Rodney West v Graham Gerard Potts
[2006] ACTCA 12
•12 May 2006
RODNEY WEST v GRAHAM GERARD POTTS [2006]
ACTCA 12 (12 May 2006)
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 2 - 2006
No. SCA 55 of 2005
Judges: Crispin P, Connolly & Ryan JJ
Court of Appeal of the Australian Capital Territory
Date: 12 May 2006
IN THE SUPREME COURT OF THE ) No. ACTCA 2 - 2006
) No. SCA 55 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:RODNEY WEST
Appellant
AND:GRAHAM GERARD POTTS
Respondent
ORDER
Judges: Crispin P, Connolly & Ryan JJ
Date: 12 May 2006
Place: Canberra
THE COURT ORDERS THAT:
the appeal be upheld;
the orders of the Chief Justice be set aside;
the appeal from the Magistrate be upheld;
the orders of the Magistrate be set aside;
the Magistrate’s finding of the offence having been proven is confirmed;
in lieu of the penalty imposed by the Magistrate, the charge against the respondent be dismissed pursuant to s 402 of the Crimes Act 1900 (ACT).
IN THE SUPREME COURT OF THE ) No. ACTCA 2 - 2006
) No. SCA 55 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:RODNEY WEST
Appellant
AND:GRAHAM GERARD POTTS
Respondent
Judges: Crispin P, Connolly & Ryan JJ
Date: 12 May 2006
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal against a decision of the Chief Justice upholding an appeal from Magistrate Burns in respect of orders made on 25 July 2005 convicting the respondent of an offence against s 33(1) of the Water Resources Act 1988 (ACT) and imposing a penalty consisting of a fine of $400.
In essence, the allegation against the respondent was that he took water from a bore on his property without a licence. The respondent appealed only against the perceived severity of the penalty, and in the proceedings before the Chief Justice sought an order that the penalty be set aside, and in lieu thereof, that the charge be dismissed pursuant to s 402 of the Crimes Act 1900 (ACT).
During the course of the appeal before the Chief Justice, his Honour referred to the decision of Crispin J in the case of Rashleigh v Environment Protection Agency [2005] ACTSC 18, which had raised issues as to the validity and construction of relevant provisions of the Act in the context of a then conceded position that proprietary rights attached to water, and raised a number of issues as to whether the offence had in fact been committed. His Honour invited submissions on that issue. Crispin J’s decision was subsequently overturned on appeal, it having been conceded that the earlier concession was wrong and that proprietary rights did not apply to water in this Territory.
During the course of the ensuing debate, his Honour apparently formed the impression that counsel for the respondent was seeking an order that the conviction be set aside and the matter remitted to the Magistrates Court for further hearing. Whilst it may have been understandable that his Honour formed that impression, it is now clear that this was not the position taken on behalf of the respondent.
In these circumstances it seems that his Honour did fall into appealable error, and accordingly we would allow the appeal.
As a consequence it would be necessary to consider the otherwise unresolved issue as to whether or not the learned Magistrate had fallen into error in approaching the matter as he did. The Magistrate dealt in succinct terms with the question of whether it was appropriate to apply the provisions of s 402 of the Act. He said simply:
This is a regulatory offence and as such I do not believe that it’s appropriate to proceed without recording a conviction in the matter.
In our opinion, this statement did reveal an appealable error. The mere fact that the offence was of a regulatory nature did not exclude the exercise of discretion under s 402 of the Act. As Sheppard, Kelly and Neaves JJ observed in Petreski v Cargill (1987) 18 FCR 68, the imposition of a sentence by a magistrate is a discretionary judgment, and such discretion clearly extends to any issue as to whether to apply the provisions of s 402. It seems that there is nothing in the terms of that section that would have excluded its application to the proceedings before the Magistrate.
Furthermore, it was conceded, both in the proceedings before the Magistrate and before us, that this was a case in which it would have been appropriate for the charge to have been dismissed under that section.
We would uphold the appeal from the learned Magistrate, set aside the fine, and in lieu thereof order that the charge against the respondent be dismissed pursuant to s 402 of the Act.
Before leaving the matter it should be mentioned that during the course of the argument the Director of Public Prosecutions raised some concern about his Honour’s suggestions that the terms of s 33(2) of the Water Resources Act may have provided a defence to the charge. That subsection reads as follows:
The lessee or occupier of land on or immediately adjacent to which there is a waterway may, without a licence, take water from the waterway or surface water from the land for:
(a) the use of the lessee or occupier or the lessee’s or occupier’s family and/or employees for domestic purposes; or
(b) drinking water for stock; or
(c) irrigating a garden not exceeding two hectares, being a garden cultivated for domestic use and not for the sale, barter or exchange of goods produced in the garden.
We take the view that it would be inappropriate for this Court to proceed to construe this provision during the course of the current proceedings. There were no findings as to whether or not the bore used in this case tapped into an underground stream, which could conceivably fall within the definition of waterway provided in the dictionary to the Act. Accordingly, any opinion that we would give would be of a purely advisory nature and it would be preferable to leave the construction of s 33 as an open question.
The order of the court is that the appeal be upheld, and the orders of the Chief Justice set aside. In lieu thereof we order that the appeal from the learned magistrate also be upheld and that the orders of the magistrate be set aside. The magistrate’s finding of the offence having been proven is confirmed, but in lieu of the penalty imposed by the magistrate it is ordered that the charge against the respondent be dismissed pursuant to s 402 of the Crimes Act 1900.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 5 June 2006
Counsel for the Appellant: Mr Richard Refshauge SC
Solicitor for the Appellant: ACT Director Public Prosecutions
Counsel for the Respondent: Mr F J Purnell SC
Solicitor for the Respondent: Meyer Vandenberg
Date of hearing: 12 May 2006
Date of judgment: 12 May 2006
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