concerns”, and acknowledging that Dr Martens, as an expert, opined that the evidence he had been provided with did not enable him to reliably assess the matter, I nonetheless find that Dr Martens’ criticisms were largely of a speculative nature. Dr Martens did not quantify or qualify the impact of any sources of error he addressed, nor did he present any reasonable or practicable alternatives, with the exception of installing a series of measuring devices at appropriate locations along the cross-section of the river, to the methodology employed by Department personnel in recording gauging data and producing Rating Table 300.14.
Ground 2(c) - Admission of the evidence of gauge node points
(i) the recording of the data at the time of a gauging, and the observations of employees or officers of the respondent, was not opinion evidence;
(ii) although the expression “opinion” was not defined in the Evidence Act 1995 (NSW) (the EA), it was to be understood, in the context of this case, to be an inference drawn from observed and communicable data; and
(iii) the recording of the primary data was not an opinion, and thus was not subject to the exclusionary rule governing the admission of opinion evidence.
[328] In ruling on admissibility of the documents (in particular the spreadsheets) based upon the primary data, I am mindful of the distinction between admissibility and weight. I have therefore taken into account the submissions made in relation to admissibility in considering the weight to be attributed to the evidence which I have admitted. I am of the opinion that in recording the data displayed on the Gauging Devices and Gauge Posts at various times, the officers and/or employees of WaterNSW and its predecessors were merely recording what they directly observed as objective facts.
Ground 2(d) – The evidence of Mr Cutler
[325] While I accept that a primary issue in this aspect of the proceedings is the reliability and use of documentation which includes the primary data in particular, despite the criticisms of Dr Martens (which are nonetheless matters that are relevant to my consideration of the overall reliability of the material), I note that Mr Cutler provided detailed evidence explaining how each of the various documents were created as well as detailing the manner in which the various gauging stations are surveyed for accuracy. Mr Cutler also gave evidence in relation to the procedures followed by WaterNSW concerning calibration of the various instruments to be relied upon.
[326] Furthermore, both Mr Cutler and Mr McDermott gave evidence in relation to the various quality codes and procedures which specifically prescribed the manner in which the data is to be recorded and used. As I have noted, and will consider separately, whether the processes, procedures and methodology are sufficiently reliable to determine the flow rate at the Bourke gauge is a matter of dispute between the experts.
[365] The evidence of Mr Cutler, as summarised above, details the processes and procedures undertaken by the Department to obtain and process flowrate data. Mr Cutler deposes that the Department has adopted and “consistently implemented” several NSW Office of Water hydrometric procedures relating to the collection and adjustment of river height and flow data. The hydrometric procedures referred to by Mr Cutler include, inter alia: the recording and documenting of gauging station visits; the review and editing of hydrometric data; the management and monitoring of instruments; and procedures for maintenance and calibration of current meters and pressure sensors.
[366] In relation to the reliability of the underlying data, I accept the evidence of Mr Cutler and Mr McDermott and consequently find that the data is not unreliable to the extent that the flowrate cannot be reliably ascertained as being below 4,894 ML per day during the charge period. In making this finding, I note that the combined effect of Mr Cutler and Mr McDermott’s evidence demonstrates that a variety of comprehensive procedures were followed in collecting, processing and analysing flowrate data at the Bourke gauge, which, in any event, produced data with minimal uncertainty as shown by Mr McDermott’s statistical assessment, which I accept. Further reasons for accepting the evidence of Mr McDermott and Mr Cutler in relation to this aspect overlap with my consideration of the submissions regarding the reliability of the rating curve and Rating Table 300.14 which follow later in the judgment.
[385] Leaving aside what may be seen as a challenging task to call each employee who had at any time inspected and recorded each element of the primary data, questioning the ability of Department personnel to observe a gauge post, operate and calibrate equipment correctly, or otherwise prove that the equipment was indeed working correctly, would place an overwhelming evidentiary burden in cases involving technical or scientific data attained through physical observation over a sustained period of time. Despite this, I consider that the reliability of data derived from physical observations will increase when an identifiable correlation or relationship exists between the variables being observed and where that correlation is capable of statistical validation using established scientific processes that account for possible error or uncertainty. As noted above, I consider and find that the validity of any such correlation or relationship will also be dependent on whether the size of the data set is sufficient. Further, I note Mr McDermott’s evidence that he compared the manual Gauge Post readings taken by Department staff on four occasions with the corresponding river height data collected by the automatic sensor, noting that the minimal discrepancies in each case (if any) were consistent with the WaterNSW drift tolerance policy and had been accounted for in his calculation of uncertainty.
