Citation: Harris v WaterNSW [2021] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 9 August 2021
Judge(s): Hoeben CJ at CL; Bellew J; Beech-Jones J
Background
The appellants are co-holders of a water access licence and water supply works approval relating to Beemery Farm, a cotton farming property on the Darling River near Brewarrina in north-western New South Wales. A condition of their approval prohibited the taking of water from the river when the flow at the Bourke gauge was equal to or less than 4,894 megalitres per day (ML/day).
WaterNSW alleged that between 22 and 27 June 2016, the appellants took water through their irrigation pumps on days when the river flow at the Bourke gauge fell below that threshold. Approximately 3,147 ML was said to have been taken during the 2015/2016 water reporting year under the relevant works approval.
The primary judge in the Land and Environment Court (Robson J) found both charges proved and convicted the appellants. They appealed to the Court of Criminal Appeal on several grounds, contesting aspects of the evidence and the primary judge's reasoning.
Legal Issues
- Whether the primary judge erred in finding that all elements of the offence under s 91G(2) of the Water Management Act 2000 (NSW) were established
- Whether the measurements of river flow rate recorded by WaterNSW officers constituted inadmissible opinion evidence rather than evidence of observations
- Whether the primary judge reversed the onus of proof
- Whether the primary judge erred in accepting evidence of a conversation between the first appellant and a WaterNSW officer
Decision
The Court of Criminal Appeal dismissed the appeal on all grounds. Bellew J (with whom Hoeben CJ at CL and Beech-Jones J agreed) addressed each ground in turn, finding no error in the primary judge's approach.
On the central evidentiary question, the court drew a clear distinction between opinion evidence and evidence of observations. The flow rate measurements recorded by WaterNSW officers were derived from a rating curve, which converts a gauge height reading into a corresponding flow rate. The court found that applying a rating curve to a gauge reading did not involve the officer reaching a conclusion or forming a judgment through a process of reasoning. It was a mechanical process of recording and conversion, not an exercise in expert opinion. The evidence was therefore admissible as evidence of observations, not subject to the requirements governing opinion evidence under the Evidence Act 1995 (NSW).
The court rejected the contention that the primary judge had reversed the onus of proof. The primary judge's approach to the evidence, including inferences drawn from the material before the court, was consistent with the prosecution bearing the burden throughout.
The court also found no error in the primary judge's decision to accept evidence of a conversation between the first appellant and a WaterNSW officer. That evidence was properly admitted and appropriately weighed.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that evidence produced by applying a rating curve to a gauge height reading constitutes evidence of observations, not opinion evidence. No process of reasoning or expert judgment is involved in that conversion.
- A conviction under s 91G(2) of the Water Management Act 2000 (NSW) for contravening a condition of a water approval can rest on recorded gauge measurements, provided those measurements are sufficiently accurate and reliable.
- No error was established in the primary judge's treatment of the onus of proof. Drawing inferences from the evidence in the prosecution's favour does not, of itself, amount to reversing the burden.
- In dismissing the appeal, the court reinforced the distinction between opinion evidence (which involves reasoning from facts to a conclusion) and observational evidence (which involves recording what was measured or seen). That distinction determined the admissibility of the flow rate records.
- Under the transitional provisions of Schedule 10 of the Water Management Act 2000, a licence issued under the Water Act 1912 (NSW) was replaced by a water access licence and approval upon commencement of the relevant water sharing plan and proclamation in October 2012, carrying across applicable conditions.
Legislation and Cases Referenced
Legislation
- Water Management Act 2000 (NSW), ss 91G(2), Sch 10
- Evidence Act 1995 (NSW)
- Water Act 1912 (NSW)
- Criminal Appeal Act 1912 (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
- WaterNSW v Harris (No 3) [2020] NSWLEC 18 (primary judgment)
- RW Miller & Co Pty Limited v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
- Allstate Life Insurance Company Ltd v Australian and New Zealand Banking Group Limited (No 5) (1996) 64 FCR 73
- Seltsam Pty Limited v McNeill [2006] NSWCA 158
- Papakosmas v The Queen (1999) 196 CLR 297
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Jones v Dunkel (1959) 101 CLR 298
- Hodgson v Amcor Limited; Amcor Limited v Barnes (No 3) [2011] VSC 272
- Director of Public Prosecutions (Vic) v Iliopoulos (No 2) [2016] VSC 47