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

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

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…

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 121
Decision Date: 12/22/2000

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Glenn Rex Gilmour and Tableland Topdressing Pty Ltd for allegedly polluting waters in contravention of the Clean Waters Act 1970. The incident in question involved a light plane dropping fertiliser pellets into the Gwydir River on 17 February 1999. Both defendants pleaded not guilty to the charges. The case was marked by procedural delays and disputes over evidence, including a failed subpoena for relevant documents. The central issue before the court was whether the prosecutor should be permitted to call Mrs Bridget Gilmour, the defendant's wife and a shareholder and director of the company, as a witness. The prosecutor argued that her testimony was crucial, as no other evidence was available to establish that Mr Gilmour was the pilot of the plane on the specified date.

The court had to determine whether the prosecutor's application for leave to adduce further evidence by calling Mrs Gilmour was justified under Section 18 of the Evidence Act 1995. The defence argued that the lateness of the application and the potential reluctance of Mrs Gilmour to testify were significant obstacles. The court acknowledged the seriousness of the proceedings and the importance of balancing the rights of the defendants with the prosecution's need to present a robust case. The court considered the substantial public interest involved and the potential impact of Mrs Gilmour's testimony on the outcome of the trial. The court also noted that another witness had failed to provide the expected evidence, further underscoring the importance of Mrs Gilmour's potential testimony.

Sheahan J concluded that the prosecutor's application should be granted. The court found that the circumstances warranted an exception to the usual rules governing the admissibility of late evidence. The court was persuaded by the critical nature of Mrs Gilmour's potential testimony and the absence of other available evidence to establish the key fact at issue. The decision was influenced by the Court of Criminal Appeal's ruling in R v Glasby, which supported the admission of late evidence in similar circumstances. The court emphasised the need to deal with the situation as it arose, despite the defence's argument that the prosecutor should have been more thorough in its preparation. The court's ruling allowed the prosecutor to call Mrs Gilmour as a witness in the prosecution case, thereby facilitating the presentation of the case to its conclusion.

Orders