Barbara Filipowski v Island Maritime Limited and Anor.

oil has the same meaning as it has in Part 2. place on land includes: (a) any structure or apparatus on or above or below the surface of any land, (b) any thing or vehicle resting on or moving over land, (c) any thing resting on or lying under the bed, bank or shore of any State waters, (d) a pipeline, and (e) any thing afloat (other than a ship) if it is anchored or attached to the bed, bank or shore of any State waters or is used in any operation for the exploration of the sea-bed or subsoil beneath any State waters or for the exploitation of the natural resources of that sea-bed or subsoil. purpose-built pipeline means a pipeline prescribed for the purposes of this definition. transfer operation means any operation that is involved in the preparation for, or in the commencement, carrying on or termination of, a transfer of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance to or from a ship or a place on land. (2) Except in so far as the contrary intention appears, an expression that is used in this Part and in Annex I or Annex II to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Part, the same meaning as in that Annex. (3) For the avoidance of doubt, more than one appropriate person in relation to a discharge may be found guilty of an offence under section 27 or 28. 26 Discharges to which Part applies This Part applies to a discharge of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance into State waters: (a) from a ship or place on land in or in connection with a transfer operation, or (b) from any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, but does not apply: (c) to a discharge that occurs on the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, or at any other place prescribed for the purposes of this section, or (d) to a discharge to which Part 2 or 3 applies. 44 Section 8(1) creates a number of offences inasmuch as separate liability is imposed upon: (i) the master of the ship; (ii) the owner of the ship; and (iii) any other person whose act caused the discharge in respect of the following composite act - (i) the discharge of oil or of any oily mixture; (ii) occurs from the ship; (iii) into State waters. 45 The liability created by subsection (1) is expressed to be "subject to subsections (2) and (4)" where each subsection prescribes circumstances in which "subsection (1) does not apply to the discharge" but by virtue of subsection (6), the operation of subsections (2) and (4) is by way of defence to be established by the defendant (it being sufficient for the prosecution to allege and prove that the discharge of oil or of an oily mixture occurred from a ship into State waters). 46 It is to be noted that in the present prosecutions, the Defendants have been charged as being respectively the owner and the master of the ship from which the discharge of oil occurred into State waters. 47 Section 27(1) of the Act creates a number of offences inasmuch as separate liability is imposed upon the "appropriate person" defined to potentially mean up to 5 persons having different capacities (including (i) the owner of a ship, and (ii) the master of a ship) together with "any other person whose act caused the discharge" (s 27(1)) in respect of the following composite act (as prescribed by s 26(a), (b), and (c)) - (i) a discharge of oil or of any oily mixture or of a liquid substance or of a mixture containing a liquid substance; (ii) into State waters; (iii) from (a) a ship or place on land in or in connection with a transfer operation or (b) any apparatus or purpose - built pipeline used in or in connection with a transfer operation. 48 However, by force of pars (c) and (d) of s 26 Pt 4 does not apply to a "discharge" referred to in either of those paragraphs. Accordingly, such a discharge falls outside the scope and operation of the offence created by s 27. It was the interpretation of s 26(d) adopted by Talbot J that led to his upholding the 'no case to answer" submission advanced on behalf of the Defendants in the earlier prosecutions alleging an offence against s 27. 49 It is readily apparent that by way of contrast to s 8, the offences created by s 27 are not limited to discharges of oil etc into State waters occurring from a ship. However, if attention be confined to the offences created by s 27 in respect of discharges into State waters occurring from a ship, it is apparent that such offences which impose liability on "the owner or master of the ship" (s 25(1)) include as an element of the offence a "transfer operation" (s 25(1)) in relation to the ship. 50 In comparing the elements of the offences respectively created by ss 8 and 27 in respect of a discharge of oil etc into State waters occurring from a ship and imposing liability on the owner and the master of the ship, it is obvious that the offence created by s 27 includes the fact that the relevant discharge occurs from the ship "in or in connection with a transfer operation" whereas the offence created by s 8 simply includes the factual element that the discharge occurs from the ship. But for that differentiating element, the two offences in respect of discharges from a ship imposing liability on the owner and the master of the ship from which the discharge occurs, would entirely overlap. 51 Notwithstanding this overlap, it is clear that the elements of the offences respectively created by ss 8 and 27 are not the same - with the fact of a "transfer operation" in relation to the ship being an essential element of the offence created by s 27 but not being an essential element of the offence created by s 8. Moreover, the evidence necessary to support the second prosecution of a charge under s 8 would not have been sufficient to procure a conviction of the first charge of an offence against s 27. It follows, conformably to Pearce, that no plea in bar is available to the Defendants. 52 So far my comparison of the two offences and my conclusion based upon that comparison that the offences are not the same offences and that a plea in bar is not available, have been based upon the relevant legislative text without regard to the legal effect of s 26(d) on the legal possibility that a single act (involving the discharge of oil into State waters occurring from a ship) could involve two or more offences: cf EPA v Australian Iron and Steel Pty Ltd at 508 per Gleeson CJ: It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provision or administrative action, there are some kinds of conduct which almost inevitably involve participants in multiple breaches of the law. 53 Such an approach to the comparison of the offence creating provisions of ss 8 and 27 of the Marine Pollution Act reflects an outcome that is most favourable to the Defence "double jeopardy" submission because it yields two offences with overlapping elements except for the element of a "transfer operation" which is present in the offence created by s 27 but absent from the offence created by s 8. 