Environment Protection Authority v Minto Recycling Pty Ltd

The hearing on the objection to evidence

1. Mr Larkin then expanded on his written submissions, taking me to a range of authorities in support of the Defendant's objection to this evidence.
2. At the conclusion of those submissions, the Prosecutor sought an adjournment until the following morning to enable preparation of an outline of written submissions in response. This adjournment was granted without objection.
3. The following morning, the Prosecutor provided me with written submissions in response.
4. The Prosecutor's written submissions in response summarised the grounds upon which the Defendant's objection was taken. This summary, in [2] of the written submissions, was in the following terms: The grounds upon which the De Simoni principle is said to be engaged are because the impugned evidence would lead the Court into punishing the Offender for: (a) an offence which, in terms of maximum penalty, was more serious than that for which the offender was to be sentenced (OWS at [18], [31]-[35]), namely an offence in contravention of s. 116(1) of the Protection of the Environment Operations Act 1997 (POEO Act); or (b) offences which, in terms of maximum penalties, were equally serious as the extant offence, namely offences in contravention of ss. 120, 124, 126 and/or 142A of the POEO Act. In this regard, the De Simoni principle is said to arise on two grounds: first, because the aggravating factors relied on, if accepted, would lead the Court into punishing the Offender for uncharged offences (OWS at [45]-[54]); and secondly, because the asserted aggravating factors concerning environmental harm impermissibly increase the Offender's culpability (OWS at [36]-[44]).
5. I adopt, for the purposes of this consideration, that summary as being (although brief) a sufficient summary for the purposes of these reasons explaining why I declined to exclude the evidence on the basis sought.
6. As the Prosecutor also noted, in addition to these bases for excluding the evidence, the Defendant also pressed objection pursuant to the two provisions in the Evidence Act 1995 (NSW) (the Evidence Act) noted in the extract at [8] from the Defendant's written submissions.
7. It is sufficient for present purposes to note that the Prosecutor, at this point, made no concessions with respect to the proposed evidence.
8. I here interpose that, during the course of supplementary submissions made by the Prosecutor (without objection on behalf of the Defendant) after the Defendant's submissions in reply, the Prosecutor walked back on two elements of the proposed evidence. Those concessions, and a subsequent precise identification of them by reference to elements in the Prosecutor's written submissions on penalty, do not require further consideration in these reasons but do constitute a small element of relevance in my rejection of the Defendant's objection to the Prosecutor's proposed evidence.
9. I also indicated that I anticipated that it would be appropriate to make a ruling but that, in order to continue conducting the sentencing proceedings in an efficient fashion, I would give my reasons for the ruling in my sentencing decision. I put that matter to the parties, and Mr Larkin raised no objection to that process (Transcript, 24 June 2019, page 6, lines 19 to 33): HIS HONOUR: Well, can I just say this then, apart from reading, if I need to make an early ruling, then I am likely to do it on the basis of saying, "This is the ruling. You will get my reasons in full in doing so in my reserve decision on sentencing," rather than - LARKIN: As a separate matter. HIS HONOUR: - doing it now, otherwise four days may well not be enough if you want a fully reasoned judgment on the rulings. LARKIN: I had in mind something - I mean, I certainly don't have any objection to your Honour's course, but I had in mind that once your Honour made a ruling, that there would then be firstly the parties, the Prosecutor and the Defendant, would have a brief chance to reflect on it and that we might then have some discussions.
10. However, Mr Larkin subsequently requested that I supply reasons for this ruling prior to any continuation of the sentencing hearing. These are my reasons for declining to make the ruling sought.