Ground 2(e) – The evidence of Mr McDermott
(i) examined the real time data and adjusted data for the Bourke gauge;
(ii) assessed the margin for error;
(iii) explained the role of AS3778 in the calculation process; and
(iv) created his own rating curve and undertaken his own calculations.
[363] Before turning to the discrete issues raised by the parties, I note that particular care must be taken when approaching scientific evidence in criminal trials. In assessing the reliability of Mr McDermott’s assessment methodology, I am satisfied that his evidence is not of a character which introduces a risk of confirmation bias, as each step within Mr McDermott’s uncertainty analysis and the creation of the McDermott Rating Curve has been premised on objective standards. For example, the calculations and process undertaken by Mr McDermott has been derived primarily from an Australian Standard which provides detailed guidance on methods to assess flowrate and measurement uncertainty. Similarly, Mr McDermott’s decision to select 20 gaugings as part of his analysis was recommended by a WaterNSW Operational Procedure that indicated that this number should be considered for statistical validity.
(i) an appropriate margin for error was provided in Mr McDermott's assessment of uncertainty and that his calculations took into account any deviations in gaugings data from rating table 300.14 around a flowrate of 4,894 MLD;
(ii) Mr McDermott conducted a comprehensive assessment of the uncertainty associated with flowrate measurement;
(iii) Mr McDermott specifically examined flowrates around the range of 4,894 MLD in order to prevent very high or low flowrate data affecting his calculations;
(iv) in any of the circumstances under which the errors identified by Dr Martens might have been introduced, Mr McDermott had quantified that total error as being not greater than 12.4% for gauging data in a flowrate of 4,894 MLD; and
(v) rating table 300.14 was based on gaugings taken by a range of instruments at different times and over a substantial period of time, and that these were factors which added to its strength as a reference.
[409] Whilst I have made separate findings above in relation to specific areas of disagreement between the experts, I consider that Mr McDermott did, as the [respondent] submits, provide clear and reasoned explanations for agreeing (and on occasion disagreeing) and included detailed reference to AS3778 and the processes and practices employed by WaterNSW and confirmed the veracity of these practices including the underlying gaugings data.
Submissions of the appellants
Ground 1
(i) there was substantial scope for human and other error in the gauging process;
(ii) small errors could have a drastic effect on the reliability of the flow curve and rating table; and
(iii) the flow curve necessarily depended upon the reliability of the underlying gauging node points.
(i) preparing an accurate survey of the cross-section of the river at the gauge;
(ii) measuring the flowrate at selected points in the cross-section;
(iii) determining how a single flowrate figure was to be settled upon, having regard to the variety of individual flowrate measurements which were taken at the cross-section; and
(iv) determining what river height should be identified as corresponding to the single flowrate figure that was adopted.
(i) the location and number of points at which measurements were taken;
(ii) the exercise of judgment concerning where the variations were to be charted, and those which could be ignored on the basis that they were inconsequential;
(iii) the correct recording of measurements; and
(iv) the skill, time and effort devoted by the officer in question to that particular exercise.
(i) single page field reports which were limited in number, and which did not contain the data that the trial judge required in order to assess whether the officer in question had acted with sufficient care, and made sound judgments, so as to render the calculations reliable; and
(ii) a document, namely the rating curve, which recorded the flowrate based upon each of the gaugings on which the flow curve depended.
Ground 2(a)
(i) had engaged in speculation;
(ii) had done no more than raise concerns;
(iii) did not quantify, or qualify, the impact of the potential sources of error that he had identified; and
(iv) did not advance any practicable alternatives to the methodology used by the respondent's officers, with the exception of installing measuring devices at the river cross-section.
