Environment Protection Authority v Waight

[1999] NSWLEC 199

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Waight [1999] NSWLEC 199

PARTIES

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Michael Jeffrey Waight

NUMBER:

50019 of 1999 and 50020 of 1999

CORAM:

Talbot J

KEY ISSUES:

Prosecution :- bail - subject to agreement not to approach witnesses

LEGISLATION CITED:

DATES OF HEARING:

05/20/1999

EX TEMPORE JUDGMENT DATE:

05/20/1999

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr D A Buchanan SC

SOLICITORS:
Environment Protection Authority

DEFENDANT:
Mr P D McClellan QC

SOLICITORS:
Heidtman & Co

JUDGMENT:

IN THE LAND AND Matter No. 50019-20 of 1999

ENVIRONMENT COURT Coram: Talbot J

OF NEW SOUTH WALES Decision Date: 20 May 1999

Environment Protection Authority

Prosecutor

v

Michael Jeffrey Waight

Defendant

EX TEMPORE REASONS FOR JUDGMENT ON APPLICATION FOR BAIL

1. HIS HONOUR: I have been satisfied from the evidence and the information presented to the Court that on the balance of probabilities there is a reasonable apprehension that the defendant may, pending trial, attempt to interfere with the freedom of persons who may give evidence against him on behalf of the prosecutor.

2. On instructions, Mr McClellan QC offered an undertaking to the Court on behalf of the defendant to the effect that the defendant would not so interfere or approach those persons pending the trial.

3. The Court prefers to formalise the agreement that the defendant is prepared to make in that respect by requiring such an agreement be a condition of the grant of bail.

4. I am not prepared to allow the defendant to go free on the basis that the Court has dispensed with the requirements of bail in accordance with s 10 of the Bail Act 1978 but rather that bail be granted conditionally.

5. I regard the ability of prospective witnesses for the prosecutor to be free to give evidence on behalf of the prosecutor, free from any threat or coercion on the part of the defendant, as being an essential matter to be considered for promoting more effective law enforcement. It is also reasonable that those persons, as specially affected persons, should be afforded such protection as the law can offer to them (s 37(1)).

6. I record the fact that the defendant has appeared today in answer to the summons voluntarily in the sense that it was not necessary to have him apprehended. Further, he has appeared with his solicitor instructing senior counsel. There is no concern at this point that he will not continue to appear at any adjourned date of the proceedings.

7. However, I have taken into account the criteria that I am required to consider, particularly pursuant to s 32(1)(a)(iii) and s 32(b1)(iii) of the Bail Act.

8. Two offences that are the subject of charges are serious offences and attract a severe penalty as contemplated by s 32(1)(a)(iii). So far as I need to find and on the standard that is set by s 32(3), I consider that at least two witnesses referred to in the evidence, namely Michael Vaughan and Sam Emerzidis, appear to have been approached in the way set out in the affidavit of Mr Emerzidis and the statement which has become Exhibit B. Further, on the balance of probabilities and on the best the Court can do with the evidence in its present state, there has been an approach to a relative of Mr Mark Vaughan.

9. Mr McClellan makes no submission that bail should not be granted subject to the single condition that the defendant not communicate directly or indirectly with any witness. I propose to grant bail conditionally that he agree not do so. The agreement is to apply to any persons of whom he has received notice is to be called, or is likely to be called, by the prosecutor at the trial. I understand that to be a common condition.

10. In relation to matters numbers 50019 of 1999 and 50020 of 1999 I grant bail subject to the following condition:-

The defendant is to enter into an agreement that he is not to communicate directly or indirectly (except through his legal advisers) with any person of whom he has received notice is to be called or is likely to be called by the prosecutor at his trial.

11. Bail may be entered into before any Justice of the Peace or Registrar of the Court.

12. The exhibits may be returned.