The Hills Shire Council v Kinnarney Civil and Earthworks Pty Ltd and Kinnarney

[2012] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd and Kinnarney [2012] NSWLEC 30
Hearing dates:	29/02/2012
Decision date:	29 February 2012
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	There is a case to answer.
Catchwords:	ENVIRONMENTAL OFFENCES:- transportation of waste to a place that could not be lawfully used as a waste facility for the waste - submission of no case to answer at end of prosecution case - test - whether prima facie case negated by alleged tainting of prosecution case - defence of honest and reasonable mistake of fact - whether prosecutor obliged to displace it and whether failed to do so such that prosecution case tainted - evidential burden on defendant in the first instance in relation to that defence.
Legislation Cited:	Protection of the Environment Operations Act 1997 ss143(1), 169(1)
Cases Cited:	CTM v The Queen [2008] HCA 25, 236 CLR 440 Environment Protection Authority of NSW v Goulbourn Wool Scour [2004] NSWCCA 439, 137 LGERA 289 He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523 Jiminez v The Queen [1992] HCA 14, 173 CLR 572 Johnson v R [2009] NSWCCA 82 May v O'Sullivan [1955] HCA 38, 92 CLR 654 Ostrowski v Palmer [2004] HCA 30, 218 CLR 493
Category:	Interlocutory applications
Parties:	The Hills Shire Council (Prosecutor) 50416 of 2011 Kinnarney Civil & Earthworks Pty Ltd (Defendant) 50418 of 2011 Patrick Pius Kinnarney (Defendant)
Representation:	COUNSEL: Mr D A Buchanan SC and Mr M C Fraser (Prosecutor) Mr J Gooley, solicitor, and Mr M Warren, solicitor (Defendants) SOLICITORS: The Hills Shire Council (Prosecutor) Collins and Thompson (Defendants)
File Number(s):	50416/11 and 50418/11

EX TEMPORE Judgment

1. This is a submission of no case to answer at the end of the prosecution case against a corporation and its director, Mr Patrick Kinnarney, on charges of transporting waste to a place that could not be lawfully used as a waste facility for that waste contrary to ss 143(1) and 169(1) of the P rotection of the Environment Operations Act 1997.

1. In May v O'Sullivan [1955] HCA 38, 92 CLR 654 at 658 the High Court held:

When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a "case to answer" has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact.

1. At this stage, there is unchallenged evidence of all the elements of the offences charged, and the defendants have conceded that they transported waste as alleged to the extent of five invoices from a company controlled by the owner of the land to which it was transported, Mr Ralph Clark, which they paid or arranged to be paid. On the first day of the trial the defendants advised the Court that there were only three main issues:

(a)   The defendants' defence is one of honest and reasonable mistake of fact based on an allegation that Mr Clark told Mr Kinnarney that there was development consent for the placement of the fill. In cross - examination, Mr Clark denied saying this. Mr Kinnarney has not given evidence. The prosecutor submits that even if it was said and that was Mr Kinnarney's state of mind, that does not give rise to a mistake of fact but a mistake of law, which is no defence. It is unnecessary at this stage to rule on the prosecutor's submission.

(b)   The amount of waste transported. This goes to the seriousness of the alleged offences. The prosecutor opened its case by contending that it was the vast proportion of the 4,500 tonnes of fill said to have been found on the land. The defendants say that it is much less.

(c)   The defendants contend that the fill was "clean". This also goes to the seriousness of the alleged offences. The prosecutor says that it included material such as bricks, agricultural pipes, tiles, cement, asphalt, gyprock, wood and clods of clay, and that it still fell within the statutory definition of "waste" even if it did not include such material.

1. The defendants do not contest that there is a prima facie case but submit that the prima facie case is negated because the prosecution's case is tainted in three respects:

(a)   an indemnity against prosecution was granted by the prosecutor to Mr Clark, its main witness;

(b)   Mr Clark admitted in cross - examination that he lied in information he gave to council officers initially and in affidavits sworn subsequently when he said that the defendant Mr Kinnarney was the only person or entity who delivered fill to his property and that Mr Kinnarney paid no money for doing so; and

(c)   the prosecution has done nothing to displace the defence of honest and reasonable mistake of fact flagged on the first day of the trial.

1. I do not accept the submission that the indemnity against prosecution and any lies told by Mr Clark constitute tainting of the prosecution case such as to negate what would otherwise be a prima facie case. The indemnity against prosecution given to Mr Clark, about which the defendants complain, may raise questions about its scope and other matters but it is not significant on this no case to answer submission.

1. I also do not accept the defendant's proposition that the prosecutor has an obligation at this stage of the case to displace a defence of honest and reasonable mistake of fact, nor that, in any event, the prosecution case is thereby tainted such that it no longer has a prima facie case.

1. A mistake of law is not a ground of exculpation. The evidential burden of establishing a defence of honest and reasonable mistake of fact is in the first place upon the accused. He must make it appear that he had reasonable grounds for believing in the existence of a state of facts which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, in the existence of that state of facts: He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523 at 592 - 593 per Dawson J; Jiminez v The Queen [1992] HCA 14, 173 CLR 572 at 582; CTM v The Queen [2008] HCA 25, 236 CLR 440 at [7] - [8] and [35] - [39]; Johnson v R [2009] NSWCCA 82 at [8]; Ostrowski v Palmer [2004] HCA 30, 218 CLR 493 at [10], [42] and [85]; Environment Protection Authority of NSW v Goulbourn Wool Scour [2004] NSWCCA 439, 137 LGERA 289 at [55] - [58].

1. At this stage of the case, it is difficult to see how the evidential burden on the defendants of establishing a defence of honest and reasonable mistake of fact has been satisfied on the evidence to date: see [ 3 (a) ] above and CTM at [39]. In any case, I cannot see how, in the circumstances, that defence can be taken into account, or is of significant weight, on this no case to answer submission. In my opinion, on the evidence as it stands, the defendants could lawfully be convicted.

1. I conclude that there is a case to answer.

Decision last updated: 06 March 2012