Environment Protection Authority v CSR Ltd trading as CSR Woodpanels

I shall, for convenience, refer to these amendments as "the current amendments". The relevant history

So that the competing claims can be understood, it is necessary briefly to summarise the history of the proceedings. That summary is as follows: 7 December 1994 Two officers from the Environmental Protection Authority ("the EPA") Mr Monteith and Mr Enright, inspect the site.

13 September 1995 The EPA gives a notice to the defendant under s 24 of the Pollution Control Act 1970 requiring production of information;

Late 1995/early 1996 The Blue Lagoon is decommissioned and removed;

October 1996 Affidavits deposing as to facts and circumstances concerning the Blue Lagoon are sworn by Mr Monteith and Mr Enright respectively;

1 August 1997 Class 5 proceedings commence by filing summons.

October 1997 Correspondence between the solicitors for the defendant and the prosecutor concerning further and better particulars of the charge. Specifically, the prosecutor confirms, on 31 October 1997, its allegation that the defendant, on a number of separate and unidentified occasions in a period beginning in 1980, had caused the Blue Lagoon to leak;

18 December 1997 I order the prosecutor to furnish further and better particulars of the charge (see Environment Protection Authority v CSR Ltd (Pearlman J, NSWLEC, 18 December 1997, unreported ("LEC No 1"))) and thereafter the prosecutor requests me to state a case for the determination of the Court of Criminal Appeal;

19 November 1998 The Court of Criminal Appeal answers the case stated by finding that I did not err in ordering the prosecutor provide further and better particulars of the charge ( Environment Protection Authority v CSR Ltd (1998) 101 LGERA 109 ("CCA No 1");

9 February 1999 The prosecutor furnishes further and better particulars of the charge. Specifically, the prosecutor states that, "… the offence was a continuing one from 1992 until the decommissioning of the Blue Lagoon";

5 May 1999 I dismiss the defendant's application for an order striking out the proceedings upon the ground that the prosecutor had failed to provide the further and better particulars ordered to be furnished, and, upon application by the prosecutor, I order the amendment of the summons by including the words "or was likely to harm" after the word "harm" ( Environment Protection Authority v CSR Ltd (1999) 103 LGERA 161 ("LEC No 2")) . Thereafter the defendant requests me to state a case for the determination of the Court of Criminal Appeal;

20 September 2000 The Court of Criminal Appeal answers the case stated by holding that I did not err in the findings and orders I had made ( CSR Ltd v Environment Protection Authority (2000) 110 LGERA 334 ("CCA No 2")).

An important background matter is the evidence of Mr E R Barlow. Mr Barlow was an officer of the EPA (and its predecessor, the State Pollution Control Commission) from 1975 to 1994. He swore an affidavit on 5 December 2000, a copy of which was annexed to the affidavit of Ms J Jagot, the defendant's solicitor, and that copy was relied upon by both parties for the purpose of dealing with each of the notices of motion.

Mr Barlow stated that he was the primary EPA contact officer for the site from the early 1980's until October 1994. During that period, his duties involved, amongst other things, the regular inspection of the site, and he kept field notebooks recording issues arising from his inspections.

Mr Barlow said in his affidavit that he does not have a clear recollection of his early inspections of the site in the 1980's, but he recalled that the Blue Lagoon was in operation during that time. He also recalled that in about 1991, the defendant was considering the installation of a wetland to treat site effluent, and that the defendant's intention, throughout the period 1989 - 1993, was repeatedly said to be to "'get rid of the Blue Dam' altogether". In par 12 of his affidavit, Mr Barlow made the following statement: In late 1992 (relatively close to the routine Christmas shutdown of the CSR site), I recall that I was informed by a CSR site representative (whose identity I cannot recall) to the effect that "the Blue Dam is seeping effluent beyond the dam walls and into the surrounding earth.

Upon hearing this, Mr Barlow conducted some investigations but found "no evidence that the leaching effluent had migrated beyond the boundary of the CSR site".

Mr Barlow's uncontested evidence therefore establishes that evidence of the leaking of the Blue Lagoon first came to the attention of an officer of the EPA in 1992.

Against that background, I turn to consider each notice of motion. The claims made by each party in relation to each of the notices of motion overlap to a considerable extent, but it is convenient to deal first with the prosecutor's notice of motion seeking amendment of the summons.

Mr Lloyd QC, appearing for the defendant, accepted that the Court has a discretionary power to order amendments in any proceedings, but he submitted that, in this case, the Court should refrain from exercising that power. Mr Lloyd put the defendant's case in this respect on five grounds, and I deal with each in turn.

