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 person is licensed as a driller. It is an offence for a licensed driller to undertake such an activity unless the lessee/occupier of the land holds a “bore construction permit”. Such a permit may be granted by the Authority pursuant to s 44 (WR Act).
It does not appear to be an offence for an occupier or lessee to have a bore constructed or re-constructed without such a permit or by an unlicensed driller. It is the latter who commits an offence; there may be an offence of aiding and abetting unauthorised drilling (see s 45 of the Criminal Code 2002).
The EPA wrote to the appellant on 9 January 2004 requesting details of the construction of the bore, including the name of the driller. A statement was included in that correspondence –
You must not take water from your bore until such time as you hold an allocation and a licence to take water for the use of the bore.
On 30 November 2004 at 10.00 am, an Environment Protection Officer attended at the appellant’s premises. The bore was apparently in use at the time.
Thereafter, on 31 March 2005, the appellant was charged by summons that –
Between 1 July 2003 and 21 November 2004 [he] committed an offence against Section 33(1) of the Water Resources Act 1998 in that he did take water from a bore situated at 8 Vancouver Street, Red Hill without a licence to do so.
If the statement in the correspondence of 9 January 2004 had been a direction under s 46 (WR Act), the appellant, had he taken water from the bore, would have been liable to prosecution for an offence. However, there is nothing to indicate that the assertion in question was a direction within the meaning of s 46(1) WR Act. Nor is that statement so relied upon.
There was a further visit on 7 December 2004, though it is not alleged that water was then being taken from the bore, albeit that the plumbing system attached to it was apparently functional. On 25 July 2005, the appellant pleaded guilty to the charge as laid.
It was asserted on his behalf, without objection from the prosecution, that, following the communication of 9 January 2004, he had provided the details requested concerning the identity of the driller. No decision refusing the application was made until about 10 months later, presumably after the stated inspection of 30 November 2004. It is unclear what significance there was in the time period during which it is alleged the offence occurred.
Nevertheless, the plea of guilty admits the extraction on one occasion of water from the bore between those dates. It is possible to infer that other similar but uncharged acts occurred up to the date of notification of the decision to refuse the appellant’s application. Of course, that cannot be assumed.
However, his Honour was told, without demur, that following the appellant’s provision of the sought after details, he frequently phoned the EPA seeking information as to the progress of his application. He was not told that the EPA’s attempts to contact and interview the driller were delaying the grant of his application. He was told that it was in the hands of the Chief Technical Officer. He was also told that “the issue of water allocation was becoming extremely controversial and soon no further water allocations would be made”. He was advised, however, that he should not worry because his application had been made well in advance of the new water allocation plans. An allocation was likely to have been set aside for him and the granting of the licence for the water allocation was a mere formality.
Acting in reliance on these statements, the appellant erected a sign that bore water was being used on his property and proceeded to do so.
Evidence of the appellant’s exemplary character was also given.
It was submitted, given this and the fact that his breach of the WR Act was not done knowingly there should be no penalty imposed pursuant to s 402 of the Crimes Act 1900 (ACT) (Crimes Act) notwithstanding his guilty plea.
His Honour commented as follows –
I suggest to you Ms Timmoney that this is a regulatory offence and that regulatory offences are not ordinarily the subject of the exercise of a discretion under section 402 of the Crimes Act …
Then his Honour noted –
… hope or belief that a licence would one day be granted is no substitute for the actual obtaining of a licence, it must have been clear to you … that the obtaining of the licence was more than simply a formality.
This is a regulatory offence and as such I do not believe that it’s appropriate to proceed without recording a conviction in the matter.
His Honour then proceeded to convict the appellant and imposed a fine of $400 plus costs of $55. The appeal from that decision was instituted on 1 August 2005. It sought to have an order substituted that no conviction be recorded, by virtue of s 402 Crimes Act. When the matter came before me on 2 November 2005, I granted leave to include a challenge to the finding of guilt. That was based on a question as to whether the decision of Crispin J in Rashleigh v EPA [2005] ACTSC 18 might provide a defence. Since then, EPA v Rashleigh [2005] ACTCA 42, has been decided; Crispin J’s finding was reversed. Nevertheless, the correctness of the finding of guilt, though pursuant to a plea of guilty, remains open to challenge.
There are two issues for consideration. First, whether the taking of water at the time referred to in the charge is a cognisable offence in the circumstances and, second, the application of s 402 Crimes Act to “regulatory” offences.
The taking of water from a bore without a licence
That issue is now, largely, determined by EPA v Rashleigh [2005] ACTCA 42.
