Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd

Land and Environment Court (NSW)|2021-05-19|Before: Pepper J

The Use of s 5AE of the Criminal Appeal Act in Class 5 Proceedings

In proceedings 200270 of 2020 the defendant, Charlotte Pass Snow Resort Pty Ltd ("Charlotte Pass"), was charged that, from about 9 July to 24 September 2019, at or near Perisher Valley in the State of New South Wales, it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEOA") in that it polluted waters.
Charlotte Pass pleaded guilty to the charge on 24 August 2020.
On 28 August 2020 the Court of Criminal Appeal, sitting as a bench of five, handed down the decision in Orr v Cobar Management Pty Ltd [2020] NSWCCA 220; (2020) 103 NSWLR 36, the significance of which is explained below.
On 30 October 2020 the prosecutor, the Environment Protection Authority ("the EPA"), provided Charlotte Pass with further particulars in respect of the charge in the form of a draft statement of agreed facts.

The EPA Changes its Mind by Notice of Motion

Pursuant to the EPA's request made on 22 April 2021, the Court drafted the following question of law to be submitted for determination to the Court of Criminal Appeal: Whether the Court erred in finding that the summons filed on 7 July 2020 in proceeding number 2020/200270 is bad for duplicity because more than one offence had been charged in the one count of the contravention of s 120(1) of the Protection of the Environment Operations Act 1997.
This wording was relevantly identical to that used in Riverina.
After initial argument from the parties, the Court subsequently amended the wording of the question of law for submission as follows: Whether the summons filed on 7 July 2020 in proceeding number 2020/200270 is bad for duplicity because more than one offence had been charged in the one count of the contravention of s 120(1) of the Protection of the Environment Operations Act 1997.
The Court is now of the view that neither version of the question of law can be properly characterised as a "question of law" for the purpose of s 5AE of the Criminal Appeal Act.
Although Cobar was handed down nearly eight months before the EPA made its request on 22 April 2021, it was upon this authority being drawn to the EPA's attention that it filed a notice of motion on 19 May 2021 seeking the following orders (counsel appearing for the EPA, M Tedeschi SC, candidly admitted that the request made on 22 April 2021 was in error (T10:10)): 1 That her Honour Justice Pepper enter formal order(s) for proceedings 200270/2020 following the publication of her reasons in Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 on 23 April 2021 (Judgment). 2 That her Honour Justice Pepper certify that the order(s) made pursuant to order 1 above or the part of the Judgment that relate to proceedings 200270/2020, is a proper one for determination on appeal to the NSW Court of Criminal Appeal, pursuant to s 5F(3) of the Criminal Appeal Act 1912.
The parties put both oral and written submissions to the Court. The parties agreed that the issue of whether the summons the subject of the reasons in Charlotte Pass was duplicitous ought ultimately be resolved by the Court of Criminal Appeal.
The application of the rule against duplicity has, as was observed in Charlotte Pass (at [80]), been somewhat fraught in this Court due, in part, to the complex nature of environmental crime, the commission of which often occurs over an extended time period and comprises multiple acts. More recently, there has been a marked increase in applications to set aside summonses on the grounds of duplicity in the Court.
Counsel for Charlotte Pass, T Brennan SC, resisted the Court granting the relief sought in the motion on the basis that if the decision in Charlotte Pass was successfully defended in the Court of Criminal Appeal by receipt of an affirmative answer to either version of the purported questions of law referred to above, Charlotte Pass would be entitled to its costs, whereas this would not be the case if it successfully defended an appeal instituted under s 5F of the Criminal Appeal Act.
But this cost disadvantage cannot transmogrify a question that the Court of Criminal Appeal otherwise did not have jurisdiction to determine under s 5AE of the Criminal Appeal Act into one that it did.

