Natural Resources Access Regulator v Lidokew Pty Ltd (No 2)

[2023] NSWLEC 131

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Lidokew Pty Ltd (No 2) [2023] NSWLEC 131

Hearing dates:

4, 5, 6, 7, 11, 12, 13, 14, 17, 18 October 2022

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See paragraphs 12 and 13

Catchwords:

ENVIRONMENTAL OFFENCES – no case to answer application – whether prosecutor adduced evidence capable of supporting verdict of guilty – application dismissed

Cases Cited:

Doney v R (1990) 171 CLR 207

Peacock v The King (1911) 13 CLR 619

Category:

Principal judgment

Parties:

Natural Resources Access Regulator (Prosecutor) Lidokew Pty Ltd (Defendant)

Representation:

Counsel:
H El-Hage and A Brown (Prosecutor)
C R Ireland (Defendant)

Solicitors:
Crown Solicitor’s Office (Prosecutor)
Bell & Johnson Solicitors (Defendant)

File Number(s):

2020/88368, 2020/88369, 2020/88370, 2020/187127, 2021/181935, 2021/181936

Publication restriction:

No

JUDGMENT

No case to answer submission

1. The Prosecutor closed its case in each of the six charges on 12 October 2022. Upon the close of the Prosecution case the Defendant made an application that it had no case to answer in each of the alternative charges. After hearing the Defendant’s application, I dismissed the application and advised that reasons would be published with the judgment in the substantive proceedings. These are my reasons.

2. The details of the evidence adduced by the Prosecutor will be set out in the substantive reasons for decision and I adopt those details here to avoid repetition.

3. The no case to answer submission requires a determination of a question of law as to whether the Prosecutor has adduced evidence which, if taken at its highest, is capable of supporting a verdict of guilt on some or all of the charges before me.

4. In making such a determination it is necessary for the Prosecution evidence to be taken at its highest, it is not appropriate for the evidence to be weighed, determined if it is capable of inference of guilt, or whether is excludes all hypotheses consistent with innocence: Peacock v The King (1911) 13 CLR 619 at 651-652. Rather, as was stated in Doney v R (1990) 171 CLR 207 at 214-215:

…, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

The Metering Charges

5. The Defendant submitted as to the Metering Charges that I would dismiss each of the charges at this stage as:

1. The error rates as determined by Mr Judge were caused by fair wear and tear – which is not encompassed by the charge of the pumps not operating properly;

2. The meters were clearly operating during the charge period. The charges are unclear as to what is intended by the meters not operating properly; and

3. The use of force with respect to the removal of the pumps had interfered with the reliability of the subsequent testing of the pumps.

6. The Defendant submitted in summary that taking the Prosecutor’s evidence at its highest as to the Metering Charges it is not capable of proving the offences charged beyond reasonable doubt.

7. The Defendant’s submissions rely upon findings relating to an assessment of the weight to be given to the evidence adduced. Such is not permitted at this stage; the evidence must be taken at its highest. On the basis of the evidence adduced, taken at its highest there is sufficient evidence to establish the essential elements of the offence.

8. As to the suggestion that any deficiency in the meter operation was caused by fair wear and tear, there is no part of the legislative provisions pursuant to which the Defendant was charged that makes provision for fair wear and tear. On its face, the Prosecutor is not required to establish as an essential element of the offence that the deficiency in the operation of the meters was not caused by fair wear and tear.

9. Accordingly, I consider that the evidence adduced, taken at its highest is capable of sustaining a finding of guilt of each of the charges.

The Water Take Charges

10. The Defendant submitted that the evidence adduced taken at its highest would not permit a finding of guilt as:

1. The Prosecutor had failed to establish mens rea which was an essential element required by s 60C(1)(b) of the WM Act. There was no evidence as to Mr Phelps having reasonable cause to believe that he was taking more water than permitted;

2. In the alternative there is available a defence of honest and reasonable mistake of fact in that Mr Phelps did not know he was doing anything wrong;

3. Both Dr Meyer and Prof Van Dijk attested that it is necessary to measure the inputs into their calculations on the ground and neither had done so; and

4. There are elements of uncertainty in the evidence that renders the evidence incapable of establishing an exceedance of the water allocation and the experts could not rule out that other calculations would have different results.

11. Having regard to the totality of the evidence and the need to take it at its highest, I am satisfied that the Prosecutor’s evidence is capable of supporting a finding of guilt. Each of the Defendant’s criticisms relies upon an assessment and evaluation of the evidence – which task is not permitted at this stage. Both the issues relating to the mens rea of the Defendant and the capacity to determine water usage is capable of being established on the Prosecutor’s evidence if it is taken at its highest. This does not mean that in the ultimate that when the evidence is assessed and weighed that the Defendant will necessarily be found guilty, but merely an acknowledgement that when looked at as a bare analysis the essential elements of the offence have some evidence to support a positive finding in the Prosecution case.

Conclusion and orders

12. For the reasons outlined above, I have determined that the Defendant does have a case to answer with respect to each of the charges.

13. On 22 November 2002, I made the following order:

1. The application for the entry of verdicts of not guilty on the basis that the Defendant has no case to answer is dismissed.

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Decision last updated: 28 November 2023