A real estate agent may have had smoke coming from his ears when he received a littering fine, but was so adamant none had come from his lungs, he took the case to court and won.
Elders director Greig McFarlane was notified earlier this year that he was being fined for an offence that allegedly took place on December 27, 2018.
The Mossy Point resident challenged it after he saw he was accused of throwing a cigarette butt from his vehicle at the Beach Road/George Bass Drive traffic lights. He told Batemans Bay Local Court last month he was innocent.
"I have not had a smoke for 20 years," he said. "My wife is a cancer survivor. I thought, 'I am going to court on this'."
The case came before Magistrate Doug Dick after off-duty EPA officer, Michael Heinze, reported he had seen a cigarette butt emerge from a black Elders vehicle parked ahead of him at the lights. Mr Heinze said he asked his wife, seated in the passenger seat, to take electronic notes and then photograph the vehicle. Michelle Heinze testified her husband had parked at such a distance behind the black vehicle that she too saw a butt land on the road. Mr Heinze testified it landed about a metre from the car; Mrs Heinze said it landed about half a metre and that it was not lit. She said she recognised it as a butt, due to the colour.
Defence solicitor Elliott Wain challenged her: "Not only could you not see the driver's door, you could not see the drivers window." She insisted she had witnessed the alleged incident.
Mr McFarlane said he had checked his diary and was on his way to an open-house that morning. He strongly denied EPA solicitor Jocelyn McGarity's suggestion that he had smoked. His wife Helen backed him: "In my 14 years of married life, I have never seen him with a cigarette. I would know. I would smell it. He has seen me go through cancer treatment."
Mr Dick said the prosecution had a "very high hurdle" to prove its case beyond reasonable doubt and to show a non smoker had acted out of character. He did not believe any witness had come to court to deliberately tell mistruths. However he said the prosecution had presented conflicting evidence. He dismissed the case.