AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 9 August 2021

Peter James Harris and Jane Maree Harris v WaterNSW

[2021] NSWCCA 184

Other
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION NO ERROR ESTABLISHED APPEAL DISMISSED EVIDENCE EVIDENCE WAS NOT OPINION EVIDENCE

Citation: Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184
Court: Court of Criminal Appeal
Date: 09 August 2021
Judge(s): Hoeben CJ at CL, Bellew J, Beech-Jones J

Background

Two appellants operated a cotton farm at Beemery Farm in north-western New South Wales, extracting water from the Darling River system by pump under a water access approval. That approval included a condition that water could not be taken when the flow at the Bourke gauge was at or below a specified threshold of 4,894 megalitres per day (MLD).

WaterNSW charged each appellant with contravening that condition under section 91G(2) of the Water Management Act 2000 (NSW). The prosecution case rested heavily on hydrometric data collected by gauging stations along the river, expert evidence from a hydrologist, and the evidence of a water regulation officer about a conversation with the first appellant regarding the approval. The trial judge in the Land and Environment Court convicted both appellants on 19 March 2020.

The appellants appealed to the Court of Criminal Appeal, raising grounds directed at the sufficiency and admissibility of the flowrate evidence, the evaluation of expert evidence, and the acceptance of the water regulation officer's account of the conversation and the emailing of the approval.

Legal Issues

  • Whether the trial judge erred in finding the fourth element of the charge established beyond reasonable doubt, specifically that water was taken when the river flow at the Bourke gauge was at or below 4,894 MLD, in the absence of direct evidence from any field officer who actually performed the gaugings
  • Whether the trial judge failed to understand the nature and effect of the defence expert's evidence, or effectively reversed the onus of proof
  • Whether the trial judge erred in not finding the defence expert's criticism of the absence of practicable alternatives to be relevant
  • Whether the hydrometric gauging data constituted inadmissible opinion evidence, or should have been excluded under section 135 of the Evidence Act 1995 (NSW), rather than admitted under section 147
  • Whether the trial judge overstated the evidence of the respondent's Hydrometric Coordinator by treating it as proof of what field officers had actually done at specific gaugings
  • Whether the trial judge erred in accepting the water regulation officer's evidence about his conversation with the first appellant, including whether the approval was properly communicated

Decision

Ground 1: Sufficiency of evidence to establish the flow threshold element

The court rejected the appellants' central submission that the prosecution's failure to call any officer who had personally conducted a gauging was fatal to establishing the fourth element. The trial judge was found to have been fully aware of that gap in the direct evidence, and expressly acknowledged it in his reasons (at [159]). The court held that the absence of such witnesses did not preclude proof of the fourth element by other means, including the unchallenged evidence of the Hydrometric Coordinator about established procedures, the consistency of 595 readings taken over 140 years, the expert's statistical assessment of measurement uncertainty, and the very large margin by which the recorded flowrate fell below the threshold (at [163]). The highest recorded flowrate during the charge period was 3,814 MLD, approximately 77.9% of the threshold, meaning the gap was substantial even after applying any margin of error (at [228]).

Ground 2(a): Alleged failure to understand the defence expert's evidence

The court found no error. The trial judge's reasons demonstrated a thorough understanding of the defence expert's opinions and the basis on which they were advanced. Preference for the prosecution expert's methodology over the defence expert's hypothesis-based critique was a finding open to the trial judge and did not constitute an error of law (at [165]-[169]).

Ground 2(b): Alleged reversal of the onus of proof

The court rejected the contention that observing the defence expert had not identified practicable alternatives amounted to reversing the onus of proof. That observation arose directly from what the defence expert himself had raised, namely the availability of alternative measuring devices. The court held the observation could not be read in isolation from the entirety of the trial judge's assessment, which was comprehensive and accurate (at [170]-[174]).

