Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184 Hearing dates: 28 September 2020 Date of orders: 9 August 2021 Decision date: 09 August 2021 Before: Hoeben CJ at CL [1] Bellew J at [2] Beech-Jones J at [225] Decision: The appeals against conviction are dismissed. Catchwords: CRIMINAL LAW – Appeal – Appeal against conviction – Appellants charged with an offence of contravening a condition of an approval issued under the Water Management Act 2000 (NSW) – Allegation contravention constituted by taking water from the Darling River when the flow of the river was equal to or less than a stipulated flow – Whether the primary judge erred in finding that all elements of the charge were established – Whether the trial judge reversed the onus of proof – Whether the trial judge erred in accepting evidence of a conversation between the first appellant and an officer of the respondent – No error established – Appeal dismissed EVIDENCE – Whether the trial judge erred in admitting evidence of measurements of flow rate of the Darling River which had been taken by officers of the respondent - Whether such evidence was properly regarded as opinion evidence – Distinction between evidence of opinion and evidence of observations – Where the evidence of recorded observations did not involve reaching any conclusion or forming any judgment by applying a process of reasoning from the facts observed – Evidence was not opinion evidence – No error established Legislation Cited: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Water Act 1912 (NSW) Water Management Act 2000 (NSW) Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) Water Sharing Plan for the Barwon-Darling Unregulated Alluvial Water Sources 2012 (NSW) Cases Cited: Allstate Life Insurance Company Ltd v Australian and New Zealand Banking Group Limited (No. 5) (1996) 64 FCR 73; (1996) 136 ALR 627 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Director of Public Prosecutions (Vic) v Iliopoulos (No. 2) [2016] VSC 47 Hodgson v Amcor Limited; Amcor Limited v Barnes (No. 3) [2011] VSC 272 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 RW Miller & Co Pty Limited v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 Seltsam Pty Limited v McNeill [2006] NSWCA 158 WaterNSW v Harris (No.3) [2020] NSWLEC 18 Category: Principal judgment Parties: Peter James Harris and Jane Maree Harris – Appellants WaterNSW – Respondent Representation: Counsel: B Walker SC, M Elliott SC and G Lewer – Appellants M Wright SC and M Machonachie – Respondent