EPA v Land and Environment Court of NSW & Anor

Court of Appeal (NSW)|2004-02-10|Before: Meagher JA, Santow JA, Tobias JA, Talbot J

Reported Decision : 144 A Crim R 198 134 LGERA 140

CITATION : EPA v Land and Environment Court of NSW & Anor [2004] NSWCA 50 HEARING DATE(S) : 10 February 2004 JUDGMENT DATE : 11 March 2004

JUDGMENT OF : Meagher JA at 1; Santow JA at 2; Tobias JA at 3 DECISION : a) Declare that upon the proper construction of s 5AE of the Criminal Appeal Act 1912, and in the events which have happened, the First Opponent had no jurisdiction to dismiss the Summons in proceedings No. 50003 of 2003 (the proceedings) on 10 October 2003.; b) Order that the record of the proceedings be removed into the Court of Appeal and that the decision and orders of Justice Talbot given and made on 10 October 2003 be quashed.; c) Order that the proceedings be remitted to Justice Talbot for consideration according to law of the application by the Claimant that his Honour state questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.; d) Order that the Second Opponent pay the costs of the Summons in the Court of Appeal and the costs of that part of the proceedings in the Land and Environment Court as related to the application by the Claimant to Justice Talbot to state a case on questions of law pursuant to s 5AE(1) of the Criminal Appeal Act 1912.

CATCHWORDS : PRACTICE & PROCEDURE, stated case, completion of proceedings, when a verdict of acquittal occurs, proposed order of acquittal, double jeopardy, Criminal Appeal Act s5AE(1), "any question of law arising at or in reference to the proceedings", abuse of process, delay in stating case until findings and indication of acquittal made, unfair oppression, jurisdictional error, certiorari. - STATUTES, interpretation, headings, ambiguity. Protection of the Environment Operations Act 1997 Criminal Appeal Act 1912 Justices Act, s 125(1) LEGISLATION CITED : Land and Environment Court Act 1979 Land and Environment Court Rules Criminal Procedure Act Federal Court of Australia Act 1976 R v Cheng (1999) 48 NSWLR 616 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 R v Garnet Thomas (1974) 1 NSWLR 702 Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R Ward v Williams (1955) 92 CLR 496 at 511-512 Environmental Protection Authority v Cooke (1996) 90 LGERA 61 Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 R v Madden (1995) 82 A Crim R 367 Davern v Messel (1984) 155 CLR 21 CASES CITED : Benson v Northern Ireland Road Transport Board [1942] AC 520 Thompson v Mastertouch TV Service Pty Limited (No. 3), R v Tryone County Justices Reg v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159 Byron Shire Council v C J Vigen & Anor [1999] NSWLEC 198 Registrar, Court of Appeal v Craven (No. 2) (1995) 80 A Crim R 272 The King (Hastings) v Justices of Galway [1906] 2 I.R. 499 Glover v MacDougall (1976) 2 NSWLR 359 Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Jago v District Court (NSW) (1989) 168 CLR 23 PARTIES : Environment Protection Authority Land and Environment Court of New South Wales FILE NUMBER(S) : CA 40907/03 A : Mr D A Buchanan SC / Mr T G Howard COUNSEL : 1 Opp: No submitting appearance 2 Opp: Mr C Leggat / Ms L Tucker A: Mr S Garrett, EPA, Sydney SOLICITORS : 1 Opp: No submitting appearance 2 Opp: Mr C Shaw, Phillips Fox

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT L&E 50003/03 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40907/03 L&E 50003/03

MEAGHER JA SANTOW JA TOBIAS JA ENVIRONMENT PROTECTION AUTHORITY v LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES & ANOR

On 9 September 2003 the primary judge in the Land & Environment Court announced that he was satisfied that the second opponent (the opponent) had defeated a charge of polluting by making out a statutory defence. He was about to hand down his judgment and formally order the opponent's acquittal when the claimant requested that the matter be stood over so that the claimant could consider requesting the judge to state a case to the Court of Criminal Appeal pursuant to s5AE(1) of the Criminal Appeal Act. The judge agreed and then, before publishing his reasons, changed the words 'formal orders' to 'proposed formal orders'.

Upon reconvening the claimant requested that the judge state a case to the Court of Criminal Appeal. However, the opponent objected to this request on the basis that proceedings had been completed on 9 September when the judge announced that the opponent had defeated the charge: since the proceedings were completed the judge had no jurisdiction to state a case under s5AE(1).

The judge, accepting the opponent's argument, made the proposed formal orders of 9 September into formal orders thereby acquitting the opponent.

On appeal the claimant argued that proceedings are not completed until the court formally so orders, and that until this is done the judge must state a case where it is requested in accordance with s5AE. However, since the judge, on 9 September, had only indicated his intention to acquit the opponent the proceedings had not been completed when the claimant's request was made. Thus, the judge, by s5AE, was required to state a case. In response to this the opponent argued inter alia that, in any case, it was akin to an abuse of process for the claimant to wait until the court announced its findings before deciding to state a case.

The claimant sought relief by way of a declaration and an order in the nature of certiorari, for want of jurisdiction, in respect of the orders made by the primary judge.

