Graham Gerard Potts v Rodney West

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.