Mr Lloyd submitted that the effect of the current amendments would be to extinguish the original proceedings and to substitute new and different proceedings. He cited a number of authorities (Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414; Burrell v Jacenko (1998) 99 LGERA 173; Hornsby Shire Council v Clyne (1998) 99 LGERA 432; R v Johal & Ram (1973) 1 QB 475, and R v Evans (1999) VSC 489 unreported) for the proposition that an amendment which has the effect of charging the defendant with a different offence will not be permitted, and he argued that the current amendments were in that category.

The basis for this claim is that the prosecutor had initially asserted that the offence with which the defendant is charged was not a continuing offence and the effect of the current amendments is to change that assertion to a claim that the offence is a continuing offence. In Mr Lloyd's submission, this is a fundamental change in the substance and nature of the offence. The charge under s 6(1) of the EOP Act requires the prosecutor to establish, amongst other things, that there was a leak and that the leak was negligently caused by the defendant. The date or period of time upon which each of these elements is said to have occurred is, in his submission, central and fundamental to the charge, such that the alteration of these elements amounts to a new charge.

In considering this submission, it is important to bear in mind the precise terms of s 6(1) which are as follows: 6(1) If a person, without lawful authority, wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner which harms or is likely to harm the environment: (a) the person; and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence.

It is apparent that the essential nature of this offence is negligently causing a substance to leak and that it constitutes one offence (CCA No 2 par 33). The dates upon which the offence is alleged to have occurred are essential factual ingredients (Johnson v Miller (1937) 59 CLR 467 at 486). The insertion of the dates by amendment of the summons does not, however, change the essential nature of the offence. It remains one offence of causing a substance to leak. Hence although the dates are essential, their insertion by amendment does not have the effect of charging the defendant with a different offence.

Mr Lloyd submitted that there is an analogy between the circumstances of this case and the circumstances arising in R v Evans, in which McDonald J refused to permit amendments to particulars of counts on an indictment. In that case, the defendants had been charged with the commission of an "insider trading" crime under the Corporations Law. His Honour had previously held that there was no case to answer, on the basis that, although the defendants had a conversation with each other at a certain time, the jury could not conclude that they had at that time entered into an agreement to purchase shares (based on information not generally available), and that such an agreement could only be made when a trade or agreement to purchase securities had been achieved by the broker as agent. The prosecutor thereupon sought to amend the particulars in various ways which focussed on a subsequent time when the placing of bids was matched with offers in relation to the particular shares. One of the reasons found by McDonald J to work an injustice on the defendants was that they were, on the case made out against them in law, entitled to an acquittal, but if the amendments were permitted, the jury should be discharged and a retrial ordered to exclude any prejudice which would otherwise be suffered.

The circumstances of this case are entirely different. This is not a case where the current amendments would change the defendant's position from a no case to answer and a consequent acquittal. The defendant has not yet pleaded to the charge, and the current amendments do not constitute a different charge.

Furthermore, the reference in the summons to s 12 of the EOP Act and the particulars as to when the offence first came to the notice of the relevant officer (which the prosecutor now seeks to omit from the summons) are not matters which are ingredients of the offence. They are procedural in the sense that they simply relate to the limitation period prescribed by the EOP Act. Section 12 in effect provides alternative starting points for the computation of the relevant limitation period. Thus, s 12(1)(a) provides that proceedings may be commenced within but not later than three years after the date on which the offence is alleged to have been committed. Section 12(2)(a), on the other hand, provides that proceedings may also be commenced within but not later than three years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer. Accordingly, the omission of a reference to the date upon which the offence first came to the notice of the relevant officer does not fundamentally change the substance and nature of the offence with which the defendant is charged, although, as I set out later, that omission is a matter to consider in relation to a submission from the defendant that the proceedings are, in whole or part, outside the limitation period. The current amendments should therefore not be refused on the ground that they constitute a new charge. Without the director-general's consent?

Section 13 of the EOP Act provides that proceedings for an offence against that Act may be instituted only with the written consent of the EPA (which step may be carried out by the Director-General of the EPA pursuant to s 19(2) of the Protection of the Environment Administration Act 1991). In this case, the Director-General consented to proceedings described in the following terms: Proceedings for the offence, which first came to the attention of a relevant authorised officer on 6 December 1994, that at Tumut in the State of New South Wales it did, without lawful authority, negligently cause a substance to leak in a manner which harmed the environment, contrary to section 6(1) of the Environmental Offences and Penalties Act, 1989, as amended.

