Director-General, Department of Environment Climate Change and Water v Walker Corporation Pty Ltd

Defendant's submissions 6The proceedings before Pepper J and these proceedings involve similar alleged offences under s 12(1) of the NV Act, through the actions of the same contractor where virtually identical issues of vicarious liability and onus of proof will arise. On the basis of the evidence served by the Prosecutor in these proceedings, each of the likely grounds of appeal against the decision in the earlier proceedings will also be central to these proceedings. The facts involved are virtually identical, and the Defendant will wish to raise the same defences that were raised unsuccessfully before Pepper J. It is likely the trial judge will treat Pepper J's reasoning as persuasive. If the stay is granted and the appeal is found in the Defendant's favour, this Court will apply the law consistently with the Court of Criminal Appeal. The Defendant will have to prepare on the basis of uncertainty in the law. Further case preparation will be limited by the decision of Pepper J. Preparation for hearing is likely to be costly and there is a risk of unnecessary cost to the parties. The stay sought is not permanent. 7An appeal against conviction provided for in s 5F of the Criminal Appeal Act 1912 cannot be commenced until Pepper J's judgment on sentence is handed down. Following that judgment an appeal will be lodged promptly. 8The Court must consider whether the interests of justice favour the grant of a temporary stay pending final determination of the appeal in this case because of the close similarity of the facts in both matters, the substantial costs of preparing for a hearing in these proceedings and the importance of the appeal because of that factual similarity. While there is uncertainty about the length of time an appeal is likely to take, the motion seeks an order only until the Court of Criminal Appeal determines the matter. The Defendant undertakes to the Court to pursue the appeal expeditiously. 9There can be little prejudice to the Prosecutor which has filed all its evidence in affidavit form including interviews which have been recorded. The usual concern about evidence becoming stale through the effluxion of time does not apply in this case as a result. 10The matter is less efficient if the appeal is upheld and a retrial is required. 11An alternative proposal is that the matter stand over for two or three months so that hopefully the sentencing judgment is available and an appeal commenced when the application for a stay is finally considered.

Prosecutor's submissions 12The application for a temporary stay is opposed. The relevant rules to consider are Supreme Court Rules 1970 (SCR) r 75.11(4)(a) and Uniform Civil Procedure Rules 2005 (UCPR) r 2.1. The exercise of discretion requires more than a balance of convenience approach given these are criminal proceedings which should generally progress despite inconvenience to a defendant. There is no suggestion that the Defendant is impecunious and therefore financially disadvantaged if these proceedings continue. Cases where temporary stays have been considered under s 19 (traversing indictments) of the Criminal Procedure Act 1986 are identified in A M Blackmore and G S Hosking, New South Wales Criminal Law 2010 (2010) Thomson Reuters Lawbook Co at 1053. None of these circumstances are in any way similar to this matter but arise where there is some fault or difficulty in the prosecution suggesting a stay is warranted. A stay pending resolution of an appeal in similar criminal proceedings is novel. 13The appeal is yet to be filed (it is accepted that an appeal cannot be commenced until the sentencing judgment by Pepper J is handed down) and the timeframe is inevitably indeterminate. It is likely to be for a minimum of a year assuming the appeal is pursued diligently and the sentencing judgment is handed down soon. No circumstance suggests that the Defendant is likely to succeed in the Court of Criminal Appeal. The equally possible result is that the appeal fails. 14There is prejudice to the Prosecutor which is also important to consider given that the prosecution is taken on behalf of the community, see Barton v R [1980] HCA 48; (1980) 147 CLR 75 per Gibbs ACJ and Mason J at 101. Delay in the matter reaching trial will potentially affect the quality of evidence at the hearing as witnesses' memories fade and documents may be lost. The impact of delay on evidence continues to apply given that witnesses may well be cross-examined and may have to give evidence in chief orally, as occurred in the matter before Pepper J in relation to the evidence of the contractor. 15The concept of general prejudice through effluxion of time has been recognised in civil proceedings in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 per McHugh J (Dawson J concurring) at 551. That principle has been recognised in relation to the criminal law in R v GS [2003] NSWCCA 73 Smart AJ at [51] (Santow JA concurring) in relation to unfairness to a defendant. The same consideration should apply to a prosecutor where a defendant seeks a stay for an undefined period. 16There is no evidence that the costly preparation for trial is not capable of being met by the Defendant. The period for which a stay is sought is undefined and is not necessarily short. 17The alternative proposal is also unacceptable for the same reasons.

