SUPREME COURT OF QUEENSLAND 

1. McMURDO P:  Josef Ludwig Schembera was found guilty on 2 August 2007 after a four day jury trial of an offence against s 493 Environmental Protection Act 1994 (Qld) ("the EP Act").  He was charged that, between 15 and 22 April 2004 Papillon Mining & Exploration Pty Ltd ("Papillon Mining") being the recipient of an Environmental Protection Order ("EPO") dated 14 April 2004, did wilfully contravene the order, and that he, being an executive officer of Papillon Mining, failed to ensure that it did not wilfully contravene the EPO.  He was fined $75,000 to be paid within six months, in default six months imprisonment, and a conviction was recorded. 

2. He appeals against the jury's verdict contending that he has suffered a miscarriage of justice because the summing-up by the learned trial judge was unbalanced, unfair and failed to fairly place his defence before the jury. He also contends that the judge erred in the direction he gave to the jury as to their approach to the only expert medical evidence led as to Mr Schembera's mental health. He applies for leave to appeal against his sentence, contending that it was manifestly excessive in all the circumstances, especially bearing in mind his mental state at the time of his offending and his limited means to pay a substantial fine.

3. It is now not disputed that Papillon Mining did breach the EPO of 14 April 2004. The real issues at trial were first, whether the prosecution established beyond reasonable doubt that the breach was wilful. If it was, the next and real issue was whether Mr Schembera, as Papillon Mining's executive officer, had discharged his onus under s 493(4)(b) of the EP Act to show that he was "not in a position to influence the conduct of the corporation in relation to the offence". Before directly turning to Mr Schembera's grounds of appeal, it is necessary to set out the relevant law, evidence and portions of counsel's addresses and the judge's summing-up.

The relevant provisions of the EP Act^[1]

4. The object of the EP Act is "to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends ("ecologically sustainable development")".^[2]

5. Chapter 7 of the EP Act deals with environmental management, Pt 5 of which deals with environmental protection orders. An environmental protection order may be issued under s 358 of the EP Act. The recipient of such an order must not wilfully contravene it; the maximum penalty is 2000 penalty units (a fine of $150,000) or two years imprisonment.^[3]  The term "recipient" here means "the person to whom the order is issued".^[4]  The term "wilfully" means intentionally; recklessly or with gross negligence.^[5]  (The case against Mr Schembera was based only on recklessness.)  Chapter 10 of the EP Act deals with legal proceedings, Pt 2 of which deals with executive officer liability and comprises s 493 only, which relevantly provides:

"Executive officers must ensure corporation complies with Act

(1)The executive officers of a corporation must ensure that the corporation complies with this Act.

(2)If a corporation commits an offence against a provision of this Act, each of the executive officers of the corporation also commits an offence, namely, the offence of failing to ensure the corporation complies with this Act.

Maximum penalty—the penalty for the contravention of the provision by an individual.

(3)Evidence that the corporation committed an offence against this Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with this Act.

(4) However, it is a defence for an executive officer to prove—

…

(b)the officer was not in a position to influence the conduct of the corporation in relation to the offence."

6. The term "executive officer" of a corporation here means:

"A person who is

(i)a member of the governing body of the corporation; or

(ii)concerned with or takes part in the corporation's management whatever the person's position is called and  whether or not the person is a director of the corporation."^[6]

Counsel's opening addresses

7. Mr Devlin SC appeared as prosecutor at trial and for the respondent in this appeal. His opening address canvassed the following matters relevant to this appeal. He anticipated the central issue in the trial would be whether Mr Schembera demonstrated that he was not in a position to influence the conduct of Papillon Mining in relation to its contravention of the EPO between 15 and 22 April 2004. The EPO was served on Papillon Mining on 16 April 2004. Papillon Mining did not comply with it. Papillon Mining's non-compliance was wilful in that it was "conscious disregard for known or obvious risks". The prosecution would call a general practitioner, Dr John Harland, who treated Mr Schembera in April 2004 for depression. Whilst Mr Schembera may have been incapacitated in some ways, other witnesses would be called to show that during the relevant period Mr Schembera was able to manage his affairs and to influence the conduct of Papillon Mining.  These witnesses were Mr Schembera's bank manager, Mr Halliday; Mr Andrew Howard, Ms Nerida Budd and Mr McConnell from the Environmental Protection Agency (EPA); Rachel Wolters, who was employed at the mine site by Mr Schembera's company, Papillon Jewellery Pty Ltd ("Papillon Jewellery"); and three other directors of Papillon Mining, Mr Foley, Mr Newbery and perhaps Mr Morison.  The prosecution was relying on Mr Schembera's failure to inform his co-directors of the EPO and to give employees and representatives of Papillon Mining reasonable and practical directions and the means to achieve compliance with the EPO which was served on Papillon Mining on 16 April 2004.

8. The trial judge gave leave to Mr M J Byrne QC, who appeared for Mr Schembera at trial and in this appeal, to give an opening address to the jury. Mr Byrne's address took almost half the time of Mr Devlin's. Mr Byrne canvassed the following matters. He asked the jury to focus on the time period specified in the indictment, between 15 and 22 April 2004. One issue was whether Papillon Mining wilfully contravened the EPO.  Another was whether Mr Schembera established that he was not in a position to influence the conduct of Papillon Mining because of his mental health between 16 and 22 April 2004.  He emphasised that the prosecution would be calling Dr John Harland, who had been Mr Schembera's treating doctor during April 2004 and for some years beforehand and afterwards.  He referred to the evidence he expected Dr Harland to give about the symptoms of depression and its response to medication.  Dr Harland would give evidence that Mr Schembera consulted him on 7 April 2004.  He considered Mr Schembera was then suffering from severe depression.  He prescribed two drugs, Murelax, a benzodiazepine for anxiety and stress, and Lexapro, an anti-depressant drug specifically for the depression caused by a chemical imbalance in the brain.  Dr Harland saw Mr Schembera again on 13 April 2004 and noticed no improvement.  He increased the dosage of both drugs.  Dr Harland saw Mr Schembera again on 16 April 2004 and prescribed more Murelax.  Dr Harland saw him again on 19 April 2004 and noticed a slight improvement but, in his opinion, Mr Schembera remained between 80 to 90 per cent incapacitated and was incapable of formulating a plan to achieve results.  At this time he was taking between six to nine Murelax tablets a day.  Dr Harland saw him again on 4 and 26 May 2004 by which time Mr Schembera was excessively tired but had improved to the extent of being able to function to formulate a plan.  Mr Byrne explained to the jury that, unusually, the judge gave him leave to make the opening address immediately after the prosecution opening so that they could consider the prosecution evidence, knowing the real issues in the trial.

The evidence

9. The Environmental Protection Agency ("EPA") initially issued Papillon Mining an environmental authority to conduct the Golden Surprise Mine at North Arm, Yandina in south-east Queensland on 3 August 2001,^[7] and a subsequent environmental authority on 10 March 2004.^[8]  Each authority specified that tailings (the rubbish left after treating the mined gold) were not to have a concentration of total cyanide of more than one part per million ("ppm").

10. Mr Schembera was at all relevant times a director of Papillon Mining^[9] and managed the mine through his family company,^[10] Papillon Jewellery.  He was the site supervising executive ("SSE") under s 49 of the Mining and Quarrying Safety and Health Act 1999 (Qld) at relevant times up until 19 April 2004 when he resigned from that role^[11] and was replaced by Rachel Wolters.^[12] 

11. Up until 19 March 2004, EPA officers directly contacted Mr Schembera concerning Papillon Mining's operation of the mine. An ongoing concern of the EPA was the mine's treatment of tailings. On 1 May 2003 the EPA acceded to Mr Schembera's request on behalf of Papillon Mining^[13] to amend the environmental authority under the EP Act to provide that "weak acids dissociable (WAD) cyanide is less than 1 mg/litre for tailings water and is less than 1 mg/kg for tailings (sediment)".^[14]  On Monday 23 June 2003 Papillon Mining through Mr Schembera suggested a tailings management plan which formed part of the environmental authority.  It proposed to treat the tailings in a way which would leave them completely free of WAD cyanide content (0 mg/kg or 0 ppm).  The plan recorded that the mine's detention dam containing the tailings was 60 metres by 25 metres wide; it had an active depth in excess of 1.5 metres and an additional freeboard of 1 to 1.5 metres above the spillway level; the freeboard would be modified to a consistent 1 metre. 

12. Andrew James Howard was at relevant times a senior environmental officer employed by the EPA on the Sunshine Coast.  He explained that "total cyanide includes all cyanide compounds … whereas WAD cyanide … addresses the amount of cyanide that is soluble in water and it is actually an unstable form of cyanide, which is toxic to most species of aquatic organisms such as fish."  Mr Schembera's suggested tailings management plan (part of the environmental authority) provided that there would be a minimum 1 metre freeboard all the way around the tailings detention dam.  Condition 3 of Sch A of the environmental authority required that Papillon Mining comply with each of the Standard Environmental Conditions in the Code of Environmental Compliance for Mining Lease Projects of January 2001.  Mr Howard said that the Code also provided that hazardous waste dams should maintain a minimum freeboard of 1 metre.  The term "freeboard", Mr Howard explained, refers to the vertical distance between the top of the dam wall and the level of the liquid and/or solids within the dam.  This helps to minimise the catchment area to a dam so that more storm water is diverted around it instead of adding to its hazardous contents and to decrease the likelihood of the contents overflowing the dam wall.  On 25 February 2004 samples taken from Papillon Mining's dams were analysed as containing <0.004 mg/L WAD cyanide in the dam water and 14 ppm of WAD cyanide in the dam sediment. 