The Court of Criminal Appeal Does Not Have Jurisdiction to Determine the Question of Law as Drafted

Cobar concerned the prosecution of an employer in the summary jurisdiction of the District Court for an offence contrary to the Work Health and Safety legislation. The primary judge found that the prosecutor had not established the elements of the offence beyond reasonable doubt but he did not proceed to acquit the employer to allow the prosecutor to propose questions to be submitted to the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act. The primary judge formulated six questions to be stated.
The employer contended that the Court of Criminal Appeal did not have jurisdiction to answer the questions posed because, first, the publication of the primary judge's reasons for judgment precluded the application of the provision on the basis that the proceedings had been completed, and second, because the questions were not questions of law for the purpose of s 5AE.
The six questions were in the following form (at [26]): 26 The terms of the stated case and the questions said to be questions of law were as follows: "I, Andrew Scotting, a Judge of the District Court of New South Wales, having on 27 May 2019 at the District Court in Sydney found that 'the prosecution has not proved all of the elements of the offence beyond reasonable doubt' in the prosecution brought by Stephen James Orr against Cobar Management Pty Ltd (CMPL) (Judgment) submit the following facts and questions of law to the Court of Criminal Appeal pursuant to section 5AE of the Criminal Appeal Act 1912: Facts In determining the prosecution against CMPL I was satisfied of the facts as found in the Judgment. Questions of Law The questions of law I now submit are: 1 Did I have the power to state the following questions of law pursuant to section 5AE of the Criminal Appeal Act 1912? 2 Was it open for me to find at [254] of the Judgment, on the facts as found, that the measure pleaded in [16] of the Amended Summons was not a reasonably practicable measure? 3 Was it open for me to find at [263] of the Judgment, on the facts as found, that the measure pleaded in [17(a)] of the Amended Summons was not a reasonably practicable measure? 4 Did I fail to apply section 18 of the Work Health and Safety Act 2011 in [264]-[285] of the Judgment? 5 Was it open for me to find at [285] of the Judgment, on the facts as found, that the measure pleaded in [17(b)] of the Amended Summons was not a reasonably practicable measure? 6 Was my finding at [281] of the Judgment, relevant to determining if the measure pleaded at [17(b)] of the Amended Summons was reasonably practicable? 7 Are the findings in [301]-[306] of the Judgment relevant to determining if the failure to take the measures pleaded in [16] and [17] of the Amended Summons were a significant or substantial cause of Mr Hern being exposed to the pleaded risk?"
The Court of Criminal Appeal (Bathurst CJ, Bell P, Johnson, Garling and Lonergan JJ) held that, first, a court's judgment is represented by its orders and not its reasons for judgment (and hence the decisions in Environment Protection Authority v Land and Environment Court (NSW) [2004] NSWCA 50; (2004) 144 A Crim R 198 and Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174; (2019) 101 NSWLR 245 were not "plainly wrong" in this regard but were plainly right for so holding) (at [92]-[94] per Bathurst CJ and Bell P). It followed that the publication of the primary judge's reasons for judgment did not preclude the subsequent submission of questions of law to the Court of Criminal Appeal because no formal orders had been made (at [101] per Bathurst CJ and Bell P).
Second, it held that the questions were not "questions of law" for the purpose of s 5AE of the Criminal Appeal Act. In doing so, the Court of Criminal Appeal noted the practice that had developed in relation to the use of stated cases in prosecutions under the Work Health and Safety legislation in the District Court in the exercise of its summary jurisdiction. The Court further noted that a similar practice exists in this Court (at [5]-[6]): 5 As shall be explained, the circumstances in which the case was stated by the primary judge do not appear to be unique to the present matter and expose a practice which has developed, or is developing, in relation to prosecutions under the Work Health and Safety legislation (Work Health and Safety Act 2011 (NSW) (WHS Act); Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) (WHS (MP) Act)). That practice is one whereby, after reasons for judgment have been delivered indicating that the prosecution has failed to establish all elements of an offence beyond reasonable doubt but before final orders have been made, the prosecutor seeks or is given an adjournment to consider the