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Court of Criminal Appeal 30 September 2002

Gilmour v EPA; Tableland Topdressing v EPA

[2002] NSWCCA 399

Also reported as (2002) 55 NSWLR 593
Other
CRIMINAL LAW PRACTICE AND PROCEDURE CRIMINAL APPEAL ACT CRIMINIAL LAW ADMISSIBILITY OF EVIDENCE STATUTORY INTERPRETATION CRIMINAL LAW

Citation: Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399
Court: Court of Criminal Appeal, New South Wales
Date: 30 September 2002
Judge(s): Santow JA; Hidden J; Adams J

Background

The appellants were a pilot and the company he part-owned and operated, which provided aerial topdressing services. Between 15 and 17 February 1999, the pilot flew a light aircraft over a rural property near the Gwydir River and applied fertiliser pellets from the air. The prosecution alleged that on 17 February 1999, pellets entered and fell adjacent to the river, polluting it in breach of section 16(1) of the Clean Waters Act 1970 (NSW).

Both appellants pleaded not guilty in the Land and Environment Court. After a contested hearing, Sheahan J convicted both and fined each $6,000, representing a modest penalty against a maximum of $125,000 for the corporation and $60,000 for the individual.

Both appellants then appealed to the Court of Criminal Appeal, challenging the convictions on evidentiary and statutory interpretation grounds and arguing the sentences were excessive.

  • Whether the Court of Criminal Appeal could dismiss an appeal under the Criminal Appeal Act 1912 (NSW), notwithstanding any appealable error, where no substantial miscarriage of justice had occurred
  • Whether certain evidence was admissible at trial, including under the Evidence Act 1995 (NSW) sections 18 and 137
  • Whether the verdicts were unsafe and unsatisfactory in light of the evidence
  • Whether the provisions of the Environmental Offences and Penalties Act 1989 (NSW), including section 8B, were correctly interpreted and applied
  • Whether the sentences of $6,000 each were manifestly excessive or otherwise infected by error

Decision

The Court of Criminal Appeal dismissed all grounds of appeal, with Hidden J and Adams J agreeing with the reasons of Santow JA. The court found no appealable error in the trial judge's handling of the evidence or his interpretation of the relevant statutory provisions.

On the question of whether the verdicts were unsafe or unsatisfactory, the court held that the evidence before Sheahan J was sufficient to support the convictions. The appellants' argument that the fertiliser pellets could have entered the river through causes other than the aerial application did not undermine the findings of fact made at trial.

Regarding sentencing, the court affirmed that the $6,000 fines fell well within the sentencing discretion available to the trial judge. Although the quantity of fertiliser involved was small and no specific or lasting environmental harm was demonstrated, the court confirmed that the smallness of the amount does not render the offence trivial. The sentencing court had correctly taken into account the strict liability nature of the legislation and the importance of deterrence in environmental law.

The court also confirmed that, in the context of strict liability environmental offences, legislation may demand what amounts to perfect attention to avoiding environmental harm. The inability to fully explain how the discharge occurred did not excuse the failure to take sufficient care.

Orders Made

  • Appeal dismissed
  • The appellants to pay the costs of the appeal

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a modest penalty within the available range will not be disturbed on appeal simply because it appears small in absolute terms, provided the sentencing judge exercised the relevant discretion lawfully.
  • Under the Clean Waters Act 1970 (NSW) and the Environmental Offences and Penalties Act 1989 (NSW), strict liability environmental offences may effectively require a defendant to take perfect precautions against environmental harm, regardless of whether a full explanation for the discharge can be established.
  • An inability to precisely explain how pollutants entered waters does not, of itself, provide a defence where the surrounding facts support an inference of inadequate care.
  • The Court of Criminal Appeal confirmed its power, in appropriate circumstances, to dismiss an appeal notwithstanding the existence of an appealable error, where there has been no substantial miscarriage of justice.
  • Sufficient evidence existed at trial to sustain convictions for water pollution arising from an aerial fertiliser application, even where the quantity of pollutant was small and no lasting environmental damage was proven.

Legislation and Cases Referenced

Legislation:
- Clean Waters Act 1970 (NSW), ss 5, 16
- Environmental Offences and Penalties Act 1989 (NSW), s 8B
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 18, 137
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Courts Legislation Amendment Act 2000 (NSW)

Cases:
- Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
- Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- Environmental Protection Authority v Gilmore & Another (2000) 109 LGERA 228
- Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661
- House v The King (1936) 55 CLR 499
- Makita (Australia) Pty Ltd v Sprowles (2002) 52 NSWLR 705
- R v Conway (2002) 186 ALR 328
- R v Olejarnik (1994) 33 NSWLR 567
- Stokes v R (1960) 105 CLR 279
- Thornloe v Filipowski (2001) 52 NSWLR 60