Hardt v Environment Protection Authority

[22]

The judge's decisions 10 The judge noted as the elements of the offence that the defendant was the owner or occupier of land, that the land could not lawfully be used as a waste facility and that the defendant permitted the land to be used as a waste facility. The first element was not in contest. 11 As to the second element, the judge found that the land could not lawfully be used as a waste facility on alternative grounds. One was that a licence to use it as a waste facility was required under the Act, and a licence had not been granted. The other was that "cannot lawfully be used" in s 144(1) extended to lawfulness of use under other statutes, that development consent for use of the land as a waste facility, alternatively for landfill, was required under the Environmental Planning and Assessment Act 1979, and development consent had not been granted. 12 As to the third element, the judge said that the evidence established that the appellant intentionally allowed waste to be brought onto and disposed of on the land. His Honour noted the competing submissions. The respondent submitted that "permits" in s 144(1) did not require proof that the defendant intended to use the land for the purpose of a waste facility and that it was sufficient to establish that the defendant allowed the physical actions which constituted a waste facility such as the disposal of waste on the land. The appellant submitted that "permits" required not only that the defendant allowed the physical actions but also that the defendant intended that the carrying out of the physical actions on the land be for the purpose of a waste facility, and that such an intention had not been proved. 13 The judge held - "106 In my opinion, the prosecutor's submissions on the mental element of "permits" in s 144(1) of the Act are to be preferred over the defendant's submissions. On a proper construction of s 144(1) of the Act, the mental element of permitting operates only on the physical actions of storage, treatment, processing, sorting or disposal of waste that constitute use as a waste facility. The mental element will be established on proof by the prosecutor to the requisite criminal standard of beyond reasonable doubt that the accused intentionally allowed the land, in respect of which the accused is the owner or occupier, to be used for the storage, treatment, reprocessing, sorting or disposal of waste. The concept of permitting does not import a further requirement that the accused has intentionally allowed that land to be used for the purpose of a waste facility.

[33]

The presentation of the appeal 16 As I have said, the appellant stated twenty-three grounds of appeal. Their introductory words were not auspicious, being that the appellant "says that the action brought by the Prosecution contravenes the basic principles of Criminal Law in the following ways … ". The grounds of appeal should have been directed to the appellant's conviction and his sentence, not to "the action brought by the Prosecution". 17 The grounds of appeal were difficult to understand. Rule 23C of the Criminal Appeal Rules requires that a notice of appeal be accompanied by written submissions in support of the appeal. The written submissions filed for the appellant, signed by his counsel, did little more than repeat the grounds of appeal, occasionally giving a reference to a statute or reported decision or adding a sentence or two which provided little enlightenment. Of the ten grounds of appeal which were maintained, only for two was there anything additional, and it provided no enlightenment. Compliance with r 23C is of great importance in enabling the respondent to an appeal to meet the appellant's grounds of appeal, and enabling the Court to understand the appellant's complaints in order to determine the appeal. The appellant's submissions did not comply with the rule, and did not serve either purpose. 18 The respondent filed extensive written submissions, seventy pages in all, explaining the proceedings and endeavouring to meet the grounds of appeal. The appellant filed submissions in reply. They compounded the difficulty with the grounds of appeal. 19 The grounds of appeal maintained by the appellant are set out later in these reasons. Of the grounds of appeal which were abandoned, grounds 1 and 2 were the subject of oral submissions and were then abandoned. Counsel for the appellant was invited to reconsider over the luncheon adjournment which of the remaining grounds he wished to maintain, which brought abandonment of further grounds. Appreciating that the abandoned grounds other than grounds 1 and 2 had not been the subject of oral submissions, in my opinion all appeared to be fundamentally misconceived either in law or in their availability as grounds for challenging the appellant's conviction or sentence, or both. 20 The hearing of the appeal was marked by inability on the part of counsel for the appellant to present structured or reasoned submissions to assist the Court to understand the grounds of appeal and to appreciate their relevance to the conviction or sentence and their merits. Time and again it was necessary to draw counsel back to the ground or grounds of appeal which he had been addressing, and to invite counsel to explain how the ground of appeal bore upon the conviction or sentence and why it should be upheld. This was largely a futile endeavour. 21 The unsatisfactory presentation of the appeal does not relieve the Court from its obligation to determine the appeal according to law.

