Environment Protection Authority v Brazel [2002] NSWLEC 7

Environment Protection Authority v Brazel [2002] NSWLEC 7

The prosecutor failed to prove beyond reasonable doubt that the defendant, by himself or his employees, caused actual pollution of the particularised waters (tributary of Middle Creek), as required by the summons; the pesticide reached the gutter, but actual pollution of the relevant waters only occurred as a result of third party (council officer) intervention. Defence of honest and reasonable mistake not established since lack of anticipation or due diligence is insufficient for the defence in strict liability offences.

Parties
Prosecutor: Environment Protection Authority; Defendant: Donald William Brazel
Jurisdiction
Australia
Judgment Date
05 February 2002
Procedural Posture
Criminal Environmental Prosecution / Post Hearing Judgment, Reasons Delivered, Awaiting Parties' Submissions Before Final Orders
Outcome
Judgment reserved; no final orders made pending parties' submissions following reasons delivered.
Legal Topics
Water Pollution, Strict Liability Offences, Defence of Honest and Reasonable Mistake, Causal Link in Pollution Offences
Environmental Law Criminal Law Water Pollution Strict Liability Offences Defence of Honest and Reasonable Mistake Causal Link in Pollution Offences

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Parties

Environment Protection Authority

Prosecutor

Donald William Brazel

Defendant

Procedural Posture

Criminal Environmental Prosecution / Post Hearing Judgment, Reasons Delivered, Awaiting Parties' Submissions Before Final Orders

Legal Issues

  1. 1 Whether proof of a causal link between placing pesticide and pollution of specified waters is essential to conviction under s 120(1) of the Protection of the Environment Operations Act 1997
  2. 2 Whether the defence of honest and reasonable mistake is made out for a strict liability pollution offence
  3. 3 Whether pollution of the specified 'waters' was proved beyond reasonable doubt as particularised in the summons

Ratio Decidendi

The prosecutor failed to prove beyond reasonable doubt that the defendant, by himself or his employees, caused actual pollution of the particularised waters (tributary of Middle Creek), as required by the summons; the pesticide reached the gutter, but actual pollution of the relevant waters only occurred as a result of third party (council officer) intervention. Defence of honest and reasonable mistake not established since lack of anticipation or due diligence is insufficient for the defence in strict liability offences.

Court Disposition

Judgment reserved; no final orders made pending parties' submissions following reasons delivered.