The defendant claims that the consent was limited and the current amendments will take the proceedings outside the scope of the consent, and as such should not be allowed. It is said that, if amended, the proceedings will differ from the proceedings described by the consent in four ways:

1. the consent is unspecific as to the time of the alleged offence, whereas the proposed amended charge is for an offence alleged to have occurred "between 1992 and 1995";
2. the consent refers to negligently causing a substance to leak in a manner which harmed the environment, whereas the proposed amended charge is of an offence "which harmed or was likely to harm the environment";
3. the consent refers to an offence "which first came to the attention of a relevant authorised officer on 6 December 1994" whereas the proposed amended charge resiles from that identification and provides no information as to the date on which the offence first came to the attention of a relevant authorised officer; and
4. the proposed amended charge has the effect of changing the nature of the offence from being an offence committed on a number of separate and unidentified occasions to being a continuing offence.
5. Although the amendment of the summons to include the words "or was likely to harm" was expressly permitted by the Court of Criminal Appeal (see CCA No 2) Mr Lloyd sought to show that there was a cumulative difference between the consent and the proposed amended charge, the effect of which is to convert the proceedings from proceedings instituted with consent into proceedings instituted without consent. Mr Lloyd relied upon the following passage from the judgment of Gleeson CJ in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 89: Once proceedings have been instituted, the Court's power to allow amendments cannot be exercised to change proceedings that have been instituted with consent into proceedings instituted without consent.

If, however, the proceedings in their amended form are in nature and substance, proceedings to the institution of which the requisite consent has been given, then the amendments are permissible: Traveland Pty Ltd v Doherty (1982) 63 FLR 41; 41 ALR 563. It is to be noted that in the present case the amendments did not add anything to the charge, but simply deleted the words referring to the State of Queensland. The charges as they stood with those words deleted were, in my view, still the charges that were contemplated by the consent that was given.

I do not accept the defendant's submission. Firstly, the essential subject of the consent is one offence under s 6(1), that is, negligently causing a substance to leak. That is also the essential subject matter of the summons (cf CCA No 2 per Smart AJ par 33). The four matters raised by the defendant do not, in my opinion, either individually or cumulatively, alter the essential subject of the consent, or make the consent different in substance from the proposed amended summons. Secondly, as I have earlier concluded, the dates between which the offence is said to have occurred, although essential factual ingredients of an offence, are not critical to determining the subject matter of the offence under s 6(1). Thirdly, the amendment inserting the words "or was likely to harm" has already been ordered by the Court, and upheld upon appeal. Fourthly, the reference in the consent to the date upon which the offence first came to the attention of a relevant officer does not change the fundamental nature and substance of the offence, but instead sets the commencement date for the computation of an available limitation period under s 12 of the EOP Act (see par 21 above), and its inclusion in the consent is also not critical to the subject matter of the consent. Fifthly, the fact that the prosecutor now claims a continuing offence does not as has been discussed above, alter the essential subject matter of either the summons or the consent.

For these reasons, I do not consider that the amendments sought by the prosecutor will convert the proceedings into proceedings issued without consent.

There has been some confusion surrounding the prosecutor's assertion that the offence is a continuing offence over the period from 1992 to 1995. The summons as it was framed and as it presently stands contains no such assertion, nor was any such assertion made in the course of correspondence between the parties' solicitors concerning further and better particulars (a summary of that correspondence is contained in LEC No 1 pp 2 - 4). Indeed, as I noted in that judgment at pp 2 - 3, the defendant's solicitors asked the prosecutor to confirm the prosecutor's allegation that the defendant had, "on a number of separate and unidentified occasions", placed effluent into the Blue Lagoon in circumstances where it knew or ought to have known that the Blue Lagoon would leak, and the prosecutor confirmed that this statement was correct. Furthermore, as I also noted in that judgment (at p 5) the prosecutor had not alleged a continuous offence, although in the Court of Criminal Appeal, on the subsequent stated case (CCA No 1 p 2), the prosecutor claimed that my understanding was incorrect. In cross-examination in these current proceedings, Mr P T Barley, a solicitor in the employ of the EPA who has the carriage of the proceedings on behalf of the prosecutor, stated that the prosecutor had always been of the view that the offence was a continuing one [T 5 March 2001, p 28 line 35], but it had, incorrectly, allowed a "misunderstanding" or "misapprehension" to arise out of the correspondence to which I have referred. [T 5 March 2001, p 29, line 20 - 45]

The prosecutor ultimately made the position clear. In the particulars which it furnished to the defendant's solicitors on 9 February 1999, it stated that "[t]he EPA alleges that the offence was a continuing one from 1992 until the decommissioning of the Blue Lagoon".

The defendant claims that it will be prejudiced if the current amendments are made. Mr Lloyd cited R v Johal & Ram (at p 481) as authority for the proposition that the longer the period between the commencement of proceedings and amendment, the more likely it is that injustice will be caused. It was put to the Court that the defendant has relied upon the summons as framed and has been preparing its case on that basis. A change of particulars, it was said, will require new evidence to support its case, which may be difficult, given the length of time that has passed since the institution of proceedings in August 1997.

