Island Maritime Limited v Barbara Filipowski Sachin Kulkarni v Barbara Filipowski

LOWER COURT Land and Environment Court JURISDICTION : LOWER COURT 50101/2003 FILE NUMBER(S) : 50102/2003 LOWER COURT Bignold J JUDICIAL OFFICER :

• 16 - IN THE COURT OF CRIMINAL APPEAL 1841/2004 1845/2004

SULLY J DUNFORD J HIDDEN J

TUESDAY 21 DECEMBER 2004 ISLAND MARITIME LIMITED v BARBARA FILIPOWSKI SACHIN KULKARNI v BARBARA FILIPOWSKI Judgment 1 SULLY J: I agree with Dunford J. 2 DUNFORD J: These are two applications for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 from the judgment of Bignold J in the Land and Environment Court on 9 July 2004: Filipowski v Island Maritime Ltd & Anor [2004] NSWLEC 366 refusing applications for permanent stays of proceedings in prosecutions brought against the applicants as owner and master respectively of the "Pacific Onyx" for contravention of s 8(1) of the Marine Pollution Act 1987 alleging a discharge of oil into State waters on 14 November 1999. 3 The stays of proceedings were sought on the grounds that the prosecutions constituted a breach of the rules against double jeopardy and were an abuse of process because similar proceedings against the same parties had previously been brought under s 27(1) of the Act and had been dismissed by Talbot J: Filipowski v Island Maritime Ltd & Anor [2003] NSWLEC 59, and on account of the delay that had occurred between the subject discharge and the institution of the current proceedings. 4 The Marine Pollution Act 1987 (the Act) is directed to protecting the sea and other waters from pollution by oil and other noxious substances discharged from ships. It has since been amended by the Marine Legislation Amendment (Marine Pollution) Act 2002, No 75, but as at 14 November 1999 the relevant provisions included the following. 5 Part 2 (ss 7-13) was headed "Pollution by oil", and s 8, so far as material, was as follows:

Prohibition of discharge of oil or oily mixtures into State waters (1) Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship and any other person whose act caused the discharge are each guilty of an offence punishable, upon conviction, by a fine not exceeding: (a) if the offender is a natural person - 2 000 penalty points, or (b) if the offender is a body corporate - 10 000 penalty points (2) Subsection (1) does not apply to the discharge of oil or of an oily mixture from a ship: (a) for the purpose of securing the safety of a ship or saving life at sea, (b) if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of oil or oily mixture, as the case may be, (c) in the case of an oily mixture, if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by a prescribed officer, or (d) if the discharge was authorised by the Minister for training purposes.

6 Subsection (3) defined "intentional damage" for the purposes of subs 2(b) and subs (4) provided other defences relating to discharges at sea, not relevant to the present case. Subs (6) was as follows: (6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (4), subsection (1) does not apply in relation to the discharge.

7 Part 3 of the Act (ss 14-24) related to "Pollution by noxious substances", whilst Part 4 (ss 25-32) was headed "Pollution relating to transfer operations". Section 25 contained a number of definitions for the purposes of the Part including "appropriate person" and "transfer operation", whilst ss 26 and 27 were as follows: 26 Discharges to which Part applies This Part applies to a discharge of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance into State waters: (a) from a ship or place on land in or in connection with a transfer operation, or (b) from any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, but does not apply: (c) to a discharge that occurs on the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, or at any other place prescribed for the purposes of this section, or (d) to a discharge to which Part 2 or 3 applies. 27 Prohibition of discharges to which Part applies (1) If a discharge to which this Part applies occurs, each appropriate person in relation to the discharge, and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine not exceeding:

(a) if the offender is a natural person - 2 000 penalty units, or (b) if the offender is a body corporate - 10 000 penalty units

