Environment Protection Authority v Gilmour; Tablelands Topdressing Pty Ltd

Land and Environment Court (NSW)|2000-06-30|Before: Bignold J, Talbot J

CITATION : Environment Protection Authority v Gilmour; Tablelands Topdressing Pty Ltd [2000] NSWLEC 144 PROSECUTOR: Environment Protection Authority

DEFENDANT: Gilmour PARTIES : PROSECUTOR: Environment Protection Authority

DEFENDANT: Tablelands Topdressing Pty Ltd FILE NUMBER(S) : 50006; 50007 of 2000 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Extending time for service of Prosecution evidence in defended criminal proceedings Clean Waters Act 1970, s 16(1) LEGISLATION CITED: Environmental Offences and Penalties Act 1989 Land and Environment Court Rules 1996, Pt 6 r 2 Barton v The Queen (1980) 147 CLR 75; CASES CITED: McConnell Dowell Constructions (Australia) Pty Ltd ([1999] NSWLEC 111); State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 DATES OF HEARING: 22/06/00 DATE OF JUDGMENT: 06/30/2000

PROSECUTOR: Mr T Howard, Barrister SOLICITORS: Solicitor for Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANTS: Mr M A Bradford, Barrister SOLICITORS: Mr S Rugendyke

JUDGMENT: IN THE LAND AND Matter No . 50006 and 50007 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 30 June 2000

By its Notice of Motion filed 14 June 2000 in these two related class 5 proceedings, the Prosecutor seeks the leave of the Court that it be permitted at the trial to rely upon five affidavits which it filed in the proceedings on 2 June 2000.

With the concurrence of Counsel appearing for the Defendant, the Notice of Motion has been presented on the basis that the relief claimed is for a direction extending the time for the filing of Prosecution affidavits to 2 June 2000, it being noted that the direction given by the List Judge (Talbot J) on 25 March 2000 was for the Prosecutor to file "further affidavits by 5 April 2000".

There is a very sound reason of practice for so regarding the relief sought in the Notice of Motion because otherwise, the determination of the Motion in terms of the relief sought in advance of the trial of both charges that has been fixed for 7 and 8 August 2000 might have involved an unwitting intrusion into the proper province and function of the trial judge.

However, this very consideration demonstrates the utility, if not necessity for the present Motion, because without an adjudication before the trial, the Prosecutor will be exposed to the real risk of not being allowed to rely upon the evidence at the trial. That this might be the outcome of the trial process is aptly demonstrated by the decision of the Court of Criminal Appeal in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 where the Court said at 492 - 493:

Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a right to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps.

Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible: Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court of New South Wales (1989) 168 CLR 23 at 31; Kuruma v The Queen [1955] AC 197 at 204. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant.

Each class 5 proceedings was commenced by the filing of a summons on 16 February 2000 supported in each case by an affidavit sworn by a different authorised officer of the EPA. Each summons charged the named Defendant with an offence against the Environmental Offences and Penalties Act 1989 in that he did pollute waters contrary to the Clean Waters Act 1970, s 16(1) on or about 17 February 1999 near Yarrowcyk.

Each summons endorsed the same particulars, namely that the waters were "Gwydir River" and the pollutant was "fertiliser pellets".

On the same day that each of the summons was filed, Talbot J made an order pursuant to the Land and Environment Court Act 1979 (the Court Act) s 41, ordering each Defendant to appear before the Court on 29 March 2000 to answer the offence.

On 29 March 2000, each Defendant appeared by Counsel before Talbot J who directed the Prosecutor to file and serve by 4.00 pm 5 April 2000 "any further affidavits" and stood each proceeding over to 26 April 2000 before the List Judge for plea or mention.

On 26 April 2000, the parties appeared before Talbot J whereupon Mr Samuels, Solicitor for the Prosecutor informed the Court that he "anticipated that the Prosecutor had filed the evidence upon which it sought to rely". Thereafter, Counsel for each Defendant entered a plea of not guilty to the charge. Thereupon, his Honour gave the parties leave to approach the Registrar to obtain a hearing date for the trial of each charge (apparently consented to be heard together). Soon thereafter, the trial of each charge was fixed for hearing on 7 and 8 August 2000.

On 12 May 2000, Mr Samuels wrote to the Defendant's Solicitor advising inter alia that "having briefed Counsel, the EPA has reviewed the position and now proposes to file and serve further affidavits going to liability. We propose to file and serve those affidavits by 2 June 2000".

Thereafter, a brief description of the nature of the additional affidavit material is given and Mr Samuels' letter concludes by stating that given that the fixed hearing date for trial was more than two months distant, from 2 June 2000 the Prosecutor was of the opinion that the filing of the additional affidavits would not cause any significant prejudice to the Defendants.