I put aside for later the question as to whether delay both in the institution and the conduct of the proceedings has prejudiced the defendant in such a way that the Court should stay the proceedings. That is a different question. The present point is whether the delay in amending the summons, since the institution of the proceedings, and the prosecutor's conduct in, as Mr Barley frankly called it, allowing the misapprehension to "fester", are such that the current amendments should not now be permitted.

I have come to the view that there is no basis for refusing to order the current amendments on this ground. There was confusion about the precise nature of the offence, but it was unequivocally corrected in the particulars furnished on 9 February 1999, and the defendant has been on notice since then as to the nature of the offence charged. The current amendments seek to formalise the offence as a continuing offence, and although the current amendments could, and should, have been sought earlier, I am unable to discern how, if they are made now, the defendant will be prejudiced in preparing its case and determining how it wishes to plead.

Section 12 of the EOP Act prescribes a limitation period of three years for an offence under s 6(1) (see par 44). The defendant's case is that the current amendments should not be allowed, because, if permitted, the proceedings will be wholly or in part outside the limitation period. In amplification of this claim and by reference to the fact that the proceedings were instituted on 1 August 1997, Mr Lloyd submitted that, if the offence is not a continuing offence, but is constituted by a number of discrete acts which complete the offence on a number of separate occasions, then, to the extent that an offence is completed on or before 31 July 1994, the proceedings are out of time. If, on the other hand, the offence is a continuing offence over the period 1992 to 1995, as the prosecutor now asserts, then, in Mr Lloyd's submission, this involves an allegation that the offence was committed on each day during the stipulated period such that the limitation period commenced to run from each day an offence was committed. Again, to the extent that the offence is alleged to have been committed prior to 31 July 1994, it is out of time.

The question of whether or not the offence with which the defendant is charged is a continuing offence remains to be decided. The Court of Criminal Appeal has put beyond doubt that an offence under s 6(1) may be a continuing offence, and the offence as particularised in this case "is capable of being a continuing offence" (CCA No 2 par 52). Furthermore, the Court of Criminal Appeal, in par 53 of that decision, held that "[t]he final determination whether the offence particularised is a continuing one must await the trial and the completion of the evidence".

Accordingly, the Court's only task at present is to determine whether, by reason of a possible infringement of the limitation period, the current amendments should be refused (and, as I mention later, the proceedings stayed). I have concluded that I should reject this course, on two grounds.

Firstly, I am of the view that, whilst the defendant is correct in contending that a continuing offence may be the subject of prosecution on any day during the stipulated period, it is not correct in asserting that the limitation period commences to run from any day of that period. Rather, the limitation period commences to run from the day upon which the commission of the offence has ceased. Accordingly, if this offence is ultimately found to be a continuing offence, then no question of infringement of the limitation period will arise, because the period will commence to run from some date in 1995, and the proceedings were instituted within three years thereafter.

I have derived the proposition which I have just put from the authorities, and, in deference to the arguments of the defendant, it is appropriate to deal with them at some length. In Jones v Lorne Saw Mills Pty Ltd (1923) VLR 58, the defendant was charged with failing to observe the terms of an award in that it failed to pay award wages to one of its employees for a period during 1920. The proceedings were instituted in 1922. In response to a submission that the proceedings were out of time, it was held that the offence was a continuing one and the limitation period had not been infringed. Cussen J said at p 65 that "[I]t is sufficient to say that, in my opinion, there was here just as much non- observance in 1922 as in 1920 and the information on its face is within time". His Honour continued at p 66 "… there is but one offence - namely, 'non-observance', an offence in which the time element is extensible so as to provide a real continuum".

This decision was expressly approved as correct by the Full Court of the Supreme Court of Victoria in R v Industrial Appeals Court Ex parte Barelli's Bakeries Pty Ltd (1965) VR 615 and see particularly the judgment of Smith J at p 623. See also Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276 at 278 - 279.

Cook v Cook (1923) 33 CLR 369 was concerned with a claim for maintenance. The husband ceased to pay maintenance under an order in 1922 and in 1923 the wife instituted proceedings to enforce compliance with the order. The information was not laid within twelve months from the time when the matter of the information arose, as required by the relevant limitation provision. It was held by Knox CJ and Starke J at p 375 that, assuming the limitation provision applied, "still the disobedience of the maintenance order is a continuing act giving a cause of complaint de die in diem". In my respectful understanding of their Honours' decision, the principle is not that the continuing offence was completed from day to day, but that it continued, giving a cause of complaint from day to day whilst the order was being disobeyed. In a separate judgment, Isaacs J said, at p 381, that "[D]isobedience is a continuing offence … as the order still stands and the disobedience still continues and includes (the whole amount claimed), (the whole amount) may be recovered".

In Ex parte Wakefield (1927) 27 SR (NSW) 261, a claim was made upon the applicant arising out of his failure to pay maintenance for his children between certain dates. The claim was held to be subject to a limitation period which required it to be made within six months from the time when the matter of the information or complaint arose. In holding that the claim was out of time, the Court computed the limitation period from the last of the dates upon which payment had not been made.