13. Mr Howard met with Mr Schembera on 19 March 2004. Mr Schembera put forward a series of apparently rational and practical proposals to address the problem of cyanide levels in the tailings dam. Mr Howard said he would return in the week beginning 22 March 2004. Mr Howard returned to the mine on Friday 26 March 2004.  Mr Schembera was not on site and he was told he was ill.  On all prior occasions when Mr Howard had visited the site, Mr Schembera had been present.  Because grass was growing on the dam walls it was difficult to determine the height of the freeboard but at the spillway it was substantially less than 1 metre.  He considered that, if a storm event occurred, the capacity for the dam to hold much storm water was restricted. 

14. On 2 April 2004 Mr Howard sent a fax to Mr Schembera^[15] setting out his concerns about non-compliance with the environmental authority, with their agreement of 23 February 2004 and with the tailings management plan.  Mr Howard asked Mr Schembera to address these issues and respond by 7 April 2004.  Mr Schembera did not respond.

15. Mr Howard next visited the site on 13 April 2004. Mr Schembera was not present. Mr Howard measured the freeboard as barely 0.4 metre at its lowest point. It was clear that there had been a recent spill or overflow from the dam which appeared to have channelled into Tiger Creek, a tributary of the North Maroochy River.  Mr Howard spoke to Mr Schembera's assistant, Ms Rachel Wolters and to Mr Andrew Lewis, the mill manager.  Mr Howard and EPA engineer and manager (dam safety), Mr Russell McConnell, informed Ms Wolters and Mr Lewis that the situation was serious; the dam was full; it had reached capacity and something had to be done about it "pretty well straightaway".   

16. Mr Howard prepared an environmental protection order under s 360 of the EP Act on 14 April 2004.^[16]  The EPO required Papillon Mining to immediately treat any liquids located in the tailings storage facility containing cyanide in excess of 1 ppm with hydrogen peroxide so as to lower the cyanide level to below 1 ppm (requirement (iii)).  It also immediately required Papillon Mining to remove and transfer tailings, deposits or liquids from the tailings storage facility to an impermeable receptacle to prevent or minimise the likelihood of overflow (requirement (iv)).

17. The EPO required Papillon Mining within 48 hours to ensure that the crest of the dam walls was mown so that the level of freeboard could be determined (requirement (vi)); ensure the spillway was located at the lowest section (requirement (vii)) and did not erode and was free from obstruction (requirement (ix)); and to create a channel within the contents of the tailings dam to allow retained surface-floating liquids to flow from the spillway towards the south-eastern end of the dam where more freeboard existed (requirement (x)).

18. The EPO also required Papillon Mining within five days to re-instate a minimum of one metre of freeboard at the tailings storage facility by either raising the dam, removing some or all of its contents or another lawful option which had the written approval of the administering authority and which achieved a freeboard of at least one metre (requirement (xi)). Any required engineering works were to be designed, constructed and supervised by a registered professional engineer (requirement (xiii)).

19. Mr Howard served the EPO on Papillon Mining on the morning of 16 April 2004 by giving copies to Ms Wolters and Mr Lewis. Mr Howard went through each of the conditions with them to ensure they each understood its effect. That afternoon, Mr Howard conducted a Merck cyanide indicator test which showed that water near the spillway of the dam had concentrations of cyanide of between three and 10 mg/L.  This meant that Papillon Mining had not met EPO requirement (iii).  At places the freeboard was only 0.15m.  Ms Wolters and Mr Lewis had taken steps to begin to meet some of the EPO's requirements.  Mr Howard re-emphasised to them that non-compliance with the EPO was most serious and requested them to relay that information to Papillon Mining's directors.  They told Mr Howard they had no knowledge of Mr Schembera's participation in Papillon Mining's management. 

20. When Mr Howard returned to Papillon Mining's mine site on 19 April 2004 he found that the freeboard was only 0.25 metre. The Merck cyanide indicator test result that day had improved, showing one to three mg/L of cyanide. Mr Howard further advised Ms Wolters about what needed to be done to meet the requirements of the EPO.

21. He next returned to the mine site on 21 April 2004. Papillon Mining had not complied with the EPO. The freeboard was in places only about 0.4 metre. The Merck strip test still showed a concentration of cyanide in the water of three to 10 mg/litre.  Ms Wolters and Mr Lewis explained that they had been attempting to meet the requirements of the EPO; Papillon Mining had contacted consultants to look at raising the dam wall and disposing of the stabilised tailings to a disused mine shaft on site. 

22. When Mr Howard visited the site on 28 April 2004, some treated tailings water had been pumped into a Cleanaway truck which was leaving the site. The freeboard was as little as 0.3 metre. Tests showed that the level of cyanide in the dam was less than one ppm.

23. When Mr Howard returned to the site on 4 May 2004, he was shown receipts indicating that 28,000 litres of treated tailings had been removed by Cleanaway. Despite this, the freeboard was at 0.3 metre. Samples from the tailings dam were taken and later analysed as containing a very high total cyanide level (30.5 mg/L) and a very high WAD cyanide level (22.8 mg/L).

24. In cross-examination, Mr Howard agreed that he first met Mr Schembera in March 2003; he was always polite and courteous. His last conversation with Mr Schembera about the tailings dam was by telephone on 19 March 2004.  At this time, Mr Schembera was taking an active interest in the workings of the mine and seemed to be attempting to keep Mr Howard fully informed.  He agreed that Mr Schembera had been recorded as the person who contacted the EPA hotline to report the overflow from the dam which Mr Howard noted when he visited the site on 13 April 2004.  On the morning of 19 April 2004, Ms Wolters told Mr Howard that she was taking over from Mr Schembera as SSE.  Mr Howard coincidentally met Mr Schembera and his wife on 4 May 2004 when Mr Schembera was on his way to visit his doctor; Mr Howard wished him a full recovery.

25. Ms Nerida Budd was at relevant times the Sunshine Coast district manager of EPA.  On 14 April 2004 Mr Schembera telephoned her about the mine's non-compliance issues with the environmental authority.  She advised him that the mine should be shut down immediately.  He said that this would mean the mine would close permanently and enquired if there was another way to achieve compliance.  He said that he would contact the EPA's Russell McConnell to receive further advice.  Ms Budd described Mr Schembera's answers to her questions and statements that day as responsive; "sensible responses back in the flow of the conversation".  Although he had an accent, Mr Schembera spoke clearly; she had no difficulty understanding him.  In cross-examination she agreed that he was seeking to positively co-operate with the EPA and asked for her advice as to how to achieve compliance. 

26. Ms Rachel Wolters was at relevant times an administration officer at the mine. Her duties were mainly clerical and administrative and included book-keeping and taxation matters. She worked in an office at the mine at North Arm, Yandina. Mr Schembera appointed her as mine safety officer.  When she received a fax from the EPA dated 2 April 2004 requesting feedback on environmental compliance issues,^[17] she handed it to Mr Schembera.  He read it and responded, "[F]ull of shit."  He kept the fax.  On 7 April 2004 he gave instructions, contained in the mine record book and displayed in two areas at the mine site, that, if a mining inspector or an EPA officer came to the mine site unannounced, staff were not to answer questions or supply information without Mr Schembera's permission; he was to be notified immediately and would endeavour to return to the mine "as soon as possible"; any breach of that direction was to result in instant dismissal and court action.^[18] 

27. On 16 April 2004 Mr Howard served the EPO on Ms Wolters and Mr Andrew Lewis. They took it to Mr Schembera at his home, about 30 metres from the mine site. Mr Schembera said, "They can't do this." He kept the EPO. He gave her no instructions as to how Papillon Mining was to comply with the EPO. On Friday, 17 April 2004 she falsely told Mr Howard that the tailings had been treated with hydrogen peroxide.  Papillon Mining did not comply with the EPO, but some attempts at partial compliance were made.  She outlined various steps then taken by Papillon Mining to comply with the EPO.  For example, Mr Schembera's son, Franz Schembera, cleaned up around the dam area with a small digger.  She apprehended that Mr Schembera had organised this.  The tailings dam, however, remained nearly full throughout this period.  Papillon Mining removed some water from the dam and stored it in tanks and in the mill floor.  Mr Brendan Foley, another director of Papillon Mining arrived at the mine the following week.  On 20 April 2004, a number of directors, excluding Mr Schembera, discussed the situation with Ms Wolters.  On 21 April 2004, the remaining directors received a report from engineers, Golder Associates, as to the handling of the tailings;^[19] they also obtained a quote from Transpacific Industrial Solutions Pty Ltd for $27,696 for removal of the contents of the dam.^[20]

28. After she gave Mr Schembera the EPO on Thursday, 16 April 2004, she later returned to his home to discuss with him the transferring of money from one account to another to pay an employee who was leaving. Mr Schembera instructed her not to have any contact with the other directors of Papillon Mining. She ultimately decided that she had to contact the other directors, Brendan Foley and Peter Newbery. On 19 April 2004 Mr Schembera emailed all shareholders and directors of Papillon Mining in terms including the following:

"I feel not capable to perform my position as SSE under the Mining Act.

I cannot think clearly.  I cant't do this anymore.

Please get somebody to look after the mine."^[21]

29. Mr Schembera sent a further email on 19 April 2004 to the same recipients stating:

"… as I cannot be in control of operations, my company Papillon Jewellery Pty. Ltd. is also not in control.

Therefore it is necessary for PME to take control of all purchasing and staff matters as of today.

Papillon Jewellery Pty. Ltd. is therefore not the operator of the Golden Surprise Mine as of Monday 19^th April 2004.

