Moore v Environment Protection Authority

Case [2021] NSWLEC 87

Land and Environment Court


New South Wales

Medium Neutral Citation: Moore v Environment Protection Authority [2021] NSWLEC 87
Hearing dates: 22, 25 March 2021 and 1 June 2021
Date of orders: 23 August 2021
Decision date: 23 August 2021
Jurisdiction:Class 6
Before: Pain J
Decision:

(1) The conviction appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

Catchwords:

CRIMINAL – appeal against conviction in local court of causing injury with pesticide use – individual exposed to diazinon from macadamia farm while driving on public road – new evidence of pharmacologist allowed in appeal – exposure and injury proved beyond reasonable doubt – conviction appeal dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) ss 3, 31, 37, 38, 39, 49

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10

Criminal Procedure Act 1986 (NSW) s 215

Pesticides Act 1999 (NSW) ss 3, 4, 10, 71, 97, 107, 111

Pesticides Regulation 2017 (NSW)

Cases Cited:

Chararav The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110

De Battista v Shoalhaven City Council [2020] NSWLEC 164

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Director of Public Prosecutions v Earl Burns (2010) 207 A Crim R 362; [2010] NSWCA 265

Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galeav Galea (1990) 19 NSWLR 263

Gianoutsos v Glykis [2006] NSWCCA 137

Green v The Queen (1971) 126 CLR 28; [1971] HCA 55

McClelland v Environment Protection Authority [2021] NSWLEC 25

Moore v R [2016] NSWCCA 185

Pell v The Queen [2020] HCA 12

SS Hontestroom v SSSagaporack [1927] AC 37

The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36

Vince Sunter v District Court of NSW [2008] NSWCA 313

Texts Cited:

Australian Macadamia Society, Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011)

ChemCert Australia, Chemical Users Handbook

Commonwealth Primary Industries Standing Committee, Spray Drift Management: Principles Strategies and Supporting Information (October 2002)

NSW Judicial Commission Criminal Trial Courts Bench Book (as at 22 March 2021)

Second Reading Speech to the Pesticides Bill 1999 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2351-2357)

Category:Principal judgment
Parties: William Robert Moore (Appellant)
Environment Protection Authority (Respondent)
Representation:

COUNSEL:
S Anderson (Appellant)
E Anderson (Respondent)

SOLICITORS:
Sommerville Laundry Lomas (Appellant)
Environment Protection Authority (Respondent)
File Number(s): 20/213668
 Decision under appeal 
Court or tribunal:
Local Court
Jurisdiction:
Criminal
Date of Decision:
23 June 2020
Before:
Magistrate K Stafford
File Number(s):
18/267754

Judgment

  1. The Appellant William Moore was charged with an offence against s 10(1)(a) of the Pesticides Act 1999 (NSW) of using a pesticide in a manner that caused injury to the complainant Luke Sansom. Following a five-day hearing…

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AGLC
Moore v Environment Protection Authority [2021] NSWLEC 87
Case
[2021] NSWLEC 87
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Moore, sought to appeal his conviction in the Local Court in relation to proceedings for alleged breaches of an environmental protection order. The respondent, the Environment Protection Authority, opposed the appeal on the basis that Mr. Moore had not established a real prospect of success. The appeal was heard in the District Court of New South Wales. The central legal issue before the court was whether the appeal was to be dismissed on the grounds that there was no real prospect that the appeal would succeed. This required an analysis of the evidence presented and the likelihood of a successful appeal.

The court found that Mr. Moore had not demonstrated a real prospect of success on appeal. It was noted that the evidence presented in the Local Court was comprehensive and that the findings of fact made by the Local Court Magistrate were well supported by the evidence. The court considered the statutory criteria and concluded that the appeal did not have a reasonable prospect of success. The appeal was dismissed pursuant to section 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), which allows the court to dismiss an appeal if it is of the opinion that the appeal has no reasonable prospect of success.

The final order was that the conviction appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to section 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). This decision confirms the original conviction and reinforces the importance of demonstrating a real prospect of success when appealing against a conviction in such matters.

Orders

Orders of the court

(1) The conviction appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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