The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd and Kinnarney [2012] NSWLEC 30

Land and Environment Court New South Wales

Medium Neutral Citation: The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd and Kinnarney [2012] NSWLEC 30 Hearing dates: 29/02/2012 Decision date: 29 February 2012 Jurisdiction: Class 5 Before: Biscoe J Decision: There is a case to answer. Catchwords: ENVIRONMENTAL OFFENCES:- transportation of waste to a place that could not be lawfully used as a waste facility for the waste - submission of no case to answer at end of prosecution case - test - whether prima facie case negated by alleged tainting of prosecution case - defence of honest and reasonable mistake of fact - whether prosecutor obliged to displace it and whether failed to do so such that prosecution case tainted - evidential burden on defendant in the first instance in relation to that defence. Legislation Cited: Protection of the Environment Operations Act 1997 ss143(1), 169(1) Cases Cited: CTM v The Queen [2008] HCA 25, 236 CLR 440 Environment Protection Authority of NSW v Goulbourn Wool Scour [2004] NSWCCA 439, 137 LGERA 289 He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523 Jiminez v The Queen [1992] HCA 14, 173 CLR 572 Johnson v R [2009] NSWCCA 82 May v O'Sullivan [1955] HCA 38, 92 CLR 654 Ostrowski v Palmer [2004] HCA 30, 218 CLR 493 Category: Interlocutory applications Parties: The Hills Shire Council (Prosecutor)

50416 of 2011 Kinnarney Civil & Earthworks Pty Ltd (Defendant) 50418 of 2011 Patrick Pius Kinnarney (Defendant) Representation: COUNSEL: Mr D A Buchanan SC and Mr M C Fraser (Prosecutor) Mr J Gooley, solicitor, and Mr M Warren, solicitor (Defendants) SOLICITORS: The Hills Shire Council (Prosecutor) Collins and Thompson (Defendants) File Number(s): 50416/11 and 50418/11