HER HONOUR: This is an application for leave to appeal brought by the plaintiff, the Commonwealth Director of Public Prosecutions ("the CDPP") pursuant to s 57(1)(c) of the Crimes (Appeal and Review Act) 2001 (NSW) in relation to an interlocutory order made in the Local Court by Magistrate Keady on 12 July 2018.
Section 57(1)(c) provides:
57 Appeals requiring leave
(1) The prosecutor may appeal to the Supreme Court against:
…
(c) an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings,
but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.
The applicant opposes a grant of leave. There is no issue that the order under challenge involves a question of law alone.
[2]
Background to the Application
This matter has considerable history and, since that history was raised at some length by the defendant, Sims E-Recycling Pty Ltd, and is arguably relevant to the question of leave, it is necessary to set it out in some detail.
The defendant is a company which, in 2016, held an export permit issued pursuant to the Hazardous Wastes (Regulation of Exports and Imports) Act (1989) (Cth) ("the Act"), which allowed it to export hazardous waste, being lithium ion batteries, subject to certain particulars and conditions. The CDPP alleges that, in the course of exporting the waste in three separate ocean shipments, the defendant was in breach of the particulars of the export permit issued to it.
Although the defendant is currently being prosecuted in the Local Court for three offences contrary to s 40(3)(a) of the Act, initially five offences were alleged. Proceedings against the defendant were commenced on 20 July 2017 when the CDPP filed and served a Court Attendance Notice [1] setting out five charges contrary to s 40(2)(a) of the Act (later amended to s 40(3) of the Act). The charges were all in the same terms, save for the date on which it is alleged the offences occurred. Sequence 1 was charged as follows:
Did export hazardous waste to which a permit relates not in accordance with the permit.
Sequences 2 - 5 charged the same offence, alleged to have occurred on 23 May 2016, 6 June 2016, between 2 May 2016 and 6 June 2016 and, on 23 May 2016, respectively.
It appears that the breaches alleged came to the notice of the authorities after the defendant informed the regulator of them, as a consequence of a fire on board an export vessel at a port in Sri Lanka, a country not permitted for travel en route to the destination.
From July to October 2017 the defendant and the CDPP exchanged correspondence as to the particularisation of the charged offences, and the fault element relied upon by the Crown. A statement of facts together with particulars was provided to the defendant, with the Crown relying upon the fault element of negligence. Initially the fault element referred to by the CDPP was, erroneously, that provided by the Commonwealth Criminal Code, rather than that specified by s 40(3) of the Act.
The facts and particulars provided by the CDPP made clear that the charges referred to three individual shipments of waste, during which there had been a total of five breaches of the particulars of the permit issued to the defendant, made criminal by the asserted negligence of the defendant.
On 12 January 2018 the defendant made application for a temporary stay of proceedings. Two bases for that application were made; that the particulars were inadequate; and that it was an abuse of process for the Crown to bring five charges "to prove what the defence say, on a proper construction of the offence provision, are three offences". [2] The application was adjourned for hearing.
Prior to the hearing date, the Crown provided what it contended were better particulars, but these too were rejected by the defendant as inadequate.
The application for a temporary stay was heard on 2 February 2018 and 6 February 2018 at the Local Court at Parramatta.
The defendant complained to the Local Court that, whilst the Crown had now identified the basis of criminal liability, being negligence through the conduct of directors, employees or agents pursuant to s 59 of the Act, and provided particulars nominating the relevant individuals, the particulars failed to identify whether the "agency" arose out of s 59, the Criminal Code, or "the general law"; and, if the latter, whether express or implied agency. Its principal complaint, however, was that the Crown should not be permitted to bring separate charges relating to the same shipment, albeit referable to different alleged breaches of s 40(3).
Although there had been three export shipments, the Crown had charged two counts relevant to two of the three voyages, in each instance averring a separate breach of a particular of the permit as the basis for the charge. The defendant argued that this approach was duplicitous, and the Crown should be required by the court to elect one only alleged breach of the permit with respect to each discrete shipment. That approach would restrict the available charges to three counts.