In J Robins and Sons Ltd v Maloney (No 2) (1935) IR 155, Cantor J referred to a passage from the judgment of Lord Alverstone in Chepstow Electric Light and Power Co Ltd v Chepstow Gas and Coke Consumers' Co Ltd (1905) 1 KB 198 at p 209 in which, amongst other things, the statement was made that "… I doubt whether the time of limitation can be said to begin to run where persons are continuing to disobey an order which is always operative until it is obeyed".

My second reason for declining to adopt the course which the defendant urges upon the Court is that, in my opinion, it would be inappropriate to refuse to order the current amendments (or to stay the proceedings) because of a possible infringement of the limitation period. Whether or not such an infringement will arise will depend upon findings at the trial as to whether the offence is a continuing one, and it is at least possible, on the particulars thus far furnished, that it is a continuing one (see CCA No 2 pars 52 - 53).

The defendant claims that, in framing the summons to comply with s 12(3) of the EOP Act, the prosecutor elected to rely on s 12(2) and not s 12(1). The prosecutor should not be permitted, by virtue of the current amendments, to withdraw this election and change the basis of the prosecution.

Section 12 relevantly provides as follows: Time within which summary proceedings may be commenced

12(1) Proceedings for an offence against this Act may be commenced: (a) in the case of a prescribed offence - within but not later than 3 years after the date on which the offence is alleged to have been committed, or (b) in any other case - within but not later than 12 months after that date. (2) Proceedings for an offence against this Act may also be commenced: (a) in the case of a prescribed offence - within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer; or (b) in any other case - within but not later than 12 months after the date. (3) If subsection (2) is relied on the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence of the offence first came to the attention of any relevant authorised officer is the date specified in the information or application, unless the contrary is established. 44. Section 12(7) provides that a "prescribed offence" means an offence arising under, amongst others, div 1 of pt 2 of the EOP Act, which includes s 6(1).

Mr Lloyd submitted that the opening words of s 12(3) indicate a legislative intention that either s 12(1) or s 12(2) will be relied upon, and they cannot be relied upon interchangeably. Once the prosecutor has made its choice, it has made in effect an election, and that cannot now be reversed or undone, nor can reliance upon s 12(1) be substituted for reliance upon s 12(2). He relied, by analogy, on S v The Queen (1989) 168 CLR 266 and Walsh v Tattersall (1996) 188 CLR 77.

I am unable to accept this submission. In my opinion, s 12 has a specific purpose. It provides alternative periods of limitation depending upon the particular offence, and alternative methods of computing the time from which the relevant limitation period commences to run. I cannot discern anything in the language of s 12 which would indicate that that the prosecutor must choose between the alternatives at the outset of proceedings and must thereafter be bound by that choice.

I agree with the submission made by Mr Rushton SC, appearing for the prosecutor, that the selection of s 12(1) or s 12(2) does not alter the substance of the offence charged, and this supports a conclusion that the prosecutor may rely upon either subsection, and is not obliged to make a binding choice. The prosecutor's only obligation is to prove that the proceedings were commenced within the relevant limitation period.

I also agree with Mr Rushton that neither S v The Queen nor Walsh v Tattersall is relevant to the point. Both those cases were concerned with the form of a charge and the manner in which it was particularised, leading to a question in each case of whether the charge was latently duplicitous. This, however, is not a case where two charges have been rolled up into one, and it is not a case where the prosecutor must be required to select which of the charges it wishes to prosecute.

In summary, for the reasons which I have set out, I conclude that there are no grounds which would justify refusing to order the current amendments. The Court has power to do so, and it would be appropriate to do so in this case.

The defendant seeks a permanent stay of the proceedings. It claims that, by reason of a combination of factors, it will not be possible for the defendant to have a fair trial.

There is no dispute that the Court has the power to grant a permanent stay in criminal proceedings. That power is derived from the express provision to that effect in pt 12 r 1 of the Land and Environment Court Rules as well as the from the inherent power of the Court to prevent an abuse of process and to ensure a fair trial (Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23). And the defendant accepts that it bears the onus of establishing that the trial would be unfair: cf Barron v Attorney General for New South Wales & Ors (1987) 10 NSWLR 215 at 219 and 233.

The principles that apply in considering whether to grant a stay are well established. In Jago v The District Court Mason CJ said, at p 34: To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton v The Queen (1980) 147 CLR at 111 per Wilson J.

It is extremely rare for a court to grant a permanent stay, particularly in criminal matters: The Queen v Glennon (1992) 173 CLR 593 per Mason CJ and Toohey J at p 605; Walton v Gardiner (1993) 177 CLR 378 at p 392 - 393. The exercise of the power involves balancing the risk of unfairness to the defendant against the community expectation in criminal matters that a trial will occur: Jago v The District Court at p 33 and p 72, Walton v Gardiner at p 396.

