Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 Hearing dates: Friday 6 May 2011 Decision date: 06 May 2011 Before: Whealy JA at [1]
Hall J at [45]
McCallum J at [46]Decision: (1) The decision below be varied but only to the extent necessary to vacate the order for costs made by Pepper J.
(2) Otherwise leave to appeal should be refused.
Catchwords: CRIMINAL LAW - Appeal against interlocutory decision - prosecution under Protection of the Environment Operations Act 1997 - refusal to grant stay - failure of sewerage pumping station - pollution not permissible under environment protection licence - procedural unfairness - judicial discretion as to factual findings - public interest in prosecution. Legislation Cited: Criminal Appeal Act 1912 s 5F
Protection of the Environment Operations Act 1997 ss 120, 122Cases Cited: R v Van Phu Ho (Unreported, NSW Court of Criminal Appeal, 18th July 1994, Gleeson CJ, Mahoney JA, Dunford J)
House v The King (1936) 55 CLR 499 at 504 - 504
R v Steffan (1993) 30 NSWLR 633 at 644 - 645
R v Matovski (1989) 15 NSWLR 720 at 723
R v Dinh [2000] NSWCCA 536 at [34]
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
R v Ulman-Narumiec [2003) 143 A Crim R 531 at [24] and [70] - [72]
Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ, at 76 per Gaudron J
Dupas v R (2010) 241 CLR 237
R v Glennon (1992) 173 CLR 592 at 605 - 606Category: Principal judgment Parties: Queanbeyan City Council (Applicant)
Environmental Protection Authority (Respondent)Representation: Counsel:
R S McIlwaine SC / T To (Applicant)
J L Glissan QC / G Preston (Respondent)
Solicitors:
Herring & Associates Lawyers (Applicant)
Office of Environment and Heritage, Department of Premier and Cabinet (Respondent)
File Number(s): 2011/13689 Decision under appeal
- Citation:
- [2010] NSWLEC 237
- Date of Decision:
- 2010-12-21 00:00:00
- Before:
- Pepper J
- File Number(s):
- 2008/50080
Judgment
WHEALY JA: This is an application for leave to appeal under section 5F(3)(a) of the Criminal Appeal Act 1912 from an interlocutory judgment in Class 5 of the Land and Environment Court's jurisdiction. Queanbeyan City Council (the applicant) had been charged with an offence of polluting waters in contravention of section 120(1) of the Protection of the Environment Operations Act 1997 ("the Act"). The Council pleaded not guilty to the charge.
By Notice of Motion filed on 22 nd July 2009, the applicant sought a permanent stay of the prosecution, on the basis that the proceedings were an abuse of process. The foundation for the stay application was an assertion that the conduct of the prosecutor, the Environment Protection Authority ("EPA"), in not issuing an Environment Protection Licence under the Act, had deprived the applicant of the opportunity to avail itself of the only statutory defence to the charge.
The stay application was heard over a number…
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- Case
- [2011] NSWCCA 108
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge's refusal to grant a stay was correct and whether there were any jurisdictional errors in the decision-making process. The primary issues included whether the evidence admitted for a limited purpose was appropriately used and whether the primary judge's findings regarding the cause of the pollution incident went beyond the scope of the limitation. Furthermore, the court had to consider the argument regarding the power to award costs and whether it warranted the grant of leave.
The court found that the primary judge did not err in her use of the evidence admitted for a limited purpose. It was determined that the findings made by the judge were within the scope of the limitation imposed by section 136 of the Evidence Act 1995. The court also noted that the power to award costs was not a matter that warranted the grant of leave. Consequently, the court decided to vacate the costs order, as it had not been brought to the parties' attention before it was made, thereby allowing the court below to reconsider the issue if necessary in the future.
The final orders of the court included vacating the costs order made by the primary judge, without expressing an opinion on the availability of the power to order costs in the present situation. The appeal against the refusal to grant a stay was dismissed, upholding the primary judge's decision.
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