(a) if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by a prescribed officer, or (b) if the discharge was carried out by the holder of a licence under the Protection of the Environment Operations Act 1997 in accordance with that licence. 8 Following an alleged discharge of oil from the "Pacific Onyx" into State waters at Botany Bay on 14 November 1999, summonses were filed on 20 February 2002 against each of the applicants charging them with having committed an offence against s 27 of the Act. They each pleaded not guilty and the charges were by consent heard together by Talbot J on 20 and 21 February 2003. At the conclusion of the prosecution case, defence counsel submitted that there was no case to answer on two separate bases: first, that the prosecution evidence did not establish that the discharge had occurred in connection with a transfer operation within the meaning of s 26(a) of the Act and second, that the discharge was not a discharge to which Part 4 of the Act (including s 27) applied. 9 In a reserved judgment delivered 7 March 2003, Talbot J dismissed each summons, upholding the no case submission on the sole ground that, having regard to the provisions of s 26(d), the offence created by s 27 did not apply to a discharge of oil into State waters where that discharge was a discharge to which Part 2 or 3 of the Act applied, that the prosecution evidence had established a breach of s 8 (in Part 2), and accordingly there was no offence under s 27. 10 Eventually, the current summonses were issued on 18 November 2003 alleging breaches of s 8(1), and by a Notice of Motion filed 22 December 2003 the applicants sought, inter alia, orders that the proceedings be permanently stayed on the ground that they constituted an abuse of process. Bignold J dismissed the Motion, hence the present applications for leave to appeal. 11 Grounds of appeal 1 and 2 relate specifically to the issue of double jeopardy and may be considered together. They are: (1) That the learned judge erred in concluding that the elements of a charge under s 8 of the Marine Pollution Act 1987 are not included in the elements of a charge under s 27 of that Act. (2) That the learned judge erred in considering that the applicant was not in jeopardy of conviction on the charge brought pursuant to s 27 in the proceedings concluded before Talbot J on 7 March 2003. 12 The test for determining whether a prosecution offends rules against double jeopardy, particularly in their application to the pleas in bar of autrefois convict and autrefois acquit was described by the majority (McHugh, Hayne and Callinan JJ) in Pearce v The Queen (1998) 194 CLR 610 at [18] as follows: "It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which the accused has been tried to conviction or acquittal." 13 The majority then considered whether it was sufficient that the previous offence was "substantially" the same, or an offence the "gist" or "gravamen" of which was the same "matter" or the same set of facts, but after a discussion of the authorities, concluded that the only relevant considerations were the "elements" of the two offences. Gummow J agreed with the majority on this point at [63] and as did Kirby J at [125]. The statement at [24] that the test is whether "the elements of the offences charged are identical or in which all the elements of one offence are wholly included in the other "

might tend to suggest that it does not matter which offence is prosecuted first, but those words must be read in the context of that particular case where both offences were charged in the same indictment. In the context of successive prosecutions, the test is as set out in [18] quoted above.

14 It is not sufficient that the elements of one charge are all included in the other; in the case of autrefois acquit it must be shown that all the elements of the charge of which the defendant has been acquitted are included in the elements of the second charge. The example given during argument was that an acquittal on a charge of assault occasioning actual bodily harm would not prevent the bringing of a fresh charge of common assault, although a prior conviction for common assault would prevent a subsequent prosecution for assault occasioning actual bodily harm. 15 Pearce v The Queen was recently applied by this Court in Adler v The Director of Public Prosecutions (Cth) [2004] NSWCCA 352. See also State Pollution Control Commission v Tallow Products Pty Limited (1992) 29 NSWLR 517, Connolly v The Director of Public Prosecutions [1964] AC 1254 at 1305-6.

16 The offence created by s 8 might be described, for want of a better word, as a "general" offence. The offence is committed whenever there is a discharge of oil or an oily mixture from a ship into State waters, but there are a number of defences available as set out in subss (2) and (4), and in this regard, particular reference might be made to subs (2)(b) which provides a defence if the escape was in consequence of unintentional damage to the ship or its equipment. The prosecution is not required in proof of its case to negative any of the available defences, proof of which lies on the defendant: s 8(6). 17 Section 27 (read with s 26) on the other hand creates a more "particular" offence dealing specifically with "transfer operations" (as defined in s 25) and is committed whenever there is a discharge, not only of oil or an oily mixture, but also of a liquid substance (which does not include oil: s 25(1)) from a ship or place on land or in connection with a transfer operation etc; and the defences available are much more limited: s 27(2). It follows that although the penalties for offences under s 27 are the same as for offences under s 8, the liability is much stricter. 18 It is apparently for this reason that the Act limits liability under s 27 to cases which do not come within s 8 by providing in s 26 (2)(d) that Part 4 (ss 25-32) does not apply to a discharge to which Part 2 (or 3) applies. Where s 8 applies, a defendant is not to be deprived of the wider range of defences available by being prosecuted under s 27. 19 Even disregarding s 26(2)(d), it can be seen that the elements of the current charges under s 8 are: (a) a discharge (b) of oil or an oily mixture (c) from a ship (d) into State waters

whilst the elements of the earlier charges under s 27 (omitting immaterial alternatives) are: (a) a discharge (b) of oil or an oily mixture (c) from a ship (d) into State waters (e) in, or in connection with, a transfer operation

