Environment Protection Authority v Riverina

Can the Prosecutor be Forced to Elect Prior to Stating a Case? 7Riverina contended that the EPA was required to make an election to either amend the summons or accept the consequence of the summons being struck out, and then proceed with the hearing to finality prior to it stating a case to the Court of Criminal Appeal. 8It relied, as authority for this proposition on a passage in Stanton v Abernathy (1990) 19 NSWLR 656 (at 671D-F per Gleeson CJ, emphasis added): In the present case the information suffers from latent duplicity. It contains no particulars, and the further and better particulars that have thus far been given are inadequate. They are, however, sufficient to expose the duplicity. As Yeldham J rightly observed, learned counsel who appeared for the appellant before the magistrate has not at any stage to date submitted that the prosecutor should be required to elect. His submission has been that the information is incurably defective. The problem has been complicated by uncertainty as to whether in truth the allegations made against the appellant, if sustained, would disclose one offence or more than one offence. As I have earlier indicated, I consider that they would, if all made out, disclose more than one offence. The authorities do not in my view justify a conclusion that the information is incurably defective, or not such as to found jurisdiction in the magistrate. However, the proper course now to be pursued, it being apparent that the prosecutor is alleging more than one offence, is for the prosecution to be required both to give further and better particulars in accordance with the following portion of this judgment, and either elect to charge the appellant with making one false statement to the exclusion of any others, or alternatively to frame and propound additional charges, laying one charge in respect of each alleged false statement. If the prosecution declines to adopt either of those courses, then the information should be dismissed. 9The reason proffered by Riverina for this course was because it is only in exceptional circumstances that fragmentation of the criminal process is permissible (The Queen v Iorlano [1983] HCA 43; (1983) 151 CLR 678 at 680 per Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ; R v Steffan (1993) 30 NSWLR 633 at 642F-643A and Joose v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260 at [9]). 10In my view, Riverina's submissions must be rejected. First, the decision in Stanton does not mandate the procedural order urged by it upon the Court. The statement by Gleeson CJ that "the proper course now to be pursued" (at 671F, emphasis added) was for the prosecutor to elect to either amend the information or to charge the defendant with multiple counts of making a false statement, must be read in context. That is to say, after the determination of the appeal by the Court of Appeal. The "now" is no more than a reference to the conclusion of the appellate process. 11Second, to the extent that it was argued by Riverina that the Court of Appeal endorsed Yeldham J's observations as to when the duplicity argument ought to have been raised (namely, not at the end of the prosecution case), his Honour's remarks were grounded in the particular statutory framework contained in s 30 of the Justices Act 1902, which was central to the decision. 12Third, notwithstanding that the authorities are replete with curial pronouncements to the effect that criminal trials should not be interrupted by testing interlocutory rulings that may be given during the course of the proceedings (Iorlano at 680), this principle has been expressly modified by s 5AE of the CAA. Unlike the requirement of leave in applications for leave to appeal under s 5F of the CAA (where that provision plainly evidences a legislative intention to uphold the authority of the trial judge and reflects the policy that is it undesirable that criminal prosecutions should be interfered with by interlocutory appellant procedures prior to conviction and sentence), the clear text of s 5AE of the CAA states that "at any time before the completion of the proceedings" a judge of this Court, if requested by the Crown, "must" submit a question of law arising out of, or in reference to, the proceedings to the Court of Criminal Appeal for determination. 13While undoubtedly there are some limits on the ambit of the words "at any time before the completion of the proceedings" - it is rare for the Court of Criminal Appeal to entertain a stated case on an evidential ruling of a trial judge - nevertheless, these are words of common usage and should be given, wherever possible, their ordinary meaning and full effect. These proceedings having not yet been completed, the EPA has a statutory right to state a case which the Court must accede to if requested to do so. Thus, in Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 a case was stated by Talbot J notwithstanding that the proceedings were part heard before his Honour. Similarly, in Garrett v Freeman [2006] NSWCCA 278; (2006) 68 NSWLR 729 a case was stated by Lloyd J after the prosecutor had closed its case but before the defence had opened. 14Having regard to the unambiguous language of s 5AE of the CAA, it is tolerably clear that Parliament has expressed its intention to traverse the principle that the criminal process ought not be fragmented. The latitude provided for in s 5AE is necessary to accommodate situations such as the present application, namely, where a challenge has been made to the validity of the summons upon which the whole prosecution rests. Resolution of the controversy has the capacity to affect the conduct of the entire hearing insofar as the breadth of the summons will dictate the evidence sought to be adduced by the parties and the legal arguments to be raised. It would be somewhat perverse for the Court to insist upon the trial to be run to its conclusion before permitting the EPA to state a case. To do so would potentially result in wasted costs if ultimately the stated case was answered in the EPA's favour thereby necessitating a re-hearing. 15I therefore do not propose to compel the EPA to make an election prior to it stating a case to the Court of Criminal Appeal.

