BARBARA FILIPOWSKI v. GERARD ETHELL [1998] NSWLEC 25

BARBARA FILIPOWSKI v. GERARD ETHELL [1998] NSWLEC 25

Because the Court was not bound by the parties' abandoned agreement on the quantity of discharge and the amount discharged was critical to penalty, fairness required that both the defendants and the prosecution be permitted to adduce evidence limited to that issue. The s 28(1) charge against Mr Ethell alleged failure to notify the Board, whereas the statutory offence required notification to the Minister; the identity of the person to be notified was an essential element, so the charge disclosed no offence known to law and should not be amended to create a valid statutory charge.

Jurisdiction
Australia
Judgment Date
27 October 1998
Procedural Posture
Class 5 Prosecution Under the Marine Pollution Act 1987 / After Guilty Pleas and a Penalty and Costs Hearing, Judgment Was Reserved; the Court Determined an Application to Re Open Evidence on Quantity of Discharge and a Defect in a Charge Under S 28(1).
Outcome
Leave granted to both sides to adduce evidence on the quantity of discharge in proceedings 50016 of 1998 and 50017 of 1998; proceedings 50015 of 1998 struck out and the summons dismissed.
Legal Topics
['marine Pollution' 'guilty Plea' 're Opening Evidence' 'sentencing Facts' 'defective Charge' 'amendment of Proceedings']
['environmental Law' 'criminal Procedure' 'sentencing'] ['marine Pollution' 'guilty Plea' 're Opening Evidence' 'sentencing Facts' 'defective Charge' 'amendment of Proceedings']

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Procedural Posture

Class 5 Prosecution Under the Marine Pollution Act 1987 / After Guilty Pleas and a Penalty and Costs Hearing, Judgment Was Reserved; the Court Determined an Application to Re Open Evidence on Quantity of Discharge and a Defect in a Charge Under S 28(1).

Legal Issues

  1. 1 ['Whether the defendants should be permitted to resile from the agreement that 60 litres of nonyl phenol were discharged and tender further evidence on the amount of discharge.' 'Whether the prosecution should be permitted to adduce contrary evidence on the amount of discharge.' 'Whether the charge against Mr Ethell under s 28(1) of the Marine Pollution Act 1987 was defective because it alleged failure to notify the Board rather than the Minister.' 'Whether the defective charge could be cured by amendment or should be struck out.']

Ratio Decidendi

Because the Court was not bound by the parties' abandoned agreement on the quantity of discharge and the amount discharged was critical to penalty, fairness required that both the defendants and the prosecution be permitted to adduce evidence limited to that issue. The s 28(1) charge against Mr Ethell alleged failure to notify the Board, whereas the statutory offence required notification to the Minister; the identity of the person to be notified was an essential element, so the charge disclosed no offence known to law and should not be amended to create a valid statutory charge.

Court Disposition

Leave granted to both sides to adduce evidence on the quantity of discharge in proceedings 50016 of 1998 and 50017 of 1998; proceedings 50015 of 1998 struck out and the summons dismissed.

Orders

  • ['Leave granted to the defendants to tender the Sydney Ports Corporation Marine Response Form and to adduce further evidence limited to the issue of the amount of nonyl phenol which was discharged into Port Botany.' 'Leave granted to the prosecution to adduce contrary evidence limited to the same issue.'...