By letter dated 25 May 2000, the Defendant's Solicitor advised the EPA as follows:

I refer to your letter of 12 May 2000. I am advised by Mr Baird of Counsel that the prosecution informed the Court on 26 April that all evidence had been filed. A note was duly recorded.

On the basis of this information, the defendants entered a plea. It is not relevant that the prosecution believes that the further affidavit will not prejudice the defendants. The defendants will oppose the filing of further evidence.

Furthermore, as the affidavits have not yet been received by the defendants we must reserve our right to make an application to the Court at the appropriate time.

Thereafter, on 2 June 2000 , Mr Samuels wrote to the Defendants' Solicitors serving six additional affidavits. In relation to the previous intimation that the Defendants would object to the additional evidence being relied upon by the Prosecutor at the trial, Mr Samuels' letter states:

I note from your recent letter that you propose to object to the prosecutor relying on any of this additional evidence.

The reasonable inference to be drawn from your letter is that you will ask the court to exclude the additional material either when the hearing commences on 7 August or at some unidentified date between now and the hearing.

If your position is that the defendants are unable to properly prepare for the hearing on the basis of the service of this further material, then the appropriate course is for you to promptly move to the Court to either exclude the evidence or adjourn the hearing date to enable the defendants to have more time to respond to the evidence.

The EPA would strongly oppose any application to strike out the evidence. Nor will the EPA consent to an adjournment of the hearing in the absence of any identified prejudice.

The EPA maintains the position that the defendants have sufficient time to prepare to meet this evidence prior to the hearing.

Nevertheless, if the Court were to accept that the defendant has insufficient time in the two months between now and the hearing to meet the additional material that has been filed today, it would be our position that the appropriate course is not to strike out the evidence, but to adjourn the hearing. If the Court does adjourn the hearing on this basis, the EPA acknowledges the possibility that it may order the prosecutor to pay for costs thrown away.

It is not appropriate to wait until the hearing or some indeterminate date between now and the hearing to have the Court resolve this issue. Given the prospect that the hearing dates might be vacated, this matter should be promptly brought before the Court to ensure that the parties minimise any impact on the Court's list and prevent, or at least minimise, any costs thrown away.

Accordingly, if you have not served on us by Thursday, 8 June 2000 an appropriate Notice of Motion, the EPA will seek to have the matter re-listed without any further delay to ensure this issue is promptly resolved.

Thereafter, the present Notice of Motion was filed on 14 June 2000.

C. THE RELEVANT PRINCIPLE FOR ADJUDICATING THE DISPUTE ON THE NOTICE OF MOTION

It was common ground in the rival submissions that the Court is vested with a relevant discretion which may be exercised so as to vary the original directions given to the Prosecutor for the filing and service of its evidence in these proceedings.

The original directions which reflect the established practice of this Court in proceedings in class 5 of the Court's jurisdiction were obviously given pursuant to the "Pre-trial procedures" set forth in the Supreme Court Rules Pt 75 r11 (the SC Rules) as adopted by the Rules of this Court vide the Land and Environment Court Rules 1996, Pt 6, r 2(1) (the LEC Rules).

The purpose of such procedures is expressly stated in SC Rules, Pt 75 r 11(4)(a), namely:

for the just and efficient disposal of the proceedings

This stated purpose provides, in my judgment, a sound foundation for adjudicating upon the present Motion - Is it just and efficient to extend the time for the Prosecutor to file and serve its evidence?

In this respect, it is appropriate to note a fundamental aspect of what is to be understood by "just" in this context, namely that it has been the long established practice of this Court to give directions to the Prosecutor to ensure that a person charged with an offence knows the nature of the case that the Prosecutor will seek to establish at the trial.

This practice reflects an established principle of the criminal justice system in Australia, at least in relation to indictable offences: see Barton v The Queen (1980) 147 CLR 75. In that case, which involved ex officio information brought by the Attorney-General (without any prior committal proceedings), the judgments of the High Court emphasised the role of the trial judge to ensure that the accused be given a fair trial. Thus, Wilson J said at 114:

It must then be recognised, or course, that the accused person will have been denied the advantage that a committal proceeding would have afforded him, and the trial judge is under a duty to ensure that he be given such particulars and other material and allowed such time as will enable him to meet the charge in a fair trial.

As we have seen, there is no longer any need for the accused to be disadvantaged in this way. The trial judge has a clear mandate to require the disclosure prior to the trial of the proofs of evidence of those persons whom the Crown proposes to call.

The practice in this Court from the beginning in relation to its summary criminal jurisdiction has been to give appropriate directions to the Prosecutor for the service upon the defendant, of evidence to be relied upon at trial.