54 However, the ultimate and true comparison between the offences respectively created by ss 8 and 27 must give effect to s 26(d) which, according to the interpretation adopted by Talbot J in dismissing the earlier prosecutions of the Defendants for an offence against s 27 excludes from the offence created by s 27 a discharge of oil into State waters occurring from a ship being "a discharge to which Pt 2 applies". It follows from Talbot J's judgment that the discharge into State waters in respect of which the Defendants had been charged under s 27 was not a discharge to which Pt 4 applies because it was held to be a discharge to which Pt 2 applies, with the legal consequence that there was no case for the Defendants to answer. 55 It must follow from Talbot J's judgment that there was no possibility that the discharge of oil into State waters that occurred from the ship "Pacific Onyx" on 14 November 1999 could have given rise to separate offences against s 8 and against s 27. 56 Accordingly, the present case does not involve the legal possibility of there being an offence against both ss 8 and 27 in respect of the relevant discharge incident that occurred on 14 November 1999. 57 In so understanding the effect of the interpretation of s 26(d) adopted by Talbot J in dismissing the earlier prosecutions by virtue of upholding the Defendants' submission of no case to answer, I do not overlook the more sophisticated analysis of his Honour's reasons provided in the Prosecution's written submissions that I have earlier recited. This, it may be recalled, was to the effect that the elements of the offence created by s 8(1) involved the non-existence of the circumstances prescribed by subsection (2) or (4) whereas the elements of the offence created by s 27 involved the existence of such circumstances. With great respect, I do not think this analysis of the elements of the offences created respectively by ss 8 and 27 is a correct analysis (because it impermissibly conflates the elements of the offence created by s 8(1) with the statutory defences prescribed by subsections (2) and (4)) or that it captures his Honour's reasons for interpreting s 26(d) in the manner that he did in holding that Pt 4 did not apply, but Pt 2 did apply, to the relevant discharge into State waters. 58 Moreover, there is an important legal consequence of my understanding of the effect of Talbot J's decision dismissing the earlier prosecutions of the Defendants that, with great respect, to the otherwise very helpful competing submissions that were advanced in argument, appears to have been overlooked in respect of the double jeopardy debate. 59 This concerns the following passage at par 59 of "The Doctrine of Res Judicata" by Spencer Bower, Turner and Handley (3rd ed 1996): - However, it is essential that the defendant has been in jeopardy on the charge. If summary dismissal occurs because the charge is defective, or because as a matter of law the evidence available to the prosecution cannot support a conviction, the defendant will never have been in jeopardy……..Where the dismissal was not founded upon a consideration of the merits, even in the largest and most liberal sense of that expression, there is no adjudication of the innocence of the accused. Thus where the complainant absented himself from the court on the hearing of a summons for assault, having given notice of his intention to do so, and afterwards sue in the county court, and the defendant obtained a dismissal of the summons, this was not a decision that no assault had been committed; and, similarly, where the dismissal was on the ground that the summons disclosed no offence (footnotes omitted). 60 One of the references cited in the text is the decision of the Court of Appeal in Regina v Dahhade (1993) QB 329 which contains a detailed discussion and survey of the English cases on the question whether an accused had been "put in jeopardy" in the earlier proceedings. 61 The Court's judgment at 341 derives from its analysis of the decided cases a number of principles which includes the following: If, however, the summary dismissal of the charge or count is because it is apparent that it is defective, either as a matter of law (eg for duplicity) or because the evidence available to the prosecution on any view, given the application of proper legal principles, is insufficient to sustain a conviction on the charge as laid, then, in our view, it cannot be properly said that the defendant has ever been in jeopardy of conviction see Director of Public Prosecutions v Porthouse [1989] R.T.R. 177 and Williams v Director of Public Prosecutions [1991] 1 WLR 1160. 62 In the present case, the vital question is whether it can be concluded that the Defendants, in facing the earlier prosecution were in jeopardy in view of the fact that the sole basis for Talbot J's upholding the Defendants' "no case" submission was his Honour's interpretation of s 26(d). It is true that if his Honour had adopted a different interpretation, the result could have been different in that the "no case" submission would have failed and the Defendants would have been in jeopardy of conviction on the charge. But this hypothetical consideration is not readily accommodated by conventional wisdom that the proper meaning of a statutory provision is, and always is taken to have been, that adopted by a Court having the function of interpreting the law. 63 Although I incline to the view that for the reasons given the Defendants were not relevantly in jeopardy by virtue of the earlier prosecution, since the parties' competing submissions have not canvassed this matter, it is preferable for me to determine the Defendants' application for a permanent stay of the present prosecutions upon the basis of the rival submissions. 