Held: per Tobias JA, Meagher and Santow JJA agreeing:

That proceedings of this nature are not completed until formal orders are announced by the court, notwithstanding the fact that the court may have indicated their intention to make (contrary) orders at an earlier time. Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 R v Garnet Thomas (1974) 1 NSWLR 702 Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81 Koupz v District Court of New South Wales (1992) 28 NSWLR 232
That under s5AE(1) there is no need to identify the exact nature of the question(s) of law proposed to be stated at the time that a stated case is requested. In practice there may be some delay from the making of the request until the final question(s) is settled. Environmental Protection Authority v Ampol Ltd (1993) 81 LEGRA 433 Glover v MacDougall (1976) 2 NSWLR 359 R v Madden (1995) 82 A Crim R 367

It is appropriate for the prosecution to wait until they are aware that a question of law is going to be decided against them before requesting the stating of a case. Jago v District Court (NSW) 1989 168 CLR 23

While the court has discretion to make an order in the nature of certiorari, the exercise of this discretion is not contingent upon special circumstances being established. Registrar, Court of Appeal v Craven (No. 2) (1995) 80 A Crim R 272

Protection of the Environment Operations Act 1997 Criminal Appeal Act 1912 Justices Act, s 125(1) Land and Environment Court Act 1979 Land and Environment Court Rules Criminal Procedure Act Federal Court of Australia Act 1976

R v Cheng (1999) 48 NSWLR 616 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 R v Garnet Thomas (1974) 1 NSWLR 702 Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R Ward v Williams (1955) 92 CLR 496 Environmental Protection Authority v Cooke (1996) 90 LGERA 61 Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 R v Madden (1995) 82 A Crim R 367 Davern v Messel (1984) 155 CLR 21 Benson v Northern Ireland Road Transport Board [1942] AC 520 Thompson v Mastertouch TV Service Pty Limited (No. 3), R v Tryone County Justices Reg v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159 Byron Shire Council v C J Vigen & Anor [1999] NSWLEC 198 Registrar, Court of Appeal v Craven (No. 2) (1995) 80 A Crim R 272 The King (Hastings) v Justices of Galway [1906] 2 I.R. 499 Glover v MacDougall (1976) 2 NSWLR 359 Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Jago v District Court (NSW) (1989) 168 CLR 23 ORDERS:

a) Declare that upon the proper construction of s 5AE of the Criminal Appeal Act 1912, and in the events which have happened, the First Opponent had no jurisdiction to dismiss the Summons in proceedings No. 50003 of 2003 (the proceedings) on 10 October 2003. b) Order that the record of the proceedings be removed into the Court of Appeal and that the decision and orders of Justice Talbot given and made on 10 October 2003 be quashed. c) Order that the proceedings be remitted to Justice Talbot for consideration according to law of the application by the Claimant that his Honour state questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. d) Order that the Second Opponent pay the costs of the Summons in the Court of Appeal and the costs of that part of the proceedings in the Land and Environment Court as related to the application by the Claimant to Justice Talbot to state a case on questions of law pursuant to s 5AE(1) of the Criminal Appeal Act 1912.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40907/03 L&E 50003/03

MEAGHER JA SANTOW JA TOBIAS JA

Thursday 11 March 2004 ENVIRONMENT PROTECTION AUTHORITY v LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES & ANOR Judgment 1 MEAGHER JA: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: By summons filed in this Court on 14 October 2003, the Environment Protection Authority (the claimant) seeks relief by way of a declaration and an order in the nature of certiorari with respect to orders made by Talbot J of the Land and Environment Court (the Land Court) dismissing a summons filed by the claimant in the Land Court (the proceedings) whereby Goulburn Wool Scour Pty Limited (the opponent) was charged with the offence of polluting waters known as Kangaroo Ponds contrary to s 120(1) of the Protection of the Environment Operations Act 1997 (the PEO Act). 4 The basis of the claimant's case is that the primary judge wrongly refused to submit questions of law arising at, or in reference to, the proceedings to the Court of Criminal Appeal for determination pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (the Act). As a consequence of that refusal, his Honour exceeded his jurisdiction (so it was said) when, on 10 October 2003, he ordered that the summons be dismissed. 5 Section 5AE of the Act is in the following terms: (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

The relevant facts 6 The proceedings were heard by the primary judge on 18, 19 and 20 August 2003 and judgment was reserved. His Honour prepared a written judgment in which he found that although the opponent had polluted the relevant waters, it had established two defences available to it under the PEO Act. Accordingly, [119] of the judgment so prepared was originally in these terms: "119. The formal orders of the court reflect a finding that the defendant is not guilty of the charge in the summons as follows: (1) The defendant is not guilty of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 as charged. (2) The summons is dismissed. (3) Costs reserved. (4) The exhibits may be returned." 7 The primary judge listed the matter for judgment on 9 September 2003. The relevant parts of the agreed transcript of that occasion are reproduced below: "HIS HONOUR: I have decided that the discharge that occurred from the site in February 2002 occurred within the terms of the licence. I am also satisfied that the defendant is entitled to rely upon the defence of honest and reasonable mistake. The first defence has succeeded under the section in the Act that provides for pollution to occur within the terms of the licence. The orders that the court makes -- ANDERSON: Excuse me, your Honour, might I apologise and interrupt? I've been instructed that before formal orders are made that the court might consider allowing the prosecutor some time to consider its position -- HIS HONOUR: All right.