The defendant sought orders for a temporary stay of the prosecution until the Crown provided "particulars of negligence", and until it elected to prefer one count only per export. Costs were additionally sought.
Having heard argument over two days in the midst of hearing a busy list, the Magistrate ultimately made orders dismissing the defendant's application. His Honour was satisfied that the Crown had provided particulars sufficient to permit the defendant to understand the nature of the case against it, and to answer that case, and held that the indictments were permissible without the Crown being required to elect only one breach of a particular or condition of the permit per export (AB234).
His Honour did, however, observe that there was still "scope for a more poignant particularisation of the reasonable precautions and due diligence which are incorporated by virtue of the attributive provision in s 59 into the penal provision being s 40".
The matter was further adjourned for service of the balance of the brief, and for the Crown to,
"[…] particularise the reasonable precautions allegedly not taken and the due diligence allegedly not exercised in each of the sequences on which the charges are founded by virtue of the attributable provisions set out in section 59 of the Act, by 27 February.
Despite its charges being upheld by the dismissal on 6 February 2018 of the defendant's application for a stay, on 10 April 2018 the Crown amended the charges brought against the defendant, withdrawing two of the five charges, and particularising the three remaining charges to include more than one alleged breach of the particulars of the permit. That is, whilst each of the charges referred to a discrete export shipment, two of the three charges alleged two distinct breaches of the particulars of the permit.
The defendant again complained that the charges were duplicitous, on the basis that the Crown had impermissibly "rolled-up" what was formerly charged as five offences into three counts. It again sought a temporary stay of proceedings.
The matter was adjourned to 12 July 2018 for hearing, with orders for the parties to file and serve any evidence and submissions on the application well prior to that date. The intention of the Local Court was for the submissions to be considered prior to the hearing date, so that the magistrate would be able to resolve matters which are not without complexity.
Unfortunately, the magistrate allocated the matter on 12 July 2018 had not been given the material ahead of time, and had not had any opportunity to consider the law, authorities referred to, or submissions prior to hearing the short oral arguments from the parties. The magistrate's decision, in which his Honour ruled that two of the three sequences were duplicitous, was given ex tempore. Having determined that the charges were duplicitous, the Crown was required to elect which breach was to be relied upon for those charges that particularised two breaches for a single export voyage.
Having sought a temporary stay of proceedings on the basis that the charges were duplicitous, the defendant declined to proceed with its application, despite the court having accepted its submissions as to the duplicitous nature of the charges. When his Honour reminded the defendant that the application for a temporary stay was its application, counsel for the defendant said,
Your Honour should be careful of a Trojan horse here. My friend is inviting you to make a determination about a stay for a specific reason. If you grant a stay he will utilise s 56 of the Crimes (Appeal and Review) Act to seek an adjournment because he has an appeal as of right to the Supreme Court pursuant to s 56. At the moment you Honour hasn't actually made an order for a stay.
The defendant declined to continue with its application for a temporary stay, apparently to deprive the Crown of what would otherwise have been its statutory right of appeal pursuant to s 56 of the Crimes (Appeal and Review) Act.
The Crown sought to insist upon the court making the ruling that had been asked of it and which flowed from the decision of the magistrate as to duplicity. It said,
[…] The court attendance notices will continue as they are. The Crown doesn't propose to amend the court attendance notices. The Crown proposes to bring its case in the same way as it has indicated previously. So I don't mean any disrespect to the Court and this is not about Trojan horses. What I'm just inviting the Court to do of course is to make an order consequential to the determination that the Court has made.