The Stated Case 16After consultation with the parties, the Court agreed to state the following case for determination pursuant to s 5AE of the CAA: 1.whether the trial judge erred in finding the summons filed on 17 April 2014 was bad for duplicity because more than one offence has been charged in the one count of contravention of s 120(2) of the Protection of the Environment Operations Act 1997 ("the POEOA"); and 2.whether upon its proper construction s 257 of the POEOA obviates the need for the prosecutor to provide to the defendant the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) of the POEOA as stated in paragraph 1(c)(i) of the summons.

The EPA Seeks a Stay of the Proceedings Until the Determination of the Stated Case 17Although initially the EPA sought an adjournment of the proceedings until the final determination of the stated case by the Court of Criminal Appeal pursuant to s 40 of the Criminal Procedure Act 1986 ("the CPA"), it subsequently amended its application to seek a stay of the proceedings instead. Given the direction to Riverina by the Court in Riverina that it elect which of the matters alleged in the particulars in the "manner of contravention" in the summons it proposed to pursue (at [78]), this relief is more appropriate. 18The principles applicable to the grant of a stay of criminal proceedings in Class 5 of the Court's jurisdiction (other than where a term of imprisonment has been ordered) were recently confirmed in Harris v Harrison [2013] NSWCCA 314 (at [23]-[33]). They are as follows: (a)first, the onus of persuading the Court to grant a stay is on the party seeking the relief (Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694 and Harris at [24]); (b)second, an applicant for a stay of the orders of a trial court pending an appeal to an intermediate appellant court is required to establish a proper basis for a stay that is fair to all parties (Alexander v Cambridge Credit Corp at 694 and Harris at [24]); (c)third, it is not necessary to establish "special" or "exceptional" circumstances (Alexander v Cambridge Credit Corp at 693-694 and Harris at [24]); (d)fourth, a discretionary consideration favouring the grant of a stay is if there is a risk that an appeal will prove hollow if the party succeeds on the appeal but no stay is granted (Alexander v Cambridge Credit Corp at 695 and Harris at [25]); (e)fifth, similarly, if there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted and such prejudice or damage is not able to be addressed by the successful appeal, it is more likely that a stay is warranted (O'Brien v The Australian Securities and Investment Commission [2009] NSWCA 312; (2009) 74 ACSR 324 at [25] and Harris at [25]); and (f)sixth, in determining whether to grant a stay the Court makes a preliminary assessment as to whether the applicant has an arguable case on appeal (Alexander v Cambridge Credit Corp at 695 and Harris at [26]). 19Applying those principles to the present application: (a)first, Riverina did not cavil with the proposition that, as stated, the questions of law requested by the Court to be answered by the Court of Criminal Appeal gave rise to an arguable case. Nor could it, plainly they did; (b)second, in my opinion, the discretionary considerations weigh heavily in favour of granting a stay. First, for the reasons given above, I do not accept that to grant a stay would be to impermissibly interrupt the criminal process. Second, other than the delay in finalising the proceedings, a consideration that cannot be lightly discounted in criminal proceedings, no prejudice will be suffered by Riverina if a stay is granted. If anything, the stay may result in the avoidance of wasted costs if the hearing were to proceed and at its conclusion the EPA was successful in its stated case thereby requiring the matter to be remitted to the Court for redetermination. The spectre of the rehearing of a two week criminal trial is a factor that ought to be given significant weight. Although Riverina indicated that it was content to accept any additional costs burden concomitant upon the necessity for a second trial, that same sentiment was not expressed by the EPA, and moreover, nor can it be said that the Court would readily utilise its limited resources in this manner; and (c)third, because Riverina's application to strike out the proceedings was not made until the first day of the hearing, it is now highly unlikely that, even if no stay were granted, the trial would conclude in the time allocated to hear it. Accordingly, fragmentation of the hearing would nevertheless occur even if no stay was granted. 20In my opinion, therefore, the EPA has successfully established a case for a stay. It has demonstrated that it has an arguable case on the stated case and the discretionary factors discussed above support the granting of the relief.