Ground 2(b)
Ground 2(c)
Ground 2(d)
Ground 2(e)
Submissions of the respondent
Ground 1
(i) the data in the rating table had been derived from gaugings taken by a range of instruments, at different times, and at different locations;
(ii) any possible inaccuracy was, in these circumstances, rendered insignificant, such that the line of best fit produced by the rating curve was more accurate than any individual gauging;
(iii) the real time height data recorded at the Bourke gauge was regularly reviewed by way of physical observation, and that any variable in excess of 10mm was adjusted;
(iv) there was a strong concentration of 20 gauging points plotted on the rating curve, disclosing an essentially uniform river height in circumstances where each of the 20 points had a level of measurement uncertainty of 10% or less;
(v) gaugings taken after the Bourke gauge was relocated and calibrated were consistent with the established long-term trend, such that, had the movement of the gauge affected its calibration with previous readings, the pattern of node points on the rating curve would have been disturbed, and the absence of any such disturbance confirmed its reliability;
(vi) the calibration and commissioning of the Bourke gauge on 7 June 2016, which was only 2 weeks prior to the commencement of the offending, rendered it highly unlikely that the gauge had deteriorated in such a short period; and
(vii) the evidence established that the highest recorded flowrate of the river at the Bourke gauge during the charge period was more than 1,000ML below the 4,894MLD threshold, and that for most of the relevant period it was substantially lower still.
Ground 2(a)
Ground 2(b)
(i) the permanent installation of devices at various locations within the cross-section of the river at the location of the Bourke gauge was impractical, if not impossible;
(ii) Dr Martens had not identified the number or nature of any devices, nor the array in which they would need to be deployed, in order to achieve the result that he had proffered; and
(iii) the evidence of Dr Martens was subject to the important qualification that even if such an impracticable and elaborate approach were adopted, it would produce only an estimate of the total flow, and even then, would do so only if each device was always operating without error.
Ground 2(c)
Ground 2(d)
Ground 2(e)
CONSIDERATION
Ground 1
Ground 2(a)
(i) uncertainty derived from instrument error and sensitivity;
(ii) potential error arising from human intervention in judgment; and
(iii) uncertainty in the calculation and processes which had been used to produce rating table 300.14.
Ground 2(b)
Ground 2(c)
The distinction between fact and opinion, and what is opinion evidence, are not particularly clear, but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts.
The expression ‘opinion’ is not defined in the Act. In the context of the general law of evidence, 'opinion' has been defined as 'an inference from of observed and communicable data’.
Importantly, [the witness] does not arrive at or form any conclusions, nor does he make any judgments by a process of reasoning from the facts that he observed.
147 Documents produced by processes, machines and other devices in the course of business
(1) This section applies to a document--
(a) that is produced wholly or partly by a device or process, and
(b) that is tendered by a party who asserts that, in producing the document, the device or process has produced a particular outcome.
(2) If--
(a) the document is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence), and
(b) the device or process is or was at that time used for the purposes of the business,
it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document on the occasion in question, the device or process produced that outcome.
(3) Subsection (2) does not apply to the contents of a document that was produced--
(a) for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or
(b) in connection with an investigation relating or leading to a criminal proceeding.
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
References to documents
A reference in this Act to a document includes a reference to:
any part of the document; or
any copy, reproduction or duplicate of the document or of any part of the document; or
any part of such a copy, reproduction or duplicate.
(i) the river flow data stored in Hydstra for the charge period, as well as the real-time height data, real-time flow data, adjusted height data, adjusted flow data and rating table 300.14 were all “documents” within the meaning of the EA. That finding was entirely consistent with the definition of the word “document” in the Dictionary to the EA;
(ii) the documents referred to were based on, and therefore produced by, the process of measurements taken at the Bourke gauge. That finding was clearly open based upon the unchallenged evidence of Mr Cutler, and satisfied the requirements of s 147(1)(a).
(iii) the outcome set out in the documents had been produced by the gauging devices and gauge posts. Again, that finding was clearly open in light of the evidence of Mr McDermott and satisfied the requirements of s 147(1)(b).
(iv) the document formed part of the records of the business of the respondent and that the devices were used for the purposes of that business. Again, that finding was open on the basis of the evidence of Mr Cutler and satisfied the requirements of s 147(2)(a) and (b).
