KANGAROO COURT
OF AUSTRALIA
Wafting v
Environment Protection Authority
[2002] KCA 144
Environmental law – Air pollution – Offences – Farting – Appeal against
conviction and sentence – Evidence - Clean Air Act, s 36 - Environment
Protection Act, s 109.
(This is an abridged version with
editorial commentary in blue. Practitioners should refer to the full judgment
when citing this case as authority – Ed)
The appellant Mr Wafting was
convicted in the Land and Environment Court of three statutory farting
offences. He appealed against conviction and sentence to the Full Kangaroo
Court of
CANIS J: The facts of this case are that on
Upon detaining and questioning the appellant, Officer Jennings formed the view that sufficient circumstantial evidence existed to charge the appellant with the offences of farting in contravention of s 36 of the Clean Air Act; leaving the scene of a fart in contravention of s 39 of that Act and the offence of failing to report an environmental incident pursuant to s 109 of the Environment Protection Act. The appellant was charged and convicted on all three counts and now appeals against all three convictions.
The sole ground of appeal today is that the convictions are unsafe and unsatisfactory because there was not enough evidence to establish on the balance of probabilities that the appellant was responsible for the fart or indeed that the fart occurred at all.
The difficulty for the appellant is that he is now attempting to challenge the existence of the fart when a concession already appears to have been made that the fart did take place. During cross-examination the following exchange occurred (at p 549 of the transcript, with my emphasis added).
Q: Now is it not the case, Mr Wafting, that at that particular point you began to move away from the northern area of the platform?
A: Yes that is correct.
Q: But according to you, you had not farted; if this is the case, if there was no fart, why did you move away?
A: Well I was aware that a fart may have taken place and if this were the case it was not my wish to associate myself with it.
The case at trial essentially turned on a matter of credibility. There were only two witnesses to the fart, being the appellant and Officer Jennings. The trial judge was required to make a finding of fact as to which version of events was correct. I am not satisfied that there was any discernable error in his finding that the appellant was responsible for the fart. In so concluding, I am mindful of the fact that it is not appropriate for an appeal court to substitute its own opinion for that of a primary judge who has had the benefit of seeing the witnesses cross-examined and of hearing expert evidence. In matters such as the present, the decision must be plainly wrong before the appellate court will exercise its discretion to intervene.
I am not satisfied that the present case falls into that category. There were sound reasons why the learned primary judge might have drawn an adverse inference as to the appellant’s credibility. For example, it is clear that the appellant lied about consuming a plate of baked beans on the evening in question and on two occasions denied that he had consumed such a meal when later evidence confirmed that he had. Of course, this is not to say that an accused should be deemed to have no credibility merely because he has been caught lying in one instance. It is well established that an innocent party may have a legitimate explanation for concealing the truth. However, the issue for decision today is not what inferences this court might draw from the appellant’s lies, but whether the primary judge acted unreasonably in drawing an inference adverse to the appellant. In my view he did not and it follows that the appeal should be dismissed.
I now turn to the appellant’s appeal against sentence. The sentences for the three offences are as follows:
Offence 1 (farting): 3 years imprisonment with 2 years non-parole
Offence 2 (leaving scene of fart): 2 years with 1 year non-parole
Offence 3: (failing to report environmental incident): 1 year with six months non-parole.
These sentences are to be served cumulatively, meaning that the appellant must serve three and a half years before becoming eligible for parole. The appellant complains that the sentences infringe the principle of double jeopardy in that they have the effect of imposing three discrete punishments for three separate offences which, according to the appellant, should be viewed as one continuous course of unlawful conduct for which only one punishment is necessary.
It is not seriously arguable that offences 1 and 2 should be considered jointly. It is clear from the scheme of the Act that the legislature intended that the offence of leaving the scene of a fart should be distinct from the actual commission of the fart. It is misconceived to argue, as the appellant argues, that because one cannot leave the scene of a fart unless one has actually farted beforehand that the two matters should be considered to be one single course of conduct for the purpose of sentencing. The mere fact that an offence presumes the prior commission of another offence is not a basis for drawing the inference that the two offences are one and the same. In the present case, the appellant chose to breach the Act by discharging the fart. He then made a second decision to contravene the Act by leaving the scene of the fart. What we have, therefore, were two discrete matters which required the formation of the requisite intent on two occasions.
The sentences relating to counts 2 and 3 are a different matter. It is true that the appellant failed to report the fart. This was because he had been apprehended. In my view it seems to be unreasonable to penalise the appellant for failing to do something which it was impossible for him to do. This case is analogous to Pong v The Queen, where a fart was precipitated from the anus of the offender when he bumped into a police officer on a crowded street. The offender was immediately arrested and was subsequently convicted of farting and failing to report an environmental incident. On appeal, it was successfully argued that a one year sentence for the reporting offence was manifestly excessive given the lack of opportunity afforded to the offender to comply with s 39A (as it then was) of the Act. Applying the reasoning in Pong to the present case, it seems the appropriate course would be to alter the sentence on count three so as to make it concurrent with the first two sentences. The result would be that the appellant would be obliged to serve three years imprisonment before becoming eligible for parole.
OBLONG J: I agree.
FARTBLASTER J: I agree.
CANIS J: The order of the Court will therefore be to dismiss the appeal against conviction and allow the appeal against sentence to the extent that the sentence relating to count 3 should be served concurrently.
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