Graham Gerard Potts v Rodney West - [2005] ACTSC 140

GRAHAM GERARD POTTS v RODNEY WEST
[2005] ACTSC 140 (23 December 2005)

APPEAL – pre-existing reconstructed bore on property – plea of guilty to charge of using bore water without permit – whether taking water is a cognisable offence – whether convictions ought to be recorded for regulatory offences.

Water Resources Act 1998 (ACT)
Criminal Code 2002
Crimes Act 1900 (ACT)

Rashleigh v EPA [2005] ACTSC 18
EPA v Rashleigh [2005] ACTCA 42
He Kaw Teh v The Queen (1985) 157 CLR 523
Proudman v Dayman (1943) 67 CLR 536
Morris v East [1988] ACTSC 32 (10 June 1988)
Petreski v Cargill (1987) 18 FCR 68
Ryan v Adams (1993) 112 FLR 474
Thorneloe v Filipowski [2001] NSWCCA 213 (30 July 2001)
Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 55 of 2005

Judge: Higgins CJ
Supreme Court of the ACT

Date: 23 December 2005

IN THE SUPREME COURT OF THE       )
  )          No. SCA 55 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:GRAHAM GERARD POTTS
Appellant

AND:RODNEY WEST
Respondent

ORDER

Judge:  Higgins CJ
Date:  23 December 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The conviction and penalty be set aside.

This is an appeal from a decision of Magistrate Burns made on 25 July 2005, to convict the appellant of an offence against s 33(1) of the Water Resources Act 1998 (ACT) (the WR Act). A fine of $400 was imposed with court costs of $55.

The defendant was, at the relevant dates, one of the Crown lessees of property situate at 8 Vancouver Street, Red Hill in the Australian Capital Territory. A 99 year lease had been granted by way of renewal of a previous lease in 2001. There was a bore on the property when it was purchased by the appellant and his wife. During 2003, however, the bore was, in some unspecified manner, re-constructed. On 22 August 2003 the appellant wrote to the ACT Environment Protection Authority (EPA) seeking an allocation of water. He had several conversations with Ms Wildman, an officer of the Authority.

The appellant told Ms Wildman about the bore but could not identify the person who had constructed it when so requested. The reconstruction of the existing bore could have fallen within s 43 of the WR Act. That section provides:

(1)A person who is the holder of a driller’s licence shall not –
(a)    drill, construct, alter, plug, backfill, or seal off a bore;
(b)    remove, replace, alter, slot or repair the casing, lining or screen of a bore; or
(c)    deepen a bore (whether in the course of construction or not)
unless the lessee or occupier of the land on which the bore is or will be situated is the holder of a bore construction permit.

Section 39 of the WR Act forbids the activity referred to in s 43(1)(a)(b) or (c) by any person unless that…

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: [2005] ACTSC 140
Decision Date

CaseChat Overview and Summary

In this case, Graham Gerard Potts, the appellant, appealed against a conviction and penalty imposed by Magistrate Burns on 25 July 2005, for an offence under s 33(1) of the Water Resources Act 1998 (ACT). The appellant was found guilty of taking water from a bore at his property without a permit and was fined $400, with additional court costs of $55. The appellant had reconstructed an existing bore on his property in 2003 and had applied for a water allocation but did not receive a permit. He continued to use the bore water for domestic purposes, including assisting his neighbours to obtain water allocations. The appeal was heard on 2 November 2005 and the appeal against both the conviction and penalty was allowed on 23 December 2005.

The legal issues before the court were whether the taking of water from a bore without a permit is a cognisable offence and whether the court should record a conviction for a regulatory offence under s 402 of the Crimes Act 1900 (ACT). The court found that the act of taking water without a permit may not necessarily be an offence if the water is being taken for domestic use and does not fall within the exceptions provided under s 33(2)(c) of the Water Resources Act 1998 (ACT). The court also held that the magistrate had erred in not considering all the relevant factors under s 402 of the Crimes Act 1900 (ACT) when deciding not to exercise the discretion not to record a conviction.

The court's reasoning was based on the fact that the appellant did not intentionally or knowingly take water without a permit, and the offence may not be of strict liability as it requires an element of subjective blameworthiness. The court found that the magistrate had erred in not considering the appellant's exemplary character and the fact that he did not act with an intention to commit an offence. The court also found that the magistrate had not considered all the relevant factors under s 402 of the Crimes Act 1900 (ACT) when deciding not to exercise the discretion not to record a conviction.

The final orders of the court were that the appeal be allowed, and the conviction and penalty be set aside. The case will be remitted for further hearing, and the parties will be heard on the issue of costs and consequential orders.

Orders