Tonks v Hourigan

Case [2017] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA

(Appeals to a Single Judge: Criminal)

TONKS v HOURIGAN

[2017] SASC 77

Judgment of The Honourable Justice Hinton

1 June 2017

ENVIRONMENT AND PLANNING - POLLUTION - AIR POLLUTION - OFFENCES - PROCEDURE AND EVIDENCE

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL

Appeal against conviction.

The appellant was convicted by a Judge of the Environment, Resources and Development Court of one count of contravening a mandatory provision of an environment protection policy by causing or permitting the burning of matter by a fire in the open on domestic premises, contrary to s 34(2) of the Environment Protection Act 1993 (SA) (EPA) and cl 5(3) of the Environment Protection (Burning) Policy 1994 (SA) (the Policy), and one count of intentionally or recklessly doing the same, contrary to s 34(1) of the EPA and cl 5(3) of the Policy.

The appellant started two fires in the backyard of his home. The appellant’s defence was that the fire was used principally for the preparation of food, as permitted by cl 5(5)(b) of the Policy. The Judge held that the appellant failed to establish the defence provided for by cl 5(5)(b) on the balance of probabilities.

The appellant contends that the onus of proving the fires were not used principally for the preparation of food fell upon the prosecution and was not an exception or excuse to be proven by the appellant on the balance of probabilities. The appellant further complains that the Judge erred in rejecting the evidence of his partner who was present at all material times, erred in admitting and in using the appellant’s failure to protest his innocence at the time of being asked what he was burning, and erred in taking into account the improbability that the cooking of food would not have been smelt by those nearby had food in fact been cooking.

Held, allowing the appeal:

1. Clause 5(5)(b) of the Policy operates as an exception to the offence in cl 5(3) within the meaning of s 56 of the Summary Procedure Act 1921 (SA). The appellant bore the onus of discharging the elements of that defence on the balance of probabilities.

2.       The Judge did not err in rejecting the evidence of the appellant’s partner.

3.       The Judge did not err in admitting and using evidence of the appellant’s failure to protest his innocence.

4.       Absent evidence that food wrapped in alfoil and cooking in the coals of a fire would emit an odour that would be detected, it was not open to the Judge to reason that because witnesses could not smell food cooking, that food was in fact cooking was improbable.

Environment Protection Act 1993 (SA) s 34, s 124; Environment, Resources and Development Court Act 1993 (SA) s 30; Summary Procedure Act 1921 (SA) s 56, referred to.
R v Edwards [1975] 1 QB ; Dowling v Bowie (1952) 86 CLR 136; Overland Corner…

Continue reading Tonks v Hourigan

Sign in free to access the full text

Details
AGLC
Tonks v Hourigan [2017] SASC 77
Case
[2017] SASC 77
Decision Date

CaseChat Overview and Summary

Tonks v Hourigan is an appeal brought before the South Australian Supreme Court concerning charges of air pollution offences. The appellant, Tonks, was convicted of contravening a fire management policy by lighting two fires that were not used principally for the preparation of food. Tonks appealed on several grounds, including the admissibility of certain evidence and the allocation of the onus of proof regarding the principal use of the fires. The primary legal issues in this case were whether the trial judge correctly rejected certain evidence and whether the onus of proof was properly allocated in relation to the principal use of the fires.

The court found that the rejection of Ms Warren’s evidence regarding the time the fire was lit was not unreasonable, as she had a clear recollection of the event occurring at night, despite it being an agreed fact that the fire was lit and burning between noon and 1.00 pm. The court considered that the judge had provided the witness an opportunity to reflect on the inconsistency and that her firm recollection suggested no room for mistake. Regarding the onus of proof, the court concluded that the provision in the fire management policy was an exception under the Summary Procedure Act 1921, meaning the onus was on the defendant to prove the affirmative defence that the fire was used principally for the preparation of food, to the civil standard. This interpretation was consistent with the common law exceptions to the prosecution’s burden of proof.