(i) the finding in (i) above was entirely consistent with the definition of “document” in the Dictionary to the EA;
(ii) the finding in (ii) was open on the (unchallenged) evidence of Mr Cutler and was in accordance with s 147(1)(a);
(iii) the finding in (iii) was again open in light of the evidence of Mr Cutler and was in accordance with s 147(1)(b); and
(iv) the finding in (iv) was again open in light of the evidence of Mr Cutler and satisfied the requirements of s 147(2)(a) and (b).
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might--
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
Ground 2(d)
(i) detailed the manner in which gauging stations are surveyed for accuracy;
(ii) explained the procedures followed by the respondent concerning the calibration of the various instruments to be relied upon;
(iii) explained how various documents were created; and
(iv) given “mostly undisputed” evidence regarding the nature of river gauging stations, the construction of rating tables, the general use of the Hydstra database and the Hydrotel system, the generation of data and the processes and procedures undertaken by the respondent to calculate flowrate.
Ground 2(e)
Ground 3 – The trial judge erred by finding that the [respondent] had demonstrated beyond reasonable doubt that it was a condition of the approval in question that water was prohibited from being taken when the flow in the Darling River at the Bourke gauge was equal to a less than 4,894ML/day (Alleged Term).
Ground 4 – In the course of determining that condition issue, the trial judge further erred by:
(a) finding that the evidence established beyond reasonable doubt, that, in a conversation with Mr Wheatley, the appellant had consented to receiving written notice varying or introducing a term into the approval by way of email addressed to a Mr Mark Adams;
(b) finding that the evidence established beyond reasonable doubt that written notice introducing the Alleged Term into the approval was given to the appellant by email dated 23 September 2015 to Mr Adams;
(c) erroneously finding that the respondent had made out its case that the Alleged Term was a condition of the approval by virtue of a combination of:
(i) the operation of clause 3 of Schedule 10 to the Water Management Act 2000 (NSW); and
(ii) the water entitlement immediately preceding the approval containing a differently worded condition of the same effect.
(iii) That finding was erroneous in circumstances where:
(iv) no such case had been advanced by the respondent;
(v) the applicant had not been given the opportunity to consider and be heard on that proposed finding, and had instead conducted his defence on the basis that no such findings was available; and
(vi) in any event, the differently worded condition in the immediately preceding water entitlement was not to the same effect.
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).
THE REASONS OF THE TRIAL JUDGE
Ground 4(a) – The evidence of Mr Wheatley
[265] Having considered Mr Wheatley’s evidence and having observed him giving his evidence, I see nothing in his demeanour during cross-examination that would indicate he did not have an independent recollection of the conversation he deposed to. Although he indicated that some aspects of his memory were unclear, he steadfastly maintained that that the words which he had recorded in the conversation were, at the very least, “to the effect” of the words actually said. While I accept some of the critical commentary made by the [appellants] in relation to aspects of his evidence, I take into account the other evidence that Mr Wheatley gave, more particularly that his employment with WaterNSW since 1999 has involved water licensing and regulation matters, and, as noted in his first affidavit, such roles requiring him to consider and apply the licensing and regulatory provisions of the 1912 Act and the WM Act over many years. I take that experience and familiarity into consideration as a context and background for his conversation with [the first appellant]. He also deposed that he had known [the first appellant] since 2008.
[266] Whilst the precise words deposed to were plain, I do not consider them, in the context of the conversation, as “highly legalistic and idealised” as submitted by the [appellants] and I do not consider the conversation or the words to be artificial. It is not, as the [appellants] submit, simply a conversation between a “farmer and a non-lawyer”. Although it is correct that the conversation did not appear in Mr Wheatley’s earlier affidavits, I do not consider in the circumstances that that is a matter that is persuasive against the veracity of the evidence he has given.
[267] I also observed that while he was willing to make concessions in cross-examination, he was resolute and clear in that the subject conversation related specifically as to who was able to act on [the first appellant’s] behalf or seek information on his behalf and the method of communication. I also accept, as submitted by the [respondent], that Mr Wheatley provided evidence that [the first appellant] nominated Mr Adams as the authorised agent of the [appellants] as well as Budvalt.