The nature of the objection

1. It is, at this point, appropriate to note that the objection that is pressed on behalf of the Defendant is anticipatory (that is, at this point of the sentencing proceedings, none of the evidence has been sought to be admitted by reading the affidavits of the relevant proposed witnesses or tendering documents or photos exhibited to them), it is based on that which is set out in the Prosecutor's submissions on sentence.
2. The consequence of this is that, although I have those submissions and have read them as part of my preparation for this sentencing hearing, to the extent that those submissions are said to find proper foundation in evidence expected to be sought to be admitted during the hearing, questions of objection to that evidence and what might arise out of cross-examination of the various witnesses (a number of the prosecution witnesses having been required for cross-examination) have not been tested.
3. It therefore follows that, on the basis of my decision not to uphold the Defendant's anticipatory objection that there will still be opportunity for the Defendant to press further objections to the Prosecutor's evidence as it is sought to be admitted (written, documentary or oral being irrelevant for this point).
4. In particular, I specifically note that the rejection by me, at this stage, of the objections based on ss 135 and 137 of the Evidence Act (being at this time global objections based on the Prosecutor's submissions), is not intended to express any anticipatory rejection of objections on that basis to elements of the Prosecutor's evidence later in the sentencing hearing when that evidence is sought, on a witness-by-witness basis, to be put before me.
5. I have earlier expressly noted that the offence with which the Defendant has been charged is a single offence under s 64(1) of the POEO Act. It is appropriate, at this point, to set out the terms of that provision: 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty: (a) in the case of a corporation - $1,000,000 …
6. In the Defendant's written submissions, at [12], an extract from the decision of the Court of Criminal Appeal in Cassidy (Cassidy v R (2012) A Crim R 420 at [7]) was set out. The passage was relied upon in support of the proposition outlined in [11] of the Defendant's submissions, a paragraph in the following terms: Some Prosecutors, from time to time, have incorrectly asserted that the De Simoni principle has no application where the offence not charged is subject to a similar or the same regime for penalty as the offence the subject of the conviction.
7. The Defendant's written submissions then made these comments in [13] to [15]: 13. On the second just quoted basis, a De Simoni objection is available to an offender if the offence not charged involved an element of additional moral culpability, even if the offences are the subject of similar or the same penalty regimes (such as offences drawn from within the same tier of offences under the POEO Act). 14. Indeed, this Court (Pain J) has held that evidence may be rejected as inadmissible, unfairly prejudicial and practically prejudicial having regard to the above principles, notwithstanding the identicality of the penalty regime applicable under the POEO Act to the offence charged and the other offence, where the other offence involves, to use the Court's words "more objectively serious" culpability. 15. The cases concerning the De Simoni principle, strictly so called, should not, however, be allowed to obscure the breadth of the principle applicable in New South Wales: it is a "fundamental and important principle that a person should not be punished for an offence for which he has not been convicted": De Simoni; Olbrich; Harris v Harrison. Receipt of evidence of environmental harm in this case would infringe that principle regardless of the questions of relative culpability.
8. At this point, it is appropriate to observe, with respect to the decision of Pain J to which reference is made (Environment Protection Authority v Wollondilly Abattoirs Pty Ltd; Environment Protection Authority v Davis [2019] NSWLEC 26), that that was an instance where the evidentiary contention requiring to be addressed was one where the potential cross‑examination of a witness with respect to incorrect statements ran the risk of potential exposure of the witness to questions expressly involving matters of separate criminality arising from fraudulent conduct, that not being an element of the strict liability offence with which that witness was charged. The facts of that decision are so significantly different as to render it, in my view, entirely inapplicable in these circumstances.
9. There are two aspects to the anticipatory objection pressed on behalf of the Defendant that require to be addressed with a deal of specificity. They arise, broadly, in a De Simoni context (The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31).
10. The third basis of objection, that pressed on the grounds of unfair prejudice and founded on ss 135 and 137 of the Evidence Act, is of a different characterisation and requires separate (short) reasons explaining my present rejection of that aspect of the submissions made on behalf of the Defendant in seeking this anticipatory ruling.