The appeal was partially allowed, and the convictions were set aside. The matter was remitted to be tried afresh.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I would dismiss the first ground of appeal.The rejection of Ms Warren’s evidence (ground two) With respect to the fire of 17 May 2015 the Judge rejected the entirety of Ms Warren’s evidence as a fabrication.[21] She gave the following reason for doing so – Ms Warren “clearly asserted that she remembered that day, and she clearly asserted that the fire was lit at night.” It is to be recalled that it was an agreed fact that this fire was lit and burning between noon and 1.00 pm and that Mr Howard attended at about 1.00 pm.[21] See above at [24]. Mr Tonks complains that the rejection of Ms Warren’s evidence on the basis of the sole reason provided was unreasonable and not open to the Judge absent consideration of the possibility of Ms Warren being mistaken and it not being put to Ms Warren that the fire was lit and burned during daylight hours. As to the possibility of Ms Warren being mistaken, Mr Tonks referred to the fact that the second fire was, on anyone’s case, lit and burning at night which would then give rise to possible grounds for confusion. Early in her examination-in-chief Ms Warren gave the following evidence:[22][22] T98-99.Q.So, when Mr Tonks went outside, did you see what he was doing outside.A.I can't see, no, because it was dark and he was way down the back so, and I was inside, but yeah.Q.What was the weather like on this day.A.It was freezing.HER HONOURQ.What time was it.A.It would have been maybe around 6 o'clock, I'm not 100% -Q.On 17 May.A.Yes. To be honest I'm guessing it would probably around that time, it was dark, I remember.Q.You remember clearly that it was dark.A.Yes.Q.This is on the first occasion.A.Yes. A little later in her evidence Ms Warren confirmed, again at the invitation of the Judge, that the sun had set as at that time that she stood by the backdoor listening to Mr Tonks’ conversation with Mr Howard.[23] She said that by the time the food was ready that “it was night, it was definitely night time and dark”.[24] In cross-examination she added that she was able to observe the two men as they were in conversation in the pergola area from her position inside because of the light shed upon them by the kitchen light.[25][23] T101.[24] T105.[25] T110. It is obvious that the Judge was alive to the inconsistency between Ms Warren’s evidence and the agreed facts as to the time at which the fire was burning and so, without cross-examining Ms Warren, gave her the opportunity to reflect on the issue. Ms Warren clearly remembered that the fire of 17 May 2015 was burning after it was dark. The unequivocal nature of the response suggested no room for mistake. It is true that the contrary proposition not being put to Ms Warren, the Judge did not have the benefit of expressly hearing from her as to whether she could be mistaken or, indeed, considered others to be mistaken. But the Judge’s question necessarily invited Ms Warren to assess the possibility that she might be wrong. She purported to undertake that assessment and responded that she had a clear memory.

Decision

Reasons for decision

HINTON J
I would allow the fifth ground of appeal.Conclusion I would allow the appeal, set aside the convictions and remit the matter to be tried afresh.

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

And ultimately concluded:[10]The defendant has admitted that he intentionally lit both fires. The defendant has failed to make out the defence in clause 5(5) of the Policy. The lighting of both fires was therefore in contravention of clause 5(3) of the Policy, which is a mandatory provision. I find the defendant guilty of both count 1 and count 2 charged on the complaint. Was the onus on the appellant to prove on the balance of probabilities that the fire was used principally for the preparation of food? (Ground one)[10] Hourigan v Tonks [2017] SAERDC 8 at [39]. It is readily apparent from the Judge’s conclusions that she considered cl 5(5)(b) of the Policy to operate as an affirmative defence to a charge laid under cl 5(3) of the Policy and either s 34(1) or (2) of the EPA and that the onus of establishing that defence fell upon Mr Tonks to the civil standard. Mr Tonks contends that this approach was erroneous. He argues that it is incumbent upon the prosecution to prove beyond reasonable doubt that the fire he was burning was not one used principally for the preparation of food. The respondent contends that cl 5(5)(b) of the Policy falls within s 56 of the Summary Procedure Act 1921 (SA) (SPA). That section provides:56—Exceptions or exemptions need not be specified or disproved by the complainant (1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the complaint. (2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant. Thus, if cl 5(5)(b) of the Policy is an exception, exemption, proviso, excuse, or qualification as the respondent contends, no proof in relation to it was required on the part of the complainant and the Judge was correct to proceed as she did. Section 56 SPA reflects the common law. In R v Edwards the Court of Appeal considered the English equivalent of s 56.[11] Speaking for the Court, Lawton LJ said:[12] In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception.In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), vol. 4, p. 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. What does provide a working rule is what the common law evolved from a rule of pleading. We have striven to identify it in this judgment. Like nearly all rules it could be applied oppressively; but the courts have ample powers to curb and discourage oppressive prosecutors and do not hesitate to use them. [11] [1975] 1 QB 27.[12] R v Edwards [1975] 1 QB 27 at 39-40; see also, Rowbottom v Nicolitsi (1986) 41 SASR 576 at 579 (Cox J).