ANDERSON: I've had some brief discussions with Mr Leggat in that regard. HIS HONOUR: I understand. ANDERSON: And perhaps it might be appropriate that the matter be stood over for 14 days for mention, or for final orders to be made. HIS HONOUR: All right. I will amend the judgment then. In paragraph 119 instead of "the formal orders", I will make it "the proposed formal orders". And I will stand the matter over for 14 days, 23 September, for the making of final orders. I publish my reasons, and there be just a short delay while the word proposed is interposed in what was otherwise the court's intention. The exhibits don't need to be retained, do they? ANDERSON: I don't believe so, your Honour. HIS HONOUR: They can be returned. The -- Can I have it back? - The proposed orders are: the defendant is not guilty of the offence against 120 ss (1) of the Protection of the Environment Operations Act as charged. The summons is dismissed. The costs are reserved, and the exhibits may be returned. The making of those orders is deferred until that date." His Honour then amended [119] of his judgment to reflect that the orders referred to therein were only " proposed ". 8 On the adjourned hearing date of 23 September 2003 the matter was further adjourned to 30 September 2003 when the following exchange took place between the primary judge and counsel for the claimant: "HOWARD: Your Honour on the last occasion you gave the EPA some indulgence in relation to instructions to state a case. HIS HONOUR: I did, that it was. HOWARD: The EPA has instructed me to ask your Honour to state questions of law to the Court of Criminal Appeal pursuant to s 5A(E) of the Criminal Appeal Act. I've handed to Mr Shaw only this morning your Honour a draft stated case with questions of law framed, obviously only in a draft form and for your Honour's assistance if your Honour does state a case under s 5A(E)." 9 At this point the solicitor for the opponent indicated to the primary judge that his client wished to assert that the Land Court had no power under s 5AE of the Act to state a case as the proceedings had, within the meaning of that provision, been completed on 9 September 2003 and that it was therefore too late to enliven the procedure contemplated by that provision. 10 The primary judge then fixed 3 October 2003 for the purpose of hearing submissions with respect to the jurisdictional issue raised by the opponent. Argument proceeded on that day and his Honour reserved judgment. The matter was listed for judgment on 10 October 2003. At the outset of the proceedings on that day counsel for the claimant requested that if his Honour intended to decide that he did not have jurisdiction to state a case pursuant to s 5AE, he should not make formal orders dismissing the summons until the claimant had had the opportunity of seeking an order in the nature of certiorari with respect to that decision. After hearing argument his Honour declined to accede to the claimant's application whereupon he proceeded as follows: "I am satisfied that the words of s 5AE when applied to the circumstances of this case, even before this morning, are not in terms that are sufficiently clear to set aside the fundamental right of the defendant to have the summons dismissed. The request to state a case is refused. The request to further defer a final determination of the matter is also refused, fundamentally for the reasons that have passed in argument this morning and also reiterated in the judgment which I am about to publish. The orders in paragraph 119 of the judgment delivered on 9 September 2003 are confirmed and now made. I publish my reasons." 11 It is now common ground that on 10 October 2003 the primary judge made orders in terms of [119] of his judgment published on 9 September 2003 and which I have extracted in [6] above.

The primary judge's reasons for refusing to state a case 12 The opponent had submitted to the primary judge that s 5AE(1) of the Act did not, with sufficient clarity, displace what it referred to as "a fundamental tenet of the law" that the Crown has no right of appeal against an acquittal. Reliance was placed upon the following passage in the judgment of Spigelman CJ (with whom Dunford and Kirby JJ agreed) (at 622), in R v Cheng (1999) 48 NSWLR 616 where the Chief Justice said: "The proposition that the Crown does not have a right of appeal against acquittal is too well-established for us to interpret the words used by parliament in s 5F(2) [of the Criminal Appeal Act] as extending to a direction to acquit by a trial judge. It constitutes a fundamental principle of such significance that only clear and unambiguous language would lead to the conclusion that an appeal by the Crown lies against such a direction." 13 In the primary judge's view, it was "incontrovertible" that on 9 September 2003 he announced a finding of not guilty. According to his Honour (at [10]): "(t)he Court formally announced that defences had been successful and published reasons to reflect this finding. As the Chief Justice found in Cheng it is not appropriate to submit the words (in this case " completion of proceedings ") to a dictionary definition of each of the words." 14 In [13] of his judgment his Honour reiterated that while he had on 9 September 2003: "made a final determination of the issues and upheld the defence"

he had only delayed the making of formal orders to enable the claimant to consider its position. 15 The primary judge then stated his understanding of the purpose of s 5AE and the consequences of what had happened on 9 September 2003 in these terms: "14. The purpose of s 5AE is to allow the prosecutor to obtain a ruling on a question of law by the Court of Criminal Appeal during the course of the proceedings. It is not intended that the Crown can sit back until the final verdict is made and then seek to use the section as a general right of appeal on a question of law. Any decision that involves an error of law that occurs as a consequence of an acquittal nevertheless can be reviewed by appeal under s 5A(2) of the Criminal Appeal Act without interfering with the acquittal. The alternative procedure protects an accused from double jeopardy. 15. Furthermore, it is akin to an abuse of process for the prosecutor to wait until the announcement of the Court's findings are sufficiently complete, to indicate a decision for acquittal of the defendant, before electing to seek a stated case. The position is further exacerbated by the initial failure to prevent a draft case or even intimate the nature of it. The judgment has been published in full. 16. All of the issues raised by way of allegation or defence that are resolved in the published reasons for judgment were fully canvassed at the trial. The decision of the Court was encompassed by the short oral summary made prior to the handing down of the written judgment." 16 His Honour's conclusions were as follows: "19. The Court is satisfied that the words of s 5AE, when applied to the circumstances of this case, are not in terms that are sufficiently clear to set aside the fundamental right of the defendant to have the summons dismissed. 20. The request to state a case is refused. 21. The orders in [119] of the judgment delivered on 9 September 2003 are confirmed."