64 Having held conformably to Pearce that the elements of the offence created by s 8(1) are not the same as, or included within, the elements of the offence created by s 27(1), it remains for me to consider the Defence variant submission, citing R v Dodd and Environment Protection Authority v Australian Iron and Steel, that the offence now charged against the Defendants is "substantially the same offence as that for which the Defendants have previously been acquitted". 65 In my judgment, this submission must be rejected principally for the reason that it is not conformable to the principles enunciated in Pearce, but additionally, for the reason that the two decisions of the NSW Court of Criminal Appeal (which predated the decision in Pearce) that are cited in the Defence submission do not support the submission. In each of the cited cases, Gleeson CJ, in giving the judgment of the Court of Criminal Appeal expressly held that the Court was applying "settled principle" concerning double jeopardy without involving the "more problematic issues" concerning the decision in Wemyss which had been embraced by the earlier decisions of the Full Court of the South Australian Supreme Court, including R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219. 66 In this respect, I can do no better than record my respectful agreement with the analysis of the earlier NSW Court of Criminal Appeal decisions contained in the judgment of Abadee J in State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517. 67 In my respectful opinion, Abadee J's analysis of the earlier relevant cases has been vindicated by the more recent decision of the High Court in Pearce. 68 For all of the foregoing reasons, I conclude that the Defendants cannot raise a plea in bar to the present prosecutions for an offence against s 8 based upon their acquittal of the earlier charges of an offence against s 27. (ii) Abuse of Process? 69 There is no doubt that this Court, as a superior court has the power to permanently stay criminal proceedings on the grounds of abuse of process. 70 The joint judgment of the High Court in Walton v Gardiner (1993) 177 CLR 378 contains an extended discussion of the power available to a superior court commencing at 392. It includes the following passage: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail See, eg, Metropolitan Bank v Pooley (1885), 10 App Cas 210, at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964), 112 CLR 125, at pp 128-130. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them See, generally, Voth v Manildra Flour Mills Pty Ltd (1990), 171 CLR 538. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings See, eg, Reichel v Magrath (1889), 14 App Cas 665, at p 668; Connelly v Director of Public Prosecutions , [1964] AC 1254, at pp 1361-1362 . The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, at p 536. as the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people . 71 The joint judgment includes the following reference to the earlier decision of the High Court in Jago v Disrict Court (NSW) (1989) 168 CLR 23. At 394 it quotes the following passage from the judgment of Deane J: The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed. 72 A further reference is made at 395 when it states: As was pointed out in Jago See, in particular, (1989) 168 CLR, at pp 30-34, per Mason CJ; pp 59-61, per Deane J; p 72, per Toohey J; pp 76-78, per Gaudron J , the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. 73 Later decisions of the High Court illustrating the availability this power in criminal proceedings are collected and discussed in Carroll. 74 The Defendants submitted that the present prosecutions involved an abuse of process because of the following matters - (i) in facing a different charge they were being vexed by a repeated attempt to convict them of the same offence or another charge arising out of the same events; (ii) it had been open to the Prosecutor in the earlier prosecution to have sought to amend the charge by charging the Defendants with an offence against s 8, but the Prosecutor chose not to seek amendment of the charge; and (iii) by the time the present prosecutions were filed, some four years had elapsed since the commission of the alleged offence. 75 In my judgment, the Defendants have not substantiated their case alleging abuse of process. 76 As to the first matter relied upon by the Defendants, it is not the case that they are being prosecuted for the same offence. It is true that the present charge arises out of the same events which had given rise to the earlier charge. But the present charge had arisen directly out of Talbot J's decision to uphold the Defendants' no case to answer submission and dismiss the original charge against each Defendant. 77 Although there had been a lapse of four years from the date of the alleged offence until the laying of the present prosecutions that delay is in large part taken up by the laying of the original charge and the prosecution of the charge against each Defendant. The Defendants did not allege any particular prejudice by dint of delay and they have been on notice of the discharge incident from when it occurred (when it was investigated by the Port officials) and had been aware of the Prosecution evidence when the first charges were laid against them. 78 It is to be noted that the Marine Pollution Act does not impose any time limitation for the prosecution of offences before this Court and the Act contains its own regime conformable to the International Convention which inspires the Act for reporting and investigating discharge incidents. 79 Although it would have been open to the Prosecutor, even when faced with the Defendants' submission of no case to answer, to have sought to amend the charge, the laying of a separate charge of an offence against s 8 after the dismissal of the earlier charge against s 27 was in truth little different in legal and practical consequences, from seeking to amend. 80 Finally, it is to be noted that there can be no suggestion (unlike the case in Carroll) that the present prosecutions involve any attempt to question the integrity and finality of the Court's judgment dismissing the original prosecution. 81 For the foregoing reasons, I do not find any basis for concluding that the present prosecutions involve any relevant element of abuse of process. D. CONCLUSIONS 82 For all of the foregoing reasons, the Defendants' application for a permanent stay of the present prosecutions is dismissed. The question of costs is reserved.

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