Future arrangements will have to be worked out as soon as I am well again."^[22]

30. Mr Newbery and Mr Foley appointed Ms Wolters the SSE on about 19 April 2004.^[23]  Although he was at home, she liaised closely with Mr Schembera at this time.  On 19 and 20 April she met with him about administrative matters, including wages and shifting the staff wage responsibility from Papillon Jewellery to Papillon Mining.  She had made an error in calculating wages which Mr Schembera corrected.  He gave clear instructions to her and she acted in accordance with them.  She tried to visit him every couple of days to keep him informed of events and to seek his advice. 

31. In cross-examination she agreed that she, Mr Lewis and contracting engineer Cliff Edmonds did all they could to comply with the EPO, as did the directors other than Mr Schembera. Andrew Lewis shut down the mill on 14 April 2004. During the week of 12 April 2004, Mr Schembera was at home but he remained accessible to her at all times. She agreed that on 13 April 2004 she told Mr Howard that Mr Schembera was very ill at home but she said this because Mr Schembera told her to; it was not true.  She did not admit this previously because she was "covering" for Mr Schembera.  She agreed that she said in an interview with an officer from the EPA that there was no active SSE due to Mr Schembera's illness but she did not really believe that he was ill.  She said that "he was in and out of the office; he was operating his computer; he was into the MYOB accounts constantly."  She said she understood the symptoms of major depressive illness but she had never seen those symptoms in Mr Schembera. 

32. Mr Russell McConnell, a civil engineer specialising in geotechnical engineering, was the EPA's manager (dam safety) in 2003 and 2004 and had held that position since 1997. He had dealings with Mr Schembera about the operation of the Golden Surprise Mine. In company with Andrew Howard and Peter Gleeson from the EPA he attended the mine site on 13 April 2004. On 14 April 2004 he spoke to Mr Schembera by telephone.  Mr Schembera asked him what had to be done to store the tailings down a mine shaft on site.  Mr McConnell explained that water in the shaft would first have to be removed before tailings could be placed in the shaft and it would have to be demonstrated that the water from the shaft was of sufficient quality before it could be discharged.  It would also be necessary to contact the Department of Natural Resources and Mining about the change as it had safety implications.  Mr McConnell said he would speak to Nerida Budd about the issue before progressing the matter and asked Mr Schembera to phone him later.  He had no difficulty understanding Mr Schembera.  Their conversation related to an earlier conversation with employees at the mine on 13 April 2004 when Mr Schembera was absent.  He had previously spoken to Mr Schembera in April 2003.  He did not think there was any change between April 2003 and April 2004 in the way he made himself understood to Mr Schembera.  There was nothing to indicate that Mr Schembera was not understanding their 14 April 2004 conversation which lasted less than 15 minutes.  In cross-examination he agreed that on Tuesday, 13 April 2004 Ms Wolters told him that Mr Schembera was confined to bed with high blood pressure. 

33. Mr Gregory Halliday was at relevant times Mr Schembera's bank manager. He had regular contact with Mr Schembera in April 2004 and spoke to him on 14 April 2004; he thought this contact was in person rather than by phone. Mr Schembera told him that he had had a health scare; his accountant had valued his share of the gold mine at $1.2 million; his share of it was for sale and his accountant was attempting to find a suitable buyer. Mr Halliday responded that the bank could not be confident in an early sale and would not be advancing any more funds in anticipation of one. Mr Schembera enquired whether the bank would lend money on the equity it held over Mr Schembera's other properties. Mr Halliday responded that the bank was exposed to 80 per cent of its current valuations. They discussed the possibility of Mr Schembera's son selling a block of land at Kawana Waters in which he had $100,000 equity. It was agreed, however, that Mr Schembera needed short term cash and the sale of the Kawana Waters land would take time. They discussed how Mr Schembera would put funds coming to him into various accounts. Mr Halliday emphasised that the bank was not prepared to let Mr Schembera's accounts drift into further debt. Mr Schembera said he would keep Mr Halliday informed of the progress of the sale of the gold mine or his son's land. It was agreed that if he could obtain an unconditional contract of sale on either of those assets he would contact Mr Halliday who would then try to arrange some short term assistance pending the receipt of funds from the sale. Mr Halliday did not consider his dealings with Mr Schembera on 14 April were any different from similar conversations he had previously had with him on the same topic. Mr Halliday stated:

"I left him in no doubt as to what the bank's position was and he appeared to fully understand what I was saying.

… it was a normal conversation as far as I was concerned."

34. Dr John Stewart Harland gave the following evidence. Dr Harland had been a registered medical practitioner since 1983 and a general practitioner since 1985. Mr Schembera had been his patient since November 2001.  On 4 May 2002 he first treated Mr Schembera for a stress-related illness.  That episode settled after treatment.  On 4 April 2003 he again treated Mr Schembera for stress and prescribed Murelax.  In July 2003 Dr Harland prescribed him anti-depressants.  His condition settled.  On 7 April 2004 Mr Schembera again consulted Dr Harland; he was led in by his wife.  He seemed to be "shuffling along … shoulders were slumped, he was quite flat in affect, he was teary, couldn't really make a full comprehensive sentence …"  Mrs Schembera provided most of the information.  His notes recorded "Getting very stressed again.  Not sleeping, emotional, … Feels like giving it all up …"  Dr Harland was very concerned about suicide because of Mr Schembera's past history.  He prescribed an anti-depressant drug, Lexapro, and an anti-anxiety drug, Murelax.  The anti-depressant medication would not have taken effect for about two to four weeks.  The anti-anxiety medication would take effect straight away, but would remain effective for only four to six hours.  Mr Schembera consulted him again on 13 and 19 April 2004.  Mr Schembera had increased his dose of Murelax and required more medication.  Mr and Mrs Schembera both consulted regularly with Dr Harland throughout April. 

35. Mr Devlin put to Dr Harland the evidence of prosecution witnesses as to Mr Schembera's dealings with them during, shortly before and shortly after the time period of the charge.  Mr Devlin asked Dr Harland whether the evidence of Mr Schembera's functioning prior to 7 April was consistent with Dr Harland's assessment on 7 April.  Dr Harland responded:

"I think it makes no difference.  Honestly, people can function during this at small pieces of time, not at 100 per cent, …

I believe his depression was leading up over that period of time to the point where he reached a breaking point … and he arrived at me in that state."

36. Mr Devlin referred to Mr Schembera's instructions to Ms Wolters that same day that staff were not to speak to officers from the EPA.^[24]  Dr Harland responded that it did not alter his assessment of Mr Schembera on 7 April, adding:

"My perception of that was he was feeling very stressed by the whole continuing saga of pursuit and by removing that agency from his presence, it decreased his current stress."

37. When Mr Schembera saw Dr Harland on 13 April 2004, he had improved slightly but was still "quite anxious and nervous". Mr Schembera's next consultation was Friday, 16 April; this may have involved only a further prescription by telephone. Mr Devlin set out the evidence of the contact between prosecution witnesses and Mr Schembera preceding that consultation.  Dr Harland agreed that the history suggested some continuing improvement in Mr Schembera's condition but another explanation was that the Murelax he was taking was providing "a window of function and when that wore off, he went back to his previous … Or a short term improvement which improved with the medication for a short period of time". 

38. Dr Harland saw Mr Schembera on 19 April 2004. He noted that Mr Schembera was "still feeling very agitated. Taking way too many Murelax, six to nine a day. Having problems getting to sleep". He prescribed sleeping tablets, Stilnox. Dr Harland next saw Mr Schembera on 27 April 2004.  Mr Devlin informed Dr Harland of Mr Schembera's emails to his fellow-directors of 19 April and 23 April 2004.^[25]  Dr Harland considered that by 23 April the anti-depressant medication would be "starting to kick in … and would have helped to improve his mood and make him be able to concentrate and function more effectively".  Mr Schembera next consulted him on 4 May 2004 when he reported that he was excessively tired; Dr Harland reassured him that this was stress-related and was consistent with his recovery; he again prescribed Murelax and Stilnox.  Dr Harland believed that at this time Mr Schembera was "starting to turn the corner and come out of his extreme depression and lack of motivation and anxiety state".  He agreed with Mr Devlin that Mr Schembera's periods of functioning were apparently increasing over time.  By the end of May Dr Harland considered that Mr Schembera was "much improved and functioning at a higher level", although not over his illness. 

39. In cross-examination Dr Harland agreed that Mr Schembera had an extremely strong work ethic and most definitely suffers from a major depressive illness. On 4 May 2002 he had very high blood pressure and was extremely depressed; he had contemplated suicide.  His depression at that time was apparently triggered by a local public outcry about the gold mine at North Arm.  He had cyanide in his car and was initially prepared to kill himself with it but in the end could not go through with it.  Dr Harland immediately referred him to a psychiatrist, Dr Chris Cantor, who reported:

"In summary, this man suffers from an adjustment disorder … with depressed mood and transient, but serious, suicidal ideation. … Following the first appointment he usefully shared his worries with his wife.  He also put his foot down with his business partners so that he is not left with a disproportionate burden.  At the second appointment he was greatly improved as a result of more effective communication and possibly Cipramil … I've arranged to see him again in a month to promote ongoing, effective communication with his family and others.  I am optimistic he will do well."

40. Dr Harland continued to see Mr Schembera periodically in 2002. Dr Harland said that when he saw Mr Schembera on 4 May 2002 he was very depressed and teary. He could not see the light at the end of the tunnel or where he was going. Dr Harland would have been worried about his ability to effectively control a company at that time.  In Dr Harland's opinion, major depressive illness is ongoing; during good periods when stresses are absent there can be improvement but the relapse rate for major depression is in the range of 60 to 70 per cent in the five years following diagnosis.  Since the episode of depression directly relevant to the present charge, Mr Schembera relapsed on 25 May 2005.  He required further prescriptions of Lexapro and Murelax in August and November 2005.  The Lexapro, when originally prescribed and when dosages are increased, takes between two and six weeks to become effective.  On 22 January 2007, Mr Schembera was an inpatient at the Nambour General Hospital after attempting suicide by overdosing on Murelax taken with red wine.  Dr Harland continued to treat him after he was released from hospital on 24 January 2007. 