Before turning to the factors put forward by the defendant as establishing that the trial will necessarily be unfair, I deal with the prosecutor's preliminary submission that the defendant's application for a stay is premature, because the power to grant a stay is enlivened only after a plea has been entered. In putting this submission, Mr Rushton said that the power to stay criminal proceedings presupposes that the defendant contends that it is not guilty, but that a trial as to its guilt or innocence would be manifestly unfair. He relied for this proposition upon the use of the word "trial" in the judgments of all the members of the High Court in Jago v The District Court and in particular in the passage from the judgment of Mason CJ at p 34 which I have earlier quoted. It was submitted that the proposition also arose from a passage in the judgment of Hunt J in R v Tolmie (NSWCCA, 7 December 1994, unreported) at p 4 where his Honour, by reference to Jago v The District Court at p 29, said that "[t]he right to a fair trial is entrenched in the criminal justice system, to ensure that innocent people are not convicted of criminal offences …".

But the error of that proposition is demonstrated, as Mr Lloyd pointed out, by other passages from the judgment of Mason CJ in Jago v The District Court. In discussing the right of an accused person to receive a fair trial, Mason CJ, at p 29, said: [b]ut there is no reason why the right should not extend to the whole course of the criminal process …" and in a later passage at p 30, his Honour said that "… the power to prevent an abuse of process in this context is derived from the public interest…that trials and the processes preceding them are conducted fairly …". (my emphasis)

I conclude, therefore, that the fact that the defendant has not yet entered a plea to the charge against it does not of itself preclude the grant of a permanent stay. I turn then to the factors which the defendant puts forward for the Court's consideration.

The loss or destruction of evidence may be a circumstance justifying a stay of proceedings. Each case must be considered on its own facts (R v Beckford (1996) 1 Cr App R 94 at pp 102 - 103). It is not necessary to show that the missing evidence was essential to the defendant's case, but merely that there is a risk that the defendant would not receive a fair trial as a result of that evidence being unavailable (R v Yuill (1993) 69 A Crim R 450). In R v Gajree (Court of Appeal, Criminal Division, 20 September 1994, unreported) the conviction of the defendant on a charge of rape was quashed as unsafe and unsatisfactory because, as a consequence of delay and ineptitude in the police investigation of the offence, alleged seminal staining of a carpet was not examined and, by reason of a fire, plans and photographs of the layout of the shop in which the offence was alleged to have taken place were not available. On the other hand, in R v Beckford, in an appeal against a conviction for causing death by careless driving when under the influence of drink or drugs, the Court of Appeal held that, in the circumstances of the case, the absence of the car did not affect the fairness of the trial.

In the defendant's submission, two evidentiary matters give rise to a risk that the trial will be unfair. The first is the removal of the Blue Lagoon, and the second is the loss of Mr Barlow's field notebooks.

As to the Blue Lagoon, Mr Lloyd submitted that its removal amounts to "an evidential hole at the heart of the case" (R v Michael John T United Kingdom Court of Appeal (Criminal Division), 27 March 2000, unreported, at p 3) such that the defendant will not receive a fair trial. The defendant claims that there is a fundamental difference between the work that could have been carried out while the Blue Lagoon was in existence to establish whether and when it leaked, compared to the work that, in the absence of the Blue Lagoon, can be carried out in an endeavour to establish those matters. To prove that this is so, Mr Lloyd relied on the evidence of two experts, Mr G P Kotze, an engineering geologist, and Mr A P Lane, a hydrogeologist and environmental auditor.

In his affidavit, Mr Kotze specified the combined geotechnical and hydrogeological investigation that would have been possible if the Blue Lagoon was still in existence, and, by way of comparison, he specified the investigation that could be carried out now, which, instead of being based on field work and testing, would be based predominantly on reviews of information "collected for other purposes", computer modelling and interpretation. He drew the conclusion that work which could have been carried out when the Blue Lagoon was still in existence "would have enabled a reliable and accurate determination of whether the Blue Lagoon was leaking during 1995 or had leaked in the recent past". In contrast, the work that could be carried out now would be likely to yield results "which could only be described as inconclusive, particularly with regard to details of timing of any leakage".

Mr Lane outlined in his affidavit the extent of the advice and investigation which he had provided to the defendant in 1995 in connection with groundwater problems at the site and proposed remediation. He stated that, if the Blue Lagoon was still in existence, work additional to that which he had already done would be needed to establish whether it was actually leaking in 1995 or that it had leaked in recent years before 1995. His affidavit evidence corroborated that of Mr Kotze, namely, that "… it is impossible now to obtain reliable evidence in respect of … whether the Blue Lagoon was leaking at the time of my investigations in 1995/1996; or … whether the Blue Lagoon had leaked prior to my investigations and, if so, then the likely duration of such leaking …".