20 It follows that the elements of the two charges are not the same and the elements of the charges in respect of which the applicants have been acquitted are not all included in the elements of the second or current charges, and so pleas of autrefois acquit are not available. 21 The respondent's position becomes only stronger when one takes into account the provisions of s 26(d) and the wording of s 27 which is the section creating the offence. There is only an offence under s 27 if it is a "discharge to which this Part applies", and if it is a discharge to which Part 2 (including s 8) applies, Part 4 does not apply, and no offence is committed under s 27. 22 It is idle to talk of whether the same conduct violates two distinct statutory provisions when one provision expressly excludes conduct which violates the other, as is the effect of s 26(d). The discharge into State waters in respect of which the defendants had been charged under s 27 was not a discharge to which Part 4 applied because it was a discharge to which Part 2 applied. Accordingly, ground 1 fails. 23 It has also been said that before a plea of autrefois acquit can be available it must also be shown that the defendant has actually been in jeopardy on the earlier charge, and if the earlier charge has been dismissed because it was defective or because as a matter of law the evidence available to the prosecution could not support a conviction, the defendant has not been in jeopardy; similarly where there has been no consideration on the merits: Spencer-Bower: Res Judicata (3rd ed - 1996) at para 59, and in Broome v Chenoweth (1946) 73 CLR 583 at 600 Dixon J said: "The old rule was that, if the defendant could have taken a fatal objection to the earlier indictment or information, his discharge or acquittal thereon could not afford a bar." 24 This aspect of the rule against double jeopardy was discussed in some detail in R v Dabhade [1993] QB 329, particularly as to in what circumstances a defendant is regarded as having been in "jeopardy" in the earlier proceedings; but see also R v G [2001] 2 Cr App R 615. Although the learned primary judge referred to this aspect of the rule and was inclined to the view that the applicants were not in jeopardy of conviction under s 27 before Talbot J, he also made it clear that he was not deciding the case on this basis: [2004] NSWLEC 366 at [63]. It therefore becomes unnecessary to consider ground 2 any further. 25 It is now well established that even when the plea of autrefois acquit is not available, successive prosecutions arising out of the same facts may still constitute an abuse of process justifying a permanent stay of proceedings: Pearce v The Queen at [29], [117], The Queen v Carroll (2002) 213 CLR 635 at [131]; and there are a variety of other circumstances which alone or in combination may also constitute an abuse of process justifying a permanent stay.

26 The principles governing such applications have been set out in cases such as Jago v The District Court of New South Wales (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378. They were referred to by the learned primary judge in his judgment, and bear repeating. In Walton v Gardiner at 392-3 the majority (Mason CJ, Deane and Dawson JJ) said: "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case is correctly described as the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". (references omitted) At 395 their Honours also said: "As was pointed out in Jago the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice." 27 In relation to delay, at 394 their Honours quoted what Deane J had said in Jago: "The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed." 28 As the jurisdiction to grant a permanent stay is discretionary, an appeal against a refusal to grant such stay is governed by the well known principles established by cases such as House v The King (1936) 55 CLR 499. 29 The appellants submitted to Bignold J that the current prosecutions involved an abuse of process and should be permanently stayed on the following grounds: (i) in facing a different charge they were being vexed by a repeated attempt to convict them of the same offence or another charge arising out of the same events;

(ii) it had been open to the Prosecutor in the earlier prosecution to have sought to amend the charge by charging the Defendants with an offence against s 8, but the Prosecutor chose not to seek amendment of the charge; and

(iii) by the time the present prosecutions were filed, some four years had elapsed since the commission of the alleged offence. 30 It is convenient to deal with grounds of appeal 3, 4, 5 and 6 together. They are: (3) The learned judge erred in considering that the absence of a time limitation on the bringing of a prosecution was a relevant factor to be taken into account.