Issues for consideration on the appeal 17 Four issues arise on the hearing of the appeal. The first concerns the proper construction of s 5AE(1) of the Act and, in particular, the words "[a]t any time before the completion of proceedings". Allied with this issue is whether, on 9 September 2003, there had been an acquittal of the opponent in the sense of a pronouncement that it was not guilty of the subject charge. Unless there was such an acquittal then neither the "fundamental principle" referred to by the Chief Justice in Cheng nor the principle of double jeopardy could be called in aid by the opponent to support the proposition that the proceedings in the Land Court were complete for the purposes of s 5AE(1) at any time prior to 10 October 2003 when formal orders were made. 18 The second issue, which only arises if the first is answered against the opponent, is whether there was a valid request by the claimant (who, it was agreed, was the Crown for the purposes of s 5AE(1)), to submit questions of law to the Court of Criminal Appeal for determination given that it had not identified or otherwise indicated (so it was said) the nature of any question of law which it sought to have so submitted. 19 The third issue relates to the primary judge's finding [15] of his judgment that it was akin to an abuse of process for the claimant to wait until the announcement of the Land Court's findings before indicating that it sought a stated case. 20 The fourth issue is whether, as a matter of discretion, this Court should grant the relief sought in the claimant's summons.

The first issue - did the claimant request the submission of a question of law before the completion of the proceedings before the Land Court? 21 The claimant submitted that the words "before the completion of proceedings" in s 5AE(1) should be construed as meaning "before the proceedings are finished". It further submitted that only the making of formal and final orders disposing of the summons could finish the proceedings. It was common ground that no such orders were made until 10 October 2003. 22 Reliance was placed by the claimant on a number of authorities which, unfortunately, were not cited to the primary judge. The most pertinent of these is that of this Court in Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 where Kirby P said (at 165): "…It is true that once an appeal has been upheld or dismissed, or the appellant convicted or acquitted, a case may no longer be stated for the opinion of the Court of Criminal Appeal. This may variously be explained upon the footing that the appeal is no longer 'before' the judge of the District Court, or that the opinion of the Court of Criminal Appeal, stated pursuant to a submission under s 5B would have no further utility, the District Court having concluded its part in the appeal from the Local Court. The whole point of referring the question of law for determination by the Court of Criminal Appeal is to secure the order or direction of the Court of Criminal Appeal to the District Court which will govern the disposition of the proceedings in that Court. See Garnet-Thomas [1974] 1 NSWLR 702 at 706 where Jacobs P explained: 'It seems to me that it is open to the chairman of quarter sessions now, in the light of these decisions to state a case to the Court of Criminal Appeal at any stage of the proceedings before acquittal or conviction, or before upholding or dismissing the appeal but that thereafter he can never state such a case. I do not think it is necessary that he should have indicated his result or his intended result one way or the other. That is a factor not relevant to the power given to him under s 5B.' In Garnet-Thomas , Jacobs P referred to Lazarevic (1963) 85 WN (Pt 1) (NSW) 159. There the District Court judge had made final orders in the appeal to the Quarter Sessions. He was thus held to be functus officio. The Justices Act , s 125(1) contemplates that the appeal does not conclude until the District Court makes its order. Decisions, comments, expressions of opinion and even findings made in the course of an appeal, although necessary for the formulation of the final order, do not have the fatal effect of disqualifying the District Court judge from the power to state a case under s 5B of the Criminal Appeal Act . The judge is not so disqualified until the final order is pronounced. Compare Kopuz v District Court (NSW) (1992) 28 NSWLR 232 at 244; 62 A Crim R 337. This is because, as Lord Denning MR once explained, until the final order, no cause is lost and no decision made which cannot by persuasion, reconsideration (and in the case of an opinion stated pursuant to a submission of a question under s 5B), an order or direction of the Court of Criminal Appeal, produce a different result from that to which the judge has earlier proceeded." 23 In R v Garnet Thomas (1974) 1 NSWLR 702, Jacobs P in a passage which preceded the passage from his Honour's judgment cited by Kirby P in Cassell, observed (at 705-706): "However, the High Court in Ward v Williams determined in relation to s 131A of the Justices Act that there could not be a case stated at all once there had been a final determination by the court of quarter sessions. Therefore, there could not be a case stated when there had been a conviction recorded, if s 5B is given the same meaning as s 131A. That being so, the principle that a man should not be put in peril again after an acquittal ceased to have any application as a principle applicable to quarter sessions appeals. A mere indication of intention by a chairman of quarter sessions to uphold an appeal and to dismiss an information, or a acquit a person accused is not at all the same as an actual acquittal, which should free a man of all peril on that charge." 24 In Cassell, Kirby P also referred to the following passage from the judgment of Hunt J (with whom Grove and Allen JJ agreed) in Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81 at 82-83: "A question therefore arises at the outset as to whether by that stage any power remained to state a case to this Court. Section 5B does not in terms limit the time in which a stated case may be requested. The case must, however, related to a question of law arising on the appeal, and the judge must be requested during the hearing of the appeal - before coming to his final judgment - to state it: Dittmar [1973] 1 NSWLR 722 at 752. The purpose of the stated case procedure is not to provide an appeal after the judge has made his decision; the purpose is to provide him with assistance in coming to his decision. Once the appeal to the District Court has been upheld or dismissed, or the defendant has been convicted or acquitted, a case may no longer be stated: Garnet-Thomas [1974] 1 NSWLR 702 at 706. It does not matter that the judge has already indicated what he intends to do: Garnet-Thomas at 706; as long as there has not been a 'formal' dismissal of the appeal or other appropriate order disposing of it: Fraser [1977] 2 NSWLR 867 at 875." 25 Cassell did not involve a hearing on the merits. The Chairman of Quarter Sessions had dismissed the appeals upon the basis that the informations pursuant to which the relevant charges were laid were defective. Kirby P (at 170) referred to the distinction "between an acquittal of an accused person, as by a jury after a trial on the merits, and an acquittal in one tier of the court structure where what has occurred is 'such a mistrial as to render the proceedings a nullity' "

