Carter v Wall - [2002] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION: Carter v Wall [2002] NSWLEC 124

PARTIES:
PROSECUTOR
Peter Carter
DEFENDANT
Verna Wall

FILE NUMBER(S): 50135 of 2001

CORAM: Cowdroy J

KEY ISSUES: Prosecution :- destruction of marine vegetation in protected area without permit.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 10
Fisheries Management Act 1994, s 4, s 200, s 201, s 203, s 204, s 205,

CASES CITED: Cameron v R [2002] HCA 6; (2002) 187 ALR 65;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
The Queen v Olbrich (1999) 199 CLR 270;
Tzavellas v Canterbury City Council and Anor (1999) 105 LGERA 262;
Veen v The Queen (1987-1988) 164 CLR 465 ;
Walden v Hensler (1987) 163 CLR 561

DATES OF HEARING: 11/07/02

DATE OF JUDGMENT:
08/22/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr C J Leggat (Barrister) with Mr C Dick (Barrister)
SOLICITORS
Crown Solicitors
DEFENDANT
Mr J B Maston (Barrister)
SOLICITORS
Pickering Priestley

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 50135/01
CORAM: Cowdroy J
DECISION DATE: 22/08/02

Peter Carter

Verna Wall

JUDGMENT

1. By summons dated 4 December 2001 Peter Carter as delegate of New South Wales Fisheries (“the prosecutor”) charges the defendant with an offence under s 205(2) of the Fisheries Management Act 1994. The charge alleges that the defendant harmed marine vegetation in a protected area (as defined in s 204(2) of the Fisheries Management Act) without the authority of a permit validly issued by the Minister for Fisheries (“the offence”). The parties accept that Peter Carter is the appropriate prosecutor of this offence and the Court is also satisfied of this fact. This is the first prosecution to be bought before the Court under the auspice of the Fisheries Management Act.

2. A plea of guilty has been entered to the charge and the defendant does not oppose an order for costs being made against her. Accordingly the Court is only required to determine the issue of penalty in these proceedings. An agreed statement of facts has been filed and is supplemented by several affidavits. As detailed hereunder, there is no agreement between the parties concerning the degree of the defendant’s culpability.

The offence

3. The offence occurred on land situated in the Parish of Pimlico in northern New South Wales (“the site”). The site is on Crown land being public water land (as defined in s 4 of the Fisheries Management Act) adjacent to a tidal channel of the Richmond River (“the channel”). The offence took place between about 5 December 1999 and 1 March 2000 when the defendant removed approximately 3,000 mangrove trees. Two species of mangrove were removed, namely, River Mangroves (Aegiceras corniculatum) and Grey Mangroves (Avicennia marina) (“the mangroves”). These species are the most common varieties of mangrove in New South Wales.

Prosecutor’s Evidence

4. The Prosecutor has adduced evidence that the defendant’s conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v Wall

Details

AGLC: Carter v Wall [2002] NSWLEC 124
Case: [2002] NSWLEC 124
Decision Date: 08/22/2002

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Carter v Wall involved a prosecution against Verna Wall for the destruction of marine vegetation in a protected area without a permit. The case was heard by Cowdroy J, who had to determine the appropriate penalty for the offence. The central legal issue was the degree of the defendant's culpability, which the parties could not agree upon. The prosecution argued that Wall's actions were deliberate and that she attempted to conceal her illegal acts. In contrast, Wall claimed that she had permission from an employee of Richmond River County Council to clear the mangroves and did not know her actions were illegal.

The court found that while Wall's actions were deliberate, it could not conclusively establish the specific details of her conduct, such as the alleged attempt to conceal the evidence, due to conflicting testimonies. The court ruled that the removal of the mangroves was deliberate and extensive, as approximately 3,000 trees were destroyed. However, the court did not accept Wall's evidence that only a few live trees were cut down. The court considered factors such as Wall's early guilty plea and her lack of prior convictions, but also emphasised the need for general deterrence given the significant environmental impact.

Considering these factors, the court imposed a penalty of $10,000, reduced from the maximum possible fine due to the plea of guilty and the requirement for Wall to fence the site to aid in the regeneration of the mangroves. The court also ordered Wall to pay the costs of the proceedings. This decision reflects a balanced approach, taking into account the seriousness of the environmental offence while also considering mitigating factors and the need for remediation.

Orders