Environment Protection Authority v Taylor [No. 2]

[2001] NSWLEC 114

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Taylor [No. 2] [2001] NSWLEC 114
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: Rodney Scott Taylor
FILE NUMBER(S):	50093 of 1998; 50094 of 1998 and 50095 of 1998
CORAM:	Lloyd J
KEY ISSUES:	Environmental Offences :- carelessly disregard instructions on pesticide container - an objective test Evidence: -relevance - defendant's mental capacity irrelevant
LEGISLATION CITED:	Evidence Act 1995 s 56(2) Interpretation Act 1987 s 30(1) Pesticides Act 1978 s 33
CASES CITED:	Blair v Miller [1988] WAR 19; Crack v Post, Ex parte Crack [1984] 2 Qd R 311; Hall v Narrabri Shire Council, NSWLEC, Bignold J, 10 January 1992, unreported; He Kaw Teh v The Queen (1951) 157 CLR 523; Lim Chin Aik v The Queen [1963] AC 160; McCrone v Riding [1938] 1 All ER 157; R v Gosset (1993) 105 DLR 681; R v Preston Jj, Ex p Lyons [1982] RTR 173; R v Wampfler (1987) 11 NSWLR 541; Simpson v Peat (1952) 2 QB 24
DATES OF HEARING:	01/05/2001
EX TEMPORE JUDGMENT DATE :	05/01/2001
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr D A Buchanan SC SOLICITORS: Stephen Garrett DEFENDANT: Ms V M Heath (Barrister) SOLICITORS: Sheridan & Stubbs

JUDGMENT:

1

IN THE LAND AND Matter Nos.: 50093/50094/50095 of 1998
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 1 May 2001

Environment Protection Authority

Prosecutor

v

Rodney Scott Taylor

Defendant

JUDGMENT [No. 2]

HIS HONOUR:

1. The defendant seeks to tender a report by a medical practitioner, Dr A M Fielding and a report by another medical practitioner, Dr L A Guile. The tender of the two reports is opposed by the prosecutor.

2. The reports describe a severe brain injury suffered by the defendant as the consequence of an accident when his horse rolled on him some years ago, rendering him unconscious and in a coma for several days. According to the above-mentioned reports the defendant has as a consequence a poor memory function and very poor ability to remember or comprehend the content of written instructions. The prosecutor opposes the tender of the reports on the ground that they are not relevant evidence and are thus not admissible (s 56(2) of the Evidence Act 1995).

3. It is submitted by the prosecutor that the offence with which the defendant is charged is a strict liability offence which does not involve any mental element.

4. The offence with which the defendant is charged is an offence against s 33 of the Pesticides Act 1978. That Act was repealed and replaced by a new Act in 1999, the Pesticides Act 1999. The repeal of the 1978 Act does not, however, affect anything done or any liability acquired or penalty incurred under that Act and any legal proceeding or remedy may be instituted, continued or enforced as if that Act had not been repealed (see s 30(1) of the Interpretation Act 1987).

5. At the time of the alleged offence, namely 4 June 1997, s 33 of the Pesticides Act 1978 provided as follows:

33 (1) Except to the extend that he is otherwise required by an order made under section 21 or, pursuant to a permit, he is otherwise authorised by section 25, a person shall not, in preparing for use, using, keeping or disposing of:
(a) a registered pesticide; or

(b) a pesticide that contains a registered pesticide,

wilfully or carelessly disregard any instruction on any label affixed to a container in which:
(c) the pesticide is situated;

(d) he acquired the pesticide; or

(e) he knows or has reasonable cause to suspect the pesticide to have been,

if there is a registered label for an approved container for the pesticide that contains that instruction.

Penalty: 200 penalty units or, for an offence by corporation, 400 penalty units

(2) It is a defence to a prosecution for a contravention of subsection (1) if the court is satisfied that the instruction disregarded was not directed to the avoidance of harm to the health or property of any person.

6. In the present case the defendant is charged with having infringed pars (a) and (e) of s 33(1). The conduct alleged is that the defendant used a registered pesticide in careless disregard of the relevant instruction on the pesticide container label.

7. In Hall v Narrabri Shire Council (NSWLEC, 10 January 1992 unreported), Bignold J held that the offence created by s 33(1) is one of strict liability rather than an offence where mens rea applies. None of the submissions made in the present case persuade me that I should not follow Bignold J’s conclusion in that case.

8. In my opinion the offence created by s 33(1) is a strict liability offence and the words “carelessly” and “disregard” as used therein must be determined objectively. Apart from the judgment of Bignold J to which I have referred, I have come to this view for the following reasons.

9. In R v Wampfler (1987) 11 NSWLR 541 the then Chief Justice, Sir Laurence Street, applied the High Court case of He Kaw Teh v The Queen (1951) 157 CLR 523 and said that that case is authority for the proposition that, for the purpose of considering criminal intent, statutory offences fall into three categories:

(1) Those in which there is an original obligation on the prosecution to prove mens rea.

(2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.

(3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.