in support of the following proposition. That is, that an accused can hardly complain about a later order correcting an error which has resulted in the accused being discharged upon an order of a technical nature which followed the erroneous failure of the judge to accede to a procedure designed to permit the judge to have the opinion of the Court of Criminal Appeal so as to ensure that the matter concerning the accused is determined according to law. 26 Priestley JA (at 173) agreed with the conclusions reached by Kirby P noting that there had been no acquittal on the merits or according to law. Powell JA (at 174) considered that there had been no acquittal within the meaning of "the double jeopardy rule" as there had been no hearing on the merits of the charge by a court of competent jurisdiction. Of course, in the present case, there had been a hearing on the merits. 27 Although, Cassell involved the refusal of the trial judge to state a case for the opinion of the Court of Criminal Appeal pursuant to s 5B of the Act, neither party suggested in the present case that there was any relevant distinction between s 5B(1) and s 5AE(1): cf Ward v Williams (1955) 92 CLR 496 at 511-512; Environmental Protection Authority v Cooke (1996) 90 LGERA 61 at 63. 28 Furthermore, the remarks of Kirby P that I have extracted in [22] above are premised upon the provisions of s 125(1) of the Justices Act which, at the time, provided that the District Court on hearing an appeal from a magistrate "…shall determine the matter of every such appeal, …and may by its order confirm, quash, set aside, vary, increase, or reduce the conviction, order, sentence, or adjudication appealed against or make such other order in the matter…as to the Court seems just." 29 In Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 244, Priestly JA (with whom Kirby P and Meagher JA agreed) said of this provision that it contemplated "that the appeal it speaks of will be one proceeding which will not end until the appellant court makes its order. Decisions and findings made in the course of the appeal are necessary for the formulation of the final order and can have no legal effect until that order is made." 30 There is no equivalent of s 125(1) of the Justices Act in the Land and Environment Court Act 1979 (the Court Act). Nonetheless, s 21 of that Act provides that the Land Court has jurisdiction "to hear and dispose of in a summary manner"

