Environment Protection Authority v O'Brien

[2023] NSWLEC 118

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v O’Brien [2023] NSWLEC 118

Hearing dates:

4 to 6 October 2022; further submissions 5 December 2022

Date of orders:

03 November 2023

Decision date:

03 November 2023

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [184]

Catchwords:

ENVIRONMENTAL OFFENCES — Defendant charged under s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) — Plea of guilty not entered — Prosecution case agreed to be circumstantial — Whether the prosecutor has established the defendant guilty of the offences beyond reasonable doubt

Legislation Cited:

Evidence Act1995 (NSW), ss 50, 116, 165

Protection of the Environment Operations Act 1997 (NSW), ss 144AA, 191

Cases Cited:

Davidson v R (2009) NSWLR 150; [2009] NSWCCA 150

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544

Filippetti v R (1978) 13 A Crim R 335

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Peacock v The King (1911) 13 CLR 619; [1911] HCA 66

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Clarke (1997) 97 A Crim R 414

R v Filipovic; R v Gelevski (2008) 181 A Crim R 83

R v Green (No 10) [2021] NSWSC 1449

R v Hillier (2007) 228 CLR 618; [2007] HCA 13

Shepherd v R (1990) 170 CLR 573; [1990] HCA 56

Sutton v R (1984) 152 CLR 528; [1984] HCA 5

Category:

Principal judgment

Parties:

Environment Protection Authority (Prosecutor)
Adam O’Brien (Defendant)

Representation:

Counsel:
M Higgins (Prosecutor)
R A Coffey (Defendant)

Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)

File Number(s):

2020/00016459; 2020/00016460; 2020/00016461; 2020/00016462

Publication restriction:

Nil

Judgment

Introduction

1. Adam O’Brien is charged by the Environment Protection Authority (‘prosecutor’) with committing four offences against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’). The charges relate to the supply of false and misleading information concerning the receipt, transfer and disposal of asbestos waste.

2. Mr O’Brien entered a plea of not guilty in relation to each charge and a trial has been held.

3. As detailed later in this judgment, the alleged supply of information the subject of each charge concerns the receiving of asbestos waste from a construction site at 2 Arcadia Road, Glebe by a company known as Rubbish King Pty Ltd (‘Rubbish King’) of which Mr O’Brien was the sole director, and the subsequent transfer and disposal of the waste to a landfill operated by Suez Recycling and Recovery (Port Stephens) Group Pty Ltd (‘Suez’). The information is alleged to have been supplied in the first instance to two other companies, Forte NSW Pty Ltd (‘Forte NSW’) and JJD Constructions Pty Ltd (‘JJD’), who were respectively a contractor and subcontractor engaged for the removal of the asbestos waste from the construction site. The immediate context for the supply of information…