EPA v Gilmour & Anor [No.3]

[2001] NSWLEC 121

Land and Environment Court

of New South Wales

CITATION:	EPA v Gilmour & Anor [No.3] [2001] NSWLEC 121
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 :- leave to adduce further evidence - lateness - compellability
LEGISLATION CITED:	Clean Waters Act 1970 s 16 Evidence Act 1995
CASES CITED:	EPA v Gilmour [No 1] [2000] NSWLEC 144; R v Glasby [2000] NSWCCA 83
DATES OF HEARING:	21/12/2000-22/12/2000
EX TEMPORE JUDGMENT DATE :	12/22/2000
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 22 December 2000

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

TABLELAND TOPDRESSING PTY LTD

Defendant

JUDGMENT

On Prosecutor’s application for leave to adduce further evidence by calling

Mrs Bridget Gilmour

1. In the two matters now being heard together, Glenn Gilmour, and the company Tableland Top Dressing Pty Ltd, have both pleaded not guilty to tier 2 charges of “pollute waters” contrary to the Clean Waters Act 1970 s 16.

2. The incident upon which the charges are founded occurred on 17 February 1999 when it is alleged that a light plane, displaying registration No. VH.CCH, dropped pellets of fertiliser into the Gwydir River and its environs.

3. It does not seem to be disputed:

1. That that aircraft, observed in the vicinity on the relevant date, belonged to the company charged;
2. That Mr Gilmour and his wife Bridget are the only shareholders and directors of the company [ Exhibit P1 ]; and
3. That Mr Gilmour is a pilot employed by the company.

4. For Mr Gilmour to be convicted of the charge before the court, it must be proven beyond reasonable doubt that he was indeed the pilot of the plane at the relevant time, on the specified date, at the relevant place at or near the Gwydir River.

5. The charges are certainly being resolutely defended. They were laid in February 2000, and, on 26 April 2000, after the prosecutor had filed a substantial volume of evidence, the pleas of not guilty were entered and the case was set down for 7-8 August 2000.

6. In late June 2000, Bignold J, (judgment [2000] NSWLEC 144), extended the time, which had been set for further prosecution evidence to be filed, to 5 June 2000. Six additional affidavits were, as a result, accepted by the court. The hearing dates were subsequently vacated, and on 3 October, 14-15 December was fixed. We are now commencing the fourth hearing day and are still in the prosecutor’s case, which is being conducted largely on viva voce evidence.

7. Just prior to the trial, I dealt with, as Duty Judge on 8 December 2000, a dispute between the prosecutor and the defendant company regarding compliance with a subpoena issued by the prosecutor for the production of documents upon which the prosecutor hoped to rely to prove that Mr Gilmour was flying the plane in the relevant premises.

8. Mrs Gilmour gave evidence on behalf of the company, on that occasion, to the effect that the relevant civil aviation regulations did not result in the relevant documents being available to the company for production. As Mr Baird notes in his submissions, I did not make any finding that the defendant company had withheld information which it should have produced.

9. The prosecutor has now applied, under s 18 of the Evidence Act 1995, to call Mrs Gilmour as a witness in the case against her husband.

10. Counsel for Mr Gilmour and the company has opposed the application, and I take it that Mrs Gilmour is reluctant to comply.

11. These are serious proceedings and are so regarded by both sides, the general community, and the court. They are matters of substantial public importance.

12. The defendants have undeniable rights, and are exercising them, in their current situation, but so does the prosecution.

13. Bignold J makes that point in par 37 of his judgment, to which Mr Baird draws attention.

14. The issue at the core of the prosecutor’s application is, as Mr Howard says (in par 16 of his written submissions), “important, indeed … critical”. Mrs Gilmour’s evidence would carry considerable weight, not least because no “other evidence is reasonably available to the Prosecution in this issue”, even though there are relevant admissions in the company’s case, which are not admissible against Mr Gilmour.

15. Not only that, but another witness, expected to identify Gilmour as the pilot at the relevant time, failed to give the evidence expected of him when he testified on 15 December. Indeed he swore to the presence, at the airport, on at least one day of the operation, of another person.

16. The business relationship, and the personal relationship, between Mr & Mrs Gilmour are involved here, but the information sought by the prosecutor is correctly described by Mr Howard (par 24 of his written submissions) as “routine”, in the operations of a company engaged in the rural aviation industry.

17. The relevant provisions of s 18 appear to me, therefore, to be satisfied on the evidence before me.

18. It is regrettable that such situations arise while trials are running, despite the best efforts of the Rules, and of the court, to ensure that defendants in class 5 proceedings are fully apprised of the evidence to be led against them.

19. This is a most unusual situation, given the events of 8 and 15 December, and the court simply has to deal with it as it has arisen, regardless of the defence’s cry that the prosecutor should have been more thorough in its investigation and preparation.

20. I have, accordingly, decided to accede to the prosecutor’s application for leave to adduce further evidence by calling Mrs Gilmour as a witness in the prosecution case. I am fortified in that conclusion by the Court of Criminal Appeal’s decision in R v Glasby [2000] NSWCCA 83.