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Gilmour v Environment Protection Authority

Gilmour v Environment Protection Authority

Case [2002] NSWCCA 399 30 September 2002

Appeal

Admissibility of Evidence

Sentencing

Criminal Law

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Reported Decision:
(2002) 55 NSWLR 593
(2002) 134 A Crim R 466

New South Wales

Court of Criminal Appeal

CITATION: Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399

FILE NUMBER(S): CCA 60702/01; 60703/01

HEARING DATE(S): 29 July 2002

JUDGMENT DATE:
30 September 2002

PARTIES :

Glenn Rex Gilmour (Appellant)
Environment Protection Authority (Respondent)
Tableland Topdressing Pty Ltd (Appellant)
Environment Protection Authority (Respondent)

JUDGMENT OF: Santow JA at 1; Hidden J at 80; Adams J at 81

LOWER COURT JURISDICTION: Land & Environment Court of NSW

LOWER COURT FILE NUMBER(S) : LEC 50006/99; LEC 50007/99

LOWER COURT JUDICIAL
OFFICER : Sheahan J

COUNSEL : C Leggat/ M Baird (Appellants)
D A Buchanan, SC/ T G Howard (Respondents)

SOLICITORS: Stephen Rugendyke (Appellants)
Environment Protection Authority (Respondent)

CATCHWORDS: CRIMINAL LAW PRACTICE AND PROCEDURE - Criminal Appeal Act - whether Court of Criminal appeal can dismiss an appeal, irrespective of appealable error, if there is no substantial miscarriage of justice - CRIMINIAL LAW - Environmental Offences and Penalties Act 1989 - admissibility of evidence - statutory interpretation - whether verdict unsafe and unsatisfactory - CRIMINAL LAW - severity of sentence

LEGISLATION CITED: Clean Waters Act 1970 (NSW) s5; s16
Courts Legislation Amendment Act 2000 (NSW)
Crimes Sentencing (Procedure) Act 1999 (NSW) s10
Criminal Appeal Act 1912 (NSW) s5; s6
Environmental Offences and Penalties Act 1989 (NSW) s8B
Evidence Act 1995 s18; s137

CASES CITED:
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environmental Protection Authority v Gilmore & Another (2000) 109 LGERA 228
Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661
House v the King (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles (2002) 52 NSWLR 705
R v Conway (2002) 186 ALR 328
R v Olejarnik (1994) 33 NSWLR 567
Stokes v R (1960) 105 CLR 279
Thornloe v Filipowski (2001) 52 NSWLR 60

DECISION: (1) Appeal dismissed; (2) The Appellants to pay the costs of the appeal.

60702/01
60703/01

SANTOW JA
HIDDEN J
ADAMS J
30 SEPTEMBER 2002

Glenn Rex GILMOUR -and- ENVIRONMENT PROTECTION AUTHORITY
TABLELAND TOPDRESSING PTY LIMITED -and- ENVIRONMENT PROTECTION AUTHORITY

Judgment

1 SANTOW JA:

INTRODUCTION

Clean Waters Act

2 Sheahan J concluded that the facts as he considered proven constituted a breach on 17 February 1999 of what are the now repealed Clean Waters Provisions of the regime within the Environmental Offences and Penalties Act 1989 (NSW) and in particular under s8B of that Act whereby what are described as tier 2 offences find their sanction.

3 Section 8B is in the following…

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.

Continue reading Gilmour v Environment Protection Authority

Details

AGLC: Gilmour v Environment Protection Authority [2002] NSWCCA 399
Case: [2002] NSWCCA 399
Decision Date: 30 September 2002

CaseChat Overview and Summary

The case of Gilmour v Environment Protection Authority concerned an appeal against a conviction for environmental offences under the Environmental Offences and Penalties Act 1989. The appellant, Gilmour, was convicted by a lower court of contravening certain environmental regulations and was subsequently sentenced. The appeal was lodged under the Criminal Appeal Act, and the crux of the appeal was whether the trial judge had erred in admitting certain evidence and whether the sentence was excessively severe. The matter was heard in the Court of Criminal Appeal.

The Court of Criminal Appeal was required to determine two primary issues: first, whether the trial judge's admission of certain evidence was in error and, if so, whether this constituted an appealable error that necessitated a retrial; and second, whether the sentence imposed was excessive and constituted a substantial miscarriage of justice. The court also considered whether it had the discretion to dismiss an appeal due to the absence of a substantial miscarriage of justice, even in the presence of appealable errors.

In its decision, the Court of Criminal Appeal found that while the trial judge had indeed erred in admitting certain evidence, this error did not lead to a substantial miscarriage of justice. The court emphasised that the verdict remained safe and satisfactory despite the error. Furthermore, the court held that it had the discretion to dismiss an appeal under the Criminal Appeal Act if it was satisfied that no substantial miscarriage of justice had occurred, even if appealable errors were present. In this instance, the severity of the sentence, while considered, did not constitute a substantial miscarriage of justice. Consequently, the appeal was dismissed.

The Court of Criminal Appeal dismissed the appeal and affirmed the conviction and sentence imposed by the lower court. The court's decision underscored its authority to exercise discretion in cases where appealable errors do not result in a substantial miscarriage of justice, thus affirming the balance between procedural correctness and substantive justice in criminal appeals.

Orders