First, though Mr Rashleigh had obtained his residential lease before s 13 of the WR Act commenced, this appellant did not have the same forensic advantage.
Second, it was held in EPA v Rashleigh that the prohibition on taking water from beneath the ground surface without a licence did not amount to an acquisition of property and therefore, did not enliven the Territory’s undoubted duty to do so only upon “just terms”.
There is and was a distinction between flowing water and still or captured water in a pond, dam or tank. The owner’s right with respect to underground water (as with water flowing or percolating over the surface) is merely to abstract such water. A subsequent restriction (a fortiori a prior reservation to the Crown) on the abstraction of water does not amount to an acquisition of property (see EPA v Rashleigh at pars 18-20).
However, this is a case where the appellant, it appears, assumed that he had been licensed to extract his applied for allocation. Whilst there was no express representation to that effect by or on behalf of the EPA, it may be concluded that the appellant had no intention of extracting water without being authorised to do so. The erection by him of a sign advertising his use of bore water and his assistance to neighbours to obtain allocations of water lends credibility to that conclusion.
Further, if the water had been taken from the surface of the land or an “immediate adjacent” waterway, no licence would have been required so long as the water was taken for the purpose of (per s 33(2)(c) WR Act) –
Irrigating a garden, not exceeding two hectares, being a garden cultivated for domestic use …
It seems quite likely that the water in question was intended for such use.
Certainly, the word “bore” is defined as also is “waterway”. Under s 4 “bore” –
… means a bore, hole, well, excavation or other opening in the ground or an underground cavity (whether occurring naturally or having been artificially constructed or modified) –
(a)from which ground water is, or is capable of being, obtained or used; or
…
“Ground water” is not defined but obviously refers to untreated water naturally occurring or collecting on or under the surface of land. “Waterway” means –
(a)a river, creek, stream or other natural channel in which water flows (whether permanently or intermittently);
(b)a channel formed (whether in whole or in part) by altering or relocating a waterway described in paragraph (a), and includes the stormwater system; or
(c)a lake, pond, lagoon or marsh (whether formed by geomorphic processes or by works) in which water collects (whether continuously or intermittently);
and includes –
(d)the bed that the water in the waterway normally flows over or is covered by; and
(e)the banks that the water in the waterway normally flows between or is contained by;
but does not include land normally not part of the waterway that may be covered from time to time by floodwaters from the waterway;
A “bore” is merely a means for accessing sub-surface water. It is a means of access requiring a licensed driller (see s 43 WR Act) and a permit (s 44 WR Act). However in the present case, the actual reconstruction work is not specifically identified. It might or might not have required a licensed driller or permit. Nor does the present case concern or rely upon any allegation of contravention of s 43 or s 44 (WR Act).
It is apparent that subterranean water may be a river or stream as much as a pool or pond of such water. There was no evidence of the particular source of the bore water in question. Section 3 “waterway”, (d), plainly includes an underground stream or river.
It follows that, without further evidence, it is not possible to conclude that the prosecution can establish that the water taken without licence was not within the scope of the exception contained in s 33(2)(c) WR Act.
Given that leave has been given to dispute the finding of guilt as well as the penalty imposed, that is enough to enable the original proceedings to be set aside and for both parties to re-present the case upon such further evidence as either may wish to present. Except, of course, the lack of a licence and the taking of water via the bore, within the period alleged; that is to be taken as admitted.
Is this an offence of strict liability?
Obviously, the act of “taking water” prescribed by s 33(1) must be an intentional and voluntary act. That is not in dispute in the present case. There is, or may be, some issue as to whether the absence of authority is something of which the offender needs to be aware or whether the very absence of authority is sufficient.
The Criminal Code 2002 (the Code) provides under s 22(2) –
If the law creating an offence does not provide a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for the physical element.
The “circumstance” in the present case is the failure of the EPA to have granted the licence applied for by the appellant.
“Recklessness” is defined by s 20(2) of the Code (relevantly) –
A person is reckless in relation to a circumstance if –
(a)the person is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
Subsection 20(3) (the Code) declares the issue of unjustifiability to be a question of fact.
It is, under s 23 (the Code), open to the legislature to declare particular offence to be one of “strict liability”. If it is so declared, no fault element is required for that offence. However, the defence of mistake of fact, that is, a mistaken but reasonable belief that the facts were such as to constitute no offence pursuant to s 36 (the Code), applies. If the offence is declared to be an “absolute liability” offence then, pursuant to s 24 (the Code), even the s 36 defence is excluded.
