Environment Protection Authority v Wollondilly Abattoirs Pty Ltd; Environment Protection Authority v Davis [2019] NSWLEC 26

Environment Protection Authority v Wollondilly Abattoirs Pty Ltd; Environment Protection Authority v Davis [2019] NSWLEC 26

The EPA could not rely on the disputed parts of Ms Ward's affidavit to prove that Mr Davis acted fraudulently because that alleged conduct was not an element of the s 169(1) offences to which he pleaded guilty and would fall within the distinct and more objectively serious offence in s 169B. Objective seriousness for the charged offences was limited to the elements of s 169(1), including due diligence, and admitting the contested evidence would create unfair and practical prejudice by exposing Mr Davis to allegations of a more serious offence for which he was not charged.

Jurisdiction
Australia
Judgment Date
12 March 2019
Procedural Posture
Class 5 Prosecution Under the Protection of the Environment Operations Act 1997 / Procedural Ruling During Sentence Hearing on Whether the EPA Could Rely on Parts of an Affidavit in Sentencing Mr Davis
Outcome
EPA prevented from relying on the disputed parts of Ms Ward's affidavit in sentencing Mr Davis for the s 169(1) offences.
Legal Topics
['special Executive Liability' 'false or Misleading Information Supplied Under Environment Protection Licence Conditions' 'admissibility and Use of Aggravating Evidence on Sentence' 'de Simoni Principle' 'objective Seriousness' 'unfair Prejudice']
['environmental Law' 'criminal Law' 'practice and Procedure' 'sentencing'] ['special Executive Liability' 'false or Misleading Information Supplied Under Environment Protection Licence Conditions' 'admissibility and Use of Aggravating Evidence on Sentence' 'de Simoni Principle' 'objective Seriousness' 'unfair Prejudice']

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Procedural Posture

Class 5 Prosecution Under the Protection of the Environment Operations Act 1997 / Procedural Ruling During Sentence Hearing on Whether the EPA Could Rely on Parts of an Affidavit in Sentencing Mr Davis

Legal Issues

  1. 1 ['Whether, in sentencing Mr Davis for offences under s 169(1) of the Protection of the Environment Operations Act 1997, the EPA could rely on evidence that he knowingly directed or was involved in falsifying records.' 'Whether reliance on that evidence would contravene the principle in R v De Simoni because the alleged conduct could have supported a distinct or more serious charge under s 169B of the Protection of the Environment Operations Act 1997.' 'Whether admitting the contested affidavit evidence would cause unfair or practical prejudice to Mr Davis.']

Ratio Decidendi

The EPA could not rely on the disputed parts of Ms Ward's affidavit to prove that Mr Davis acted fraudulently because that alleged conduct was not an element of the s 169(1) offences to which he pleaded guilty and would fall within the distinct and more objectively serious offence in s 169B. Objective seriousness for the charged offences was limited to the elements of s 169(1), including due diligence, and admitting the contested evidence would create unfair and practical prejudice by exposing Mr Davis to allegations of a more serious offence for which he was not charged.

Court Disposition

EPA prevented from relying on the disputed parts of Ms Ward's affidavit in sentencing Mr Davis for the s 169(1) offences.

Orders

  • ["The EPA cannot rely on the disputed part of Ms Ward's affidavit dated 7 August 2018 as identified in the objections to her affidavit in relation to the whole or part of pars [29], [32]-[33], [37], [40], [42], [44]-[45] and [52]."]