Harrison v Baring [2012] NSWLEC 117

Land and Environment Court New South Wales

Medium Neutral Citation: Harrison v Baring [2012] NSWLEC 117 Hearing dates: 14 May 2012 Decision date: 15 May 2012 Jurisdiction: Class 5 Before: Pain J Decision: The Defendant is guilty of each of the ten offences as particularised in the summonses (50856 - 50865 of 2011) filed on 20 September 2011. Catchwords: PROSECUTION - ex parte hearing in absence of the defendant - multiple offences of take water from a water source otherwise than in accordance with an access licence and use water supply work to take water otherwise than in accordance with a water supply work approval established - prosecutions commenced within limitation period Legislation Cited: Criminal Procedure Act 1986 s 14, s 250 Evidence Act 1995 s 139 Land and Environment Court Rules 2007 r 5.2 Supreme Court Rules 1970 Pt 75 r 11A Water Management Act 2000 s 341(1)(a), s 343(1)(a1)(i), s 364(3), s 367 Cases Cited: R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271 Texts Cited: S Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters Category: Principal judgment Parties: Russell James Harrison (Prosecutor) Dean Patrick Baring (Defendant) Representation: Ms L Sanderson (Prosecutor) No appearance (Defendant) Crown Solicitor's Office (Prosecutor) File Number(s): 50856, 50857, 50858, 50859, 50860, 50861, 50862, 50863, 50864, 50865 of 2011

Judgment 1The Defendant Mr Baring has been charged with ten offences under the Water Management Act 2000 (the WM Act) in relation to the watering of a wheat and a canola crop each on two separate occasions in 2008 on a property called Baring Park east of Condobolin on the Lachlan River. The Prosecutor is employed in the NSW Office of Water and commences this action pursuant to the common informer provisions in s 14 of the Criminal Procedure Act 1986. The Defendant did not appear and was not represented at the hearing, has not appeared or been represented at any of the mentions of these charges and has not entered a plea. The Prosecutor's application for the matter to proceed ex parte was granted under s 250 of the Criminal Procedure Act and in the alternative Pt 75 r 11A of the Supreme Court Rules 1970 which apply in this Court by virtue of r 5.2 of the Land and Environment Court Rules 2007 (the Court Rules) at the outset of the hearing. 2The relevant provisions of the WM Act are s 341(1)(a) which provides that it is an offence to take water from a water source otherwise than in accordance with an access licence, and s 343(1)(a1)(i) which provides that it is an offence to the use of a water supply work to take water otherwise than in accordance with an access licence. The offences are strict liability offences. Section 363 provides for charges against a director of a company if the person knowingly authorised or permitted the act or omission constituting the offence. 3The Defendant is charged as a (the sole) director of Baring Park Pty Ltd, now deregistered by the Australian Securities and Investments Commission (ASIC), who knowingly authorised or permitted the act or omission constituting the offence. The canola and wheat crops referred to in the evidence below were sold by Baring Park Project Pty Ltd to Cargill Australia Limited and GrainCorp Operations Limited respectively. The Defendant is the sole director of that company which has also been deregistered by ASIC.