Mr Lane was extensively cross-examined. Despite his assertion in his affidavit that additional work would be needed to establish whether the Blue Lagoon was leaking in 1995, he ultimately conceded that there was no reasonable inference available from the reports of the investigations that were then carried out other than that the Blue Lagoon was leaking when it was removed in 1995. He conceded that he was satisfied that the Blue Lagoon was the source of contamination at that time (T 2 March 2001, p 33 line 10) and said that there was "fairly compelling evidence" of that fact (T 2 March 2001, p 42 line 20). Various parts of his investigation reports, to which he was taken during cross-examination, appear to reflect his conclusion that the Blue Lagoon was leaking. It is only necessary to quote two examples. First, Mr Lane referred, on p 7 of his report of 7 July 1995 (annexure 2 to his affidavit) to a monitoring bore, B 11, and stated that "… water most probably seeping from beneath the effluent dam, was entering the borehole …". In his oral evidence, Mr Lane sought to say that he had recently changed his mind about the interpretation of the fact that water was seeping into the borehole, but he conceded that when he wrote his report he meant to convey that contamination was most probably seeping from the Blue Lagoon to bore B11 located outside it. (T 2 March 2001 p 47 line 10). Secondly, on p 4 of his report of 30 April 1996 (annexure 4 to his affidavit) he produced a figure which summarised the results of monitoring of the water quality in the spring on the adjacent property, and that figure demonstrated, as Mr Lane put it on p 5 of his report, that "… the main indicators of contamination, salinity, conductivity, carbonate/bicarbonate and formaldehyde have reduced steeply (note the logarithmic scale) since the Blue Lagoon was removed in late 1995".

In his affidavit, Mr Kotze drew attention to the unreliability of information "collected for other purposes", and Mr Lloyd pointed to this opinion in order to submit that Mr Lane's reports remain unreliable for the purpose of this prosecution. But in his April 1995 investigation report, to which I have referred, Mr Lane stated at p 8 that the "[t]he general approach will be to drill and construct a number of groundwater monitoring bores … to fingerprint the source and evaluate the significance of the impact". Although Mr Lane endeavoured in cross-examination to resile from this and other similar statements he had made, I accept that it is obvious, as Mr Rushton submitted, that the identification of the source of the contamination was an important element of the investigation that Mr Lane carried out.

I am prepared to accept, from the evidence I have outlined, that investigations were in fact carried out by the defendant when the Blue Lagoon was still in existence to determine if it was the source of contamination, and those investigations indicate that it was leaking in 1995 when it was removed. I accept Mr Rushton's submission that it is not correct to say that it is impossible to obtain evidence as to whether the Blue Lagoon was leaking when it was removed, and I therefore conclude that there is no "evidential hole at the heart of the case" which would be likely to render the trial unfair.

No doubt, further investigation and testing could have been done when the Blue Lagoon was in existence. However, the defendant, or at least, its advisers, were aware from an early stage that a prosecution was likely. Ms Jagot conceded in cross-examination that, when she received instructions in September 1995 in relation to the notice issued under s 24, she formed the view that a prosecution was likely (T 2 March 2001 p 17 line 50 - 51). In a report on the preparation of an environmental management plan dated 22 May 1995 and furnished to Mr M Alston, the site manager, Mr S Jenkins, a director of EnviroRisk Management, expressed his view at p 2 that "[p]rosecution at this stage is likely". If the defendant had genuinely believed that it would be prejudiced by the removal of the Blue Lagoon had a prosecution ensued, it could have conducted further investigations to support its position.

Mr Lloyd submitted that Mr Lane was not questioned about the years before the removal of the dam, so that there remains an unreliability in the evidence for the period 1992 to 1995. However, Mr Barlow's evidence, if accepted (it has not yet been tested in cross-examination) indicates that the Blue Lagoon was leaking in 1992. I am not persuaded, in the light of these matters, that the evidence is so unreliable as to justify a permanent stay (R v Tolmie at pp 7 - 8).

As to the field notebooks, the evidence is unclear. Mr Barlow stated in his affidavit that he left his notebooks with the EPA. But, despite a search following a call for their production, they cannot now be found. In a file note of his conversation with Mr Barlow, Mr Enright noted as follows: Hand over of notebooks: I cannot recall this occurring, and Alan Wragg is definite that this did occur, as he still has in possession course notes, technical reference handed to him by Mr Barlow when his employment was terminated.