[37]

(a) "Permits" in s 144(1) 26 The appellant's submissions did not enable a better understanding of the ground. "Permits" plainly has a mental element. Permitting something requires awareness of it and failure to exercise a right or power to prevent it: R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 at [22]-[34]. In that case Mason P cited at [32] from the judgment of Knox CJ in Adelaide Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 487, where in holding that the Corporation permitted the use of a hall for the performance of a copyright work the Chief Justice said - "I agree with the learned Judges of the Supreme Court in thinking that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done; (2) has the power to prevent it; (3) makes default in some duty of control or interference arising under the circumstances of the case; and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this court." 27 See also the judgment of Isaacs J in Adelaide Corporation v Australasian Performing Rights Association Ltd at 490-1 to the same effect and the joint judgment of Gavan Duffy and Starke JJ at 505. 28 It appears that the appellant wished to maintain the submission made on his behalf at the trial, that it was necessary that the carrying out of the physical actions of storage, treatment, processing, sorting or disposal of waste was for the purpose of a waste facility. Another way of putting that submission, perhaps a preferable way because it better accords with the language of s 144(1), may be that the awareness had to extend to awareness that the physical actions would amount to use of the land as a waste facility. 29 In my opinion, there is no warrant for so understanding "permits" in s 144(1). Given the definition of "waste facility", awareness of the physical actions of storage etc of waste carried with it awareness that the premises would be used as a waste facility, and it was not necessary that the defendant was aware of the definitions of "waste" and "waste facility" in the Act. Nor does permission involve the defendant's purpose in failing to exercise a right or power to prevent the physical actions and the resultant use of the premises as a waste facility. The failure may be due to indifference or omission, see Adelaide Corporation v Australasian Performing Rights Association Ltd, without a positive purpose on the part of the defendant. So in Owen v Willtara Constructions Pty Ltd (1998)103 LGERA 137, in which a builder was charged with "allowing the disposal of waste upon a public place", it was said to be sufficient that the builder knew that its excavation subcontractor stockpiled soil on a public road and "sanctioned it" or failed to prevent it (at [68]). 30 In Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 one question was whether the developer had polluted waters by permitting the pollutant to be placed in a position where it fell or was likely to fall into the waters. A sub-subcontractor to the developer had damaged a pipeline whereby oil was discharged. "Permits" was given by Lloyd J the meaning of "intentionally allows", and it was held that the evidence did not suffice for a finding that the developer permitted the pollution. In the authorities said to give this meaning to "permits", one did so expressly (Broad v Parish (1941) 64 CLR 588 at 595 per Starke J), but the others were concerned with the awareness necessary before the defendant permitted something. In Miller v Williams (1990) 53 SASR 82, for example, there was an extensive discussion at 87-92 of the need for actual knowledge of what is happening or about to happen or possibly of something less than actual knowledge. "Intentionally allows" does not carry that the defendant acted or failed to act with the intention that the particular result should come about, and the phrase is perhaps misleading. "Intentionally" really means with knowledge, and the phrase refers to the awareness required in permitting something. 31 The appellant relied on Environment Protection Authority v Multiplex Constructions Pty Ltd at trial, submitting to the effect that "intentionally allows" directed attention to the appellant's intention and his intention was not to use his land as a waste facility but to build road access to the improvements for which development consent had been granted. The judge adopted the language of intentionally allowing at [106], [108], but did not do so in acceptance of the appellant's submission. As can be seen in particular from the reference at [102(b)] to Environment Protection Authority v Multiplex Constructions Pty Ltd for the requirement of awareness of the act and failure to exercise a right or power to prevent it, part of the prosecutor's submissions which the judge preferred at [106], by intentional allowance his Honour meant allowed with awareness of the physical actions of storage, treatment, processing, sorting or disposal of waste.

[43]

Grounds 19 and 20 44 These grounds can conveniently be considered together. They were - "19. It was an error of law to find that the consents [sic] granted to the Defendant for the construction of a road in 1994 are relevant to an offence under Section 144 of the Protection of the Environment Operations Act. 20. It is a fact that the conditions attached to the 1994 consent were unlawful at the time of the grant, in that the consent purported to be given by the Lake Macquarie City Council over a Crown public road to which the Crown department involved had not given consent. Nor had the council made application to accept a transfer under Section 151 of the Road Act 1953. Such conditions were, therefore, ultra vires , as outside power section 7 of the Roads Act 1993." 45 The submissions directed to these grounds appeared to take issue with [68] of the judge's reasons, in which he recorded a submission by the respondent that the "landfill" was not authorised by the 1994 development consent because the appellant had breached or failed to comply with the conditions of the consent. 46 The judge referred to the 1994 development consent and its condition involving the construction of an access road because the appellant had submitted that it authorised the construction of an access road from Manhire Road to the improvements to be constructed on the land, and so authorised the depositing of the waste. It may also have been relied on by the appellant in connection with holding a belief that he was allowing the construction of an access road on his land. As best as I understand it, the appellant's submissions were meant to deprive the respondent of its submission as to breach of or failure to comply with the conditions of the development consent, by maintaining that the consent was irrelevant and the conditions were unlawful. This, of course, would strike down the appellant's reliance on the development consent as authorising the depositing of the waste. 47 Any relevance of the development consent arose from submissions on behalf of the appellant, which the judge did not accept. Any unlawfulness of the conditions of the 1994 development consent would have been contrary to the appellant's then position. Invalidity of the development consent or its conditions would not result in upholding the appeal, and the grounds were misconceived. 48 These grounds of appeal should not be upheld.