Finding 18This is the first application I am aware of, and the parties agree, for a temporary stay of criminal proceedings in this Court. It is therefore the first time such an application has been considered in the context of SCR r 75.11 and UCPR r 2.1 in this Court. As the Defendant's counsel agreed, this application relies on the recent emphasis in court rules on the efficient dispatch of litigation with the possibility that costs savings are a more important ingredient in the balancing of relevant considerations than has been the case in the past. The Court's discretion in considering the rules which apply is wide. 19A number of the authorities referred to by the parties have considered applications for stay, usually permanent, in disciplinary and criminal proceedings where abuse of process is the reason for such an application. In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 the majority of the High Court (Mason CJ, Deane and Dawson JJ, Brennan and Toohey JJ dissenting) considered whether a permanent stay of complaints against medical practitioners should be granted because of long delay resulting in abuse of process. In Miller v Ryan [1980] 1 NSWLR 93 Rath J had to consider if proceedings were vexatious and oppressive and were an abuse of process. In Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 42; (2009) 165 LGERA 99 Lloyd J granted a permanent stay of criminal proceedings because he found there was an abuse of process in the circumstances before him. Lloyd J referred at [24] - [25] to the wide powers of the Court to stay criminal proceedings on the grounds of abuse of process, citing Walton v Gardiner at 392 - 393. 20The circumstances before me bear no relation to the serious issues raised in those cases concerning fairness to a defendant resulting from delay. As the Prosecutor identified, orders staying proceedings temporarily (referred to as conditional or limited) have been considered under s 19 of the Criminal Procedure Act 1986 with several cases summarised in Blackmore and Hosking at 1053, referred to helpfully by the Prosecutor. The circumstances in this case do not have any similarity to those referred to in relation to s 19 of the Act. The circumstances generally reflect some failure on the part of the prosecution (prosecutor ordered to supply particulars, R v Michael Saunders (unreported, NSWCCA, Gleeson CJ, 23 February 1993) or significant impediment to the ability of the defendant to prepare for trial (such as inability to get legal representation; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292), considerable adverse media publicity; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 or where issues of fairness arise (court considers indictment should be amended and the Crown refuses to amend; R v Mai (1992) 26 NSWLR 371). 21As identified in the Prosecutor's submissions a stay order was made in Class 4 proceedings pending resolution of Class 5 proceedings in Baulkham Hills Shire Council v Norman Yates [2008] NSWLEC 244. That circumstance is not analogous as it was a stay of civil proceedings as a result of concern about the impact of these on Class 5 proceedings. 22While a number of submissions were made to support the stay application, the central argument is that it is more efficient and just to save the cost of a trial for the Defendant in this Court pending an appeal to the Court of Criminal Appeal in another matter. There is no suggestion the cost of doing so is detrimental to the Defendant. The stay if granted will result in delay in the trial for an indeterminate period which is otherwise in the usual course of preparation. There is inherent uncertainty in knowing when a matter is likely to be finalised on appeal, particularly where there is no appeal commenced. 23As relied on by the Prosecutor, the High Court has recognised the public's interest in having criminal trials proceed in a timely fashion: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 33 - 34: The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 C.L.R., at pp 102, 106; Sang [1980] A.C., at p 437; Carver v. Attorney-General (NSW) (1987) 29 A. Crim. R. 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo (1972) 407 U.S. 514; Bell v. Director of Public Prosecutions (1985) A.C. 937, as explained in Watson (1987) 8 N.S.W.L.R. 685 , and Gorman v. Fitzpatrick (1987) 32 A. Crim. R. 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A. Crim. R. 256, at pp 263-264. and per Deane J at 61: [There is] public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg. v. Clarkson [1987] V.R., at p 972; Carver v. Attorney-General (NSW) (1987) 29 A. Crim. R. 24, at p 32. 24Jago was considering whether a permanent stay of proceedings ought be made in the context of considerable delay so the statements of Mason CJ and Deane J are directed to that circumstance. They are relevant to consider nevertheless whenever the result of a court order if made will be delay in a criminal trial in my view. 25Excessive delay is often the basis for a stay being granted in favour of a defendant. As the Prosecutor submitted, a stay will result in delay of the hearing where that outcome is generally undesirable and to be avoided given the prejudice to both parties in evidence becoming stale. That the Prosecutor's evidence is adduced by way of affidavit does not overcome that concern as witnesses are often cross-examined and their evidence in chief may be required by the Defendant to be given orally at trial in any event. The Defendant's evidence will also be subject to the same potential problems resulting from delay. 26General prejudice resulting from the effluxion of time is a relevant consideration in criminal proceedings, per Smart AJ (agreeing with Buddin J giving the principal judgment, Santow JA agreeing with Buddin J and the additional remarks of Smart AJ) in R v GS . That case concerned the adequacy of a trial judge's directions to a jury where the events in question happened many years before. Smart AJ refers at [49] - [52] to the impact of delay in eroding the quality of justice referring to Lord Hailsham in R v Lawrence [1982] AC 510, Brisbane South Regional Health Authority and Kirby J in R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 where his Honour referred to the impact of delay on the potency of cross-examination. These authorities suggest that any order resulting in delay in criminal proceedings which is not essential to the administration of justice ought not be made lightly. 27I do not consider any conclusion should be drawn as to the prospects of success in the event that an appeal is pursued in the Court of Criminal Appeal. That is a neutral factor in my consideration. In the meantime a lengthy and reasoned judgment has been delivered by a judge of this Court and that is the law in force. There is no uncertainty in the law at present. That an appeal is likely to be lodged in the future does not on it's own create uncertainty in the law. 28Given that these are criminal proceedings and the public purpose served in the appropriate prosecution of offences by relevant authorities continues to be a paramount consideration I do not find the Defendant's counsel's appeal to efficiency, meaning costs saved, persuasive. The administration of justice under SCR r 75.11(4) and UCPR r 2.1, meaning the just and efficient, or the just, quick and cheap, dispatch of these proceedings, is not achieved by the granting of the stay order sought. The Defendant's Notice of Motion should be dismissed.

Order

1. The Defendant's Notice of Motion dated 13 December 2010 is dismissed.
2. Costs reserved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2011