The requirement for pre-trial notice of the prosecution case has now become virtually universal in this State by virtue of the amendment to the Justices Act 1902 enacted by the Justices Amendment (Briefs of Evidence) Act 1997 (Act No 96) in relation to summary proceedings triable before the Local Courts, which now requires a prosecuting authority to serve a brief of evidence (at least 14 days before the hearing) upon a defendant who has pleaded not guilty to the charge: vide the Justices Act 1902 s 66B.

There is one other particular feature of this Court's practice in class 5 proceedings that should be noted. This concerns the requirement contained in the LEC Rules Pt 6 r 2(2) that a summons seeking an order pursuant to the Court Act "be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged".

The meaning and significance of this requirement has been recently expounded in the Chief Judge's judgment in Environment Protection Authority v McConnell Dowell Constructions (Australia) Pty Ltd ([1999] NSWLEC 111).

That judgment concerned a motion filed by a defendant in class 5 proceedings that the summons be struck out as an abuse of process.

One of a number of grounds relied upon in support of the strike out motion was that the affidavits accompanying the summons did not establish a prima facie case against the defendant.

In rejecting the prosecutor's submission that in exercising its function under the Court Act s 41, the Court was not required to be satisfied that a prima facie case had been established, the Chief Judge expressed the following conclusions as to the meaning and effect of the LEC Rules Pt 6 r 2(2):

I find it impossible to accept such a submission. It is founded upon a literal interpretation of Pt 6 r 2(2) which seems to me to be unsupported by both the language of Pt 6 r 2(2) itself, and by the purpose of that rule given its historical background.

The language used in Pt 6 r 2(2) is not free of ambiguity. It is unclear as to what is meant by the requirement that the affidavits "accompany" the summons, nor is it clear whether those affidavits are to support the application for an order. But the language indicates that Pt 6 r 2(2) is important - it operates "despite" the provisions of subrule (1), which means that it operates and has effect no matter what is provided in subrule (1). It is also exclusive to this Court - no similar rule appears in the Supreme Court Rules. Furthermore, Pt 6 r 2(2) spells out unequivocally the type of affidavits which are required to accompany the summons. They are not simply affidavits upon which the prosecutor intends to rely at the trial - they are affidavits intended to be relied upon as "establishing prima facie proof". It is also relevant, in construing Pt 6 r 2(2), to consider its context. It constitutes at least part of the foundation for an order to be made by a judge requiring a person to appear to answer a charge. The judge "shall make" an order, upon an application being made "in accordance with the rules". Part 6 r 2(2) is one such rule.

Some assistance can, I think, be derived from Pt 75 r 9 of the Supreme Court Rules. Although Pt 6 r 2(1) of the LEC Rules adopts the relevant Supreme Court Rules with such adaptations as may be necessary, it is clear that Pt 75 r 9(1) provides for affidavits which "are in support of an application". I consider that the function of supporting an application for an order is precisely the work which Pt 6 r 2(2) is required to do, and, consequently, the judge in issuing the order must be satisfied that the affidavits establish a prima facie case.

Further support for such a construction can be derived from the historical background to Pt 6 r 2(2). It was enacted in 1991. Prior to its enactment, it had been held by Cripps J in Baker v Macleod (1 August 1986, unreported) that there was no requirement that a judge, in making an order under s 41, be satisfied that the prosecutor could make out a prima facie case. In so holding, Cripps J observed, at pp 3 - 5, that the relevant rules were those appearing in Div 2 of Pt 75 of the Supreme Court Rules, and that there was "… no requirement, in terms, that a prosecutor must furnish an affidavit setting out the nature of the case sought to be made against a defendant before an order can be made for the issue of a summons". He found that such a requirement did not exist either by implication or in the established practice of the Supreme Court. Considering the sequence in time between his Honour's decision and the enactment of Pt 6 r 2(2), it is apparent, I think, that Pt 6 r 2(2) was enacted at least in part to overcome Baker v Macleod. The rule now provides, in terms, that affidavits of the nature described must accompany the summons

Her Honour then proceeded to examine the question whether the affidavits accompanying the summons filed had established prima facie proof of the offence charged (being of the opinion that the order made pursuant to s 41 was legally susceptible of being set aside pursuant to the LEC Rules Pt 15 r 9(a) ). She ultimately answered that question in the affirmative: vide par 45 .

I have referred to the Chief Judge's decision in McConnell Dowell Constructions because it expounds the purpose of the requirement for supporting affidavits to establish prima facie proof of the offence charged, not only for the benefit of the Court in exercising its function under the Court Act s 41, but because it also serves an important function for the person accused of the offence inasmuch as that person is placed, at the outset of the proceedings, in the position to form a view as to whether prima facie proof is established by the accompanying affidavits of the offence charged. Such a state of affairs must assist a person accused of an offence to reach an informed decision as to how to respond to the charge.