[44]

Ground 23 49 This ground was concerned with sentence, and was - "23 It is not open to the prosecution having failed to prove a requisite intention on the trial, to use the penalty phrase [sic] to try the issue again." 50 As I have said, the appeal against sentence was against the order for remediation. It is not clear how this ground went to remediation as distinct from the fine or the costs order. The ground as expressed did not make sense. If a requisite intention was not proved, the conviction was bad. There could not be a trying again of the issue of the requisite intention. 51 As best I understand the appellant's submissions, they were to the effect that the judge had held that "permits" in s 144(1) does not require intention (see ground 11), and accordingly that the appellant's intention was entirely irrelevant and the respondent should not have been permitted to cross-examine the appellant in the sentencing hearing concerning his intention in making the arrangements with Skip the Tip and East Coast Demolitions under which the waste was deposited on the land. 52 The judge did not hold that "permits" does not require intention, and the appellant's submissions did not identify a finding as to intention of which the appellant complained in the judge's reasons of 1 May 2007, or suggest how the cross-examination of the appellant resulted in an adverse finding. In fact the judge said at [46], after considering the submissions as to the appellant's purposes, that he did not find "that the defendant's reasons for committing the offence increase the seriousness of the offence". It appears that whatever was "tried again" did not end up adverse to the appellant. 53 The ground of appeal is in any event without substance. Subject to The Queen v de Simoni (1981) 147 CLR 383 considerations, it is relevant to sentence for a strict liability offence or an offence with a mental element less than intention to commit the offence to consider with what intention and appreciation of the offence it was committed. Depending on the intention, the offence may be regarded as more serious. It was open in principle to the respondent to explore in cross-examination, when the appellant gave evidence at the sentencing hearing, matters such as his knowledge of the nature of the waste to be deposited on the land and that the deposit of the materials was for the disposal of waste rather than for the construction of an access road, and generally his intention in making the arrangements with Skip the Tip and East Coast Demolitions.

[45]

The result 54 In my opinion, the appeal should be dismissed and the determination of the Land and Environment Court should be confirmed. 55 The conduct of the appeal on behalf of the appellant occasions considerable concern. I have earlier referred to its unsatisfactory presentation. It gives no pleasure to observe that counsel for the appellant did not appear to have an understanding of the reasons why the judge came to the conclusions he did, of matters arising therefrom which could properly be raised on appeal, or in some respects of fundamental legal principle. 56 The judges of the Court of Criminal Appeal are judges of the Supreme Court. The Supreme Court admits legal practitioners, who are officers of the Court, and I do not think its judges when sitting in the Court of Criminal Appeal can pass over the apparent inability properly to conduct the appeal. I do not take this step lightly, but consider it necessary to direct that the Registrar of the Court send a copy of these reasons to the President of the New South Wales Bar Association, for such action as the President might consider appropriate, together with copies of the grounds of appeal, the appellant's written submissions, the respondent's written submissions, the appellant's written submissions in reply and the transcript of the hearing in this Court. 57 GROVE J: I agree with Giles JA. 58 I note my express agreement with the direction proposed in the final paragraph of his Honour's judgment. Obviously the proposal emanates from apparent deficiencies observed during the hearing of an individual appeal. Neither a general nor a more limited conclusion is sought to be conveyed but the inadequacies in the presentation of this appeal appeared to be of an order which would at least warrant some appropriate investigation. 59 HARRISON J: I agree with Giles JA and with the order he proposes. 60 I have also had particular regard to his Honour's remarks concerning the conduct of the appeal on behalf of the appellant. I share his Honour's concerns and agree that the matter should be referred to the President of the New South Wales Bar Association. This appeal was not one in which any other outcome was likely and the patent deficiencies in its presentation are unrelated to the final result. However, the standards that the public and the courts are entitled to expect from accredited and certified legal practitioners were not met by counsel for the appellant in this case and I would be troubled if what I consider to have been fundamental problems were not appropriately examined and addressed at the earliest opportunity. **********

Hardt v Environment Protection Authority - [2008] HCASL 513 - HCASL 2008 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Cases Cited (16)