Land and Environment Court of New South Wales CITATION : EPA v Gilmour & Anor [No.4] [2001] NSWLEC 122 PROSECUTOR Environment Protection Authority DEFENDANT PARTIES : Glenn Rex Gilmour PROSECUTOR Environment Protection Authority DEFENDANT Tableland Topdressing Pty Ltd FILE NUMBER(S) : 50006; 50007 of 2000 CORAM: Sheahan J KEY ISSUES: Evidence :- "no case to answer" submission LEGISLATION CITED: Doney v The Queen (1990) 171 CLR 207; CASES CITED: May v O'Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433 DATES OF HEARING: 22/12/2000, written submissions DATE OF JUDGMENT: 01/30/2001 PROSECUTOR Barrister Mr T Howard Solicitor Solicitor for Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Barrister Mr M Baird with Mr M Johnson Solicitor Mr S Rugendyke JUDGMENT: IN THE LAND AND Matter No: 50006-7 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 30 January 2001 Matter No.50006 of 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v GLENN REX GILMOUR Defendant Matter No.50007 of 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v TABLELAND TOPDRESSING PTY LTD Defendant JUDGMENT Ruling on "no case to answer" submission 1. At the close of the prosecution case on the last hearing day prior to Christmas, i.e. Friday 22 December 2000, Mr Baird, Counsel for both defendants, submitted in writing that the defendant Gilmour had no case to answer. 2. The trial was adjourned to resume today, and both parties were directed to make their further written submissions during the vacation so I could rule on the no-case submission today. 3. Gilmour is charged with being the pilot of a fertilising aircraft, registered call-sign VH.CCH ("the plane"). The plane is owned by the Second Defendant Tableland Topdressing Pty Ltd, ("the company"), which company is owned and controlled by himself and his wife (Exhibit P1). 4. The plane was seen, by the witness Davidson, dropping pellet material of some type on her side - or the "incorrect" side - of the Gwydir River on or about 17 February 1999, as specified in the charges, at or about 10.30am. 5. The evidence before the court is well summarised in the written submissions and relevantly includes the following elements: (i) The company was contracted to apply by aircraft, to the paddocks on the property " Myanbah ", on the " other " side of the river from Davidson's property, fertiliser products supplied to the owner of that property, the witness Peirce, by the witness Croft. (ii) The defendant Gilmour was the only person in the company with whom Peirce dealt specifically in regard to the company's application of the fertiliser. (iii) The defendant company applied those products by aircraft, commencing on or about 15 February 1999, and concluding at some time on 17 February 1999. (iv) The defendant Gilmour accepted from Peirce, at " Myanbah ", a cheque for $8,610, on the evening of 17 February, in payment for that work. (v) The defendant Gilmour was seen to be the pilot of the plane on 15 February 1999. (vi) The defendant Gilmour was also, at the relevant time, the only pilot employed, or relevantly contracted, by the defendant company to use its aircraft and do its work. (vii) According to his wife's sworn testimony, regarding the " Myanbah " job and the company's operations on 17 February 1999, Gilmour " went to work that morning " (T236 L16), and she said " I can only presume that Glen did the job" (T236 L14). (viii) An unidentified man was observed on the ground near the aircraft on " Myanbah " on the morning of 15 February 1999. 6. The question to be decided at this point in the trial is "not whether that on the evidence as it stands the defendant ought to be convicted, but whether [he] … could lawfully be convicted". See May v O'Sullivan (1955) 92 CLR 654 at 658 (emphasis added). 7. The question is whether "there is with respect to every element of the offence some evidence, which, if accepted, would either prove the element directly or enable its existence to be inferred", and not "whether every element … is established … beyond a reasonable doubt …". See Zanetti v Hill (1962) 108 CLR 433 per Kitto J at 442. 8. As Mr Howard puts it (in his written submissions of 4 January 2001, par 3) in the context of a jury trial: "… a judge must not make a 'no case' direction, unless the evidence, taken at its highest, will not sustain a verdict of guilty". See Doney v The Queen (1990) 171 CLR 207 at 213-215. 9. Mr Baird's "no-case" submission does not, in my view, satisfy the High Court's formulations of the relevant test. The question of the identity of the pilot will be the subject of a finding by the court when all the evidence is in, but the no-case submission is refused. 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