When the Crown inquired as to the nature of the orders made by the learned Magistrate, his Honour responded,
If I didn't make that clear, I do. Well, I can't recall exactly what I said before I left the bench. If I need to articulate it in more definite terms I shall. I've indicated that I accepted in the broad the defence submissions for the reasons I gave that the attempt in sequences 2 and 3 to aver multiple breaches is impermissible duplicity. It creates an unfairness and therefore to that extent I find impermissible duplicity. As to the orders that follow, I haven't yet made orders. We're in the process of exploring what might occur and to reiterate, the remedy sought initially by the defendant if successful on that application was a temporary stay.
He went on to foreshadow that
[…] the order might be that the proceedings continue and that I require the Crown to indicate to me in respect of sequences 2 and 3 the nature of the breaches it is alleging, noting my decision that it can't allege multiple breaches.
The Crown then sought an adjournment so that it might seek a review of the order of the Local Court in this Court. That application was opposed by the defendant, but ultimately granted.
The plaintiff now seeks leave to appeal the decision of the Local Court to this Court, on the basis that the Magistrate was in error of law in,
1. Failing to take into account that the Crown case for each offence was one of a continuing course of conduct;
2. Finding that there was some unfairness to the defendant in being unable to craft or tailor a defence to the particular nature of the breaches; and
3. Finding that the Crown had rolled the counts into one as a result of choice and not necessity.
[3]
The Submissions of the Parties
The matter was argued in this Court in a way that was broadly consistent with the arguments advanced in the Local Court.
The defendant submitted that the Crown had misconstrued the offence provision at s 40(3) of the Act and, properly constructed, it was only permissible to charge one alleged breach of a particular of the export permit for any one export voyage.
The Crown relied on authority that held it permissible to "roll-up" individual acts that were part of a course of conduct, or single criminal enterprise, as in Director of Public Prosecutions v Hamzy (1994) 74 A Crim R 41.
Both parties referred the Court to Director of Public Prosecutions v Merriman (1973) AC 584 ("Merriman").
[4]
Determination
Merriman has long been cited as authority for the principle, itself of long standing, that a single count can encompass distinct alleged acts of an accused where those acts form part of the same transaction or criminal enterprise. Lord Diplock there said, at 607,
"Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."
Whether a charge is bad for duplicity involves a question of fact and degree, and will depend upon the circumstances of the particular case: Walsh v Tatterstall (1996) 188 CLR 77, at 108. Ordinarily, a single count that relies upon a number of acts that form part of a single course of conduct will not be bad for duplicity.
At its heart, duplicity is concerned with notions of fairness to the defendant. In Johnson v Miller (1937 - 38) 59 CLR 489 a prosecution was dismissed because of a failure to identify one transaction of a number relied upon. The point was taken up in S v The Queen [1989] 168 CLR 266 where, at 282, Toohey J said,
[…] as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.
In S v The Queen Gaudron and McHugh JJ referred to the prospect that, in the absence of any particularisation of the act relied upon to constitute the offence, in circumstances where the evidence was of many similar acts, it was possible that different jurors may have proceeded on the basis of different acts constituting the offence charged. It would not be possible to know for which act the defendant was to be punished, and the defendant would not know whether he had an autrefois convict or autrefois acquit plea available. S v The Queen was not a course of conduct case; it related to multiple acts of carnal knowledge, any one of which could have constituted the offence, and each of which were described in very similar terms, making individual instances difficult to distinguish from other such events.
In R v Hamzy (1994) 74 A Crim R 341 the Crown proceeded with one count of supplying a prohibited drug where it intended to lead evidence of a number of individual acts of supply to different persons at different times. It was held that this approach was permissible where the acts could fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. It was also held to be permissible even though accumulating the individual supplies in this way exposed the accused to a charge that averred a greater quantity supplied (and thus which carried a greater penalty).
Hunt CJ at CL said, at 349,
I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified.
It was pointed out by the Court of Criminal Appeal in Hamzy that the Crown would not have to establish every act to establish the charge.
