CATCHWORDS: CRIMINAL LAW & PROCEDURE - what constitutes an "information" - whether s 33(1) of the Pesticides Act 1978 requires proceedings to be commenced by information - whether a summons issued under Pt 75 r 7 of the NSW Land and Environment Court rules is an information - requirements for validity of an information - scope and application of a Lord Jervis provision curing defects in an information.
Rodney Scott TAYLOR v ENVIRONMENT PROTECTION AUTHORITY JUDGMENT
1 MEAGHER JA: I agree with Sperling J.
SPERLING J: Three stated cases by Lloyd J of the Land and Environment Court of New South Wales raise materially the same questions for determination by this Court. The proceedings below bear the following serial numbers: 50093/98, 50094/98 and 50095/98.
Matter No.50093/98
2 I will deal first with the stated case in matter No. 55593/98. It is in the following terms:
THE PROCEEDINGS
1.The proceedings are one of three concurrent prosecutions brought by the Environmental Protection Authority as Prosecutor against Rodney Scott TAYLOR, the Defendant, alleging that the Defendant has committed offences against section 33(1) of the Pesticides Act 1978 (NSW), being use of a registered pesticide in careless disregard of an instruction on a registered pesticide label.
2.The Defendant on notice moved for dismissal of the proceedings on the ground that no information was laid by the Prosecutor in accordance with section 59(3) of the Pesticides Act 1978. I heard the said motion on 11 September 1998 and delivered my Reasons for Judgment on 5 November 1998.
3.In delivering my Reasons, I proposed to dismiss the Defendant’s motion and the Defendant requested me to state questions of law pursuant to section 5A(1A) of the Criminal Appeal Act 1912 for determination by the Court of Criminal Appeal. I agreed to that request.
FACTS
I made the following findings of fact:
4.The prosecutor commenced each of these proceedings by way of summons filed on 2 June 1998 seeking an order under section 41 Land and Environment Court Act 1979 to appear. The order was issued on the same day.
5.The offence to which the summons refers is alleged to have been committed on or about 4 June 1997.
6.The Prosecutor clearly…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Taylor v Environment Protection Authority [2000] NSWCCA 71
Case
[2000] NSWCCA 71
Decision Date
CaseChat Overview and Summary
In the case of Taylor v Environment Protection Authority, the respondent, the Environment Protection Authority, sought a declaration that the proceedings against the applicant were invalid due to procedural errors. The dispute was heard and determined by the Land and Environment Court of New South Wales. The primary issue before the court was whether the summons issued under Part 75 rule 7 of the NSW Land and Environment Court Rules constitutes an "information" as required by section 33(1) of the Pesticides Act 1978. The court was also required to determine if any procedural errors could be rectified under a Lord Jervis provision, which allows for the curing of defects in an information.
The court examined the nature of an "information" and whether it is a prerequisite for proceedings under section 33(1) of the Pesticides Act 1978. The court found that an "information" is a formal written statement of the offence, and the summons issued under Part 75 rule 7 of the NSW Land and Environment Court Rules did not meet the requirements of an information as it did not include a statement of the offence or a statement of facts. However, the court also considered the scope and application of a Lord Jervis provision to determine if the defects in the summons could be rectified. Ultimately, the court found that the defects in the summons were not curable under a Lord Jervis provision and that the proceedings against the applicant were invalid due to the failure to comply with the requirements of an "information."
The court concluded that the summons issued under Part 75 rule 7 of the NSW Land and Environment Court Rules did not constitute an "information" as required by section 33(1) of the Pesticides Act 1978. The court found that the defects in the summons were not curable under a Lord Jervis provision and that the proceedings against the applicant were invalid. The court did not provide any specific orders as the matter was determined in favour of the applicant.