[268] I also note that he deposed in cross-examination that “in the ensuing months, Mr Adams lodged several papers on behalf of [the first appellant] and [the first appellant] had signed so I don’t think there is any misunderstanding on this interpretation”. In this regard, I note that there is evidence, of some relevance but not of determinative weight, of email intercourse between Mr Adams (at his email address) and Mr Campbell, a water regulation officer with the Department, which although occurring on 5 February 2016 involved the provision by email to Mr Adams, consequent upon a conversation between Mr Campbell and Mr Adams, a copy of a Notice of Determination of an application to change a water access licence. I also note that the “application holder” was “Budvalt Pty Ltd” and the “application contact” was stated to be “Budvalt Pty Ltd, Peter James Harris, Kindamindi MOREE NSW 2400”. Although after any relevant date his email was used in relation to water access licences held by the [appellants] and Budvalt and it is, at least, indicative of a course of conduct.
[269] I am satisfied beyond reasonable doubt that the conversation occurred in terms to the effect of that which Mr Wheatley deposed and that both limbs of s 8(1) of the ET Act (as applicable at the relevant date) have been satisfied, as I find that at the time the information was given (being the time that the email was sent), it was reasonable in the circumstances to expect that information would be readily accessible and, as a result of my acceptance of the conversation of the evidence of Mr Wheatley, that the provision of the information to Mr Mark Adams was undertaken with the consent of [the first appellant] who, for completeness, provided his consent to that information being given by electronic communication.
Ground 4(b) – The notice to Mr Adams
[259] I am similarly satisfied beyond reasonable doubt that the email attached the Statement of Approval. The Court has been presented with the evidence of Mr Wheatley, who explained the operation of WaterNSW’s Water Licensing System database which is capable of being (and, in the circumstances, was) used to send a “Statement” by way of email to a nominated email address.
[260] Further, I note that, first, the screenshot of the WaterNSW Water Licencing System database entry for Approval 85CA753236 shows that Approval number at the top of the page and that it contains a message stating “Please find attached an updated copy of the Statement of Approval” under a dialogue box titled “Email history”; and, second, the screenshot shows an icon beside the email information of 23 September 2015 which was described by Mr Wheatley in his affidavit as a “Statement”.
[261] I also find that the incorrect reference to “23 Wed 2015” was instead a reference to 23 September 2015, on the basis of Mr Wheatley’s sworn evidence clarifying that the automatic reply from “[xxxx]@pjhsons.com” was received on that same day. It is also apparent that the email address was indeed operated by Mr Adams in light of the later correspondence between that email and the Department.
[271] While it is clear that the [appellants’] solicitors wrote to the Department on 4 July 2014 in terms which provided that correspondence be forwarded to the [appellants] at a nominated PO Box address and that there was subsequent correspondence to the same nominated PO Box, I consider that the documentary history of the email to “[xxxx]@pjhsons.com” which I accept and find (as deposed to by Mr Wheatley) was properly to be dated 23 September 2015, provided by way of attachment, “an updated copy of the Statement of Approval for 85CA753236” and I accept and I find that the documentary material comprising a business record including what has been described as “screenshot from WLS entry for Approval for 85CA753236 sent to [the first appellant] on 23 September 2015” (being document II of Exhibit J), considered with the “automatic reply” document from email address of Mark Adams, satisfies me beyond reasonable doubt that the email to “[xxxx]@pjhsons.com” attached the approval. I further note that Mr Wheatley deposed that document II of Exhibit J was a “copy of the screenshot from WLS [database] entry for Approval 85CA753236” and that he had given evidence of the manner in which WaterNSW generated and stored documentation on WaterNSW’s Water Licensing System database and the manner that such documents are stored and accessed.
[272] For the reasons above, I find beyond reasonable doubt that notification was given by a delegate of the Minister in sending an email with the Statement of Approval attached to Mr Adams. As this notification concerns the Statement of Approval, the effect of this finding is that [the first appellant] was notified that the (unqualified) 4894 Term had been included in the Approval and was therefore operational prior to and during the charge period.
[273] I also accept the [respondent’s] submission and find beyond reasonable doubt that Mr Adams was a person duly appointed by [the first appellant] for the purpose of accepting service of documents, and that Mr Adams was notified of the Approval conditions in the circumstances. Accordingly, by operation of s 394(2) of the WM Act, both [appellants’] can therefore be considered to have been notified, noting that they are also co-occupiers of the land and co-holders of the Approval.
