Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator

The defendants, Harris and Timmins, were prosecuted under the Water Management Act 2000 (NSW) for allegedly taking water from a water source by means of a metered work while the metering equipment was not working. The prosecution sought to establish that the meters were non-functional at the time of the alleged offence. However, after the prosecution closed its case, one of the defendants provided evidence that different meters were installed and were functioning correctly. This evidence was fatal to the prosecution’s case. The defendants subsequently sought costs under the Criminal Procedure Act 1986 (NSW), claiming the prosecution failed to disclose relevant information. The primary judge dismissed the application for costs.

The central legal issues revolved around whether the primary judge erred in finding that the prosecution witnesses were unaware of the existence of the digital engine hour meters. The court also considered whether the primary judge was correct in taking into account the defendants' failure to alert the prosecution to the existence of the digital engine hour meters before the close of the prosecution case. Additionally, the court examined whether the primary judge erred in not awarding costs due to an alleged breach of the prosecutorial duty of disclosure, and whether such a breach necessarily meant that the proceedings were conducted in an improper manner.

The court found no error in the primary judge’s determination that the prosecution witnesses were unaware of the digital engine hour meters. The court also held that it was not erroneous for the primary judge to consider the defendants' failure to disclose the existence of the digital engine hour meters prior to the close of the prosecution case. The court further concluded that there was no error in the primary judge's reliance on the prosecutor’s subjective belief that disclosure was not required. The court held that a breach of the prosecutorial duty of disclosure did not necessarily mean the proceedings were conducted in an improper manner. The primary judge’s decision not to award costs due to the alleged breach was affirmed.

The primary judge’s decision dismissing the application for costs by the defendants was upheld. No error was found in the primary judge’s reasoning or conclusions. The court found that the primary judge did not err in any of the respects argued by the defendants. The primary judge's assessment of the evidence and the application of the relevant statutory provisions was correct, and therefore, the defendants' application for costs was dismissed.