Prosecutions Report: Update October 2010

Please click here to view the prosecutions report for October.

News:

We are offering a free seminar to all our clients who are involved in investigating offences.  The seminar will focus on the PEACE interviewing model that is used by a number of law enforcement agencies throughout the world, including Victoria police.  Investigative interviewing is the major fact-finding method investigators have at their disposal when investigating offences. What follows is that investigative interviewing must be done well. In 2005, New Zealand police commissioned a review of investigative interviewing. As a result of that review, New Zealand police introduced the PEACE interviewing model. The PEACE interviewing model was developed in the UK in the 1990's and provides the framework for interviewing in any situation with any type of interviewee.

The PEACE interviewing model will provide a practical framework for all investigators when conducting interviews and taking witness statements. This seminar is designed for those conducting any types of investigations.

Details are: 

If you would like to attend, please email events@maddocks.com.au

Cases:

Environment Protection Authority v Unomedical Pty Ltd (No 3)[2010] NSWLEC 198

Is 'officially induced error of law' recognised as a valid defence in Australia?

Unomedical Pty Limited was charged with contravening section 128 of the Protection of the Environment Operations Act (NSW) 1997. The charge related to a failure by Unomedical to carry out all practicable means as may have been necessary to prevent or minimise air pollution.

One of the defences that Unomedical relied on was officially induced error of law. Prior to this case the defence had been argued unsuccessfully on numerous other occasions in Australia. The Court again refused to accept that officially induced error of law was a defence available at common law in Australia notwithstanding its recognition in Canada. 

 To view the case please click here

 Page & Anor v Manningham City Council [2010] VSC 267

 Does the expiation of a PIN restrict a Responsible Authority from issuing further enforcement proceedings?

The appellants, Shaun Page and another, were the registered proprietors of land on which native vegetation was removed without a planning permit. The appellants were served with a penalty notice for removing native vegetation without a permit. The penalty notice required the payment of a fine but did not require any additional steps to be taken to rectify the land. The penalty notice contained the following endorsement:

 if the amount of the penalty is paid and any required additional steps taken within the requisite times the matter will not be brought before the court; however, the responsible authority may withdraw and [sic] infringement notice at any time within 28 days after the notice is served by serving a withdrawal notice, and if the authority withdraws the notice the authority may either take no other action, or may take other action including bringing the matter before the court, or seeking an enforcement order in accordance with the Act.

The appellants paid the fine and Council subsequently lodged an application for an enforcement order with VCAT for the remediation of the land.

At the hearing, the appellant objected to the jurisdiction of the Tribunal to hear and determine the enforcement order on the basis that the penalty notice has been complied in full and the offence had been expiated. The Tribunal rejected the arguments of the appellant and held that it did have jurisdiction. 

Before the Supreme Court the appellants argued that the legislative scheme precluded Council from bringing separate proceedings in the Tribunal in the circumstances and that the endorsement on the penalty notice precluded the Council from bringing a proceeding in the Tribunal.

After reviewing the legislative scheme, the Supreme Court rejected the argument that Council was precluded from bringing separate proceedings in the Tribunal. Further, the Supreme Court held that the endorsement on the penalty notice did not preclude Council from taking enforcement action at the Tribunal. However, the Court remarked that the endorsement on the notice was not legally required and created some confusion. The Court commented that it may be preferable that responsible authorities remove them in future dealings as a matter of general public interest.

To view the case please click here

If you have any queries about any of the matters in the update or any suggestions of topics you would like to see covered in future seminars please  contact a member of our Prosecution & Enforcement Team.