Environment Protection Authority v Buchanan - [2008] NSWLEC 315

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Buchanan [2008] NSWLEC 315

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Ruth Dorothy Buchanan

FILE NUMBER(S): 50074 of 2007

CORAM: Pain J

KEY ISSUES: Evidence :- exercise of discretion - whether to allow Prosecutor to rely on material in addition to statement of agreed facts in sentence hearing

LEGISLATION CITED: New South Wales Barristers’ Rules r 71
Legal Profession Act 1987 s 57A, s 57B
Protection of the Environment Operations Act 1997 s 64
Revised Professional Conduct and Practice Rules 1995 r A71

CASES CITED: Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66
R v Barri [2004] NSWCCA 221
R v Burnes [2007] NSWSC 298
R v Falls [2004] NSWCCA 335
R v Palu [2002] NSWCCA 381

TEXTS CITED: Judicial Commission of New South Wales, Sentencing Bench Book, (Release 10, October 2008) [1-455]

DATES OF HEARING: 25 November 2007
26 November 2007

EX TEMPORE JUDGMENT DATE: 26 November 2008

LEGAL REPRESENTATIVES: PROSECUTOR
Ms R Pepper with Ms L Wilson
SOLICITOR
Department of Environment and Climate Change
DEFENDANT
Mr J Rowe
SOLICITOR
Dib Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

26 November 2008

50074 of 2007 Environment Protection Authority v Buchanan
EX TEMPORE JUDGMENT

1 Her Honour: The Defendant has pleaded guilty to a charge that she failed to comply with a condition of an environmental protection licence under s 64(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) in relation to premises at St Mary’s in Sydney, New South Wales (the premises).

2 A dispute between the parties has arisen concerning whether additional evidence can be tendered by the Prosecutor in addition to the Statement of Agreed Facts signed by the parties on 20 November 2008 and Statement of Agreed Environmental Harm signed by the parties on 24 November 2008 tendered by the Prosecutor at the commencement of this sentence hearing. The evidence in dispute is two affidavits of Dr Bone dated 13 December 2007 and 23 July 2008. He provided detailed reports to the Prosecutor about the state of the premises following his inspection on 27 April 2007. That date is outside the offence dates of 29 September 2006 to 12 April 2007. His evidence is sought to be relied on by the Prosecutor because it supplements (I note extensively) what is in both agreed statements of fact. The agreement on environmental harm is in general terms but admits potential for significant harm, inter alia.

3 I do not have before me all the extensive correspondence and emails between the parties over the many months this matter has been prepared for the sentence hearing. The Prosecutor’s counsel said that it was always the Prosecutor’s intention to rely on Dr Bone’s evidence if a fulsome agreement on relevant facts particularly environmental harm was not obtained, relying on a letter to the Defendant’s solicitor of 18 November 2008. The Defendant’s solicitor made clear…

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 Environment Protection Authority v Buchanan

Details

AGLC: Environment Protection Authority v Buchanan [2008] NSWLEC 315
Case: [2008] NSWLEC 315
Decision Date: 26 November 2008

CaseChat Overview and Summary

In the case of Environment Protection Authority v Buchanan, the defendant, Ruth Dorothy Buchanan, faced charges under section 64(1) of the Protection of the Environment Operations Act 1997 for failing to comply with a condition of an environmental protection licence. The specific charge related to premises located in St Mary’s, Sydney. The dispute centred on whether the Prosecutor could rely on additional evidence beyond the Statement of Agreed Facts and the Statement of Agreed Environmental Harm, specifically two affidavits from Dr Bone, which were outside the offence dates. The primary legal issue before the Court was whether the Prosecutor could introduce supplementary evidence in the form of Dr Bone's affidavits.

The Court examined the role of the Prosecutor in sentencing, particularly in ensuring the Court does not fall into error, and the rules governing the conduct of prosecutors. The Court also considered the implications of the principle in The Queen v De Simoni, which suggests that sentencing should not be based on facts that would aggravate the offence. The Court reviewed several precedents from the Court of Criminal Appeal, which expressed concern about the reliance on additional material beyond agreed statements of fact, emphasizing the importance of clarity and avoiding unnecessary complications in sentencing hearings.

The Court found that allowing the Prosecutor to rely on additional material beyond the agreed statements would undermine the negotiated process and potentially prejudice the Defendant. The Court exercised its discretion to exclude Dr Bone’s affidavits, noting that in the particular circumstances of this case, it would be unfair and prejudicial to the Defendant to allow such supplementary material. The Court concluded that while statements of agreed facts are encouraged, each case must be assessed on its own merits, and the decision to allow additional material lies within the discretion of the sentencing judge.

Orders