Submissions of the appellants
Ground 4(a)
(i) Mr Wheatley was had been unable to ascribe the date of the conversation with any degree of specificity;
(ii) it was inherently improbable that Mr Wheatley could recall, with any degree of precision, the terms of his conversation, given (inter alia) the time which had elapsed since it occurred;
(iii) the absence of any reference by Mr Wheatley in his earlier affidavits to the conversation;
(iv) the inability of Mr Wheatley to recall who had made the call, and any background to the call; and
(v) his various concessions and he did not have a clear recollection of the precise terms of this conversation with the first appellant.
Ground 4(b)
Submissions of the respondent
Ground 4(a)
(i) carefully observed Mr Wheatley;
(ii) assessed and weighed his evidence; and
(iii) made a series of factual findings, including findings as to Mr Wheatley’s honesty and credibility, which were clearly open, which disclosed no error, and which were not amenable to appellate review.
Ground 4(b)
Consideration
Ground 4(a)
Ground 4(b)
Ground 4(c)
ORDER:
(1) The appeals against conviction are dismissed.
**********
[1] AB 226-230; AB
231-235.
[2] Water NSW v Harris
(No.3) [2020] NSWLEC 18 at [417] (Judgment); AB
225.
[3] Judgment at [13]; AB 96;
AB 523 – 524.
[4] Judgment at
[12]; AB 96; AB 523.
[5] Judgment
at [14]; AB 96; AB 539.
[6]
Judgment at [11]; AB 95.
[7]
Judgment at [11]; AB 95; AB 320; AB
524,
[8] Judgment at [14]; AB
96.
[9] Judgment at [25]; AB
104.
[10] In s 5, paragraph (b)
of the definition.
[11] AB 1034
– AB 1036.
[12] Judgment at
[27]; AB 105.
[13] Judgment at
[28]; AB 105.
[14] Judgment at
[14]; AB 96.
[15] AB
1038.
[16] AB
523.
[17] Judgment at [42]; AB
109.
[18] Judgment at [42]; AB
109.
[19] Judgment at [42]; AB
109 – 110.
[20] The 1912
Licence.
[21] AB
1032.
[22] AB
1031.
[23] AB
1033.
[24] AB 1040; The 1912
licence is the 8th entry in the schedule and is cross-referenced to the
Approval.
[25] AB 1393.4 –
AB 1393.20.
[26] AB
536.
[27] AB 1041 –
1047.
[28] AB
530.
[29] AB 520 –
521.
[30] AB
1048.
[31] AB 530;
1048.
[32] AB
530.
[33] AB
1048A.
[34] Judgment at [261]; AB
179.
[35] AB 1043 –
1047.
[36] T 1393.36 – T
1394.39..
[37] AB1395.21 –
1396.29.
[38] Commencing at AB
1396.46 – 1397.35.
[39] See
for example AB 1396.4; 1396.8;
1397.20.
[40] AB 1401.45 –
AB 1401.49.
[41] AB 1402.14
– AB 1402.39.
[42] AB
1407.31 – AB 1407.39.
[43]
AB 392.
[44] AB
393.
[45] AB
394.
[46] AB
483.
[47] AB
394.
[48] AB 393 -
394.
[49] Judgment at [292]; AB
187.
[50] AB
492.
[51] Judgment at [311]; AB
191.
[52] AB
394.
[53] AB 492 –
493.
[54] AB
487.
[55] AB
495.
[56] AB 704 –
723.
[57] At
[51].
[58] AB 724 –
726.
[59] AB 906 and
following.
[60] AB
909.
[61] AB
913.
[62] AB
930.
[63] AB
394.
[64] AB 486 –
487.
[65] AB 486 –
487.
[66] AB 488 –
489.
[67] AB 368 –
369.
[68] AB
394.
[69] AB
394.
[70] AB
394-395.
[71] AB
396.
[72] AB 489. The table is
reproduced at AB 699 –
703.
[73] AB 493-494. The
spreadsheet is reproduced at AB 704 –
723.
[74] AB 497. The table is
reproduced at AB 727 –
786.
[75] Commencing with entry
676 at AB 746 and ending with entry 1251 at AB
763.
