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Court of Criminal Appeal 10 December 2004

Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd

[2004] NSWCCA 439

Other
LAND AND ENVIRONMENT COURT DEFENCE OF AUTHORITY OF LICENCE

Citation: Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439
Court: Court of Criminal Appeal of New South Wales
Date: 10 December 2004
Judge(s): Simpson J (lead judgment); Bell J and Buddin J (both agreeing)

Background

Goulburn Wool Scour Pty Ltd (the respondent company) operated a wool scouring facility in the Goulburn area under an environment protection licence issued by the Environment Protection Authority of NSW (the EPA). On 5 February 2002, the company caused pollution of waters in circumstances that were not in dispute. The EPA prosecuted the company under s 120(1) of the Protection of the Environment Operations Act 1997 (the PEO Act), which makes it an offence for a person to pollute any waters.

At first instance in the Land and Environment Court, Talbot J found that the company had made out two defences: first, that it acted under the authority of its licence (pursuant to s 122 of the PEO Act); and second, that it acted under an honest and reasonable mistake of fact. Both findings would have entitled the company to an acquittal. Before entering formal orders, Talbot J, at the EPA's request, submitted two questions of law to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912. The company then sought a third question be added.

The mechanism under s 5AE allows a judge presiding over summary proceedings in the Land and Environment Court to refer questions of law to the Court of Criminal Appeal for determination before the proceedings are concluded.

  • Whether Talbot J erred in law in finding that the company had established the licence authority defence under s 122 of the PEO Act
  • Whether Talbot J erred in law in finding that the company had established the defence of honest and reasonable mistake of fact
  • Whether the Court of Criminal Appeal should decline to answer questions (a) and (b) given that the EPA had made no submissions at trial concerning pollution caused by a leak from the effluent evaporation pit, and that Talbot J's relevant findings concerned different factual circumstances

Decision

On question (a), the Court of Criminal Appeal found that Talbot J had erred in law. The licence held by the company authorised the carrying out of the scheduled activity of wool scouring at the specified premises. The Court concluded that no form of water pollution was authorised by the licence, meaning the licence authority defence under s 122 was not available on the facts as found.

On question (b), the Court similarly found that Talbot J had erred in law in holding that the honest and reasonable mistake of fact defence had been established. The onus of disproving that defence, once raised, lies on the prosecution. However, the Court found that the legal requirements for the defence had not been satisfied on the evidence.

On question (c), the Court declined to answer. The question had been framed by reference to specific paragraphs of the stated case and raised the concern that the EPA had not made submissions at trial about pollution caused by a particular mechanism (a leak from the effluent evaporation pit). The Court found this did not constitute a question of law arising at or in reference to the proceedings within the meaning of s 5AE. In any event, the Court observed that answering questions (a) and (b) did not require any consideration of the specific mechanism of pollution, since it was undisputed that pollution had occurred and no form of water pollution was authorised by the licence regardless of its cause.

Orders Made

  • Question (a): Yes, Talbot J erred in law in finding the licence authority defence under s 122 of the PEO Act was established
  • Question (b): Yes, Talbot J erred in law in finding the honest and reasonable mistake of fact defence was established
  • Question (c): The Court declined to answer

Key Takeaways

  • An environment protection licence that authorises the carrying out of a scheduled activity at specified premises does not, without more, authorise the pollution of waters occurring in the course of that activity. The licence authority defence under s 122 of the PEO Act requires the pollution itself to be authorised by the licence.
  • The Court of Criminal Appeal confirmed that the honest and reasonable mistake of fact defence carries a specific legal threshold. A trial court's acceptance of the defence can constitute an error of law where that threshold has not been met on the evidence.
  • Under s 5AE of the Criminal Appeal Act 1912, only questions of law arising at or in reference to the proceedings are properly referable to the Court of Criminal Appeal. A question framed around procedural or evidential circumstances of the trial, rather than a question of law proper, falls outside that jurisdiction.
  • Declining to answer question (c) did not assist the company, because the answers to questions (a) and (b) were not dependent on the specific factual mechanism by which the pollution occurred. The undisputed fact of pollution was sufficient for the legal analysis.
  • Where pollution is not in dispute, the availability of a licence defence turns on whether the licence expressly authorised the conduct constituting the offence, not merely on whether the licensed activity was being carried out at the time.

Legislation and Cases Referenced

Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 5, 43, 120(1), 122, Schedule 1
- Criminal Appeal Act 1912 (NSW), ss 5AE, 5B
- Clean Waters Act 1970 (NSW)
- Pollution Control Act 1970 (NSW)
- Protection of the Environment (Savings and Transitional) Regulation 1998
- Criminal Code 1889 (Qld), s 669A(2)

Cases:
- Environment Protection Authority v Goulburn Wool Scour Pty Limited [2003] NSWLEC 200
- He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523
- Proudman v Dayman [1941] HCA 28; 67 CLR 536
- Ostrowski v Palmer [2004] HCA 30; 206 ALR 422
- EPA v Australian Iron and Steel (1992) 28 NSWLR 502
- State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721
- R v Porter [2004] NSWCCA 332; 141 A Crim R 593
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Proust v Blake (1989) 17 NSWLR 267
- NSW Grains Board v Garry Ernest Davis, unreported, NSWCCA, 17 July 1997
- R v Tolson (1889) 23 QBD 168
- McPhee v S Bennett Ltd (1934) 52 WN(NSW) 8
- Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539
- R v Lewis, ex-parte Attorney General [1991] 2 QdR 294
- R v Madden (1995) 85 A Crim R 367