Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Unomedical Pty Limited (No 2) [2009] NSWLEC 111 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Unomedical Pty Limited FILE NUMBER(S) : 50046 of 2008 CORAM: Pepper J KEY ISSUES: PRACTICE AND PROCEDURE :- application for a site inspection - whether Court assisted in resolving issues of fact or understanding evidence by view - documentary evidence sufficient - application refused LEGISLATION CITED: Evidence Act 1995 s 53 Protection of the Environment (Operations) Act 1997 s 128(2) CASES CITED: Chotiputhsilpa v Waterhouse [2005] NSWCA 295 DATES OF HEARING: 29 June 2009 EX TEMPORE JUDGMENT DATE : 29 June 2009 PROSECUTOR Mr B Docking SOLICITOR Department of Environment and Climate Change LEGAL REPRESENTATIVES: DEFENDANT Mr I Lloyd QC SOLICITOR Henry Davis York JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 29 June 2009 50046 of 2008 Environment Protection Authority v Unomedical Pty Ltd (No 2) EX TEMPORE JUDGMENT JUDGMENT ON APPLICATION FOR SITE INSPECTION HER HONOUR : 1 This is an application made by the defendant, Unomedical Pty Ltd, under s 53 of the Evidence Act 1995 for the Court to attend a view of the defendant's premises and site facilities. 2 The defendant is charged with, and has pleaded not guilty to, a breach of s 128(2) of the Protection of the Environment (Operations) Act 1997. The charge states: … from about 1 January 2002 to 26 July 2007 inclusive, at or near 11-17 Wilmette Place, Mona Vale in the said State, it committed an offence against section 128 of the Protection of the Environment Operations Act 1997, in that being the occupier of premises, it failed to carry on an activity in or on the premises by such practicable means as may have been necessary to prevent or minimise air pollution, where no emission standard or rate has been prescribed for the air impurity. 3 The alleged breach is claimed to have arisen as a result of the discharge of ethylene oxide during the manufacture, sterilisation and distribution process of single use medical instruments and products made by the defendant. 4 The application is opposed by the prosecutor, who states that in all the circumstances an inspection is unnecessary. 5 The defendant submits that a view is required so that the Court will be able to better understand the issues surrounding the sterilisation process during the charge period. In particular the defendant submits that inspection will assist the Court in understanding: (a) the proximity of resident receptors to the emission point; (b) the size, scale and location of the factory and location of the point of emission of the ethylene oxide, ie the stack; (c) the way the steriliser operated in minimising emissions; (d) the warnings relating to ethylene oxide inside the factory; (e) the alarm systems within the factory; and (f) the position of the steriliser within the factory. 6 Section 53 of the Evidence Act relevantly states as follows: 53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered. 7 It is not in dispute that the mandatory criteria of which the Court must be satisfied in s 53(2) have been fulfilled, that is, in short, that the parties and the judge will be present. 8 In relation to the factors that the Court must take into account in s 53(3), those contained in subs 3(a), 3(c), 3(d) and 3(e) are, for present purposes, either not in dispute or not relevant. Thus: (a) the site has not been materially altered; (b) the visit would not be misleading or prejudicial; and (c) because it is more than likely that the hearing will comfortably finish within the allocated three weeks and the estimated duration of the site visit is for no more than a day, there would be no delay or undue wastage of Court time. 9 Accordingly, the only discretionary factor that is to be considered is that contained in s 53(3)(b), namely, whether in the Court's opinion the inspection will assist the Court in resolving issues of fact or understanding the evidence. 10 The defendant submits that an inspection of the premises is needed to gain "perspective", that is, to understand the evidence and issues in their physical context. Further, it submits that because the defendant is facing a serious criminal conviction, a view is necessary as a matter of fairness. Finally, the defendant submits that these types of inspections are commonplace in criminal proceedings. 11 The prosecutor relied on, and took the Court to, various photos, plans and diagrams which it says are likely to be received into evidence and which are sufficient for the Court to understand the issues in the proceedings and make the necessary factual determinations. It submits that this documentary material is sufficient to understand the layout of the site facilities and provides an adequate graphic representation of the premises for the purposes of the proceedings. 12 Having examined in some detail the documentary material to which I have been taken, I agree with the prosecutor. This is particularly so in the context of a charge concerning the emission of gas into the atmosphere. It was not clear to me what advantage a site visit would afford above and beyond the photographic and pictoral evidence likely to be adduced (Chotiputhsilpa v Waterhouse [2005] NSWCA 295 at [89]). In other words, the attendant disruption to the proceedings and associated costs did not, in my opinion, justify an inspection given the limited assistance the Court was likely to receive from it in resolving the issues of fact or understanding of the evidence. 13 As the defendant conceded, it could easily elicit further evidence as to the site facilities and layout, either by way of further documentary tender, cross-examination of the prosecution's witnesses or examination of its own witness, Mr Anders Kolding, the Managing Director of the defendant at the relevant time. 14 Moreover, it is not the case that merely because this is a criminal trial and the defendant is desirous of an inspection that the Court's discretion is to be weighted in favour of having one. As previously stated, the primary basis of the exercise of the Court's discretion is whether the Court will be assisted by a view in resolving the issues of fact or in understanding the evidence. 15 Given the nature of the charge, given the photographic and diagrammatic evidence that will be adduced, given the fact that the defendant will have an opportunity to adduce any additional evidence in this regard, and given, as the defendant stated during its opening, that it will, in any event, be reliant to a considerable extent on documents to defeat the charge, I am not persuaded that in all the circumstances an inspection of the defendant's premises is warranted. 16 Having said this, if, however, as a result of emerging evidence during the course of the hearing the defendant wishes to renew its application, it should do so. 17 I therefore dismiss the application with no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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