In R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337 the Court of Criminal Appeal considered the application of the duplicity principle in the context of an allegation of fraud against the Commonwealth charged as a single count, which encompassed 46 separate alleged acts of dishonesty over a period of about two years. The Court there observed that much would depend upon the way in which the prosecution framed and presented its case.
It is thus important to examine the way the Crown puts its case.
Here, the offences are contrary to s 40 of the Act, which provides:
40 Regulation of export of hazardous waste
Prohibition of exports
(1) A person must not export hazardous waste unless:
(a) the person is the holder of an export permit authorising the person to export the waste; or
(b) the person is the holder of a transit permit authorising the person to export the waste; or
(c) the export has been ordered under section 34 or 35A.
Compliance with export permits
(2) The holder of an export permit must not:
(a) export the hazardous waste to which the permit relates except in accordance with the permit; or
(b) whether before or after exporting the hazardous waste to which the permit relates, breach any of the permit conditions.
Offence - intention, recklessness or negligence
(3) A person who intentionally, recklessly or negligently contravenes subsection (1) or (2) commits an offence punishable on conviction by:
(a) in the case of a body corporate - a fine not exceeding 2,500 penalty units; or
(b) in the case of an individual - imprisonment for a term not exceeding 2 years.
Meaning of negligence
(4) A person is taken to contravene subsection (1) or (2) negligently if, and only if, the person's conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the person's conduct would contravene the subsection;
that the conduct merits criminal punishment.
Offence - intention or recklessness
(5) […].
An offence will be made out by the Crown if it is proved to the criminal standard that the holder of a permit, whether before or after exporting the hazardous waste to which the permit relates, negligently breaches any condition of the permit.
Negligence will be established if the person's conduct involves those things set out in s 40(4).
Because the defendant is a corporation and not a "person", s 59 of the Act is relevant. It (relevantly) provides:
59 Conduct of directors, employees and agents
(1) […]
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is to be taken, in proceedings for an offence against this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
[…]
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or of a State or Territory.
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
The Crown's case against the defendant is that it, through its Operations Manager, applied for an export permit on 9 September 2015, which was granted on 31 March 2016. The permit contained a number of particulars or conditions, including,
1. The maximum quantity of waste to be exported is 60 tonnes;
2. The waste is to be contained during export in UN approved 200 litre lined plastic drums with sealed lids in sealed shipping containers;
3. The transit countries are New Zealand, Panama, Jamaica, the United States of America, the United Kingdom, and the Netherlands.
The Crown provided particulars of its case specifying the three export shipments to which the breaches referred, and the precise nature of each alleged breach was also particularised. With respect to sequence 1, the export occurred on 2 May 2016 and, during the course of the voyage the ship carrying the waste transited through a country not authorised by the particulars of the permit, that is, a country other than New Zealand, Panama, Jamaica, the United States of America, the United Kingdom, and the Netherlands.
Sequence 2, being one of the charges that the Magistrate held was duplicitous, related to an exportation by sea with the waste exported on 23 May 2016, in circumstances where nine of the containers in which the waste was held were metal drums, rather than UN approved lidded plastic drums, and, additionally, the ship transited through a country not authorised by the particulars of the permit.
Sequence 3, the second of the charges held to be duplicitous by the Magistrate, related to an export of 6 June 2016, in which the quantity of waste exported exceeded the 60 tonnes specified by the permit as the maximum quantity, and transited through a country not authorised by the permit.
In each instance it is alleged that the conduct, being conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority, was negligent within the meaning of s 40(4) of the Act. The persons who are alleged to have engaged in the conduct have been identified by the Crown.
The Crown's case is that the voyages constituting each export were a continuing course of criminal conduct, and it was entitled to rely upon more than one breach of a particular of the permit to establish the offences charged by sequences 2 and 3.
I do not regard such an approach as other than a permissible way for the plaintiff to frame and conduct the prosecution.