41. Dr Harland expressed the opinion based on his treatment of Mr Schembera in April and May 2004 that, from a mental health perspective, Mr Schembera was not then in a position to act decisively and effectively. He was extremely depressed, the worst Dr Harland had seen him for many, many times, including his first presentation with major depression when he was para-suicidal. He continued:

"… He really had to be led around by his wife … . Now, given he might have had more lucid moments under the medication, if you take two or three Murelax tablets, it's going to affect your thought process.  It's like a bottle of scotch …

If, as he said, he took six to nine a day, he would be permanently under the influence … He would certainly not be able to think lucidly a 100 per cent of the time and his judgment would have been impaired.  … there's a warning about driving, a warning about drowsiness, a warning about alcohol as well combined with that medication and knowing Mr Schembera, I am sure he was drinking some red wine as well."

42. Dr Harland explained that depression, as distinct from anxiety and stress, involved a chemical imbalance in the brain. Mr Schembera had no interest in anything around him and was not functioning. The anti-depressant he prescribed for Mr Schembera worked by chemically re-programming the brain. This took between two to six weeks for maximum effect and probably had no or almost no effect during the first two weeks. Depression can cause emotional and physical symptoms, including a loss of interest in activities such as work. Dr Harland re-affirmed that, in his view, the evidence of prosecution witnesses put to him by Mr Devlin did not demonstrate that Mr Schembera was not depressed at this time: depressed people can do things and hold conversations without the conversations or functions being effective. On 19 April 2004 Mr Schembera was taking six to nine Murelax tablets a day when the normal dosage was about two or three.

43. In re-examination, Mr Devlin asked Dr Harland if he ever advised Mr Schembera to give up governance of the gold mine seeing as it was a source of stress and illness. Dr Harland recalled that he told Mr Schembera, "It's best if you try and decrease your workload". He could not remember precisely when he gave that advice.

44. Mr Peter Newbery gave the following evidence. He first met Mr Schembera in the early 1990s. In 1996 Mr Newbery became a director of and an investor in Papillon Mining. Mr Schembera was its chairman of directors. Other directors at relevant times included Brendan Foley and David Morison. The Golden Surprise Mine re-commenced operating in about 2003. As Mr Newbery lived at Airlie Beach he relied on Mr Schembera to keep him in touch with the mine's operations.  Mr Schembera did not tell him of the problems with the EPA in early April 2004.  Generally speaking, Mr Newbery did not deal with staff members, only with Mr Schembera.  He was in telephone contact with Mr Schembera on 2, 5 and 6 April 2004.  Mr Schembera did not tell him that he was having difficulty coping or that he was ill.  He always answered Mr Newbery's questions about the mine operations clearly and without hesitation.  Mr Schembera never suggested that he was not understanding Mr Newbery.  He rang Mr Schembera on 8, 9, 12, 13 and 15 April 2004.  Many of these phone calls were quite lengthy, between 10 and 25 minutes.  At no time during these phone conversations did Mr Schembera appear to have difficulty answering Mr Newbery's questions about the mine operations.  After receiving Mr Schembera's emails of 19 April 2004,^[26] in consultation with Ms Wolters and Mr Foley it was arranged that Ms Wolters would become the SSE.  Mr Newbery's next face-to-face contact with Mr Schembera was on 10 May 2004.  He had no difficulty then understanding Mr Schembera, who appeared responsive to his questions.  On another occasion in May, Mr Schembera gave telephone instructions to Mr Newbery to assist him correct a computer problem at the mine site.  If Mr Schembera had taken steps to assist Papillon Mining on and from 16 April 2004 to meet the requirements of the EPO, Mr Newbery would have been quite prepared as a director to have allowed him to act on behalf of Papillon Mining.  On 22 September 2005, Mr Newbery pleaded guilty to failing to ensure that Papillon Mining did not wilfully breach an EPO. 

45. During Mr Newbery's cross-examination Mr Devlin conceded that when Mr Newbery was sentenced, s 13A Penalties and Sentences Act 1992 (Qld) was invoked in that the court was told that it should take into account the fact that Mr Newbery was prepared to give evidence against Mr Schembera.

46. Mr Brendan Foley, a real estate agent, gave the following evidence. He was a shareholder and director of Papillon Mining at relevant times. He was generally aware of the requirements of the environmental authority under the EP Act to ensure that tailings were properly treated but he left the details of implementing this to Mr Schembera, who was responsible, through Papillon Jewellery, for the day to day running of the business and was also chairman of directors of Papillon Mining.  Mr Foley was not aware of difficulties in compliance with the environmental authority until he received Mr Schembera's emails of 19 April 2004.^[27]  Mr Foley understood that Mr Schembera then wanted the directors of Papillon Mining to take on the running of the mine previously undertaken by Papillon Jewellery.  After receiving these emails, he unsuccessfully attempted to phone Mr Schembera.  He then contacted Rachel Wolters.  When he first received a copy of the EPO on Monday, 19 April 2004, he went to the mine and met with Rachel Wolters and other mine employees on Tuesday, 20 April 2004.  Rachel told him what was required by the EPA to maintain operations.  He then attempted to have Papillon Mining meet these requirements, although some time frames in the EPO had already passed. 

47. On Friday, 23 April 2004, Mr Foley received an email from Mr Schembera calling "an informal meeting of directors and shareholders to air views and grievances" at Milton, Brisbane on Wednesday, April 28 2004.^[28]  Mr Schembera estimated that the meeting would take between one and two hours.  Mr Foley attended the meeting with a previous director, Mr Bill Siller.  Mr Schembera attended with his wife and his solicitor.  The meeting took about an hour during which Mr Schembera's attention did not appear to flag; he spoke to his solicitor but addressed the meeting only through his solicitor. 

48. Mr Foley's relationship with Mr Schembera was a business one, whereas Mr Peter Newbery was much closer to Mr Schembera and had a better idea of the workings of the mine. On 22 September 2005 Mr Foley pleaded guilty to failing to ensure Papillon Mining did not wilfully breach the EPO. Mr Devlin acknowledged that Mr Foley's sentence took place under s 13A and that Mr Foley indicated his willingness to give evidence in the prosecution of Mr Schembera. 

49. Mr David Morison was also a director and shareholder of Papillon Mining at relevant times. He gave the following evidence. Mr Schembera managed the mine and reported to the directors of Papillon Mining on the mine's operations. Mr Morison understood Papillon Mining had a licence from the EPA under which it operated.  He relied on Mr Schembera's experience as manager and on advice from others.  He first became aware of problems with Papillon Mining's operations some time after 19 April 2004 from receiving the two emails sent by Mr Schembera on 19 April 2004 and speaking to fellow director Brendan Foley.  Mr Morison also pleaded guilty to failing to ensure Papillon Mining did not wilfully breach its EPO.  In cross-examination, he stated that he believed he received a lesser fine than the other directors, Mr Foley and Mr Newbery, because of his lesser involvement in the business.  He agreed he signed an undertaking to give evidence for the prosecution of Mr Schembera.  Mr Devlin conceded that Mr Morison was sentenced under s 13A.

50. Mr Schembera did not call or give evidence.

Counsel's closing addresses

51. In his closing address, Mr Devlin emphasised that the prosecution case was that Papillon Mining wilfully contravened the EPO by acting recklessly, that is, that contravention of the EPO was the likely consequence of Papillon Mining's acts or omissions through Mr Schembera. The particularised breaches of the EPO were failure to comply with requirements (iii), (iv), (xi) and (xiii) of the EPO, namely:

"(ii)Ensure that no liquids or other tailings materials from the 'tailings storage facility' are released to waters; and

(iii)Treat any liquids located in the tailings storage facility containing cyanide in excess of one part per million (lppm) with hydrogen peroxide to lower the cyanide level to  below lppm; and

(iv)For the purpose of achieving compliance with requirement (ii) take the necessary actions to remove and transfer  tailings deposits or liquids from the 'tailings storage facility' to an impermeable receptacle(s) to prevent or  minimise the likelihood of overflow to waters; and

…

(xi)Reinstate a minimum of one metre of freeboard at the 'tailings storage facility' by one or more of the following:

(a)raising the dam, or

(b)removing some or all of the contents of the dam, or

(c)another lawful option, which achieves a freeboard of at least one metre in the dam and that has the written approval of the  administering authority; and

…

(xiii)for the purpose of requirement (xi) ensure that any engineering works are designed, constructed and supervised by a registered professional engineer who shall, on completion of the works, supply two copies of drawings describing the works as built."

52. Mr Devlin referred to the following matters. The evidence was plain that Mr Schembera was well aware of his requirement to comply with these aspects of the EPO.  Although he was treated by his doctor on 7 April 2004 for depression, that was the very day that he gave instructions to his staff not to speak to EPA officers.  He was able on 16 April 2004 to assist in organising the wages of an employee and on 23 April to organise a meeting of his fellow directors of Papillon Mining to discuss their venture.  Mr Schembera left Ms Wolters to deal with the EPO from 19 April 2004.  If it was urged on Mr Schembera's behalf that Papillon Mining had not acted wilfully because Mr Schembera was medically unfit at this time and that everybody did what they could to attempt to comply with the EPO, the jury should remember that Mr Schembera left Papillon Mining "a rudderless ship for four or five days".  In doing so, Papillon Mining recklessly omitted to comply with the EPO.  In his emails of 19 April 2004, Mr Schembera had not resigned his obligations as a director of Papillon Mining; this was made clear by his subsequent email of 23 April 2004 in which he discussed "our venture".  Mr Devlin next dealt with the large body of evidence demonstrating the breaches of requirements (iii), (iv), (xi) and (xiii) of the EPO. 

