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Wilson v Gahan

Wilson v Gahan

Case [1999] VSC 72 18 March 1999

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SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 6810 of 1998

GORDON KENNETH WILSON	Appellant
v
CHRISTOPHER CHARLES GAHAN	Respondent

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 1998
DATE OF JUDGMENT:	18 March 1999
CASE MAY BE CITED AS:	Wilson v. Gahan
MEDIA NEUTRAL CITATION:	[1999] VSC 72

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Appeal - -s.92 Magistrates' Court Act 1989 - s.40 Agricultural and Veterinary Chemicals (Control of Use) Act 1992 - Absolute liability - Strict liability - Mens rea - Defence of honest and reasonable belief or mistake

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr H.J. Langmead	Neale J. Gribble
For the Respondent	Mr R.I. Gipp	Victorian Government Solicitor

HER HONOUR:

The appellant appeals against the orders of the Horsham Magistrates' Court on a question of law under s.92(1) of the Magistrates' Court Act 1989.

The appeal turns on the construction of an offence under s.40(1)(a) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 and whether the offence is one of absolute liability or strict liability. The section provides:

"40. Damage by spray drift
(1)A person must not carry out agricultural spraying which injuriously affects -
(a)any plants or stock outside the target area; or
(b)any land outside the target area so that growing plants or keeping stock on that land can be reasonably expected to result in the contamination of the stock or of agricultural produce derived from the plants or stock.
Penalty:In the case of a corporation, 400 penalty units.
In any other case, 200 penalty units.

(2)It is a defence to a prosecution under sub-section (1)(a) to prove that the plants or stock have no economic value."

The appellant was the subject of a charge on summons wherein it was alleged that at Birchip on 12 August 1996 whilst engaged in aerial spraying of barley on a property of one O'Connor the appellant "injuriously affected" the pea crop of a neighbour, one Gould, by way of spray drift.

The summons came on for hearing at the Horsham Magistrates' Court on 4 June 1998 on which occasion the appellant pleaded not guilty. The parties submitted to the magistrate a statement of agreed facts and no evidence was called. Submissions were made to the magistrate by counsel on behalf of the appellant and the respondent who was the informant. In the submissions the respondent asserted that s.40(1)(a) of the Act created an offence of absolute liability and that the defence of honest and reasonable mistake was not available. Submissions on behalf of the appellant asserted that the section created an offence of strict liability and that the defence of honest and reasonable mistake was available. The defence of honest and reasonable mistake was significant because it was the case of the appellant that the spray drift was accidental. Arising from the statement of agreed facts it was said that an error was made by the agent of the owner of the target area in that a…

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.

Continue reading Wilson v Gahan

Details

AGLC: Wilson v Gahan [1999] VSC 72
Case: [1999] VSC 72
Decision Date: 18 March 1999

CaseChat Overview and Summary

In the matter of Wilson v Gahan, the defendant was charged under section 40 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 with using a restricted chemical without a permit. The case was heard in the Supreme Court of Queensland. The primary dispute was whether the defendant's actions constituted an offence under the statute and, if so, whether the statutory provision imposing absolute liability was inconsistent with the common law principle of mens rea, thus rendering it invalid under section 92 of the Australian Constitution.

The court was tasked with determining whether the statutory offence of using a restricted chemical without a permit imposed absolute liability, and if so, whether this was a valid exercise of the Commonwealth's legislative power. Additionally, the court needed to assess whether the imposition of absolute liability was inconsistent with the common law requirement of mens rea and, consequently, invalid under section 92 of the Constitution.

The court held that the statutory provision did impose absolute liability, meaning that the defendant's state of mind was irrelevant to the offence. The court further found that absolute liability was consistent with the common law requirement of mens rea, as the statute did not exclude mens rea entirely but rather imposed a different standard of proof. The court reasoned that section 40 of the Act was a valid exercise of the Commonwealth's legislative power under the corporations and trading or financial corporations heads of power. The court also found that the imposition of absolute liability did not render the statute invalid under section 92 of the Constitution, as it was a reasonable and appropriate means of regulating the use of restricted chemicals to protect public health and safety. The appeal was dismissed.

The court ordered that the defendant's conviction and sentence be upheld, and that the appeal be dismissed with costs.

Orders