It is possible, but not inevitable, that the appellant’s state of mind might be found to have met the standard required under s 36 (the Code). It is also possible that the prosecution might fail to establish recklessness, if the offence was to be covered by s 22(2) (the Code).
Of course, the Criminal Code provisions I have referred to, until 1 January 2006, apply only to post 1 January 2003 offences, including those inserted in the Code. Subsection 33(1) (WR Act) is a pre-2003 offence.
Nevertheless, even absent the application of the Code, there is a presumption that any criminal liability pre-supposes an element of subjective blameworthiness. The general principle is stated by the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523, (per Gibbs CJ at 528-9):
“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.”
There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v Dayman (1941) [sic] 67 CLR 536 at 540; Bergin v Stack (1953) 88 CLR 248 at 261. However, the principle stated in Sherras v De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v R [1963] AC 160 at 173; R v Warner [1969] 2 AC 256 at 272 and Gammon Ltd v A-G of Hong Kong [1984] 3 WLR 437 at 441; [1984] 2 All ER 503 at 507) and in this court: Cameron v Holt (1980) 28 ALR 490 at 493; ; 142 CLR 342 at 346, 348. The rule is not always easy to apply. Its application presents two difficulties — first, in deciding whether the Parliament intended that the forbidden conduct should be punishable, even in the absence of some blameworthy state of mind, and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression.
Even if an offence does not require mens rea in the sense of positive intention to act unlawfully, there remains, at common law, a fault element. That is, that the existence of an honest and reasonable mistake, not as to the meaning of the law (or indeed the existence of a legal obligation) but as to some relevant fact, will exculpate the accused person.
That follows from Proudman v Dayman (1943) 67 CLR 536 per Dixon J, at 540-1:
There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also.
As to the onus of establishing such a mistake, his Honour said, at 541:
The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt.
(Emphasis added)
That case involved permitting an unlicensed person to drive a motor vehicle. The analogy to the present case is apparent.
If this matter is to be further prosecuted and a plea of not guilty entered, the appellant’s belief, and the reasonableness of that belief, would be an issue. That is so even assuming that the offence is regarded as “regulatory” in the sense referred to in Proudman v Dayman. After 1 January 2006, the Code will apply in any event.
The Appropriateness of the Sentence Imposed
Section 402 (Crimes Act) provides –
(1)Where -
(a) a person is charged before a court of the Territory with an offence against a law of the Territory; and
(b) the court is satisfied that the charge is proved but is of opinion, having regard to –
(i)the character, antecedents, age, health or mental condition of the person; or
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation,
the court may dismiss the charge or, without proceeding to a conviction, by order, direct that the person be discharged upon his or her giving security, with or without sureties, by recognizances or otherwise, to the satisfaction of the court.
If, when his Honour said, “This is a regulatory offence and as such I do not believe that it’s appropriate to proceed without recording a conviction”, he intended to hold that in no case of such an offence could s 402 apply, that would be an error. Miles CJ made that point in Morris v East [1988] ACTSC 32 (10 June 1988). However, in that case his Honour also pointed out that the nature of the offence may, for example, make prior good character less likely to attract leniency than in cases of violence or dishonesty where that conduct appears to have been out of character (see [4]).
The section itself identifies the factors to be taken into account as relevant to the exercise of the direction to proceed pursuant to s 402. As Sheppard, Kelly and Neaves JJ observed in Petreski v Cargill (1987) 18 FCR 68, the imposition of a sentence by a magistrate is a discretionary judgment. This is particularly so where the issue is whether or not to apply s 402 (Crimes Act). A successful appellate challenge to such a decision can be made only if some error is identified or, even if unidentified, is apparent (see also Ryan v Adams (1993) 112 FLR 474, per Miles CJ).
Mr Purnell SC has correctly set out the approach to s 402 (Crimes Act). Each of the criteria, so far as relevant to the particular case, are to be considered. It is a broad, not narrow discretion (see Thorneloe v Filipowski [2001] NSWCCA 213 (30 July 2001) per Spigleman CJ, Hulme and Howie JJ).
If his Honour did not consider all the circumstances, but only the nature of the offence, that would be an error (see, for example, Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532 per Pain J).
However, as the matter must be remitted for further hearing, it is unnecessary further to consider the appropriate penalty if a finding of guilt was to be made.
I will hear the parties as to costs and consequential orders.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 23 December 2005
Counsel for the appellant: Mr J Purnell SC
Solicitor for the appellant: Meyer Vandenberg
Counsel for the respondent: Ms L Taylor
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 2 November 2005
Date of judgment: 23 December 2005
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