Legal Research
Cases
Cockburn Cement Ltd v Cowie

Cockburn Cement Ltd v Cowie

Link copied

Case Copied 8 September 2023 82 min read

Contents

On this page

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COCKBURN CEMENT LTD -v- COWIE [2023] WASC 343
CORAM:   DERRICK J
HEARD:   14 AUGUST 2023
DELIVERED          :   8 SEPTEMBER 2023
FILE NO/S:   SJA 1024 of 2023
BETWEEN:   COCKBURN CEMENT LTD
Appellant
AND
STUART DAVID COWIE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE H WATSON
File Number            :   FR 7345/2020, FR 7350/2020, FR 7354/2020 - 7356/2020 & FR 7358/2020

Catchwords:

Appeals - Application for leave to appeal against conviction - Appellant convicted of six offences of emitting an unreasonable emission, namely an odour, contrary to s 49(5)(a) of the Environmental Protection Act 1986 (WA) - Whether magistrate made error of fact as to the time for which a person was exposed to an unreasonable emission - Whether error of fact was material - Whether magistrate made error of law in finding emissions were unreasonable emissions - Whether 'correctness standard' or 'deferential standard' of appellate review to be applied - Principles to be applied in determining if emission is an unreasonable emission - Whether magistrate in deciding whether emissions were unreasonable emissions impermissibly adopted a subjective approach - Whether magistrate made error of law in failing to find that a defence under s 74A(b)(iv) of the Environmental Protection Act 1986 (WA) had been established because emissions were in accordance with the conditions of a license issued to the appellant under s 57(3) of the Act - Principles of construction to be applied in construing conditions of licenses issued under the Environmental Protection Act 1986 (WA)

Appeals - Application for leave to appeal against sentence - Appellant sentenced for six offences against s 49(5)(a) of the Environmental Protection Act 1986 (WA) to a single fine of $290,000 pursuant to s 54 of the Sentencing Act 1995 (WA) - Whether magistrate made error of law by failing to take into account a factor that was material to the determination of the sentence imposed - Whether magistrate made error of law by imposing a single fine for the offences pursuant to s 54 of the Sentencing Act without first fixing and articulating individual fines for each offence and then applying the totality principle to arrive at an appropriate total fine - Whether fine imposed was manifestly excessive

Appeals - Whether appellant should be permitted to raise new argument on appeal - Principles to be applied in determining if appellant should be permitted to raise new argument on appeal

Legislation:

Crimes Act 1914 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Environmental Protection Act 1986 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Penalties and Sentences Act 1992 (Qld)
Planning and Development Act 2005 (WA)
Sentencing Act 1991 (Vic)
Sentencing Act 1995 (NT)
Sentencing Act 1995 (WA)

Result:

Appeal against conviction dismissed
Appeal against sentence allowed
Fine of $245,000 substituted for fine of $290,000 imposed by magistrate

Category: A

Representation:

Counsel:

Appellant	:	E C Muston SC & T Pontre
Respondent	:	A J Sefton SC &…

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.

Keep reading for free

Create a free CaseChat account to read Cockburn Cement Ltd v Cowie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WASC 343
Decision Date

CaseChat Overview and Summary

In Cockburn Cement Ltd v Cowie, the Supreme Court of Western Australia addressed an appeal against conviction and sentence by Cockburn Cement Ltd, the appellant, following its conviction by a magistrate for emitting unreasonable emissions in violation of the Environmental Protection Act 1986 (WA). The appellant contested both the validity of its convictions on six charges and the appropriateness of the fine imposed. The court examined several grounds of appeal, including factual errors in the magistrate's determination, alleged errors of law in the assessment of unreasonable emissions, and the proportionality of the fine. The court found that while some errors of fact were made, they did not materially affect the convictions. The court also held that the magistrate correctly applied the law in assessing the unreasonableness of the emissions. However, the court determined that the fine imposed was manifestly excessive, leading to the reduction of the fine from $290,000 to $245,000. The court dismissed the appeal against conviction but allowed the appeal against sentence, substituting a lower fine for the one imposed by the magistrate.

Orders