EPA v Gilmour and Anor [No.2]

[2001] NSWLEC 119

Land and Environment Court

of New South Wales

CITATION:	EPA v Gilmour & Anor [No.2] [2001] NSWLEC 119
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Glenn Rex Gilmour PROSECUTOR Environment Protection Authority DEFENDANT Tableland Topdressing Pty Ltd
FILE NUMBER(S):	50006; 50007 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Evidence :- admissibility of evidence of "tendency"
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	EPA v Air Care Narrabri Pty Ltd and McKean (50018/97, 24 December 1997)
DATES OF HEARING:	14/12/2000
DATE OF JUDGMENT:	12/15/2000
LEGAL REPRESENTATIVES:	PROSECUTOR Barrister Mr T Howard Solicitor Solicitor for Environment Protection Authority DEFENDANT Barrister Mr M Baird with Mr M Johnson Solicitor Mr S Rugendyke

JUDGMENT:

IN THE LAND AND Matter No: 50006-7 of 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 15 December 2000

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

TABLELAND TOPDRESSING PTY LTD

Defendant

JUDGMENT

On admissibility of evidence of “tendency”

1. At the end of yesterday’s proceedings the prosecution sought to lead evidence from the witness Greenhalgh regarding his role in an investigation of another case brought by the prosecutor against, at least, the corporate defendant in these proceedings. He gave some evidence of an incident he said occurred at or near Maitland Point on the Gwydir River in April 1996.

2. The prosecutor gave notice, apparently in June 2000 - I cannot read the date on the bottom of the document handed to me - under s 96(1) of the Evidence Act 1995, that it would seek to lead such evidence of the defendants’, and I use “defendants” in the plural:

Tendency while applying fertiliser from their craft to rural properties adjacent to the Gwydir River to drop pellets of fertiliser from the aircraft into the Gwydir River adjacent to or near such properties.

3. The notice goes on to nominate an event on 11 April 1995, not 1996. The Maitland Point incident occurred approximately 10 kilometres upstream from the location central to the current proceedings and apparently the witness Adair can give evidence about the same matter.

4. During argument on defence counsel’s submission that the evidence should not be admitted, the court was told that the corporate defendant in this case was acquitted in the Local Court of charges arising out of the earlier incident.

5. The test in s 97 is that the evidence will have “significant probative value”.

6. Given what has been said about the incident in 1995 or 1996, the subsequent court case, and the acquittal of the defendant company, I am moved to the same conclusion as reached by Bignold J in EPA v Air Care Narrabri Pty Ltd and McKean (50015 to 50018/97, 24 December 1997, see p40), namely that, even if the evidence were admissible in terms of having “significant probative value”, it is of “a problematic character” and “unreliable and insufficient to establish beyond reasonable doubt” what needs to be proven in this case to establish the guilt of either defendant.

7. In addition, it is possible, as Mr Baird submits, that the admission of such evidence may be unfairly prejudicial to the defendants. In this regard see s 101(2) and s 135 of the Evidence Act, and the discussion in Odgers 3rd edition, pp 277ff.

8. For all of these reasons I have decided not to admit the evidence regarding the alleged incident at Maitland Point in 1995 or 1996.