53. Mr Devlin then returned to the concept of Mr Schembera as an executive officer of Papillon Mining failing to ensure it did not wilfully contravene the EPO.  He compared the evidence of Ms Wolters' dealings with Mr Schembera at relevant times; the documents produced by Mr Schembera on 7 April 2004; Mr Schembera's dealings with his fellow directors, officers of the EPA and his bank manager, to Dr Harland's evidence.  Mr Devlin suggested the jury would be satisfied beyond reasonable doubt that Papillon Mining by its representatives wilfully contravened the EPO in at least one of the particularised ways and that Mr Schembera, an executive officer of Papillon Mining, failed to ensure it did not wilfully contravene the order.  He told the jury that they should consider the medical evidence and all the other evidence of Mr Schembera's functionality at relevant times to determine whether it was probable that he was not in a position to influence the conduct of Papillon Mining.  Mr Devlin asked the jury for a fair verdict according to the evidence.

54. Mr Byrne, in his closing address, first questioned whether the prosecution had proved beyond reasonable doubt on the evidence, including Dr Harland's evidence, that Papillon Mining wilfully failed to comply with the EPO: Mr Schembera was ill and in his absence others genuinely sought to comply with the EPO. Mr Byrne argued that, even if the prosecution satisfied the jury of Papillon Mining's wilful non-compliance, the next question was whether Mr Schembera had satisfied them on the balance of probabilities that he was not in a position to influence the conduct of Papillon Mining in relation to the offence. Mr Byrne referred in some detail to Dr Harland's evidence. He emphasised the time frame within which anti-depressant medication became effective and encouraged the jury to accept Dr Harland as an expert and extremely competent medical practitioner. Mr Byrne described Dr Harland's evidence as strong, compelling and cogent.  He urged the jury to conclude on the balance of probabilities that during the time period charged, Mr Schembera was suffering from a major depressive illness, as he had at other times of his life, connected with stress resulting from this mining operation, which he was essentially running single-handed.  Mr Byrne urged the jury to find that between 7 and 21 April 2004, prior to the anti-depressant medication prescribed by Dr Harland taking effect, Mr Schembera was unable to influence the conduct of Papillon Mining because of his depression.  He submitted that the jury should therefore acquit Mr Schembera. 

The appellant's contentions

55. In the appeal against conviction, Mr Byrne contends that the judge's summing-up to the jury did not fairly put the defence case in that it did not adequately refer to Dr Harland's evidence.  He submits that in summing-up a case to a jury, s 620 Criminal Code 1899 (Qld) requires the judge to identify the real issues in the case and the facts that are relevant to those issues, and to explain how the law applies to those facts and how the particular conduct relates to the statutory terms of the offence: Fingleton v The Queen^[29] and R v Mogg.^[30]  Mr Byrne contends that the judge's treatment of Dr Harland's evidence, which was the central plank in the defence case, was insufficient to properly focus the jurors' minds on the critical issue for their determination. 

56. Mr Byrne's second contention is that the judge's directions to the jury as to the treatment of Dr Harland's evidence as an expert witness were inadequate. He argues that the judge did not point out that Dr Harland's evidence was both uncontradicted and took into account Mr Schembera's words and conduct relied on by the prosecution to gainsay Dr Harland's opinion. He submits that the jury ought not to reject Dr Harland's opinion unless the matters on which it was based were not proved to the jury's satisfaction or they considered that other evidence cast doubt on it.

The trial judge's directions to the jury

57. To fairly deal with these contentions it is necessary to refer in detail and in context to the pertinent portions of the judge's summing-up. Early in his summing-up the judge told the jury that they were the judges of fact and that if they had a view of the facts which differed from a view which they thought he held, they should disregard what they thought was his view and give effect only to their own view. Shortly afterwards, his Honour said this of Dr Harland's evidence:

"In his evidence he expressed opinions about the defendant and about people who suffer from major depressive disorders. The general rule is that witnesses may speak only as to facts and not express their opinions. An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so in relevant matters within the field of their expertise. However, the fact that we refer to such a witness as "expert", does not mean that his evidence has automatically to be accepted. You are the sole judges of the facts, and you are entitled to assess and accept and reject any such opinion evidence as you see fit. It is up to you to give such weight to the opinions of each witness as you think should be given having regard, in each case, to the qualifications of the witness; whether you thought him impartial or partial to either side, and the extent to which his opinion accords with whatever other facts you find proved.

This is a trial by jury; not a trial by expert. So it is up to you to decide what weight or importance you give to Dr Harland's opinions or, indeed, whether you accept his opinions at all.

It is also important to remember that an expert's opinion is based on what the expert witness has been told of the facts. If those facts have not been established to your satisfaction, the expert's opinion may be of little value."^[31]

58. Later his Honour added:

"… It is always entirely a matter for you whether or not you believe the oral evidence. If you think a witness is lying or mistaken, or is simply unreliable, then the evidence of which you think that should be disregarded, otherwise, the weight you give to any particular evidence is entirely a matter for you. You may choose to give some evidence a lot of weight. You may choose to give other evidence some weight but not very much. You are also not confined to accepting or rejecting in total the evidence of any particular witness. You may consider, for example, that some things a witness said cannot be accepted, but other things a witness said deserve some weight or even considerable weight. These are entirely matters for you. I would merely caution you on this point. …

…

You should also consider whether the evidence was inherently credible, inherently reasonable, inherently logical or inherently probable or otherwise. These are matters where you may find your experience of life particularly useful and where you may profit from the advantage that there are 12 of you reflecting a range of experiences of life. Not everyone in the community thinks and behaves in the same way.

You're also entitled to draw what are called inferences from the evidence. Inferences are conclusions that you can draw from a known fact or facts; that is, fact or facts proved by evidence which you accept. You may draw reasonable inferences from facts proved to your satisfaction, but do not speculate.

It may be that you think that you could draw two or more different inferences from a particular fact or facts. If you think two inferences are reasonably open and one is consistent with the innocence of the defendant while the other is consistent with guilt, you are entitled to draw the inference consistent with guilt only if it so completely overcomes the other inference as to leave no reasonable doubt that that is the correct inference to draw.

You try the case on the evidence before you."

59. His Honour then dealt with the elements of the offence:

"A corporation commits an offence against a provision of the Environmental Protection Act 1994 if the corporation being a recipient wilfully contravenes an environmental protection order.

A recipient is a person to whom an environmental protection order is issued. A corporation is a person. Therefore, in this case, to be satisfied the corporation committed the offence charged, the prosecution must prove beyond reasonable doubt the corporation, in this case Papillion Mining and Exploration Pty Ltd, firstly, between the 15th day of April 2004 and the 22nd day of April 2004; secondly, at North Arm near Yandina in the State of Queensland; thirdly, was the recipient of an environmental protection order dated 14 April 2004, and, fourthly, did wilfully contravene the said environmental protection order.

Wilfully requires proof that the corporation deliberately did an act, or omitted to do an act, aware at the time it did it, or omitted to do it, that contravention of the environmental protection order was a likely consequence of the act or the omission to do the act, and that it recklessly did the act or made the omission regardless of the risk.

The word "likely" concerning recklessness conveys a substantial, a real and not remote chance. If you are satisfied the corporation committed the offence, an executive officer of the corporation can also commit an offence, namely, the offence of failing to ensure the corporation complies with the Act. Therefore, to be satisfied the defendant committed the offence charged, the prosecution must prove beyond reasonable doubt, firstly, the corporation committed the offence against the Act; secondly, the defendant was an executive officer of the corporation between the dates alleged; thirdly, between the same date and the same place, the defendant failed to ensure the corporation did not wilfully contravene the environmental protection order.

Evidence that the corporation committed an offence against the Act is evidence that an executive officer committed the offence of failing to ensure that the corporation complies with the Act. However, it is a defence for an executive officer to prove, on the balance of probabilities:

(a)if the officer was in a position to influence the conduct of  the corporation in relation to the offence, the officer took all  reasonable steps to ensure the corporation complied with the provision; or

(b)the officer was not in a position to influence the conduct of the corporation in relation to the offence.

On this issue the law provides that the onus of proof is on the defendant. Where that is the case the defendant does not have to establish the defence beyond reasonable doubt as the prosecution must. It is sufficient to discharge the onus which the defendant bears if the evidence satisfies you, the jury, on the balance of probabilities; that is, it is more probable than not the defence is established."

60. After referring to some uncontroversial matters, the judge continued:

"Members of the jury, I should say the barristers have referred you to some of the evidence in this case. I am going to refer you to some of the evidence in this case. Just because I don't refer to other evidence in this case does not mean that that evidence is unimportant. If you think it is important, the other evidence, then you act upon that evidence. You are the jurors of the facts."

61. His Honour again dealt with some non-controversial matters before continuing:

"… that comes to the fourth element which is the element that it wilfully contravened the environmental protection order …

Now, members of the jury, you have evidence of Ms Wolters, and it's a matter for you whether you accept her evidence or not. She told you that when she gave the notice to Mr Schembera, she was not given any instructions about what to do with that notice.