proceedings such as those that were before that court in the present case. Section 23 further provides that the Land Court has power, in relation to matters in which it has jurisdiction: "to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate." 31 Section 252 of the Criminal Procedure Act 1986, by force of s 170(3)(c) of that Act, governed the procedure before the Land Court in the proceedings and provided that upon the parties being present on the day set for the hearing and determination of proceedings for a summary offence: "the court must proceed to hear and determine the matter." 32 Furthermore, s 253(1) and (1A) of that Act makes it tolerably clear that the determination of a matter to which s 252 refers will be by way of a final order whether of conviction or dismissal. 33 Finally, Pt 15 r 5 of the Land and Environment Court Rules provides that: "A final order disposing of any proceedings takes effect when it is given or made, unless otherwise ordered by the Court." 34 In my opinion, there is no relevant difference between the provisions of the Court Act, the Criminal Procedure Act and the Land and Environment Court Rules to which I have referred above and s 125(1) of the Justices Act. In fact, I do not understand the opponent to suggest to the contrary. Accordingly, I see no reason why, both as a matter of principle and common sense, it should not be concluded that proceedings in the Land Court of the nature of those presently under consideration are not concluded until that Court announces its final orders. As I have said, it is common ground that no such orders were pronounced before a request for the stating of a case was made on 30 September 2003. 35 The opponent nevertheless contended that there were authorities which supported the conclusion that the proceedings in the present case were complete when the primary judge pronounced in open court on 9 September 2003 that he was satisfied that the opponent had succeeded on the defences that it had raised and that he proposed (although he deferred making) orders that the opponent was not guilty of the offence charged and that the summons should be dismissed. Reference was made to R v Madden (1995) 82 A Crim R 367 where Hunt CJ at CL (with whom Allen and Dunford JJ agreed), said (at 370) "The question which is posed for this Court's determination is whether the judge's finding that the offence had been proved was erroneous in law. That is not an appropriate question to be asked in a stated case. The procedure provided by s 5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the District Court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justices Act . The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the district court, as there is no right of appeal to this Court from that determination…. " (emphasis added) 36 It was submitted that the sentence that I have emphasised was authority for the proposition that there could be no challenge pursuant to s 5B of the Act to the determination by a District Court judge which is only "to be made" (but which has not in fact been made) provided it has been publicly foreshadowed. In my opinion, the opponent has taken the sentence relied upon out of context. The issue in Madden was whether the question posed in the stated case was inappropriate. The question so posed is referred to in the first sentence of the paragraph from his Honour's judgment that I have extracted above. The stated case did not identify questions of law upon which the Court of Criminal Appeal's advice was sought for the purpose of assisting the judge below in determining the appeal before him. The sentence relied upon by the opponent simply made it clear that the stated case procedure contemplated by s 5B of the Act could not be used for the purpose of challenging the judge's ultimate determination of whether the charge had been proven or not. In my opinion, it is not authority for the proposition for which the opponent contends. 37 Reliance was also placed on certain passages from the judgments of the High Court in Davern v Messel (1984) 155 CLR 21. The issue there was whether s 24(1) of the Federal Court of Australia Act 1976 conferred power on the Federal Court to hear and determine an appeal by the Crown from a decision given by the Supreme Court of a Territory quashing a conviction on an appeal by an accused. It was held, by majority, that such a power was so conferred subject to the rider that the section did not affect the right of a subject to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction. There was no question in that case but that the Full Court of the Supreme Court of the Northern Territory had quashed the convictions of the lower court. In other words, there had been a final order of acquittal. 38 The judgment of Gibbs CJ affirmed the elementary principle accepted by the House of Lords in Benson v Northern Ireland Road Transport Board [1942] AC 520 at 526 that: "(a)n acquittal made by a Court of competent jurisdiction and made within jurisdiction, although erroneous in point of fact, cannot as a rule be questioned before any other Court". 39 Furthermore, his Honour affirmed (at 32) the principle that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. The same principles were adumbrated in the joint judgment of Mason and Brennan JJ, but the opponent relied on the following passages in that judgment which, so it was submitted, suggested that something less than a formal order of acquittal or dismissal was sufficient to attract the Benson principle. Thus, at 45-46, their Honours noted that in Thompson v Mastertouch TV Service Pty Limited (No. 3), the Full Court of the Federal Court had held that the general words of s 24 of the Federal Court Act conferring jurisdiction upon the Federal Court to "hear and determine appeals" "must be read subject to the 'well established and fundamental principle of the common law' that an appeal as of right does not lie ordinarily in a criminal case from a judgment of acquittal pronounced by a superior court on the merits" (emphasis added). 40 Again, at 48-49, their Honours stated that a passage in the judgment of Palles LCB in R v Tryone County Justices reflected with more precision "the earlier assertion by the Attorney-General in the Duchess of Kingston 's case that 'whenever, and by whatever means , there is an acquittal in a criminal prosecution, the scene is closed and the curtain drops' " (emphasis added). 41 Finally, at 56, their Honours said: "the question then is whether the principle [the rule against double jeopardy] extends to deny an appeal by the Crown from a judgment of acquittal by a court of criminal appeal following a successful appeal by the accused against his conviction at first instance" (emphasis added) 42 In my opinion, there is no basis for suggesting that the above passages support the proposition for which the opponent contends. When taken in context, and given that the issue before this Court was not before the High Court in Davern, it would be wrong to take phrases such as "a judgment of acquittal" and suggest that their Honours were intending to refer to something less than a verdict of acquittal in a jury trial or an order dismissing a charge or proceedings in a summary trial. If anything, the reference to a "judgment" emphasises the formality and finality of any decision to acquit. 43 Reliance was also placed upon the following passage in the judgment in Davern of Deane J (who dissented) who, when discussing the "universal maxim of the common law" that no person is to be brought into jeopardy more than once for the same offence, said (at 68): "Put another way, the citizen who is told by a competent court of the State that the State's proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the State of new proceedings against him or by reason of an appeal by the State against its own court's decision." 44 In my opinion that statement of his Honour cannot be taken too literally. In its context, and particularly given the reference to the State's "own court's decision", it is clear that his Honour was not suggesting that the double jeopardy rule applied where a court had merely indicated that it is proposed to determine the proceedings in the citizen's favour. Rather, as the tense of the passage from his Honour's judgment makes clear, the citizen is told by a competent court that the proceedings "are resolved" in his favour rather than "will be" so resolved. Accordingly, in my opinion, the opponent gains no assistance from the passages from Davern on which it relies. 45 The Court was also referred to the decision of Sugarman J in Reg v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159 and that of Cowdroy J in Byron Shire Council v C J Vigen & Anor [1999] NSWLEC 198. However, in my opinion, neither of these decisions assisted the opponent. 46 Two further authorities should be referred to. The opponent sought solace in the following passage in the judgment of Kirby P in Registrar, Court of Appeal v Craven (No. 2) (1995) 80 A Crim R 272 where his Honour said (at 276): "There is a longstanding principle of our law which protects the finality of acquittals which have been pronounced in open court , such that the accused and the public have heard the accused person acquitted by formal pronouncement ." (emphasis added) 47 It was submitted by the opponent that it had been acquitted by the primary judge by the pronouncement by him in open court on 9 September 2003. But there was no "formal pronouncement" as Kirby P contemplated as being essential to the enlivenment of the principle to which he refers. 48 The claimant also referred to the following passage in the judgment of Lord O'Brien LCJ in The King (Hastings) v Justices of Galway [1906] 2 I.R. 499 where his Lordship posed the question before the court for consideration in these terms (at 502): "The question is this - Can an order of acquittal pronounced by Justices at Petty Sessions, or by a Chairman and Justices at Quarter Sessions, one of whom is biased, be brought up on certiorari and quashed, so that the accused may be subjected to trial again?" 49 It is clear that his Lordship was referring to a formal order of acquittal. Indeed, as the relevant tribunal had made such an order, nothing less than such an order was in issue. 50 Finally, the opponent sought to call in aid the heading to s 5AE - "Point of law stated during summary proceedings" - upon the basis that the word "during" emphasises that the provision is only enlivened if a request for a stated case is made before there is any pronouncement or other indication by the judge that the proceedings will be resolved in the defendant's favour. In this context reliance was placed upon the observation by Hunt J in Budget Nursery (at 83) that "(i)t should be noted, however, that the more appropriate time to ask a judge hearing a district court appeal from a magistrate to state a case to this Court is before he commences to deliver reasons for his judgment." 51 In my opinion, there is no substance in this submission. In the first place, I do not consider that it is legitimate to refer the heading of s 5AE to assist in ascertaining the meaning of that provision as in my opinion it is neither ambiguous nor obscure within the meaning of s 34(1)(b)(i) of the Interpretation Act 1987. But even if it could be taken into account, I do not see that it adds anything to the opening words of the provision, namely, "At any time before the completion of proceedings". Obviously, "any such time" would be "during" the proceedings. 52 In my opinion, the proceedings in the present case were not completed until, on 10 October 2003, the primary judge pronounced an order dismissing the claimant's summons. It was only at that point of time that the opponent was "acquitted" of the offence. At that point, in terms of s 21 of the Court Act, the proceedings were "disposed of" and determined in terms of s 252 of the Criminal Procedure Act. Accordingly, there was no effective acquittal of the opponent or dismissal of the charge preferred in the summons on or prior to 30 September 2003 with the consequence that his Honour's conclusion to the contrary was, with respect, in error.