Riverina Seeks its Additional Costs Occasioned by the Granting of the Stay 21Consequent upon the Court granting the EPA a stay of the proceedings pending the final determination of the stated case by the Court of Criminal Appeal, Riverina applied for its costs thrown away occasioned by the adjournment, albeit by way of the stay. 22The Court has a discretion under s 257F of the CPA to order a party to pay costs if a matter is adjourned. That provision provides as follows: 257F Costs on adjournment (1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings. 23Section 257F of the CPA applies to the Court (see s 170 of the Act). 24In support of its application for a costs order, Riverina relied on an affidavit of Ms Samantha Daly, affirmed 9 December 2014. Ms Daly is the solicitor for Riverina. The salient unchallenged evidence of Ms Daly was that: (a)there was a slight delay by the EPA in providing the particulars requested by Riverina on 15 May 2014. A response was received by Riverina on 2 June 2014. The contents and significance of that reply have been parsed in Riverina; (b)as early as 15 August 2014, the EPA was put on notice, through Riverina's s 247K Notice, that the duplicity in the summons was an issue. This notice was repeated on 21 August 2014, when Riverina wrote to the EPA enclosing an estimate of trial length that included two days for "opening submissions and objections, argument on Duplicity and Uncertainty of Summons and definition of 'pollutant'". The controversy was again referred to on 27 August 2014, when Riverina served the EPA with an amended s 247K Notice. In that Notice, the issue of the duplicity of the summons arising from "the particularisation of the 'Manner of contravention'" was explicitly mentioned; and (c)on 4 December 2014, prior to the Court handing down its decision in Riverina, the EPA wrote to Riverina stating that it was "very likely (subject to consideration of her Honour's judgment)" that the prosecutor would ask the Court to stay a case to the Court of Criminal Appeal on the question of duplicity. It noted, however, that these instructions could not be confirmed until the transcript of the Court's ex tempore judgment was available. 25On 19 November 2014, when the matter came before the Court for a pre-trial conference, as was referred to in Riverina (at [5]-[9]) no mention of duplicity was raised by the parties before the Court. Hence the Court made orders for the filing and serving by the parties of their outlines of legal issues prior to the commencement of the hearing. In particular, the EPA was ordered to file and serve its outline of legal issues by 27 November 2014, and Riverina was ordered to file and serve its outline of legal issues the next day. The reason for the truncated timetable was because the previous orders of the Court made on 22 August 2014 had not been complied with. The orders were made by consent and were complied with by the parties. 26The allegation of duplicity was addressed by the EPA in its outline of legal issues. In particular, one of the issues that the EPA anticipated would arise was whether it was open to it to rely on alternative particulars as to the manner of contravention described in paragraph 1(c) of the particulars to the summons. Specifically the EPA submitted that: The prosecutor also contends that alternative or cumulative allegations as to the circumstances that make the act unlawful do not make the Summons bad for duplicity or uncertainty: as to which, see for example Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403. 27The reference to the decision of Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 in the EPA's outline of legal argument must be taken to be an implicit reference to s 257 of the POEOA. The EPA did not argue to the contrary before me. 28It is against this background that Riverina's costs application falls to be determined. 29As s 257F(2) states, a costs order may only be made if the Court is satisfied, as a threshold determination, that Riverina, first, has incurred additional costs, and second, has done so because of the unreasonable conduct or delays of the EPA. 30Although a matter of common sense, Ms Daly nevertheless deposed in her affidavit to the fact that if the proceedings were stayed, there would be a duplication of some preparation costs already incurred by expert witnesses, solicitors and the counsel for Riverina, in addition to the preparation for the trial, which had already commenced and which would need to be repeated or refreshed prior to the adjourned hearing recommencing. The extent of the duplication would not, however, be known until after the conclusion of the adjourned hearing when such costs could be assessed (an order for costs may be made in these circumstances pursuant to s 257F(3) of the CPA because the provision provides for the determination of the amount of costs payable at the end of the proceedings). There can be no doubt, therefore, that Riverina has incurred additional costs as required by s 257F(2). 31As a result, the debate between the parties became whether or not the additional costs incurred by Riverina were "because of the unreasonable conduct or delays" of the EPA. 32A preliminary issue arose as to whether or not the adjective "unreasonable" qualified both the conduct and the delay of the EPA or, as was submitted by Riverina, merely the EPA's conduct, and therefore, that any delay on the part of the EPA would engage the Court's discretion to award costs. 