(4) The learned judge erred in making a finding that the "present charge (that is the charge under s 8) has arisen directly out of Justice Talbot's decision to uphold the defendants' no case to answer submission on the s 27 charge".

(5) The learned judge erred in finding that the fact that the applicant has "been on notice of the discharge incident from when it occurred" was a relevant factor in determining the extent of prejudice to which the applicant has been subjected.

(6) The learned judge erred in failing to give the applicants the benefit of the full force and effect of their acquittal on the s 27 charge before Justice Talbot. 31 For the reasons given above, I am satisfied that the appellants are not being prosecuted for the same offence, and Bignold J was correct to so hold (at [76]). It is true that the present charges arise out of the same set of facts as the earlier charges, but the applicants on their no case submission had shown that because the case fell within s 8, the charges under s 27 were inappropriate and unsustainable. There had been no determination on the merits and there was no attempt to punish the applicants twice for the same offence; and as far as I can ascertain, the relationship between ss 8 and 27 had not previously been the subject of judicial consideration. 32 It is true that no application to amend was made on behalf of the prosecution, either following the letter from the applicant's solicitors of 17 April 2002 asserting that the facts and circumstances did not fall within s 27, or during the hearing. The letter did not indicate why it was asserted that s 27 was inappropriate and did not invite an amendment, and the question of amendment does not seem to have been considered during the no case submission before Talbot J. In these circumstances, I do not consider that the mere institution of the s 8 prosecutions either alone or in conjunction with other circumstances constituted an abuse of process.