reasons and to require, if so advised, the trial judge to refer questions of law to the Court of Criminal Appeal for determination pursuant to s 5AE of the Criminal Appeal Act: see, for example, SafeWork NSW v BOC Ltd [2020] NSWDC 156; Orr v Hunter Quarries Pty Ltd (No 2) [2020] NSWDC 307; see also Safe Work NSW v Wollongong Glass Pty Ltd (2016) 257 IR 351; [2016] NSWDC 58, where Scotting DCJ delivered reasons on 31 March 2016 but did not make orders finding the defendant not guilty and dismissing the summons until 28 April 2016 in circumstances where his Honour noted in his orders (at [127]) that "[s]ince delivering reasons on 31 March 2016 I have been advised that the prosecution does not wish to make an application to the Court of Criminal Appeal". 6 A similar practice exists in relation to prosecutions dealt with in the Land and Environment Court: see, for example, Environment Protection Authority v Land and Environment Court (NSW) (2004) 144 A Crim R 198; [2004] NSWCA 50 (the EPA Case); Garrett v Freeman (2006) 68 NSWLR 729; [2006] NSWCCA 278; Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180; and Environment Protection Authority v Grafil Pty Ltd (2019) 101 NSWLR 245; [2019] NSWCCA 174.
Their Honours embarked upon a detailed analysis of what constitutes a question of law, as that expression commonly appears in various statutory formulations, remarking that the bright line between questions of fact and questions of law remains as dark as ever and that the distinction is not a binary one (at [31]-[61], especially at [32] and [51] per Bathurst CJ and Bell P). In particular, and germane to the determination of the present motion, the Court of Criminal Appeal explained the difference between questions of law and a question the answer to which may disclose an error of law, observing that a question may, in its form, sufficiently identify a possible error of law but nevertheless may not properly constitute a question of law or be answerable as a question of law (at [52] per Bathurst CJ and Bell P).
The Court of Criminal Appeal further noted that where different conclusions are possible or open in respect of facts as found, a question so framed does not necessarily give rise to a question of law and that "a question whether or not a particular conclusion based upon facts fully found was 'open' to a judge cannot be characterised as a question of law in any a priori sense. It is, at most a question of mixed fact and law" (at [59] per Bathurst CJ and Bell P), which is "not a 'question of law'" (at [60] per Bathurst CJ and Bell P).
Turning to the meaning of the words "question of law" in s 5AE of the Criminal Appeal Act, their Honours opined that as that provision existed historically, the expression had been narrowly construed to exclude questions that did no more than establish that the trial judge made an error of law. Furthermore, it could not be expected that any different meaning would be afforded to the provision in its current incarnation (at [68]-[70] per Bathurst CJ and Bell P). In addition, questions asking "did I err in law in making the finding X" do not identify a specific question of law for determination, involving as they inevitably must, a mixture of various legal and factual elements (at [72]-[73] per Bathurst CJ and Bell P).
Ultimately it was determined in Cobar that other than the first question that was submitted for consideration, the remaining questions could not be properly characterised as "questions of law".
Turning to the purpose of s 5AE of the Criminal Appeal Act, their Honours endorsed the remarks of Simpson J (as her Honour then was) in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; (2004) 137 LGERA 289 at [36] where she stated (quoted at [103]): 103 The purpose of s 5AE of the Criminal Appeal Act was correctly identified by Simpson J (as her Honour then was) and with whom Bell and Buddin JJ agreed in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; [2004] NSWCCA 439 at [36]. There, her Honour observed that: "[36] … s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. Section 5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law."
