In recent years we have provided extensive advice and assistance to Councils regarding the implementation of the Local Nuisance and Litter Control Act 2016 (the Act).
One aspect of the scheme which in our view has always presented interesting legal and practical queries is the ‘Citizen’s Notifications’ framework in respect of littering.
Last month, the Environment, Resources and Development Court (ERD Court) has, in a prosecution matter brought by the Environment Protection Authority (the EPA), shed some light upon the limits of Citizen’s Notifications. We provide a summary of that case, and what we see as some take home messages from the case regarding Citizen’s Notifications.
Dolan (an Authorised Officer) v Voutieros  SAERDC 8
The defendant was charged with one count of disposing of up to 50 litres of general litter onto land contrary to Section 22(1)(d) of the Act.
It was alleged the defendant was the owner of a vehicle from which litter (comprising a cigarette butt) was disposed of onto a road.
The EPA relied on a Citizen’s Notification submitted by a member of the public which detailed observations that person had made on the date of the incident. The observations included a vehicle registration number.
It was accepted by the defendant that he was the owner of the vehicle identified by the member of the public. However, the defendant provided evidence that neither he nor his vehicle were in the location of the offence at the time and date alleged by the EPA.
Both the member of the public who completed the Citizen’s Notification, and the defendant, gave evidence and were cross-examined in the ERD Court.
The ERD Court did not doubt the honesty of either witness. However, the ERD Court noted that the defendant differed distinctively in appearance to the alleged offender described by the member of the public. The Court also had no reason to doubt the evidence adduced by the defendant which demonstrated that his vehicle was at his place of work on the day and at the time of the alleged offence.
Ultimately, the Court reached the conclusion that because of the need for the member of the public ‘to get the initial information as to the registration number of the vehicle down in some haste, [she] has made a mistake.’ While the member of the public may well have seen a person dispose of a cigarette butt from a car window, it seems that the member of the public must have taken down the wrong registration number.
The ERD Court held that it was not persuaded beyond reasonable doubt that the defendant was guilty of the charge, and the prosecution case was dismissed.
This case demonstrates that, as we had anticipated, there are clear pitfalls in relying solely on a Citizen’s Notification as evidence to initiate prosecution proceedings under the Act. To rely solely on a citizen’s notification is to rely entirely on the memory and credibility of one individual, being a person who is not an officer of council, likely has no investigative or courtroom experience, and may have their own motives.
That is not to say that Citizen’s Notifications cannot be useful evidence. The Act does specifically give such notifications some degree of evidentiary weight. However, ideally, a council would avail itself of other evidence before commencing prosecution proceedings (or, for that matter, taking any other enforcement action against a person).
Where a Council proposes to place some weight on a Citizen’s Notification in prosecution proceedings, it would be imperative for the witness to undergo comprehensive ‘proofing’ by a legal practitioner beforehand.
1 March 2019