EPA v Gilmour and Anor [No.4] - [2001] NSWLEC 122

Land and Environment Court

of New South Wales

CITATION: EPA v Gilmour & Anor [No.4] [2001] NSWLEC 122

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 :- "no case to answer" submission

LEGISLATION CITED:

CASES CITED: Doney v The Queen (1990) 171 CLR 207;
May v O'Sullivan (1955) 92 CLR 654;
Zanetti v Hill (1962) 108 CLR 433

DATES OF HEARING: 22/12/2000, written submissions

DATE OF JUDGMENT:
01/30/2001

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 30 January 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

TABLELAND TOPDRESSING PTY LTD

Defendant

JUDGMENT

Ruling on “no case to answer” submission

1. At the close of the prosecution case on the last hearing day prior to Christmas, i.e. Friday 22 December 2000, Mr Baird, Counsel for both defendants, submitted in writing that the defendant Gilmour had no case to answer.

2. The trial was adjourned to resume today, and both parties were directed to make their further written submissions during the vacation so I could rule on the no-case submission today.

3. Gilmour is charged with being the pilot of a fertilising aircraft, registered call-sign VH.CCH (“the plane”). The plane is owned by the Second Defendant Tableland Topdressing Pty Ltd, (“the company”), which company is owned and controlled by himself and his wife (Exhibit P1).

4. The plane was seen, by the witness Davidson, dropping pellet material of some type on her side - or the “incorrect” side - of the Gwydir River on or about 17 February 1999, as specified in the charges, at or about 10.30am.

5. The evidence before the court is well summarised in the written submissions and relevantly includes the following elements:

(i) The company was contracted to apply by aircraft, to the paddocks on the property “ Myanbah ”, on the “ other ” side of the river from Davidson’s property, fertiliser products supplied to the owner of that property, the witness Peirce, by the witness Croft.
(ii) The defendant Gilmour was the only person in the company with whom Peirce dealt specifically in regard to the company’s application of the fertiliser.
(iii) The defendant company applied those products by aircraft, commencing on or about 15 February 1999, and concluding at some time on 17 February 1999.
(iv) The defendant Gilmour accepted from Peirce, at “ Myanbah ”, a cheque for $8,610, on the evening of 17 February, in payment for that work.
(v) The defendant Gilmour was seen to be the pilot of the plane on 15 February 1999.
(vi) The defendant Gilmour was also, at the relevant time,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 122
Decision Date: 30/01/2001

CaseChat Overview and Summary

In the matter of Environment Protection Authority v Gilmour and Anor, the Land and Environment Court of New South Wales was tasked with adjudicating on charges brought by the Environment Protection Authority against Glenn Rex Gilmour and Tableland Topdressing Pty Ltd. The defendants were accused of contravening environmental regulations by dropping pellet material on the "incorrect" side of the Gwydir River on 17 February 1999. The company, owned and controlled by Gilmour, was contracted to apply fertiliser to paddocks on the property "Myanbah" on the opposite side of the river from Davidson's property. The key issue before the court was whether there was sufficient evidence to sustain a conviction against Gilmour, specifically regarding his role as the pilot of the aircraft used in the alleged contravention.

The court examined the legal principles surrounding the "no case to answer" submission, referencing several cases and legal authorities. The court noted that the submission was not about whether the defendant should be convicted but rather whether the evidence could support a conviction if accepted. The court referred to Zanetti v Hill and Doney v The Queen to establish the criteria for determining whether a "no case to answer" submission could be upheld. The court found that the submission did not meet the necessary legal standards, as there was sufficient evidence to potentially infer Gilmour's role as the pilot of the aircraft on the day in question.

After considering the written submissions and the evidence presented, Justice Sheahan ruled that the "no case to answer" submission was not satisfied. The court determined that the evidence, if accepted, could support a conviction against Gilmour. The court acknowledged that the identity of the pilot would be determined once all evidence was presented, but found that the current evidence was sufficient to proceed with the trial. The court's decision was based on the established legal principles that the evidence must be sufficient to support a conviction if accepted, rather than proving each element beyond a reasonable doubt.

Orders