Mr Barley thought Mr Enright meant to say that Mr Wragg was definite that it did "not" occur (T 5 March 2001, p 19 line 15), but neither Mr Enright nor Mr Wragg were called to give evidence about their recollections. Neither was Mr Barlow called. The Court cannot know what was in the notebooks, or whether it was or was not relevant. Mr Barlow has, however, sworn an affidavit as to his recollections of his observations of the Blue Lagoon. In view of his evidence, I am not prepared to conclude that the notebooks contain vital evidence, the absence of which would so prejudice the defendant that it could not have a fair trial.

The defendant claims that delay both in commencing the prosecution and in conducting the proceedings are serious and justify a stay in the interests of the proper administration of justice.

As to delay before commencement of the proceedings, Mr Barlow's evidence is that the EPA knew that the Blue Lagoon was leaking in 1992, and certainly, by 1994, Mr Monteith and Mr Enright had inspected the site. The prosecutor's affidavits were sworn by various witness in October 1996, but the prosecution did not commence until 1 August 1997.

The defendant has not yet pleaded to the charge, and the trial has not yet taken place. The intervening delay since the prosecution commenced is largely the consequence of preliminary points being taken in this Court by each of the parties, and subsequent stated cases being referred to the Court of Criminal Appeal, one at the request of the prosecutor and the other at the request of the defendant.

The principles upon which delay might justify a permanent stay of proceedings were enunciated by Lord Lane CJ in giving the opinion of the English Court of Appeal in Attorney-General's Reference (No 1 of 1990) (1992) QB 630. At pp 643 - 644, his Lordship said: In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

… no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held; in other words, that the continuance of the prosecution amounts to a misuse of the process of the court.

Similar principles were expressed in R v West London Stipendiary Magistrate, Ex parte Anderson (1985) 80 Cr App R 143 at 149 and R v Oxford City Justices, Ex parte Smith (1982) 75 Cr App R 200 at 206.

The facts show that there has been considerable delay, both before and after the proceedings were commenced, but it is not possible in this case to find that delay has occurred solely by the conduct of one party; both the prosecutor and the defendant have been instrumental in causing delay. Furthermore, I am unable to conclude that the defendant will be prejudiced to the extent that no fair trial can be held. The defendant points to the removal of the Blue Lagoon, the loss of the field notebooks, the late amendment to the summons, and the prosecutor's belated assertion that the offence is a continuing one. For the reasons that I have earlier dealt with, I do not find that any of these matters will cause such prejudice to the defendant that it cannot have a fair trial.

Mr Lloyd submitted that the conduct of the prosecutor was such that the proceedings should be permanently stayed. He drew attention to the following matters:

(a) the conduct of the prosecutor in allowing a "misapprehension to fester" as to the continuing nature of the offence (see pars 27 and 30 above); (b) the conduct of the prosecutor in allowing the defendant until about December 2000 to rely on the statement that the offence had first come to the attention of the relevant authorised officer in 1994; (c) the conduct of the prosecutor in not contacting Mr Barlow itself until after the defendant's solicitors had called for production of the field notebooks; and (d) the delay in seeking an amendment of the summons to insert the period 1992 - 1995.

In addition to these matters, the defendant claimed that the Blue Lagoon was removed at the insistence of the EPA, and that the EPA gave the defendant no notice that it was considering prosecution. The evidence, however, appears to be to the contrary. I have already found that the defendant's advisers were aware in 1995 that a prosecution was likely (see par 65), and, in a letter dated 21 September 1995 to the EPA, Mr Alston (the defendant's site manager) stated that "[t]he removal of the lagoon is integral to our overall groundwater remediation strategy".

The defendant did not point to any particular prejudice caused by any of the matters I have outlined above, other than its claims that I have previously dealt with, namely, the impact of the removal of the Blue Lagoon and the loss of the field notebooks. I do not consider that either of these matters justifies a finding of prejudice to the defendant which would require a permanent stay.

I have concluded, in accordance with the foregoing, that a permanent stay of the proceedings should not be ordered, and that the prosecutor should be permitted to amend the summons in the way that its seeks by its notice of motion.

Mr Lloyd in his submissions, stated that, in the event that the Court should conclude that the current amendments should be allowed, the defendant would wish to make submissions as to the terms, including costs, upon which the amendments are allowed. I take this to relate only to costs, and not to the actual form of the amendments, which, as is obvious from this judgment, were the subject of lengthy submissions. The appropriate course, then, is to reserve the question of costs.

(1) The defendant's notice of motion dated 2 February 2001 is dismissed. (2) I grant leave to the prosecutor to amend the summons by:

(a) inserting the words "between 1992 and 1995" into paragraph 1 after the words "charge that" and prior to the words "at Tumut"; and (b) removing the paragraph heading "Particulars pursuant to section 12 of the Environmental Offences and Penalties Act 1989" and the paragraph immediately below that heading.

(3) I reserve the question of costs. (4) The exhibits may be returned.

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