You also have evidence of what was, according to Mr Howard, not done with the notice or the order. You heard evidence that one of the requirements of the order was to treat any liquids with hydrogen peroxide, and if you accept Ms Wolters' evidence, then there was never any treatment of the liquids with hydrogen peroxide until after Mr Foley came on site, … and he arranged … for money for the hydrogen peroxide. Ms Wolters accepted that she told Mr Howard that they were treating the liquids with hydrogen peroxide and that she had told him a lie.

The other immediate item which is relied upon by the prosecution, accepting that items (i) and (ii) of the order were complied with; (iv), was that for the purpose of achieving compliance with requirement (ii) take the necessary actions to remove and transfer tailing deposits or liquids from the tailing storage facility to an impermeable receptacle to prevent or minimise the likelihood of overflow to waters.

Again, Ms Wolters gave evidence that that was not done until after Mr Foley had been on the site. So, it's a matter for you, members of the jury, whether you draw any inference from those two items. If you accept they were not complied with immediately as required by the environmental protection order, what inference do you draw from that. But you don't draw that in isolation. You draw it from the whole of the evidence, and that includes in this case when looking at the aspect of willfulness that you have evidence of the defendant saying with respect to a notice that he got in early April about the workings of the mine from the EPA that this was full of shit, and you might think - and that's a matter for you - that that demonstrates an attitude on his part and that also when he got the EPO, he said, "They can't do this", and he didn't give instructions as to what could be done. He left it to the - he did not give instructions.

Also Ms Wolters told you that even the quote that they got on the 29th of April, she was not given any instructions to follow it up. She'd also been instructed to put the signs up, the handwritten note RW-1 and the typewritten note RW-2. Does that again - it's a matter for you - show an attitude on the part of the defendant as to his obligations which are the corporation's obligations is what the prosecution are relying upon.

Also, in terms of his illness, it may also be relevant when examining the concept of wilfully that he saw the bank manager on the 14th of April - either saw him or by telephone, the bank manager wasn't sure whether he saw him or by telephone, but thought he saw him.

You also have the evidence of the telephone calls that were made to Mr Newbury. You have the evidence of Ms Wolters about the wages being sorted out for Kim on the day that she took the EPO to Mr Schembera, and at a later date when there was the resignation by Mr Schembera that there had to be some transfer over of employees and wages fixed up and administrative matters, and she went and saw him about those matters and they were attended to. So, members of the jury, that's one side. You might take the view - and it's a matter for you - of that evidence that it shows an attitude. It shows a noncommunication of any instructions on what to do, so the company is not being given any instructions to apply itself to the EPO: (i) to cease the discharge of the tailing deposits or liquids, that apparently was already in place. That had been turned off two days earlier by Mr Lewis. Ensuring that no liquids or other tailing materials from the storage facility were released to waters, that just seemed to, you might think, happen. It didn't happen. Mr Howard was concerned about a rainfall event and the dam was fairly full. I think he described it in his evidence that he wanted to get the message across, this is at transcript 58, line 30:

"Yes, the message was that this was a serious situation, that the dam was full, had reached capacity, and that certainly something had to be done about it and pretty well straightaway."

Again, it's a matter for you, members of the jury, but you might see that the EPO was issued with that background, and having been issued with that background, one view of the evidence is that Mr Schembera, who was the managing director of the company, you might think, gave no instructions, yet had an attitude about the EPA and was capable of seeing his bank manager or talking at least to his bank manager about financial matters and dealing with wages and administrative matters with Ms Wolters.

On the other hand, members of the jury, you might take the view that what was done, or what did happen, is relevant. You might think, for example, that when looking at the requirements, the prosecution are relying now on (iii) and (iv) and (xi) and (xiii) of the requirements of the order. As to (i) and (ii), I've already mentioned that they had taken care of themselves, you might think, but when it came to treating of the liquid with hydrogen peroxide, the reason it wasn't being done, you might think - it's a matter for you - is they didn't have the money to buy hydrogen peroxide. The prosecution says but Mr Schembera just wasn't giving any instructions and making arrangements for money to be obtained to get that hydrogen peroxide so it could be attended to immediately. On the other hand, you might think, members of the jury - it's a matter for you - that this is not a case where they had hydrogen peroxide and didn't apply it. That might make you think that there's willfulness on the part of the defendant if that were the case. I'm not saying it is the case, but when you're looking at somebody being wilful about something, then you've got to draw - you've got to look and see what inferences you can draw from the facts that you accept.

But what I'm saying is that (iv) was something that was attended to after Mr Foley arrived, and (vi), which had to be done within 48 hours, was that the crest of the dam had to be mown and you might remember that there was evidence that it had been mown.

At transcript 67 Mr Howard was concerned that the free board on his inspection, on the 19th of April, was only .25 of a metre whereas the requirement was for a minimum of 1 metre, but he did say in his evidence that there had been no discharge over the weekend despite the amount of rainfall received:

"I also observed that the grass had been mown on the top of the dam so we could see the freeboard level far more clearly, so this being the southeast corner around the western side."

He also said at transcript 67, lines 30 to 40:

"Where did you make the estimate of .25 of a metre?--

This point here. Now, there was a requirement in the EPO that if the dam wall was to be raised, that it be engineer approved. Having said that, Ms Wolters and Mr Lewis and Mr Edmunds over the weekend had constructed, I suppose, a mini dam wall on this section here and placed some rocks in it to try and prevent an overflow of tailings. They did that, I suppose, to minimise the risk of overflow."

He agreed a little later at transcript 68, line 25, that for the 48 hour requirements, there was no requirement for engineering standards to be achieved.

Also he was asked at transcript 65 regarding the requirements:

"Were those requirements ever followed through by the company to aid in its disposal down the mine shaft?--

That's correct. They were. They had contracted a company called Golder Associates, a consultant, to look at that option as well as the raising of the dam wall to achieve the 1 metre freeboard.

Were any of these things achieved by the 21st of April 2004?-- They weren't achieved, but they had started."

A little later at line 20:

"So again you've got photographs showing the position on the afternoon of the 16th of April when you went back to see if there was immediate compliance with what was required by the EPO; is that right?-- That's correct. I mean, we had the situation where Ms Wolters and Mr Lewis and also a third staff member, a Mr Edmunds who was the on site engineer, they were collectively taking control of the response to the environmental protection order by  taking as many steps as necessary as they could to ensure compliance."

However, you might take that answer in the context that he was told by Ms Wolters that they were treating the liquid with hydrogen peroxide, which she accepted was a lie, and that he only saw a pump in the dam. He didn't know whether it was actually pumping waste from the dam to comply with (iv). So, what he thought was being done and what was being done, you might think - and it's a matter for you - are two different things.

Now, members of the jury, also in the context of the willfulness issue, you have the evidence that the defendant was thought of as being polite and cooperative and courteous, that he said that he would do what I say I'm going to do; that quotes were obtained from Golder Associates on the 21st of April after a meeting on the 20th of April. There was also a quote from TPIS dated 29 April. Mr McConnell also said that Ms Wolters had said they would get the engineer Colliers, although he knows an engineering firm of Coffey & Partners.

There was also, members of the jury, in evidence, when you are looking at the issue of willfulness, the evidence that the mine shaft was being discussed as a possible alternative, and you might think that is relevant to your deliberations to the issue of willfulness.

Mr Howard responded immediately saying there'd be certain requirements to be met before the mine shaft could be used, but it seems to be accepted by the EPA that the use of the mine shaft was put forward. It had already been put forward by Mr Schembera to Ms Budd - just excuse me - no, transcript 100, line 10, this is what the conversation was on the telephone. She said:

"Mr Schembera wanted to talk to me about a number of compliance issues in relation to the mine. This was on the 14th of April 2004. He specifically asked about reinstating the capacity of the tailings dam, about stabilising the tailings where he might place those tailings, and Mr Schembera asked if he could raise the level of the tailings dam."

At transcript 100, line 20, question, "Yes". Answer - this is Ms Budd:

"I advised Mr Schembera that he needed to shutdown the mine immediately. Mr Schembera said that this would permanently shutdown the mine. Mr Schembera asked, 'Is there any other way?' I said the capacity of the tailings dam must be reinstated immediately. That any discharge to the tailings dam must immediately cease and any discharge from the tailings dam must immediately cease. At that time Mr Schembera said he would ring Russ McConnell. I advised him to speak to Russ McConnell earlier in the conversation. He said he would ring Russ McConnell from the EPA about further advice on how to do that."

Also, members of the jury, with regard to Mr Schembera and evaluating the evidence in this case, you might take the view of the evidence that his illness was real and that that has some impact on whether you are satisfied beyond reasonable doubt that he acted as the company wilfully.

As I said, members of the jury, I'm not going to refer to all the evidence, but these are parts of the evidence that may be relevant that you have available to you on the issue of willfulness.

Regarding Mr Schembera's illness, you have, on the one hand, there was some talk about him being ill. Mr Howard accepted that he had been informed. However, it's Dr Harland that gives the evidence that the defendant was ill and had a major depressive disorder and was really quite ill on the 7th of April. I won't go through all of Dr Harland's evidence, but on the other side you have on the 19th of March he was showing an active interest in the mine. There was the conversation on the 14th of April with Ms Budd. There was also other conversations he was having with Mr Howard.

On the 20th of April there was a telephone conversation with Ms Budd when there was no difficulty understanding Mr Schembera. He was able to handle the wages for the employee Kim on the day the EPO was served. On his resignation as the SSE and his company, the jewellery company, resigning as operator of the mine, wages and other administrative matters had to be arranged and they were done according to Ms Wolters. He spoke to Mr McConnell on the 14th of April about the use of the mine shaft and Mr McConnell understood him and Mr McConnell believes Mr Schembera understood him. You also have the dealings by Mr Newbury by telephone, and there was also that evidence of Mr Newbury that in May of 2004, he received advice from Mr Schembera over the telephone to correct a computer.