[76] AB
487.
[77] AB
487.
[78] AB
1056.
[79] AB 1351.14 – AB
1351.18.
[80] AB
1060.
[81] AB
1060.
[82] AB
1060.
[83] AB 1065 -
1066.
[84] AB
1077.
[85] AB
367.
[86] AB
367.
[87] AB
373.
[88] AB
378.
[89] AB 370 –
373.
[90] AB
380.
[91] AB 1348.42 – AB
1348.44.
[92] AB 1348.47 –
AB 1349.4.
[93] Commencing at AB
603.
[94] AB
609.
[95] AB
609.
[96] AB
609.
[97] AB 609 –
611.
[98] AB
611.
[99] AB
612.
[100] AB
613,
[101] AB 613 –
615.
[102] Commencing at AB
620.
[103] AB 1353.31 –
1353.40.
[104] AB
622.
[105] AB 1439.3 – AB
1439.50.
[106] AB
364.
[107] AB
620.
[108] AB 1348.9 – AB
1348.19.
[109] AB 1349.6
– AB 1349.19.
[110] AB
1350.23 – AB
1350.27.
[111] AB 1422.34
– AB 1423.9.
[112] AB
1423.13 – AB
1423.28.
[113] Judgment at
[89]; AB 128-129.
[114]
Judgment at [306] – [309]; AB 190 –
191.
[115] Judgment at [290]
– [311]; AB 186 –
191.
[116] Judgment at [350];
AB 204.
[117] Judgment at
[350]; AB 204.
[118] Judgment
at [366]; AB 208.
[119]
Judgment at [370]; AB
210.
[120] Judgment at [377]
– [378]; AB 211 –
212.
[121] Judgment at [378]
– [386]; AB
212-215.
[122] Judgment at
[382] – [388]; AB
213-216.
[123] Judgment at
[402] – [408]; AB 220 –
223.
[124] Judgment at [409]
– [413]; AB 223 –
224.
[125] Judgment at [414]
– [416]; AB
224-225.
[126] Judgment at
[310]; AB 191.
[127] Judgment
at [340] – [347]; AB 201 –
203.
[128] Judgment at
[340]-[347]; AB 210 –
203.
[129] Judgment at [386];
AB 215.
[130] Judgment at
[403]; AB 221.
[131] Judgment
at [411]; AB 233 –
224.
[132] Judgment at [313]
– [316]; AB
192-193.
[133] Judgment at
[327]; AB 196.
[134] Judgment
at [328]; AB 196 –
197.
[135] Judgment at [329]
– [332]; AB 197 –
198.
[136] Judgment at [62]; AB
114.
[137] Judgment at [325];
AB 196.
[138] Judgment at
[326]; AB 196.
[139] Judgment
at [338]; AB 199.
[140]
Judgment at [365] – [366]; AB
208.
[141] Judgment at [385];
AB 214.
[142] Judgment at [65];
AB 115; Judgment at [326]; AB
196.
[143] Judgment at [339];
AB 199 – 201.
[144]
Judgment at [363]; AB
207.
[145] Judgment at [377]
– [386]; AB
211-215.
[146] Judgment at
[384]; AB 214.
[147] Judgment
at [406] – [408]; AB 222 –
223.
[148] Judgment at [409];
AB 223.
[149] (1991) 34 NSWLR
129 at 130.
[150] (1996) 64 FCR
73 at 75; (1996) 136 ALR
627.
[151] [2006] NSWCA 158 at
[122].
[152] [2011] VSC
272.
[153] At
[48].
[154] At
[49].
[155] At
[50].
[156] [2016] VSC 47 at
[55] – [56].
[157]
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at
[91].
[158] At [73]; AB
21.
[159] Judgment at [263]; AB
179.
[160] Judgement at [265]
– [269]; AB 180 –
181.
[161] Judgment at [257]
– [258]; AB 177 –
178.
[162] Judgment at [259]
– [261]; AB 178 –
179.
[163] Judgment at [271]
– [273]; AB 182 –
183.
[164] (1959) 101 CLR 298;
[1959] HCA 8.
[165] Bulga
Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at
[96].
[166] See AB 644 and AB
1438 to AB 1439.
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