Environment Protection Authority v Queanbeyan City Council

Environment Protection Authority v Queanbeyan City Council - [2010] NSWLEC 237 - NSWLEC 2009 case summary — Zoe

[53]

55 On receipt of the letter and reports, the EPA issued a third prevention notice ("the third prevention notice") on 16 May 2006. The third prevention notice directed the council to install an underground retention system and earth bund in accordance with the reports received by the EPA on 21 April 2006, by 7 July 2006. A report confirming installation was to be provided by the council to the EPA by 21 July 2006. 56 The prevention notices were issued pursuant to the power conferred on the prosecutor under s 96 of the Act. Then, as is now, a failure to comply with a prevention notice was a criminal offence. As at the date of the third prevention notice, the offence carried a maximum fine of $1,000,000 with a further maximum penalty of $120,000 per day for a continuing offence (s 97 of the Act). 57 The council complied with the third prevention notice and installed the overflow structure in Waniassa Street. It reported the installation to the EPA on 21 July 2006. 58 As installed, the structure comprised a series of five concrete pipes installed under the surface of the park to provide storage capacity. These pipes were connected to an overflow chamber that was covered by an open steel grate. The grate was situated adjacent to the bund, approximately 10-15 m away from the Queanbeyan River. The land falls away from the grate to the River. It is from this overflow structure in Waniassa Street that the discharge to the Queanbeyan River, the subject of the prosecution, occurred. 59 After the construction of the overflow structure at Waniassa Street, there was a meeting between the EPA and the council on 5 October 2006 to discuss the future management of the council's sewer reticulation system. As summarised in an email from the council to the EPA dated 7 November 2006, at the meeting it was stated and the council understood that no licence was required for the council's sewerage reticulation system in New South Wales "due to an anomaly of the sewer discharge occurring from Council's sewer treatment plant within the Australian Capital Territory".

[118]

120 Beyond this, however, the parties were not in agreement as to the applicable legal principles governing when the power to grant a permanent stay for abuse of process ought to be exercised. The dispute concerned the parties' interpretation of the seminal decision of the High Court in Mraz v R (1955) 93 CLR 493. That case concerned a misdirection that as an alternative verdict the jury could find the accused guilty of manslaughter in circumstances where the accused was charged with murder following the death, by "shock", of a woman he had raped. In Mraz Fullagar J held that a substantial miscarriage of justice had occurred by reason of the erroneous direction. His Honour stated (at 514) that if the accused "may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eyes of the law, a miscarriage of justice." 121 In Jago v District Court (NSW) (1989) 168 CLR 23, upon which the council relied, Mason CJ (at 33) referred to the "touchstone" of "fairness" "in the safeguarding of the interests of the accused". However, his Honour also stressed that the test of fairness "involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial" (at 33). Ultimately, Mason CJ formulated the test for a permanent stay of a criminal trial thus (at 34, citations omitted): 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 the trial judge can do in the conduct of the trial can relieve against its unfair consequences". 122 The council submitted that when regard was had to the formulations in Mraz and Jago, it was sufficient for it to demonstrate that as a consequence of the EPA requiring the construction of the Waniassa Street augmentation but refusing to issue a licence for the sewage pump station either before or after it was built, it might have lost the fundamental opportunity of an acquittal by availing itself of the only possible defence under s 122 of the Act to the offence charged under s 120, which once lost could not be remedied by any curial process.

[123]

128 The council relied on this latter statement in support of its submission that because of the failure of the EPA to issue a relevant licence, it had lost an opportunity to avail itself of the only applicable defence resulting in unfairness that could not be remedied by other curial processes. However, in Ulman-Naruniec their Honours went on to state that in circumstances where there was the mere possibility that the lost evidence might be of some assistance this was not enough to warrant the "extreme" step of granting a permanent stay (at [39]-[40]). 129 Finally, in R v Edwards (2009) 255 ALR 399 the High Court unanimously emphasised that the test, referring to its decision in Walton v Gardiner (1993) 177 CLR 378 at 392, was not whether the continuation of the proceedings could constitute unfairness or injustice but (at [23]): [23] His Honour purported to state the test by reference to the decision of this court in Walton v Gardiner . A majority of the court approved each of the formulations of the test applied by members of the Court of Appeal; "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process". Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case. 130 Recently, these principles were conveniently summarised by Lloyd J in Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (2009) 165 LGERA 99 (at [26]-[30]): 26 The power to stay proceedings for abuse of process is discretionary and the categories of cases in which the court may stay its proceedings for abuse of process are various and not closed: R v Carroll (2002) 213 CLR 635 at 650-651; Rogers v The Queen (1994) 181 CLR 251 at 255.

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