You would weigh the evidence of Dr Harland against the other evidence in this case in your deliberations. If you are satisfied that the corporation committed the offence against the Act, that it wilfully contravened the environmental protection order, then, and only then, would you go on to think about the defence that is raised by Mr Schembera. That is because if you are not satisfied that the company wilfully contravened the EPO, then the verdict must be not guilty. …"

62. The judge then explained that if the jury were satisfied beyond reasonable doubt that Papillon Mining wilfully contravened the EPO, the next issue was whether they were satisfied on the balance of probabilities that Mr Schembera was not in a position to influence the conduct of Papillon Mining in relation to the offence because of his illness.

63. The judge reminded the jury of the two central issues in the prosecution case: whether Papillon Mining wilfully contravened the EPO and, if so, whether Mr Schembera was in a position to influence the conduct of Papillon Mining.  The judge explained the meaning under the EP Act of "executive officer" and that it was not disputed that Mr Schembera was an executive officer of Papillon Mining.  His Honour then set out the essence of the prosecution case:

"… The prosecution says that you would be satisfied that he acted recklessly, that it was clear that the dam had its problems and the company was aware of this and it required urgent action and required urgent action in the public interest. That you would see the defendant as someone who could speak up and had no difficulty saying that the EPA could not do this, or this was shit, putting up signs that people aren’t to talk to other people and then is capable of sending a letter addressed to friends and wanting to discuss the venture and having his solicitor present to engage in these discussions on 28th April. He was clearly in a position to influence the conduct of the corporation.

The prosecution says the question does arise, was he medically fit to give guidance to the company and you would conclude he was fit that the EPA was right to act and you would have been appalled if they had not acted in the circumstances if there’d been an over-topping of the dam.

The prosecution says you would conclude this was a rudderless ship for five days. It’s clear, with respect to (iii) of the requirements that peroxide could have been obtained immediately. Ms Walters said that she had done it and had also said to Mr Howard that pumping was going on.

With regard to the storage tanks for (iv) Mr Howard’s not seen any activity that was consistent with what he was being told and no action was being taken according to Ms Walters until the following week when Mr Foley came up. The free board was never put on a proper basis. Any liquids were not removed from the dam until after Mr Foley arrived which might have then assisted the free board. There were simply no instructions to do anything.

He failed to ensure the corporation did not wilfully contravene the EPO. He clearly had knowledge of the mine’s workings. He was capable of making phone calls to Mr Newberry, capable of discussing business with his bank manager, capable of doing the wages with Ms Walters, capable of putting a proposition to Mr McConnell to dispose of the waste in the shaft, the mine shaft, on the site. All this tells against him with respect to the elements of the offence.

The prosecution says you would be satisfied that the corporation wilfully contravened the EPO and that you would not accept on the balance of probabilities the things that sought to be raised."

64. The judge next summarised the defence case:

"The defence, on the other hand, members of the jury, say that this is a person who, on the evidence, had a good work ethic. He was found to be polite and courteous by Mr Howard and Ms Budd, that his efforts before and during and after are all to be in his favour. You would not be satisfied beyond reasonable doubt that the corporation wilfully contravened the EPO, nor would you be satisfied that he failed to ensure the corporation did not wilfully contravene the EPO.

The defence says that when you look at what the EPO required, (i) had already been done. Mr Lewis put a proposal to Mr Howard to put the tailings into the mine shaft, which had already been discussed as a disposal system, and golders had been asked to look at that and raise the dam wall.

The defence says, members of the jury, that’s not consistent with wilful contravention of the EPO. These are genuine attempts to comply with the EPO and not the actions of a person wilfully  contravening the order. That Mr Foley was on the site at 6.30 a.m. on 20th April 2004. That after that meeting waste was pumped out and later peroxide was added and that what was being done on the dam wall was major engineering works which cannot be just done at the drop of a hat. These were genuine attempts to comply and could not be achieved necessarily in 48 hours or five days. It’s not evidence of wilfulness. Therefore, you would not be satisfied beyond reasonable doubt that the corporation was wilful, you’d conclude there were genuine attempts to comply.

If you are satisfied that the corporation wilfully contravened the EPO then the defence says that Dr Harlan’s evidence would persuade you on the balance of probabilities that the defendant had, on the uncontested evidence from a doctor, a major depressive disorder for some time. He’d had the suicide ideations since 2002 and it was not something he was going to dream up in 2002 to use in 2004. Therefore, you would accept it’s genuine and he was not in a position to do anything when he got served with the EPO. Therefore, on the whole of the evidence, you would find the defendant not guilty."

65. Shortly after that direction the jury retired to consider their verdict. Mr Byrne asked the judge to redirect the jury by pointing out that the evidence relied on by the prosecution to gainsay Dr Harland's opinion was taken into account by Dr Harland in giving his ultimate opinion that in April 2004 Mr Schembera was not functioning effectively because of his major depressive illness. The judge declined to give that redirection.

Discussion and conclusion: conviction

1. Was the summing up unbalanced?

66. The first ground of appeal is that the summing up was unbalanced and failed to fairly place the defence case before the jury. There is no complaint about the directions his Honour gave as to the elements of the offence and the exculpatory provisions of s 493(4)(b) EP Act. Nor is there any suggestion his Honour misstated any relevant evidence in his jury directions. His Honour correctly identified the real issues that arose in the trial. These were whether the prosecution proved beyond reasonable doubt that between 15 April and 22 April 2004 Papillon Mining wilfully contravened the EPO of 14 April 2004 and, if so, whether Mr Schembera established on the balance of probabilities that he was not in a position to influence Papillon Mining's conduct.

67. As to the first of these issues, although not admitted, it was unequivocally established that Papillon Mining had contravened the EPO and that Mr Schembera was at the relevant time its executive officer. His Honour told the jury that a company acts through its directors, employees and agents and then referred to the prosecution evidence of the relevant acts and omissions of those individuals, particularly of Mr Schembera, from which Papillon Mining's wilful contravention of the EPO could be inferred. The prosecution case was that Papillon Mining acted wilfully in the reckless sense, that is, by a deliberate act or omission knowing that contravention of the EPO was a likely consequence. His Honour reminded the jury that, in determining the question of wilfulness, Dr Harland's evidence of Mr Schembera's illness was relevant. 

68. Perhaps it would have been helpful to the jury had his Honour explained more precisely how Dr Harland's evidence was relevant to the question of wilfulness but this would not have assisted Mr Schembera. Under s 493(1), Mr Schembera was obliged to ensure Papillon Mining complied with the EP Act. Under s 493(2) an offence committed by Papillon Mining against the EP Act was also committed by Mr Schembera. Under s 493(3), evidence that Papillon Mining committed the offence was evidence that Mr Schembera, as an executive officer, committed the offence of failing to ensure that Papillon Mining complied with the EPO unless s 493(4) applied.  The reality is that, had his Honour explained in more detail to the jury how Dr Harland's evidence of Mr Schembera's mental illness may have impacted on the issue of whether Papillon Mining wilfully contravened the EPO, it would inevitably have highlighted the strength of that aspect of the prosecution case.  The prosecution did not have to prove that Mr Schembera wilfully contravened the EPO.  It had to establish that Papillon Mining, through its directors, employees and agents, acted wilfully in contravening the particularised requirements of the EPO.  Once the prosecution established this, Mr Schembera, as an executive officer, was deemed by s 493(3) to have committed the present offence unless s 493(4) applied.  The prosecution case as to Papillon Mining's wilful contravention of the EPO was overwhelming.  No doubt that is why Mr Byrne did not seek any redirection on this aspect of the summing-up.  The judge's broad-brush directions to the jury about the relevance of Dr Harland's evidence to the issue of wilfulness were generous to Mr Schembera and have not caused him any miscarriage of justice.

69. The real issue at trial, as Mr Byrne effectively conceded in this appeal, was whether Mr Schembera established to the jury on the balance of probabilities under s 493(4) that he was not in a position to influence Papillon Mining's conduct during the time period of the charge because of his depressive illness. His Honour made clear to the jury that this was the critical issue for their consideration. He referred to Dr Harland's evidence in a general way.  The jury had heard Dr Harland's evidence only the previous day when they were also addressed on it by both Mr Devlin and Mr Byrne.  They knew from each counsel's opening address that it was critical to Mr Schembera's case.  His Honour was right to remind the jury of the competing evidence from Ms Wolters, the EPA officers, Mr Schembera's bank manager and his fellow directors as to their perceptions of his ability to adequately function in his role as a Papillon Mining director and mine manager at and about the time of the charge.  His Honour made clear to the jury that questions of fact were for them to determine and that if their view of facts differed from the view they thought he had taken, they must act on their view of the facts.  His Honour explained that the defence case was that Dr Harland's evidence would satisfy them that Mr Schembera was not in a position to do anything effective to influence Papillon Mining's conduct once it was served with the EPO on 16 April 2004. 

70. It is true that his Honour did not specifically remind the jury of that part of Dr Harland's evidence to the effect that, despite the evidence of other witnesses about Mr Schembera's statements and actions at relevant times, it was still his expert opinion that Mr Schembera was depressed and unable to act and think decisively during this time.  In meeting the trial judge's obligation under s 620 Criminal Code, discussed in Fingleton and Mogg, a judge is not required to refer to every submission made by defence counsel and every portion of favourable evidence; it is sufficient if the judge clearly and fairly presents the defence case to the jury: R v Morex Meat Australia Pty Ltd and Doube.^[32]  The judge's directions set out earlier in these reasons adequately referred to the law, including the pertinent statutory provisions; to the relevant facts; and fairly placed Mr Schembera's case before the jury.  The jury had heard Dr Harland's evidence and Mr Byrne's submissions on it only the day before the judge's directions and understood from Mr Byrne's opening address that this was the central issue in the case.  The judge's summing-up was balanced and adequately put the defence case before the jury.  This ground of appeal is not made out.