(R v Wampfler at 546)

10. In He Kaw Teh v The Queen, to which I have referred, Gibbs CJ set out three tests for deciding whether the presumption of mens rea has been displaced by a statutory provision, in particular at 529 and 530:

First, of course, one must have regard to the words of the statute creating the offence.

...

The second matter to be considered is the subject matter with which the statute deals.

...

A third consideration is ... “to inquire whether putting the defendant under strict liability will assist in the enforcement of [the particular statutory provision]”. [Lim Chin Aik v The Queen [1963] AC 160, at 174].

11. I turn to the first of Gibbs CJ’s considerations: the words of the statute creating the offence. The words here are “carelessly disregard”. In the context of motor vehicle law the word “carelessly” has been construed according to an objective standard. In McCrone v Riding ([1938] 1 All ER 157) the Divisional bench, King’s Bench Division, held that in the case of a section of an Act which provided that it is an offence for a person to drive a motor vehicle without due care and attention, the standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of efficiency or degree of experience attained by the individual driver.

12. That case was followed and applied in R v Preston Jj, Ex p Lyons (1982) RTR 173, where another Divisional bench of the Queen’s Bench Division considered a charge of driving without due care and attention contrary to s 3 of the Road Traffic Act. Lord Lane said (at 175-6) after referring to McCrone v Riding:

What the Court there held was that the justices were wrong in assuming that there can be one standard for an ordinary driver and another standard for a person of inexperience or lacking in skill. Whether experienced or inexperienced a driver must exercise due care and attention as provided by the terms of the Act which was then in force.

13. His Lordship cited Simpson v Peat (1952) 2 QB 24:

If he is driving without due care and attention it is immaterial what caused him to do so. The question for the justices is: was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.

14. Woolf J (as he then was) said (at 176):

For myself I would attach importance to what Lord Hewart CJ said in McCrone v Riding , ... that the standard “is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway”.

15. Finally in R v Gosset (1993) 105 DLR 681 the Supreme Court of Canada had to consider a charge of unlawful act of manslaughter based on the careless use of a firearm under s 86(2) of the Criminal Code. The Chief Justice, Layman J said (at 691):

In my opinion the determination of what constitutes in a careless manner or without reasonable precautions for the safety of other persons is to be assessed on an objective standard.

16. I see no reason to distinguish the approach adopted in those cases and the adoption of an objective standard suggests an offence of strict liability.

17. Like carelessness the word “disregard” is also to be determined objectively. In Crack v Post, Ex parte Crack [1984] 2 Qd R 311, the Full Court of the Supreme Court of Queensland had to consider a provision to the effect that if, in the opinion of the Court an offender had shown a callous disregard for a dead or injured person the Court shall impose a particular sentence. Andrews ACJ said (at 313) that this required the Court to make an objective appraisal of the matter in coming to an opinion as to whether the conduct demonstrates a callous disregard of a person killed or injured. Shepherdson J said (at 331):

The proper test in my view is an objective one and it is this - would a reasonable man in considering all the evidence be satisfied beyond a reasonable doubt that a defendant had failed to show a callous disregard for the injured or deceased person (as the case may be)?

I consider the excuse of panic in the instant case to be irrelevant.

18. That case was followed and applied by the full Court of Western Australia in Blair v Miller [1988] WAR 19, in which case the Court had to consider a similar provision of “callous disregard” for an injured person. Wallace J said (at 27):

While such a condition[that is, callous disregard] is to be determined objectively (see Crack v Post ex parte Crack ...) it can hardly be said that a driver who did not know that another road user had been injured by his driving is within the definition.

19. Finally I rely upon the dictionary definition of the verb “to disregard”, defined in the Macquarie Dictionary as: “to pay no attention to; leave out of consideration”. These considerations also reinforce my view that the test, being an objective test, creates an offence of strict liability.

20. Turning to the second test referred to by Gibbs CJ, namely the subject matter with which the statute deals, it is I think self-evident that the object of the statute, and of s 33 in particular, is the avoidance of harm to the health and property of any person in the use of pesticides. The offence created by the section is typical of the type of welfare and regulatory offences regarded as being offences of strict liability.

21. The third consideration of Gibbs J is to ask whether putting the defendant under strict liability will assist in the enforcement of the statute. It is again self-evident that the answer to that question must be in the affirmative.

22. I shall also refer again to the judgment of Bignold J in Hall v Narrabri Shire Council (at p 12 of that unreported judgment):

In my judgment “carelessly” clearly governs the word “disregard” and not the expression “in using the pesticide”. It refers to the manner in which the disregard comes into being and hence refers to the cause for or manner of the disregard. Just as a disregard of label instructions can be wilful, eg. by deliberately ignoring the instructions, so it can be careless, eg. example by forgetting an instruction when using the pesticide.

23. For all foregoing reasons I am of the firm view that the offence is one of strict liability. It follows in my opinion that the two medical reports sought to be tendered are not relevant evidence for the purpose of s 56(2) of the Evidence Act on the question of whether the defendant is guilty or not guilty of the offence. The tender of two reports is therefore rejected.

I hereby certify that the preceding 23 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

Associate