In a judgement that was handed down by Justice Craig on 28 August 2014 (Environment Protection Authority v Ashmore (2014) NSWLEC 136. a company director has been convicted of two "waste" offences in the Land and Environment Court in very unusual circumstances: namely that he was allegedly "pressured" into committing the offences by implied threats of violence by a business associate. To our knowledge, this is the first case where claims of duress have been put forward as a mitigating factor in an environmental prosecution in NSW. Although the Court found the defendant's assertions that he was in fear that either he or members of his family might be harmed if he did not comply with his business associate's demands that he act illegally, these claims were not sufficient in the end to enable the defendant to escape having a criminal conviction or the imposition of significant monetary penalties.
The background of the case was that the defendant was the director of two related companies, one of which was involved in civil engineering works and the other in the transport of waste. The civil engineering company was awarded a contract calling for the bulk excavation of asbestos contaminated soil at a refinery. Under the terms of the contract, the civil engineering company was also responsible for supervising the loading of trucks to transport the waste to a disposal site. The contract contained conditions requiring the company to comply with all legislation regarding the disposal of asbestos, and to provide copies of waste receipts to confirm that the material had been taken to a properly licensed disposal site.
On the evening before the excavation of the asbestos-contaminated material was scheduled to begin, the defendant had a telephone conversation with his business associate during which the associate informed him that drivers of the trucks carrying the waste material would be instructed to transport the waste to a rural property, and that none of the material would be taken to a licensed landfill. When the defendant told his associate that the proposed course of action would be "stupid", the associate made statements to him that he said caused him to fear that there would be retribution against him and his family if he did not go along.
In the next several weeks, nearly 4,000 tonnes of material that originated on the refinery site was transported to the unlicensed rural property. The defendant asserted that he did not take steps to prevent the unlawful transport of the waste due to his fear of the business associate.
Subsequently, the business associate provided false weighbridge dockets to the defendant which stated that the material that had been excavated from the refinery site had been taken to a properly licensed waste facility. The defendant forwarded these false dockets on to the company that had engaged his own company to excavate the waste. The falsity of these dockets was quickly discovered, and the defendant's company was thereafter barred from carrying out any further work at the refinery site.
The charges that were brought by the EPA were filed directly against the defendant, and not his company, under the so-called "executive liability" provisions of the Protection of the Environment Operations Act.
These provisions, which are contained in section 169 of the POEO, specify that whenever a corporation commits an offence against the Act,, the directors of the company will be taken also to have contravened the Act unless the director is able to establish that she or he was not in a position to influence the conduct of the company or that she or he "used all due diligence to prevent the contravention". The defendant was charged with a breach of section 143 of the POEO for permitting waste to be transported to a place that could not lawfully be used as a waste facility, and with an offence against section 144AA(1) for providing information to another person about the waste that was "false in a material respect" (in this case, sending the false dockets which stated that the waste had been taken to a licensed waste disposal site.
Despite the fact that Justice Craig was persuaded that the defendant had committed the offences due to a genuine sense of fear that he and his family might be harmed by the business associate, he did not find that the overall circumstances of the case provided a basis for exonerating the defendant entirely. Accordingly, Justice Craig rejected the defendant's suggestion that the charges should be dismissed under section 10 of the Crimes (Sentencing Procedure) Act without conviction or penalty. Justice Craig indicated that he might have given greater weight to the allegations of intimidatory conduct on the part of the business associate if the defendant had disclosed that conduct to the EPA at an early stage when he had the opportunity to do so (during initial telephone calls from the EPA when he was questioned about the circumstances concerning the transport of the waste to the unlicensed rural property) or immediately to the police. Thus, instead of dismissing the charges entirely, Justice Craig saw fit to impose penalties of $36,000 against the defendant for the two offences.
The plain moral that is brought home by Justice Craig''s judgement is that a person who is coerced into committing an environmental offence through express or implied threats of violence may nonetheless be held responsible for the offence unless the person promptly tells the EPA and the NSW Police about the circumstances. This may appear to be a high expectation to place upon someone who is in a state of fear, but it is clearly an expectation that must be met if the person who has been forced into committing an environmental rime hopes to avoid prosecution and punishment.
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