33Riverina relied on the decision in Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 to assert that it was sufficient if the EPA was responsible for the delay giving rise to the additional costs burden suffered by it. In that case, Pain J stated that (at [109]): 109 The chronology identified in the solicitor's affidavits does not suggest any greater fault by one party than the other in achieving the finalisation of the SOAF. I do not agree with the prosecutor's submission that there was obviously delay on the defendant's part given the lengthy SOAF which had to be negotiated and the uncertainty about whether additional evidence should or could be relied on by the prosecutor. Costs when ordered are compensatory; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. I have discretion in how costs ought be awarded under s 257F, provided I make any order judicially. I consider each party should pay its costs of the vacation in light of the circumstances giving rise to the vacation. 34The absence of any reference to "unreasonable" delay on the part of the defendant in Buchanan (No 2) was said by Riverina to provide support for its contention. 35But in my opinion, this is a misreading of her Honour's reasons. As is apparent from paragraph [100] of Pain J's judgment, the application by the prosecutor for an order that the defendant pay its costs was, consistent with the language in s 257F(2) of the CPA, premised on the "unreasonable delays" of the defendant. It is this application that the Court addressed and determined in Buchanan (No 2). Implicit in the reasoning of Pain J contained at paragraph [109] is a consideration of unreasonable delay on the part of the defendant in that case, and not mere delay. At best, the case is neutral in the assistance it provides Riverina. 36Neither the text nor the context of s 257F(2) of the CPA justifies the construction contended for by Riverina. An ordinary natural reading of the provision leads inexorably to the conclusion that the delay must be unreasonable, just as the conduct must be unreasonable, in order to enliven the Court's power to award costs. Were it otherwise, it may be expected that the legislature would have inserted a comma after the word "conduct". There can be no objective intention discerned that the Court should be permitted to award costs against a party for delay that was not of its own making or over which it had no control, the logical corollary of Riverina's submission. Not all delay has its genesis in the fault of a party. Rather, the provision is clearly directed towards disentitling conduct and disentitling delay by a party, or in other words, unreasonable conduct and disentitling delay. 37In any event, for the reasons that follow, and save for one exception, I do not find that the EPA engaged in any conduct or delay, unreasonable or otherwise, that could justify the exercise of my discretion to award costs against it in respect of the adjournment of the proceedings consequent upon the granting of a stay. 38The unreasonable conduct or delay relied upon by Riverina was the delay by the EPA in stating a case when, according to Riverina, the EPA had always intended to do so upon it becoming apparent that it was unlikely to succeed in refuting Riverina's claim that the summons was duplicitous. This intention should have been disclosed much earlier. Riverina relied, in particular, on the EPA's letter dated 4 December 2014, disclosing that the EPA was contemplating stating a case if the Court found in Riverina's favour on the duplicity argument. 39Riverina also complained about the revelation by the EPA, as early as the first day of the hearing on 1 December 2014, that it conceived the argument as to duplicity as a test case in relation to the scope of s 257 of the POEOA. In other words, from the outset the EPA contemplated taking the course it ultimately took, a position that again should have been communicated to Riverina earlier than it was. As proof of this intention, Riverina relied on the following exchange (T43.42-44.29): ENGLAND: Your Honour, just before my learned friend moves in, might I ask a question about timing? And I ask, in no way to be disrespectful, but merely to juggle a lot of witnesses coming, flying from up north, I understand that my learned friend may well go to 4.00 today. The response that I put on will depend, of course, on my instructions in particular about the 257 issue. It's an important issue and I would beg your Honour's indulgence to have a day to take instructions and get submissions on and then resume again on Wednesday morning. Assuming, and I don't say your Honour will agree to that, but assuming your Honour does agree to that, it would certainly help us with the witness arrangements if we could start again either on Friday or on Monday, depending on-- HER HONOUR: Why don't we just see how we go. It may be unnecessary; you may get instructions that mean that it's so unnecessary, and it depends on, as you said, on when Mr Ireland finishes. I rather understood that he was getting fairly close. We just have