(Natural Resources Access Regulator v Littore [2024] NSWLEC 53)
A statutory limitation period provides a time limit within which legal proceedings must be commenced.[1] Such time limits encourage prosecutors to commence proceedings in a timely manner and maintain public confidence in the criminal justice system.[2]
David Littore was charged with four offences under s 60C(1)(b) of the WM Act for taking water from a relevant water source ‘otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source [was] authorised’, having known or having had ‘reasonable cause to believe that the taking of the water [was] not in accordance with the water allocation’.
In a notice of motion seeking to strike out the charges, Mr Littore alleged that investigations at his property had brought ‘evidence’ of the offences to the attention of authorised officers at a time earlier than that nominated by the prosecutor. He claimed this triggered the running (and subsequent expiry) of the limitation period from an earlier date.
If correct, this would have meant that the charges filed against him were not properly commenced within three years from the ‘date on which evidence of the alleged offence first came to the attention of any relevant authorised officer’, as required by s 364(3) of the WM Act.[3]
The Land and Environment Court ultimately held that, although investigations had been undertaken at the defendant’s property at an earlier date than that specified in the summons as the date when evidence of the alleged offence first came to the attention of any relevant authorised officer, the evidence obtained during those investigations was, at its highest, evidence of alternative offences available under the WM Act and not the offences charged.[4]
As obiter, her Honour remarked that evidence comes to the ‘attention’ of a relevant authorised officer only when they are already appointed as such. Thus, evidence previously known to persons prior to such an appointment does not ‘crystallise’ at the time they are appointed, so as to automatically trigger the commencement of any relevant limitation period.[5]
When calculating the time within which proceedings must be commenced for an offence against the WM Act (or the regulations), a prosecutor should consider whether the evidence that has been brought to an authorised officer’s attention constitutes evidence of the offence to be charged.
A prosecutor should also bear in mind that the time within which proceedings must be commenced is only triggered when such evidence comes to the attention of a person in their capacity as an authorised officer.
This judgment may provide helpful guidance for regulatory prosecutions operating under similar statutory schemes with like provisions. Whether this is so will turn on careful consideration of the particular terms of each statutory provision.
[1] Cumberland Council v Younan [2018] NSWLEC 145 at [83].
[2] Natural Resources Access Regulator v Littore [2024] NSWLEC 53 at [103]; Cumberland Council v Younan [2018] NSWLEC 145 at [82].
[3] Section 364(5) of the WM Act transfers the burden of proof to the defendant on the balance of probabilities. See Natural Resources Access Regulator v Littore [2024] NSWLEC at [61].
[4] Natural Resources Access Regulator v Littore [2024] NSWLEC 53 at [79], [139], [142]-[146] and [156]-[157].
[5] Natural Resources Access Regulator v Littore [2024] NSWLEC 53 at [110], [112]-[113].
Emma Moss, A/Director
emma.moss@cso.nsw.gov.au
Amelia Cook, Senior Solicitor
amelia.cook@cso.nsw.gov.au
Darcie O’Leary, Paralegal
darcie.oleary@cso.nsw.gov.au
The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.
21 Aug 2024