The second issue - was there a request by the claimant within the meaning of s 5AE(1)? 53 The opponent's submission that there was no such request centred upon the fact, as recorded by the primary judge in [18] of his judgment, that he had not been appraised of the question of law that the claimant sought to be determined on by the Court of Criminal Appeal. It was submitted that on its proper construction, s 5AE(1) required the claimant, on requesting the submission of "any question of law arising at or in reference to the proceedings" to the Court of Criminal Appeal for determination, to identify, or at least indicate the nature of, the question of law it sought to have submitted. 54 In my opinion, s 5AE(1) should not be so construed. The making of a request by the claimant that one or more questions of law be submitted is what enlivens the obligation of the judge hearing the proceedings to submit any question of law to the Court of Criminal Appeal for determination. The section does not in terms require that the request identify, or to indicate the nature of, any particular question of law; nor should such a requirement be inferred. 55 Obviously, once the request is made, there will be some delay before a case is stated on a particular question of law. The case will need to be drafted and settled by the judge (if necessary after hearing argument) who must be satisfied that it does in fact pose a question of law for the Court of Criminal Appeal's determination. This is in accordance with the practice of the Land Court as well as that in other jurisdictions. 56 Furthermore, in many cases it would be impracticable for the particular question of law to be identified at the time the request is made if only because the prosecution will require time to consider the judge's reasons in order to identify the question of law which has been decided against it and to prepare a draft stated case setting out the necessary factual context in which that question is to be determined: cf Glover v MacDougall (1976) 2 NSWLR 359 at 361; Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 437, 440. 57 In the present case it would have been absurd if, notwithstanding that the claimant had not had the opportunity of considering his Honour's published reasons, his Honour had responded on 9 September 2003 to a request by the claimant to state a case, by making formal orders dismissing the summons because the claimant had not then and there identified the question of law to be submitted. It would be wrong for a judge whether on the request of the defendant, or of his or her own motion, to frustrate the only right of the prosecution to test the judge's findings on questions of law where otherwise it was proposed to decide the case in favour of the defendant. No doubt this was why the primary judge differed the making of final orders when, on 9 September 2003, he adjourned the matter to enable the claimant to consider its position. He was clearly required to do so. 58 Again, questions of law which would otherwise arise in a particular case, may become academic if the facts are found by the trial judge against or in favour of one or other of the parties. This will not be known until the judge's factual findings are pronounced. Until then, there would be no utility in the prosecution requesting the judge to state a case on those questions. 59 I see no reason why s 5AE(1), as the opponent submits, should be construed to require at least some intimation of the nature of the questions of law submitted to the Court of Criminal Appeal. In this respect, the opponent was not prepared to contend that s 5AE(1) required identification in any precise manner of any question of law; merely some information as to the nature of the question sought to be submitted was said to be sufficient. This rather low threshold for which the opponent contends in my opinion militates against construing the statutory provision to require that rather vague threshold to have been achieved before the obligation of the primary judge to state a case at the claimant's request was enlivened. 60 There is, however, a further point. On 30 September 2003, counsel for the claimant informed the primary judge that a draft stated case which framed questions of law had been prepared and provided to his opponent and was available for his Honour's assistance. Before counsel could hand the document to his Honour the solicitor for the opponent indicated that it proposed to make submissions to the effect that his Honour had no jurisdiction under s 5AE(1) to state a case at all. It was that preliminary issue which then occupied the Land Court and which was adjourned to 3 October 2003 for the purpose of full argument. During the course of argument on that day the primary judge indicated to counsel for the claimant that he had not "seen your so-called question of law". Counsel indicated he had attempted to provide the document to his Honour on 30 September 2003 (which his Honour acknowledged). The primary judge then asked counsel for the opponent whether he, the judge, should see the draft case. Counsel responded: "Not at this point in time, your Honour." 61 Counsel for the opponent then asserted that the primary judge had no question before him capable of being referred and after further argument his Honour ruled that he would not receive the draft stated case upon the basis that it would not be "proper to receive it until I resolve this question".

This statement by his Honour was a reference to the submission of the opponent that the proceedings had been completed on 9 September 2003 when his Honour announced his proposed orders. 62 In the foregoing circumstances, it does not lie in the mouth of the opponent to assert before this Court that the claimant's request for a stated case did not enliven the primary judge's obligation under s 5AE(1) because of the claimant's failure to provide his Honour with a draft of the questions of law to be submitted for determination. For this additional reason, I would reject the opponent's submission that the request of the claimant to the primary judge to state a case was insufficient to enliven his obligation under that provision to do so.

