Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 Hearing dates: 22 August 2022 Date of orders: 15 February 2023 Decision date: 15 February 2023 Before: Beech-Jones CJ at CL at [1] Price J at [80] Garling J at [81] Decision: Appeal Dismissed Catchwords: CRIMINAL LAW – summary prosecution – costs – Land and Environment Court – prosecution under the Water Management Act 2000 (NSW) for taking water from a water source by means of a metered work while its metering equipment was not working – prosecution tendered evidence that as at charge date "MACE" meters were not working – after close of prosecution case one of the two defendants gave evidence that different meters were installed and working – fatal to prosecution case – defendants sought costs – Criminal Procedure Act 1986 (NSW), ss 257C and 257D – application for costs by defendants dismissed – whether primary judge erred in finding prosecution witnesses not aware of existence of digital engine hour meters – no error established – whether primary judge erred in having regard to the failure of the defendants to alert prosecution to the existence of the digital engine hour meters prior to the close of the prosecution case – no error established – whether primary judge erred in not awarding costs by reason of an alleged breach of prosecutorial duty of disclosure – whether breach of prosecutorial duty necessarily meant proceedings conducted in improper manner – no error in primary judge relying on prosecutor's subjective belief that disclosure not required – no error in primary judge concluding that proceedings did not involve unreasonable delay Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Water Management Act 2000 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48 Farlie v Ross [2004] NSWSC 1001 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins [2020] NSWLEC 104 Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins (No 2) [2021] NSWLEC 18 R v Dainer; Ex parte Milevich (1988) 91 FLR 33 R v Keane [1994] 2 All ER 478 R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 32 Southon v Plath (2010) 181 LGERA 352; [2010] NSWCCA 292 Category: Principal judgment Parties: Peter James Harris (Appellant) Justin Timmins (Appellant) Natural Resources Access Regulator (Respondent) Representation: Counsel: Mr M Elliott SC; Ms G Lewer (Appellants) Mr E Muston SC; Ms J Caldwell (Respondent)