Section 40(3) of the Act by its language encompasses conduct before the export, conduct at the time of the export, and conduct after the export. The scope of the provision is wide, in keeping with the intention of the legislature to ensure that the export of hazardous waste is undertaken in a safe manner. The offence provision could readily encompass more than one act in breach of the permit which, if done negligently, would contravene the section and constitute an offence. It would be contrary to the scope and purpose of the provision to restrict its operation to a single breach for each export. It would also contradict the scope and purpose of the provision if "the export" was confined to one moment in time, such as departure from Australian waters. The voyage, and the export, continued.
In my conclusion, the approach of the Crown in preferring one count for each voyage, but relying upon more than one alleged negligent breach to show a course of conduct relevant to the export is both open to it, and permissible. It would have been equally permissible to charge five separate offences, but the defendant had earlier complained that such an approach was oppressive and, in proceeding on 3 counts, the Crown implicitly accepted that three counts were adequate to address the alleged criminality.
I accept the plaintiff's submission that the Magistrate was in error in concluding that the approach taken was not based upon a true course of conduct and was not permissible.
The defendant submitted that, if it was obliged to defend charges framed in this way, it would not know which breach the tribunal had accepted at the conclusion of the Crown case, and thus would not know to which breach its defence should be directed. This, it was argued, would lead to incurable unfairness.
Having regard to the detailed particularisation of the charges, it is difficult to see how these "rolled up" counts could constitute unfairness to the defendant. By reference to the charges as laid, and the facts and particulars provided, the defendant could be under no mistake as to the nature of the case it must meet.
Nor do I see the possibility that the tribunal of fact may find one of the alleged breaches in sequences 2 and 3 proved, but not the second, as constituting an unfairness to the defendant. That was the case in Hamzy, Moussad, and other cases where a large number of acts have been relied upon by the prosecutor to prove a single charge, but the approach has still been held to be permissible. What the Crown must prove is that there was a continuous course of criminal conduct.
I am unable to accept the defendant's claim of unfairness to it. The Crown has provided comprehensive and detailed particulars of its case, and the defendant must know what case it has to meet. The tribunal of fact hearing the three charges will be in no doubt either. To prove those counts where more than one breach of a particular of the permit was particularised in the charge, the Crown would have to prove the course of conduct alleged by it.
In that the matters are to proceed to hearing in the Local Court, if the defendant was left uncertain on the evidence at the end of the Crown case as to which breach if any had been proved, it will be open to it to make a submission to the court that there is no prima facie case to answer. Any judgment on that application would make clear which acts, if any, the court had accepted had been established to prove the charge. The defendant could call such evidence as it saw fit on the basis of the court's decision.
Having considered the evidence placed before the Court and the submissions of the parties, I am persuaded that there was error in the orders made in the Local Court. It remains to consider the question of leave.
Material to determining that matter is the conclusion I have reached as to error, and the importance of correcting an error which works unfairness to the plaintiff. The other feature I regard as relevant is the forensic decision taken by the defendant in the Local Court to withdraw its application for a temporary stay, and urge the Magistrate to proceed to hear the case against it without permitting the Crown to exercise what would have been, had the defendant not withdrawn its application, an appeal as of right. Decisions taken tactically by a litigant to deprive a party of its right of appeal should not be rewarded by a refusal of leave.
[5]
orders
The Court makes the following orders:
1. Leave is granted to the plaintiff pursuant to s 57(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal against the interlocutory orders made by the Local Court on 12 July 2018.
2. The orders of the Local Court holding sequences 2 and 3 bad for duplicity are set aside, pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW).
3. The matter is remitted to the Local Court for hearing according to law. It is noted that the matter is listed for mention before that court on 18 December 2018.
4. Costs on an ordinary basis in favour of the plaintiff.
[6]
Endnotes
Affidavit of Joseph Khoury of 24 July 2017, Application Book ("AB") 03.
AB174:02
[7]
Amendments
13 December 2018 - [48] (3) change "transit companies" to read "transit countries".
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Decision last updated: 13 December 2018