to deal with a remaining few cases in relation to what I call the method of pollution, and then we just turn to the question of the pollutant, and what constitutes a pollutant. ENGLAND: All right, we'll see how we go, then. HER HONOUR: I mean, at this stage, and not having had the benefit of hearing, obviously, from you, or reading what you may put on to the Court, it seems there's a fairly easy way out of this. ENGLAND: There's certainly a practical way out, your Honour. HER HONOUR: There is a practical way out, and not very costly way out. ENGLAND: I understand that, but I also need to act in accordance with my instructions and also policy and legal considerations. HER HONOUR: Most definitely, but I'm not sure that this case necessarily is the best vehicle to make some new and exciting law in relation to the scope of deemed liability provisions under s 257. ENGLAND: One has to ask, when is a case the right vehicle, but I hear what your Honour says and I'll renew my application if need be, later. 40In my opinion, Riverina's submissions are flawed for several reasons. First, and subject to the exception alluded to above, no real criticism may be made of the EPA's conduct to date. As the unsuccessful party, the EPA is entitled to state a case to the Court of Criminal Appeal in respect of the Court's findings on duplicity. It could not have done so any earlier than upon its receipt of the published ex tempore judgment on 8 December 2014. Its letter dated 4 December 2014 does no more than reflect this reality. It is difficult, if not impossible, to conceive of how the EPA could have signalled its intention to challenge any adverse decision on duplicity any earlier than it did. In my view, at all relevant times the EPA acted appropriately. 41Second, the costs thrown away by the adjournment occasioned by the grant of the stay was as a result of the delay by Riverina in bringing its application to strike out the summons on the grounds of duplicity. As stated in Riverina (at [5]-[9]) this application should have been brought prior to the first day of the hearing. Had that occurred, it is likely that no costs would have been wasted because either the matter would not have been set down for final hearing until such time as the Court of Criminal Appeal determined the stated case, or alternatively, the hearing dates could have been vacated in a more timely manner. The Court therefore has limited sympathy for the plight that Riverina now finds itself in. In short, there is no conduct or delay, reasonable or unreasonable, that would warrant the exercise of the Court's discretion to order costs against the EPA as sought by Riverina. 42The one exception, referred to above, is the cost of the second day of hearing, namely, 2 December 2014. Riverina submits that at the very least the EPA should pay its costs thrown away due to the necessity to grant an adjournment of the proceedings that day in order to permit the EPA to respond to and obtain instructions in respect of Riverina's written and oral submissions on the question of duplicity. 43There is considerable force in this submission. In my opinion, the delay was unreasonable. The EPA ought to have been prepared to respond to Riverina's submissions on 2 December 2014. Although the EPA did not receive Riverina's outline of legal issues until 4pm Friday, 28 November 2014, the receipt was in accordance with the timetable that the EPA had consented to. Furthermore, the EPA was aware of the specific issue (it was referred to in the EPA's outline of legal argument filed and served on 27 November 2014). No cogent explanation was offered to the Court by the EPA as to why it was not ready to proceed on that day, or why instructions had not been sought earlier. To state that it was not until the receipt of Riverina's outline of legal argument on 28 November 2014 that the EPA became aware that the strikeout application would be proceeded with cannot in all seriousness be maintained in light of the notification by Riverina that an application would be made in August 2014. As stated in Riverina (at [7]), there was nothing preventing the EPA confirming this to be the case. 44The EPA should therefore pay Riverina's costs thrown away by the adjournment of the hearing on 2 December 2014. 45Finally, and for the sake of completeness, although Riverina has been unsuccessful in its primary submission that the EPA pay the entirety of the additional costs incurred by it occasioned by the granting of the stay, nothing in these reasons will prevent Riverina from applying for a cost order at the conclusion of the proceedings in the event that it can satisfy the elements contained in ss 257C and 257D of the CPA (Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 at [99]).

Orders 46In conformity with the reasons given above, the orders of the Court are as follows: (1)the proceedings are stayed pending the final determination of the case stated by the prosecutor to the Court of Criminal Appeal; (2)the prosecutor must pay the additional costs incurred by the defendant on 2 December 2014, the amount of such costs to be determined at the end of the proceedings; and (3)the exhibits in this application and in the application in Riverina are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2014