Land and Environment Court
of New South Wales
CITATION:
Environment Protection Authority V Shell Co of Australia Ltd (No 2) [1999] NSWLEC 287
PARTIES
PROSECUTOR
Environment Protection AuthorityDEFENDANT
Shell Co of Australia Ltd
NUMBER:
50071 of 1997
CORAM:
Bignold J
KEY ISSUES:
Environmental Offences :- Environmental Offences - evidence of knowledge by Prosecutor of matters relevant to the charge of negligently causing a substance to leak
LEGISLATION CITED:
Environmental Offences and Penalties Act 1989 s 12(7)
DATES OF HEARING:
11/08/1999
EX TEMPORE JUDGMENT DATE:
11/08/1999
LEGAL REPRESENTATIVES:
PROSECUTOR
Mr D Buchanan SC with Mr D Jordan, BarristerSOLICITORS
Environment Protection AuthorityDEFENDANT
SOLICITORS
Mr N Hemmings QC with Mr I Hemmings, Barrister
Coudert Bros
JUDGMENT:
IN THE LAND AND Matter No . 50071 of 1997
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 8 November 1999
ENVIRONMENT PROTECTION AUTHORITY
Prosecutor
v
SHELL CO OF AUSTRALIA LTD No 2
Defendant
JUDGMENT ON ADMISSIBILITY OF EVIDENCE
Bignold J:
1. In the course of cross-examination of Mr Carter, an Environment Protection Authority (the EPA) officer, a question has arisen concerning the admissibility of evidence of the state of knowledge of the EPA (particularly via its authorised officers) of the matters which have been particularised as the relevant acts or omissions of negligence by the Defendant in the subject charge of an offence against s 6(1) of the Environmental Offences and Penalties Act 1989
2. The question arises in the context of the Defendant's Notice of Motion seeking dismissal of the summons on the ground that the proceedings had been commenced outside the prescribed statutory period of limitation.
3. In the present case the Prosecutor in reliance upon the Environmental Offences and Penalties Act s 12(3) has specified 15 July 1994 as the date on which evidence of the offence first came to the attention of any relevant authorised officer.
4. The Defendant challenges this specified date by seeking, inter alia, to prove to the contrary.
5. In its quest of this task, the Defendant seeks to establish the state of knowledge of the EPA on matters relevant to the alleged negligence of the Defendant, for example, knowledge by the Authority that was in existence before 15 July 1994 concerning the propensity for underground storage tanks installed in service stations to leak petrol etc.
6. The Prosecutor objects to the evidence as not being “relevant” in the sense defined by the Evidence Act to the question before the Court of when evidence of the offence first came to the attention of any relevant authorised officer.
7. ‘Evidence” of the offence is defined by the Environmental Offences and Penalties Act” s 12(7) as meaning “evidence of an offence means evidence of any act or omission constituting the offence”.
8. In my opinion, the Prosecutor's objection must be upheld since the evidence sought to be led deals not with evidence of the offence that was alleged to be committed but at its highest is evidence concerning one element of the offence, albeit a necessary element, namely, the negligence of the Defendant in “negligently causing a substance to leak in a manner which harms the environment”.
9. For these reasons the evidence sought to be led by the Defendant is not admissible.
- AGLC
- Environment Protection Authority v Shell Co of Australia Ltd (No 2) [1999] NSWLEC 287
- Case
- [1999] NSWLEC 287
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the admissibility of evidence regarding the EPA's knowledge of the alleged environmental offences prior to the specified date mentioned in the charge. Shell Co of Australia Ltd sought to introduce evidence that the EPA was aware of issues related to underground storage tanks leaking petrol before the date stated in the charge, which was 15 July 1994. The court had to determine whether this evidence was relevant to the question of when the offence first came to the attention of the relevant authorised officers, as required by the Act. The EPA argued that the evidence was not relevant, as it pertained to the state of knowledge of the EPA rather than the specific evidence of the offence itself. The court had to decide whether the proposed evidence was admissible under the Evidence Act and relevant to the statutory limitation period as outlined in the Environmental Offences and Penalties Act 1989.
Justice Bignold concluded that the evidence sought by Shell Co of Australia Ltd was not admissible. The court held that the evidence in question dealt with the knowledge of the EPA concerning the propensity for underground storage tanks to leak, which was an element of the offence but not the evidence of the offence itself. The court found that the evidence did not directly pertain to when the offence first came to the attention of the relevant authorised officers, and thus was not relevant to the limitation period specified in the Act. As a result, the court upheld the EPA's objection to the admissibility of the evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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