Ground 2(c) to 2(e): Admissibility of gauging data, section 147, and Mr Cutler's evidence

The court held that data recorded by field officers during gaugings was evidence of fact derived from direct observation, not opinion evidence. Obtaining and recording measurements during a gauging did not involve the officer forming a conclusion or applying a process of reasoning from observed facts (at [183]). The conditions for admission under section 147 of the Evidence Act 1995 were satisfied, and section 147(3) had no application as there were no contemplated proceedings at the time the data was collected (at [188]-[189]). No basis for discretionary exclusion under section 135 was established, as the evidence was prejudicial only in the sense that it proved the prosecution's case, which is not the unfairness that section 135 addresses (at [192]-[195]).

The court also held that the trial judge did not overstate Mr Cutler's evidence. His Honour consistently referred to Mr Cutler's evidence as addressing procedures and processes, and expressly noted that no officer had been called to give evidence of what actually occurred at any specific gauging (at [197]-[199]). Given that the procedures were unchallenged, the trial judge was entitled to proceed on the basis they had been followed (at [200]).

Grounds 3, 4, and 5: Acceptance of the water regulation officer's evidence about the conversation and email

The court found no error in the trial judge's acceptance of Mr Wheatley's evidence about his conversation with the first appellant, noting that Mr Wheatley consistently maintained a clear recollection of the effect of what was said, even if not the precise words. His Honour had the advantage of observing the witness, and the first appellant gave no evidence about the conversation (at [214]-[217]). The court also held that the trial judge was entitled to find that the email attaching the approval was sent to the first appellant's nominated agent on 23 September 2015, supported by the automated reply from that email address, the reference to the same approval number in both emails, and the date printed on each page of the approval document (at [219]-[222]).

Orders Made

  • The appeals against conviction are dismissed.

Key Takeaways

  • Data recorded by field officers during hydrometric gaugings constitutes evidence of fact, not opinion evidence, where it involves direct observation and measurement without any process of reasoning or conclusion-forming. The opinion rule in section 76 of the Evidence Act 1995 does not exclude such evidence (at [183]).

  • In dismissing the appeals, the Court of Criminal Appeal confirmed that the prosecution's failure to call direct evidence from every person involved in data collection is not automatically fatal to proof of an element beyond reasonable doubt, particularly where the data is consistent, the procedures are unchallenged, an appropriate margin of error has been applied by an expert, and the recorded figures fall well short of the relevant threshold (at [159]-[163]).

  • Where a witness's evidence of a conversation is unchallenged as a recent invention, and the witness consistently maintains a clear recollection of the effect of what was said despite accepting imprecision about specific words, a trial judge is entitled to accept that evidence (at [214]-[217]).

  • Unchallenged evidence of an organisation's data-collection procedures can support a finding that those procedures were in fact followed, and a trial judge is not required to treat such evidence as hollow merely because the individual officers who carried out the work were not called (at [200]).

  • Under section 147 of the Evidence Act 1995, business records generated by routine data collection are admissible where the conditions of that provision are satisfied; section 147(3), which limits admissibility in certain proceedings, does not apply where there were no contemplated legal proceedings at the time the records were created (at [188]-[189]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Water Act 1912 (NSW)
- Water Management Act 2000 (NSW)
- Water Management ( Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW)
- Water Sharing Plan for the Barwon-Darling Unregulated Alluvial Water Sources 2012 (NSW)

Cases
- Allstate Life Insurance Company Ltd v Australian and New Zealand Banking Group Limited (No. 5) (1996) 64 FCR 73; (1996) 136 ALR 627
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Director of Public Prosecutions (Vic) v Iliopoulos (No. 2) [2016] VSC 47
- Hodgson v Amcor Limited; Amcor Limited v Barnes (No. 3) [2011] VSC 272
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- RW Miller & Co Pty Limited v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
- Seltsam Pty Limited v McNeill [2006] NSWCA 158
- WaterNSW v Harris (No.3) [2020] NSWLEC 18