2. The directions on Dr Harland's evidence

71. The remaining grounds of appeal concern whether the judge erred in his directions as to how the jury should approach Dr Harland's expert evidence. Mr Byrne rightly points out that Dr Harland's evidence that, at about the time period of the charge, Mr Schembera was suffering from the mental illness of severe depression and was unable to act decisively and effectively, was unchallenged by any other expert medical evidence.  Mr Byrne relies on some suggested directions in the Supreme and District Court Benchbook on expert witnesses to argue that the judge erred in not pointing out that Dr Harland's expert opinion was uncontradicted and took into account the evidence of other prosecution witnesses as to Mr Schembera's words and conduct at about the time period of the offence, so that the jury ought not to reject Dr Harland's opinion unless the matters on which it was based were not proved to the jury's satisfaction or they considered that other evidence cast doubt on it. 

72. The Benchbook contains nothing more than suggested directions which may assist a trial judge on points of law arising during a trial; it is always a matter for a trial judge to determine what directions are necessary and appropriate in the circumstances of each case. The propositions in the Benchbook on which Mr Byrne relies seem to be based on observations in R v Morgan; ex parte Attorney-General^[33] and the cases discussed there.  Morgan concerned expert evidence in the context of s 304A Criminal Code and whether a judge was entitled to direct a verdict of not guilty when the defence carried the onus of proof.  Under s 304A, psychiatric evidence is directly relevant to establish the defence that an accused person who has killed another under circumstances which would otherwise constitute murder is at the time of the killing:

"in such a state of abnormality of mind (whether arising from the condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person's capacity to understand what the person is doing, or the person's capacity to control the person's actions, or the person's capacity to know that the person ought not to do the act or make the omission …"^[34]

73. It is patent that the defence under s 493(4)(b) is not closely analogous to the defence under s 304A Criminal Code.  While expert evidence about an executive officer's mental state may well be relevant to the defence under s 493(4)(b), the ultimate issue^[35] is something within the knowledge and experience of ordinary jurors.  The question to be determined to establish an offence under s 304A,^[36] while also ultimately a jury issue,^[37] is one on which expert medical evidence would almost always be required to successfully make out the defence.^[38]

74. The issue for the jury in the present case was not whether Mr Schembera was probably suffering from depression, an issue not disputed at trial. It was whether, on the balance of probabilities, he established he was not in a position to influence the conduct of Papillon Mining in its wilful contravention of the EPO. Dr Harland was Mr Schembera's treating general practitioner well before and well after the time of the charged offence, and Mr Schembera had a past and subsequent history of severe depression. Dr Harland's expert opinion evidence was capable of establishing that Mr Schembera was not in a position to influence the conduct of Papillon Mining at the relevant times. That was the defence case. The prosecution case was that, despite Dr Harland's contrary view, the evidence of those dealing with Mr Schembera in his role as Papillon Mining's executive officer and mine manager during the period of the charge demonstrated that he was in a position to influence the conduct of Papillon Mining's wilful contravention of the EPO. The jury were not compelled to infer from Dr Harland's evidence that the defence under s 493(4)(b) was made out, even though it was not challenged by other expert medical evidence. That is because there was a large and convincing body of evidence from those who had business dealings with him at about the time of the charge from which it could be inferred that he was in a position to influence Papillon Mining during the time period of the charge. The jury well understood that this was the critical issue for their determination.

75. In these circumstances, the judge was not required to tell the jury that, because Dr Harland's expert opinion evidence was uncontested by other medical expert evidence, it should not be rejected unless the matters on which it was based were either not proved to the jury's satisfaction or the jury considered that there was other evidence which cast doubt on Dr Harland's opinion.  The judge's directions adequately identified the relevant matters in issue for the jury and were not erroneous.  This contention also fails.

76. It follows that the appeal against conviction should be dismissed.

The application for leave to appeal against sentence

77. The primary judge fined Mr Schembera $75,000, in default six months imprisonment, and recorded a conviction. His co-directors, Mr Foley and Mr Newbery, were fined $15,000 and Mr Morison $10,000 when they earlier pleaded guilty in the Magistrates Court; no convictions were recorded against them; the sentencing magistrate indicated under s 13A that, but for their co-operation, he would have imposed fines of $45,000 and $30,000 respectively. 

78. In sentencing Mr Schembera, the primary judge referred to his absence of remorse and his arrogant attitude, notwithstanding his depressive illness. The judge accepted that Mr Schembera was ill with depression at the time of the offence but considered that he nevertheless demonstrated an attitude where he wanted to keep things secret from his fellow directors. His Honour noted: "[t]here was risk to the environment, as the photographs that have been tendered show" and considered that a sentence of general deterrence was warranted.  The maximum penalty was a $150,000 fine or two years imprisonment.  Notwithstanding Mr Schembera's difficulty in paying a fine, his Honour determined that a substantial penalty by way of a $75,000 fine should be imposed.

79. Mr Byrne made the following submissions to this Court and at first instance as to sentence. Notwithstanding the mitigating factors pertaining to his co-offenders, the difference between his sentence and theirs (both actual and notional) demonstrates a justifiable sense of grievance amounting to judicial error requiring this Court's intervention. Mr Schembera's moral culpability for the offence was substantially diminished by his mental illness. The judge erred in finding him arrogant in the context of his mental illness and fragile mental state. His co-offenders made a financial decision not to continue with hydrogen peroxide treatment of the tailings and so deliberately failed to comply with the EPO. On the other hand, Mr Schembera's offending involved reckless non-compliance in the context of a major depressive illness.  He had limited capacity to pay a fine until the mine was sold.  He had no significant assets so that any fine would have to be paid through the assistance of family members.  Bearing in mind that he was 62 years old and his prior good character, a fine in the range of $10,000 to $15,000 should have been imposed.  Mr Schembera hoped to return to his native Austria where the recording of a conviction could impact upon his social and economic well-being. 

80. On behalf of the respondent, Mr Devlin made the following submissions. Unlike his co-offenders, Mr Schembera was not entitled to any credit for co-operation with the administration of justice or for remorse. Mr Schembera was both the operator of the mine and the licensee and as chairman of directors of Papillon Mining was in sole charge of mine operations with a much greater grasp of technical matters than his co-offenders. The prospect of serious environmental damage was potentially considerable with the dam remaining almost full during periods of significant rainfall. Bearing in mind the jury's guilty verdict, his mental illness was not a dominant factor to be taken into account in the exercise of the sentencing discretion.

Discussion and conclusion: sentence

81. The photographs to which his Honour referred depicted a rather unsightly dam and mining operation, but mines are seldom places of natural beauty. There was evidence that, unsurprisingly, cyanide is fatal to fish and marine life. But, unfortunately, there was no cogent evidence placed before the judge as to the potential environmental impact of this offence or where in the scale of seriousness  it fell.  This made Mr Schembera's sentencing a difficult task.

82. Unlike his co-offenders, Mr Schembera did not have the benefit of co-operation with the administration of justice or an early plea of guilty. On the other hand, he had no prior convictions and had apparently led an otherwise blameless life over his 62 years until being sentenced for this offence. As the primary judge accepted, there could be little doubt that he was suffering from severe depression at the time of the offence. Whilst not a defence, his mental illness was a significant mitigating factor in explaining his failure to ensure compliance with the EPO; it was not of a type which placed him at risk of re-offending: see Channon v The Queen^[39]  and R v La Rosa; ex parte A-G (Qld).^[40]  The evidence suggested that, nevertheless, Mr Schembera, as the chairman of directors and the manager of the mine, was more closely responsible than his co-directors for Papillon Mining's contravention of the EPO.  He made some apparently genuine but ultimately ineffective efforts to have Papillon Mining comply with the EPO.  Whilst his illness was a factor in his reckless offending, his co-directors, who it is not suggested were mentally ill, later deliberately made a financial decision to contravene the EPO. 

83. I am persuaded that a heavier penalty was required to be imposed on Mr Schembera than the actual penalty imposed on his co-offenders to reflect his overall greater responsibility for the contraventions, especially as he did not have the benefit of co-operation with the authorities or an early plea of guilty. His sentence should, however, reflect the fact that the offence occurred in the context of a serious depressive illness which clouded his judgment. The judge erred, first, in not giving sufficient weight to Mr Schembera's mental illness in the circumstances of this case, and, second, in not appreciating that the prosecution had not established the extent of the potential environmental impact of the offence. This Court should grant the application, allow the appeal, set aside the sentence imposed and re-sentence Mr Schembera.  The principle of general deterrence is apposite, but in the context that Mr Schembera was suffering from severe depression, no actual environmental harm was caused, and there was no evidence of the extent of the potential risk to the environment from the non-compliance with the EPO.  Weighing up the various aggravating and mitigating factors, I would substitute a fine of $30,000.  Parity considerations and Mr Schembera's prior good record persuade me that no conviction should be recorded.

Orders:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted and appeal against sentence allowed.

3. Set aside the sentence imposed at first instance.  Instead order that Josef  Ludwig Schembera be fined the sum of $30,000 to be paid within six months; in default of payment within that time order that he be imprisoned for a period of six months.

4. No conviction is recorded.

84. MUIR JA:  I agree with the reasons of McMurdo P and with the orders she proposes.

85. LYONS J:  I have had the advantage of reading the reasons for judgment of McMurdo P.  I agree with the reasons and the orders proposed by her Honour.