The third issue - was there conduct akin to an abuse of process? 63 The primary judge raised the question of an abuse of process in [15] of his judgment, which is extracted at [15] above. The assertion of his Honour that the claimant's position was further exacerbated by the initial failure to present a draft case overlooks the fact that he had declined to receive the draft when it was proffered to him at the hearing on 3 October 2003, and that it was referred to (if not actually tendered) at the commencement of the hearing on 30 September 2003 but was overtaken by the submission of the opponent that his Honour had no jurisdiction under s 5AE to state a case in any event. 64 Furthermore, with respect, it is not self-evident why it would be an abuse of process (as opined by his Honour) for the claimant to wait until the announcement of the Land Court's findings and its indication that it proposed to acquit the defendant before moving to request a stated case. 65 For the reasons referred to at [56], [57] and [58] above, I consider that it was appropriate conduct for the claimant to wait until it became aware that the questions of law, which it had apparently raised during the course of the substantive hearing, were going to be decided against it before a stated case on those questions was requested. There would have been no utility in requesting the stating of a case if the proceedings were to be resolved in its favour of the prosecution. 66 In the event that the opponent had been convicted, the claimant had no need to require the stating of a case pursuant to s 5AE(1) because it had available an all-grounds appeal to the Court of Criminal Appeal pursuant to the combined operation of ss 5AA and 5AB of the Act. 67 As far as I can discern from the opponent's written submissions on this issue, the basis upon which it was suggested that there was conduct akin to an abuse of process was because the enlivenment by the claimant of the provisions of s 5AE involved the court's process being made an instrument of unfair oppression: cf Jago v District Court (NSW) (1989) 168 CLR 23 at 56. However, it is difficult to see how this could be so given that s 5AE(1) expressly provides for a request for a stated case to be made "(a)t any time before the completion of proceedings". In my opinion, therefore, the seeking by the claimant on 9 September 2003 of the deferral of the making of formal orders and an adjournment to enable it to consider its position in light of the primary judge's published reasons (all of which was, in any event, consented to by the opponent) and the enlivenment by the claimant of the primary judge's obligation to state a case pursuant to s 5AE(1) did not constitute an abuse of the Land Court's process; nor was it akin thereto.

The fourth issue - should the Court of Appeal exercise its discretion to grant the relief sought in the claimant's summons? 68 The opponent's written submissions on this issue (which were not elaborated in oral argument) contended that relief should be withheld for the following reasons: a) That there had been a full trial on the merits of the offence charged in circumstances where the primary judge had determined that the defences to that charge had been made out; b) That the claimant had waited until his Honour had announced his findings on the merits before seeking a deferral of the making of formal orders to enable it to consider its position, such conduct amounting to a misuse by the claimant of the provisions of s 5AE; c) That the claimant had failed to submit a question of law to the primary judge which s 5AE(1) required it to do; d) That the claimant had an appeal available to it under s 5A(2)(a) of the Act which did not involve the opponent being exposed to conviction in circumstances where, on 9 September 2003, the threat of conviction had for all intents and purposes been dissipated; and e) That there were no "special circumstances" which required the Court to grant the remedy sought. 69 In my opinion there is no substance to any of these grounds. Most of them have been dealt with under other issues. However, I would comment on two of them. It is true that pursuant to ss 5A(2)(a) and 5(3) of the Act it was open to the claimant to request the primary judge to submit any question of law to the Court of Criminal Appeal for determination even though the opponent had been acquitted in the sense that the charge had been formally dismissed. It is also true that by virtue of s 5A(2)(d) the determination by the Court of Criminal Appeal to a question so submitted is not to affect or invalidate the decision given at trial. On the other hand, as Kirby P said in Cassell (at 165) "The whole point of referring the question of law for determination by the Court of Criminal Appeal is to secure the order or direction of the Court of Criminal Appeal to the District Court which will govern the disposition of the proceedings in that court." 70 I see no reason why the claimant should be denied the opportunity of pursuing a stated case pursuant to s 5AE(1), if otherwise entitled to do so, simply because, if the questions of law are determined in its favour, the primary judge will be required to redetermine the proceedings in accordance with the Court of Criminal Appeal's determination and that that may result in the opponent being convicted. That is the whole purpose of enlivening s 5AE. 71 The opponent's submission, that there are no "special circumstances" which require this Court to grant the relief sought in the claimant's summons, is founded upon the passage in the judgment of Kirby P in Craven (No. 2) at 277. However, there the proceedings involved an application to the Court of Appeal to re-open proceedings previously before the Court in respect of precisely the same matter and in which the Court had made certain orders which the claimant was post facto seeking to overturn. His Honour acknowledged that there was clear jurisdiction in the Court of Appeal to re-open completed proceedings where error was demonstrated but that the reversal of the original orders required "special" circumstances. 72 The present case does not involve the re-opening of otherwise completed proceedings in the Court of Appeal or, for that matter, the Land Court. The claimant's summons seeks an order in the nature of certiorari. It is true that this Court has a discretion whether or not to grant that remedy but it is erroneous for the opponent to suggest that that discretion can only be exercised in favour of granting such relief if the claimant establishes special circumstances.

Conclusion 73 In my opinion, the primary judge erred when he held, in effect, that the proceedings before him had been completed at the time that the claimant requested him to state a case pursuant to s 5AE(1) with the consequence that he was obliged to state such a case and to do so before he made final orders. In this respect, it was common ground that if otherwise his Honour ought to have acceded to the claimant's request to state a case (as in my opinion he should have), he exceeded his jurisdiction when he made those orders on 10 October 2003. It follows that the claimant is entitled to the relief it seeks in its summons. 74 Accordingly, I propose that the following declaration and orders be made:

b) Order that the record of the proceedings be removed into the Court of Appeal and that the decision and orders of Justice Talbot given and made on 10 October 2003 be quashed.

c) Order that the proceedings be remitted to Justice Talbot for consideration according to law of the application by the Claimant that his Honour state questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

d) Order that the Second Opponent pay the costs of the Summons in the Court of Appeal and the costs of that part of the proceedings in the Land and Environment Court as related to the application by the Claimant to Justice Talbot to state a case on questions of law pursuant to s 5AE(1) of the Criminal Appeal Act 1912. **********

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