Critically, in Cobar, Bathurst CJ and Bell P went on say the following (at [106] and [108]-[110], emphasis added): 106 In terms, the purpose of s 5AE is for this court to determine questions of law which have been submitted to it for determination. That language presupposes that those questions of law have not first been determined by the judge who submits the questions. This is consistent with the section not operating as a surrogate right of appeal. As Hunt J (with whom Grove and Allen JJ agreed) observed in Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81 at 82: "The purpose of the stated case procedure is not to provide an appeal after the judge has made his decision; the purpose is to provide him with assistance in coming to his decision." This passage was quoted with approval by Kirby P in Cassell at 166, in turn cited by Tobias JA in the EPA Case at [24]. … 108 In keeping with the observations of Simpson J in Goulburn Wool, the evident purpose of the procedure provided by s 5AE is to provide a facility whereby, if there is a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority, the judge hearing the matter may or, if the Crown requires, must submit such questions to the Court of Criminal Appeal. 109 Those questions of law should be, in our opinion, what are sometimes described as "pure questions of law". They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above. 110 Further, as has been observed at [72]-[73] above, questions which take the form "Did I err in …?" are not questions of law, at least for the purposes of s 5AE (and s 5B) of the Criminal Appeal Act. Deployment of the formula "Was it open to me to find …" in our opinion carries the same vice in the context of s 5AE of the Criminal Appeal Act.
Johnson, Garling and Lonergan JJ agreed with reasons of Bathurst CJ and Bell P, with Johnson J offering the additional salient comment (at [135]): 135 What these proceedings have demonstrated, however, is that s 5AE of the Criminal Appeal Act is a narrow provision intended to provide authoritative assistance on questions of law to a trial judge whilst the first instance proceedings remain on foot. As the joint judgment of the Chief Justice and the President makes clear, although the door remains open for a question of law to be referred to this court before a final order of acquittal is made, the question must be a true question of law and not a proposition designed to ask this court to exercise a type of final appellate function, directed to the facts of the case, which lies outside the proper scope of the section.
Applying the reasoning in Cobar, it becomes tolerably clear that the question drafted for the stated case, even as amended, is not a "pure question of law" as required to enliven the jurisdiction under s 5AE of the Criminal Appeal Act. As the EPA correctly submitted, the legal principles applicable in Charlotte Pass are settled and not in dispute. Rather, it is their application to the facts as found by the Court that the EPA cavils with. A better characterisation of the draft purported question of law is of one "which may ultimately disclose an error of law depending upon the analysis of facts but where this cannot be known without scrutiny of the facts" (Cobar at [109]). In other words, this is not a "question of law" for the purpose of s 5AE of the Criminal Appeal Act.
To the extent that the Court of Criminal Appeal appeared to accept by inference the appropriateness of similar questions of law contained in stated cases pursuant to s 5AE of the Criminal Appeal Act in Riverina and Tropic Asphalts, the EPA submitted that it was wrong to do so (T10:12-16). I make no comment on this contention other than to note that both cases were decided prior to Cobar and without the benefit of the issue being raised and discussed before that Court. As such neither are binding upon me.

Conclusion and Orders

As alluded to above, in my view, the relief sought in the notice of motion ought to be granted. The judgment in Charlotte Pass is a proper one for determination on appeal given the vexed question of whether or not the summons is duplicitous. If the EPA is not successful on appeal then it will face the spectre of either laying an additional 77 separate charges (see the judgment at [115]), or electing to proceed with just a single charge on a single day irrespective of the period of the offending. As was stated in Charlotte Pass, the conclusion reached by the Court that the summons was bad for duplicity was "finely balanced" (at [101]) and was premised upon an application of the underlying reasoning in Kiangatha.
In conformity with the reasons given above, the orders of the Court are as follows: 1. proceedings on the summons in matter 200270/2020 are stayed until the prosecutor elects and particularises a single offence contrary to s 120 of the Protection of the Environment Operations Act 1997 upon which it will proceed; 2. pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 the Court certifies that the judgment in Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 is a proper one for determination on appeal; and 3. the exhibits in matter 200270/2020 are to be returned.

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: 21 May 2021

(Work Health and Safety Act 2011(NSW)

(WHS Act); Work Health and Safety (Mines and Petroleum Sites) Act 2013(NSW)

(2004) 137 LGERA 289

(2019) 101 NSWLR 245

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