Morrison v Peacock and Roslyndale Shipping Company Pty Ltd
[1999] NSWLEC 230
•05/20/1999
Land and Environment Court
of New South Wales
CITATION:
Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [1999] NSWLEC 230
PARTIES
No 50006 of 1998
DEFENDANT
PROSECUTOR
Morrison
PeacockNo 50007 of 1998
DEFENDANT
PROSECUTOR
Morrison
Roslyndale Shipping Company Pty Ltd
NUMBER:
50006 of 1998 and 50007 of 1998
CORAM:
Pearlman J
KEY ISSUES:
Evidence :- admissibility of further evidence
LEGISLATION CITED:
Marine Pollution Act 1987
DATES OF HEARING:
05/20/1999
EX TEMPORE JUDGMENT DATE:
05/20/1999
LEGAL REPRESENTATIVES:
PROSECUTOR
Mr A L Hill (Barrister)SOLICITORS
Abbott ToutDEFENDANTS
SOLICITORS
Mr B W Larkin (Barrister)
Norton Smith & Co
JUDGMENT:
IN THE LAND AND 50006 of 1998 and 50007 of 1998
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 20 May 1999
No 50006 of 1998
- Prosecutor
- Defendant
No 50007 of 1998
- Prosecutor
- Defendant
1. The issue before me is whether the second affidavit of Mr Burge, which was dated 3 May 1999, may be read over the defence’s objection.
2. Both parties rely on R v O’Neill (1979) 2 NSWLR 582 at p 588 where Moffitt ACJ makes the following statement:
Where there are depositions and these are tendered before the judge and admitted, he is entitled to determine the nature of the offence by reference to the depositions. Where the accused disputes the facts, the appropriate course is for the accused to give evidence on oath and for the Crown to call before the judge any contrary evidence, except so far as he properly has before him admissions of the accused or evidence given on some other occasion ...
3. The position is this. The prosecutor’s case was the subject of evidence which was filed and served and has already been dealt with. In response to the prosecutor’s case, the defendants raised a defence under s 8(2)(b) of the Marine Pollution Act 1987 and in support of that defence, they filed and served, in April and in July, five affidavits.
4. When the case came on for hearing, the defence filed and served a further three affidavits. At least two of those three affidavits, those of Mr Peacock and Mr Roberts, both sworn on 8 December 1998, expressly refer to a first affidavit of Mr Burge sworn on 3 September 1998.
5. It seems to me, therefore, that what Mr Larkin submits is correct. The prosecution has filed and served evidence to make out a case under s 8(1). The defendants have raised a defence under s 8(2)(b) and they have filed and served a number of affidavits, admittedly not exactly in accordance with the directions given by the Court as to the filing of affidavits. In response, Mr Burge’s first affidavit was filed and served and in reply to that, three further affidavits were filed by the defendant on 8 December 1998. It seems to me that the appropriate course now is to regard the evidence as closed and the affidavit of Mr Burge of 3 May 1999 should not be read. I so direct.
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