The De Simoni style elements of the objection

1. There are two elements to which I consider it appropriate to respond in this regard. These are: 1. The fact that the offence charged is confined, solely, to the breach of the nominated condition of the Defendant's EPL; and 2. The relevance (or otherwise) in these circumstances of the theoretically potential availability of alternative charges for breaches of the POEO Act, with such hypothetical charges being based on the media‑specific provisions of that legislation relating to air, water or land pollution.
2. I turn, first, to the fact that this charge is confined to s 64 of the POEO Act breach.
3. It is therefore necessary to consider whether there is a higher order charge which might have been laid against the Defendant, thus exposing the Defendant to the risk of a breach of the De Simoni principle as a consequence.
4. This topic was expressly dealt with by Pepper J in her judgment in Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103 (Orica) at [143] to [145], where she said: 143 … I agree with the submission by Orica that there is nothing in the text or context of either the POEOA or the CSPA that discloses a legislative intention to abrogate the De Simoni principle from theoretical application to s 64(1) of the POEOA (indeed s 21A(4) appears to embrace it). 144 However, the principle has no practical application with respect to a breach of s 64(1) of the POEOA because there is no 'more serious offence' of breaching a licence condition than that with which Orica has been charged and has pleaded guilty to. Accordingly, to take into account whether or not Orica breached a condition of its licence negligently is not to infringe the principle. While the De Simoni principle is not narrowly confined to situations where there is another specific offence in aggravated form that is otherwise identical to the offence in question, the offences must nevertheless be of the same general character. Were it otherwise, it would, given the potential breadth of the acts and omissions giving rise to the commission of an offence contrary to ss 115 and 116 of the POEOA, preclude an examination of the state of mind of an offender in most of the strict liability offences created by the POEOA. 145 In my opinion, therefore, the De Simoni principle does not apply to a breach of licence offence under s 64(1) of the POEOA because there is no more serious aggravated form of that general character of offence in the POEOA. Therefore it is open to me to consider whether Orica's state of mind in committing this offence was negligent.
5. Although, for the purposes of the Defendant's submissions to me on this anticipatory objection, it was put that this element of her Honour's decision had been impliedly rejected by the decision of the Court of Criminal Appeal in Harris v Harrison [2014] NSWCCA 84, a decision which had been delivered during the period when her Honour was reserved in Orica and where that decision did not appear to have been drawn to her Honour's attention, I do not consider that a fair reading of Harris v Harrison is to that effect.
6. With respect to Pepper J's decision in Orica, it is appropriate that, as a matter of comity, I should follow her Honour's approach unless I am satisfied that, on this point, she is clearly wrong. I am not so satisfied.
7. The consequence of this is, there being no higher order offence in these circumstances, that potential element supporting an exclusionary ruling is not made out.
8. Second, the question of whether the separate media-based offences, said to be potentially available for the Prosecutor, are to be regarded as ones involving a higher degree of moral culpability requires examination.
9. I reject that proposition. My reasons for so concluding can be stated shortly.
10. The regulatory framework established by the POEO Act's EPL regime relies on observance of conditions attached to each licence for preservation of the integrity of the overall system.
11. In this regard, conditions of an EPL are to be seen as being broadly analogous to conditions of development consent. Conditions of development consent constitute fundamental elements of the operation of an orderly planning system in this State. Similarly, conditions attaching to EPLs are fundamental elements of the maintaining of an orderly system of regulation of industrial and other potentially polluting activities.
12. In each instance, maintaining the integrity of those systems is a matter of significant public importance (see Lloyd J in Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35] and Preston CJ in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [104]).
13. The maintaining of the integrity of the EPL system is essential and any failure to do so is the reason why the offence available in s 64(1) of the POEO Act has been legislated.
14. It seems to me that, although there are options for various media-related offences provided for separately in the POEO Act, offending conduct which attacks the integrity of the EPL licensing regime necessarily involves greater moral turpitude than any of the specific media-related offences provided for in the POEO Act.
15. As a consequence, I am satisfied that the availability of the media-related offences does not, in itself, constitute a De Simoni-type barrier to the potential of evidence being adduced on a s 64(1) offence for the purposes of establishing environmental harm as relevant to s 21A(2)(g) of the Sentencing Procedure Act or s 241(1)(a) of the POEO Act.
16. In reaching this conclusion, I am confining myself to dealing with the question of the anticipatory ruling sought by the Defendant. Nothing I have observed in setting this out is to be taken as in any way addressing matters of appropriate punishment. Such matters arise later and in the context of the facts and circumstances of the particular offending conduct with which this Defendant has been charged and to which this Defendant has pleaded guilty.

Conclusion

1. I set out, comparatively briefly, the reasons why I concluded that it was not appropriate to make the anticipatory ruling sought on behalf of the Defendant concerning the Prosecutor's proposed evidence. It is, however, to be emphasised that what was rejected was an anticipatory ruling based on the written submissions on sentence of the Prosecutor and consideration by the Defendant's legal representatives of the evidence that was anticipated to be relied upon by the Prosecutor in support of those submissions.
2. The anticipated evidence, of course, had not been sought to be admitted at the time the Defendant sought this ruling, nor, on a voir dire basis, was I taken to detail of any of the material upon which the Defendant believed that the Prosecutor proposed to seek to rely.
3. Indeed, although the Prosecutor walked back from elements of the written submissions, a portion of that walking back related to detail contained in one of the affidavits to which the Defendant had made this anticipatory objection.
4. How, precisely, that element being withdrawn by the Prosecutor would subsequently affect the evidence of that witness, and what might be taken (if anything), relevantly, as adverse to the Defendant, is also a matter more appropriate to be dealt with, either at the time of the Prosecutor seeking the admission of that evidence or, after hearing submissions from the Prosecutor and the Defendant, as to what conclusions should be drawn from such evidence if admitted in the more limited form now proposed.
5. It is also appropriate to note what my rejection of the anticipatory ruling is not. Although these elements are self-evident, I consider it appropriate that I record them. They are:

• I have not made any anticipatory ruling that any or all of the specific material proposed to be relied upon by the Prosecutor is to be regarded as admissible. Such questions must necessarily await adjudication on any specific objections (whether in whole or in part) to the evidence of each of the proposed witnesses whose proposed evidence was sought to be excluded by the anticipatory ruling. The Defendant's rights, in this regard, are expressly preserved, at the broad level; and
• At a more precise level, the rights of the Defendant to object to all or part of the proposed evidence of any prosecution witness on bases founded on ss 135 and 137 of the Evidence Act is expressly preserved to be able to be raised as and when the evidence of any of the prosecution's proposed witnesses is sought to be adduced.

Amendments 27 June 2019 - Class of proceedings amended from Class 1 to Class 5. 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: 27 June 2019