Environment Protection Authority v Brazel (No 3) [2002] NSWLEC 120

Environment Protection Authority v Brazel (No 3) [2002] NSWLEC 120

Although the offence of polluting waters was proved as a strict liability offence, the Court applied s 10(1)(a) because the defendant was a first offender of impeccable antecedents, acted reasonably and with appropriate caution on the knowledge and practices then available, the escape was not shown to be foreseeable, and the prosecutor had not proved the broader alleged harm to creek animals. The charge was dismissed without conviction, but because the offence was proved and the defendant had unsuccessfully contested defences, no costs concession was made and the defendant was ordered to pay the prosecutor's costs.

Jurisdiction
Australia
Judgment Date
14 June 2002
Procedural Posture
Prosecution for Polluting Waters Contrary to S 120 of the Protection of the Environment Operations Act 1997 / After Offence Proved; Determination Whether to Proceed to Conviction Under S 10 of the Crimes (sentencing Procedure) Act and Costs
Outcome
Offence proved; defendant found guilty; charge dismissed without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act; defendant ordered to pay prosecutor's costs.
Legal Topics
['pollution of Waters' 'strict Liability Offence' 'pesticide Escape' 'environmental Harm' 'dismissal Without Conviction' 'costs']
['environmental Law' 'criminal Law' 'sentencing'] ['pollution of Waters' 'strict Liability Offence' 'pesticide Escape' 'environmental Harm' 'dismissal Without Conviction' 'costs']

Case Brief

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Procedural Posture

Prosecution for Polluting Waters Contrary to S 120 of the Protection of the Environment Operations Act 1997 / After Offence Proved; Determination Whether to Proceed to Conviction Under S 10 of the Crimes (sentencing Procedure) Act and Costs

Legal Issues

  1. 1 ['Whether the defendant polluted waters contrary to s 120 of the Protection of the Environment Operations Act 1997.' 'Whether the Court should apply s 10(1)(a) of the Crimes (Sentencing Procedure) Act without proceeding to conviction.' 'Whether potential harm and matters in s 241 of the Protection of the Environment Operations Act 1997 should be considered in deciding whether to apply s 10.' 'Whether the defendant should receive any concession or discount on costs.']

Ratio Decidendi

Although the offence of polluting waters was proved as a strict liability offence, the Court applied s 10(1)(a) because the defendant was a first offender of impeccable antecedents, acted reasonably and with appropriate caution on the knowledge and practices then available, the escape was not shown to be foreseeable, and the prosecutor had not proved the broader alleged harm to creek animals. The charge was dismissed without conviction, but because the offence was proved and the defendant had unsuccessfully contested defences, no costs concession was made and the defendant was ordered to pay the prosecutor's costs.

Court Disposition

Offence proved; defendant found guilty; charge dismissed without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act; defendant ordered to pay prosecutor's costs.

Orders

  • ['The offence is proved.' 'The defendant is found guilty of the offence.' 'Without proceeding to conviction, the Court directs that the relevant charge be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act.' "The defendant is ordered to pay the prosecutor's costs in the sum of $40,000." 'The...