33 As to ground 3, his Honour noted in para [78] that the Marine Pollution Act does not impose any time limitation for the prosecution of offences before the Land and Environment Court. It may be that his Honour apparently intended to contrast it with s 54 which does impose a time limit of 2 years for prosecutions in the Local Court. However, there is nothing in the judgment to suggest that his Honour took the lack of a time limitation into account as a factor in the exercise of his discretion. Of course, if there had been a statutory limitation the claim for abuse of process on the ground of delay would have been irrelevant. 34 It is true, as Bignold J observed, that the s 8 charge arose directly out of Talbot J's decision to uphold the defendants' no case to answer on the s 27 charge (see ground 4), but this was merely an observation of fact. It did not imply that this was in any way the fault of the applicants and merely drew attention to the fact that there had been no determination on the merits. 35 The main ground in support of the claim of abuse of process, apart from the double jeopardy issue, was the issue of delay. It is therefore necessary to consider the whole history of the prosecutions. 36 The discharge having allegedly occurred on 14 November 1999, the master and crew were interviewed the following day and, following the deposit of a security undertaking in accordance with s 52V of the Act in the sum of $500,000, the "Pacific Onyx" was allowed to leave port; but it was not until 20 February 2002 (over 2 years later) that the summonses for breach of s 27 were filed in the Land and Environment Court. 37 On 17 April 2002, the applicants' solicitors wrote to the respondent's solicitors stating that their clients intended to plead not guilty as they considered that the facts and circumstances of the incident did not fall within s 27. The proceedings were heard on 20 and 21 February 2003 and on the latter day, Senior Counsel for the applicants made the submission earlier referred to, which was upheld by Talbot J in his judgment on 7 March 2003 dismissing the summons in each case. 38 Following the dismissal of the summonses, the applicants' solicitors wrote on 9 April 2003 requesting the return of the security undertaking, but in reply the respondent's solicitors pointed out that they had 3 months in which to lodge an appeal, and by Notice of Motion filed 14 April, the respondent sought an order that questions of law be submitted to this Court for determination. On 6 May 2003, the respondent was directed to file and serve the questions it intended to submit for determination no later than 14 days before the next hearing date on 1 August 2003. Notwithstanding a number of promptings from the applicants' solicitors, the respondent failed to provide such questions and ultimately, on 30 July 2003 notified the Court and the applicants' solicitors that she no longer intended proceeding with the application to the Court of Criminal Appeal. 39 Not surprisingly, the applicants' solicitors again by letter dated 30 July requested the return of the security undertaking, but the respondent's solicitors refused to do so stating that the prosecutor would shortly be issuing proceedings against the applicants pursuant to s 8 of the Act. It was however, not until 28 October 2003 that the fresh summonses were filed. The delay from July to October was partly explained by the perceived need to have all the affidavits re-sworn for the fresh proceedings, and some of the deponents were difficult to relocate. The result of this was that the current prosecutions were commenced almost 4 years after the commission of the alleged offences. 40 Such delay reveals a desultory approach to the prosecutions which is to be deplored. Notwithstanding the applicants' solicitors letter of 17 April 2003, the respondent and those advising her made no effort to ascertain the basis of the assertion, but pressed on with the prosecutions under s 27. After those proceedings were dismissed by Talbot J, the respondent and those advising her first considered an appeal by way of Stated case but, after wasting more time, changed their minds and decided to lay the fresh charges, which themselves took another 3 months to be instituted. This ignores the initial delay between the date of the alleged discharge and the commencement of the original proceedings in February 2002, a delay of over 2 years, which delay remains completely unexplained. 41 Persons being prosecuted for serious offences, and these offences each carry maximum penalties of $1.1 million in the case of a corporation and $220,000 in the case of an individual, are entitled to have any charges being preferred against them instituted promptly. This is even more so where the Prosecutor is holding a security undertaking for half a million dollars. His Honour dealt with delay at [77] as follows: "Although there had been a lapse of four years from the date of the alleged offence until the laying of the present prosecutions that delay is in large part taken up by the laying of the original charge and the prosecution of the charge against each Defendant. The Defendants did not allege any particular prejudice by dint of delay and they have been on notice of the discharge incident from when it occurred (when it was investigated by the Port officials) and had been aware of the Prosecution evidence when the first charges were laid against them." 42 Ground 5 is that his Honour erred in finding the fact that the applicant had "been on notice of the discharge incident from when it occurred" was a relevant factor in determining the extent of prejudice to which the applicants had been subjected. 43 Delay of itself does not constitute abuse of process or justify a permanent stay unless it can be shown that the delay is such that the defendant will suffer such prejudice as cannot be otherwise remedied and which will result in an unfair trial: Jago at 34, 59-60 and where delay is relied on it is necessary to consider whether, or to what extent the defendant is prejudiced by the delay. His Honour took into account that the applicants did not allege any prejudice to them as a result of the delay, and as a matter tending against any prejudice, the fact that they were on notice of the discharge from the time of its occurrence, and had known of the evidence to be led against them from the time of the laying of the s 27 charges. It was proper for his Honour to have regard to these matters in considering whether the applicants were prejudiced by the delay and ground 5 is not made out. 44 Finally ground 6 asserts that his Honour erred in failing to give the applicants the benefit of the full force in effect of their acquittals on the s 27 charges before Talbot J. 45 It is now well established that an acquittal may not be questioned or called into question by any evidence which would overturn or tend to overturn an acquittal, which must be accepted in future cases as incontrovertibly correct: Garnett v The Queen (1977) 139 CLR 437 at 445, The Queen v Storey (1978) 140 CLR 364, The Queen v Carroll (2002) 213 CLR 635. 46 In Carroll, the respondent had given evidence in his trial for murder denying that he had killed the deceased and had been acquitted. Years later, he was charged with perjury arising out of such evidence on the ground that in fact he had killed the deceased. The subsequent proceedings were permanently stayed because, although the charges were not the same and accordingly the ordinary principles of autrefois acquit and double jeopardy were not applicable, the crucial issue in each case was whether the respondent had killed the deceased; and a guilty verdict in the perjury trial would directly controvert the acquittal in the earlier murder trial, which the Crown Prosecutor conceded was the object of bringing the perjury charge. 47 The position here is quite different. The s 8 charges do not seek to controvert the acquittals on the s 27 charges, but rather accept them, as the ground for acquittal on the s 27 charges was that the evidence for the prosecution established that the discharge was one to which Part 2 of the Act applied and therefore Part 4 did not apply, the ground for acquittal on the s 27 charges.

48 Accordingly, I am satisfied that none of the grounds of appeal has been made out and it has not been shown that his Honour, in exercising his discretion, took into account irrelevant matters or failed to take into account relevant ones. If I had been called upon to exercise the discretion myself, I would have come to the same conclusion. 49 I would grant leave to appeal but dismiss the appeals. 50 HIDDEN J: I agree with Dunford J

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