It follows from what I have said that the Court's practice requires a Prosecutor, from the very commencement of the proceedings, to go appreciably further than what normally is required, in the interests of fairness to the accused, of charges of summary offences, namely that the Prosecutor provide the accused with particulars of the charge. However, the Court's practice does not go so far as to require the Prosecutor to file and serve all of its evidence before the defendant has pleaded to the charge. To go that step further would be unnecessary and would be likely to incur considerable extra costs which might not be necessary - eg in the event that the defendant pleads guilty to the charge.

When the foregoing analysis and true appreciation of the Court's practice in respect of class 5 proceedings is combined with an appreciation of the facts of the present case (as they have been earlier summarised in the "History of the proceedings"), it inevitably follows, in my opinion, that it is both just and efficient to extend the time for the filing and service of affidavits by the Prosecutor, as sought in the Notice of Motion.

In so concluding, I accept the assertion made by the Defendant's Solicitor in his response to the EPA letter that when the pleas of not guilty were entered, they were entered on the basis of the evidence that had been filed and served.

However, as I have pointed out, that decision presumably was made on the basis of the affidavit evidence that had accompanied the summons and which had given rise to the making of orders by the Court pursuant to the Court Act, s 41 (which, conformably to the decision in McConnell Dowell Constructions, necessarily indicated that the judge making those orders was satisfied that the affidavits established prima facie proof of the offences charged).

In these circumstances, to extend the time for the filing and service of "further affidavits" (ie ones that did not accompany the summons) cannot involve any prejudice to the Defendants in terms of the function to be fulfilled by the requirement of the LEC Rules for "accompanying affidavits" in the originating process.

This means that the only possible prejudice to the Defendant by extending the time for filing and service of the additional affidavits lies in the potential that the additional affidavits will contain evidence that may prove vital at the trial to the Prosecution case.

Let this be assumed to be the case (I interpose that though invited by Defence Counsel to examine the additional affidavits in relation to the earlier affidavits in order to form an assessment of the relative strength of the prosecution case with, and without, the additional affidavits, I have ultimately concluded that that is neither an appropriate nor necessary exercise for present purposes), I do not think that that a finding of any resulting prejudice can ultimately be sustained by the Defendants for two fundamental reasons - (i.) "Justice" in the context of criminal proceedings requires that a defendant know fairly in advance of the trial the case that is to be made against the defendant. (Here, the Defendants have been in possession of the additional affidavits sworn 2 June 2000, more than two months prior to the dates fixed for the trial). However, justice does not require precluding a prosecutor from relying at the trial upon admissible evidence provided that fair notice of it has been given to the defendant; (ii.) "Justice" in criminal law proceedings also requires fairness to be accorded to the prosecution (which is acting on behalf of the community in the enforcement of the criminal law) to be able to rely upon admissible evidence, provided that fair notice of it has been given to the defendant.

In my judgment, on the facts of the present case, there is simply no real conflict in the parties' competing and respective legitimate demands to justice in terms of prevailing criminal law procedure.

Both demands, in my opinion, will be adequately recognised and satisfied by the exercise of discretion, in the interests of justice and efficiency, to grant the Prosecutor the extension of time sought for the filing and service of additional affidavits.

For all the foregoing reasons, I propose to grant the relief claimed. However, the Defendants' claim to costs of the Motion, which was not opposed by the Prosecutor, should be granted for the reasons that the hearing of the Motion only became necessary because the Prosecutor had informed the Court on 26 April 2000 in effect that all of its evidence had been filed and served.

Notwithstanding the fact that the Defendants' opposition to the grant of the relief sought in the Notice of Motion has ultimately failed, I am satisfied that the pleas of not guilty were entered on the basis that the Defendants (and their legal advisers) believed that they were in possession of the entire prosecution evidence. It may be that the Defendants will now wish to review their position in the light of the additional affidavits. In that respect, there is the possibility of further costs consequences beyond those covered by an order in favour of the Defendants on the present Notice of Motion, but that is a matter that cannot be considered at this stage and must await any developments in the case.

Accordingly, I make the following orders in respect of each proceeding:
The direction given that the Prosecutor file and serve affidavits to be relied upon at the trial be varied by extending the time previously fixed to 4.00 pm 5 June 2000.
The Prosecutor pay the Defendants' costs of the Notice of Motion in the sum agreed, or failing agreement, as assessed.

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.

Environmental Offences and Penalties Act 1989

Environment Court Rules 1996

Offences and Penalties Act 1989

Environment Court Act 1979

Amendment (Briefs of Evidence) Act 1997

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