Morrison v Defence Maritime Services Pty Ltd

FILE NUMBER(S) : 50048-49 of 2005; 50014 of 2006

KEY ISSUES: Practice and Procedure :- three prosecutions heard together - application by prosecution, after defence cases are opened, that evidence in each proceeding be evidence in the other or that the prosecutor have leave to adduce further evidence or leave to reopen case - application refused.

Bulejcik v The Queen (1996) 185 CLR 375; Bulling (Steven Shane) [1999] NSWCCA 429; Crampton v The Queen (2000) 206 CLR 161; Filipowski v Island Maritime Ltd [2006] NSWLEC 750; Filipowski v Vopak Terminals Sydney [2006] NSWLEC 104; Henning v Lynch [1974] 2 NSWLR 254; Killick v The Queen (1981) 147 CLR 565; CASES CITED: Metwally v University of Wollongong (1985) 60 ALR 6; Moss v Brown [1979] 1 NSWLR 114; Ratten v The Queen (1974) 131 CLR 510; R v Olbrich (1999) 199 CLR 270 ; R v Payne (1949) 35 CAR 43; Shaw v The Queen (1952) 85 CLR 365; Urban Transport Authority v Nweiser (1992) 28 NSWLR 471; Weininger v The Queen (2003) 212 CLR 629

PROSECUTOR: Mr A Hill SOLICITORS Dibbs Abbott Stillman

FIRST AND SECOND DEFENDANTS: LEGAL REPRESENTATIVES: Mr G Grogin SOLICITORS Ebsworth & Ebsworth

THIRD DEFENDANT: Mr D A McLure SOLICITORS Norton White

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ANTHONY MORRISON v DEFENCE MARITIME SERVICES PTY LTD

EX TEMPORE JUDGMENT 1 HIS HONOUR: Before me are notices of motion filed in court yesterday morning by the prosecution in each of these three matters. This is the fifth day of sentencing hearings following pleas of guilty by the three defendants who were respectively the owner, master and chief engineer of a vessel, which polluted Sydney Harbour by oil on 5 November 2002. The motions. 2 Each motion seeks orders that, (1) It be heard instanter; (2) That evidence in the other two proceedings be evidence in these proceeding; and (3) That all proceedings be heard together.

3 An alternative order is sought against the owner and master that the prosecutor be given leave to adduce further evidence. An alternative order is sought against the chief engineer that the prosecutor have leave to reopen his case. The reason why these alternative orders are differently framed is that the prosecutor closed his case against the chief engineer on 22 February 2007. In the other two proceedings, the prosecutor has not closed its case; however, he stated on 22 February that all that remained was the tender of some documents produced to the Court that day. Thereafter, by consent, and in circumstances which I will explain in more detail later, all defendants opened their cases and read their written evidence-in-chief.

4 The prosecutor has explained that the object of these motions is to introduce the master's evidence read on 22 February in the master's case into the case against the chief engineer, and to introduce the chief engineer's evidence read that day in his case into the case against the master and the owner. This is because each is perceived by the prosecutor to be inculpatory of the other and inconsistent with statements made on a prior occasion. Background 5 The sentencing hearing in the three matters was fixed for three days on 20, 21 and 22 February 2007. Directions were made by consent, at an interlocutory stage that the parties serve on certain dates before the hearing, their written evidence on which they might rely. Thus, before the hearing began, the prosecution was in possession of the written evidence of the master and chief engineer, which they would read if they elected to go into evidence. They are the targets of the motions before me. The three days fixed for the hearing has turned out to be a considerable underestimate of the time required.

6 Counsel for the prosecution commenced his opening on the first day, by stating that it was his understanding that evidence in one matter is evidence in the others, and that he thought an order had been made to that effect. This was immediately challenged by counsel for the master and the owner. Counsel for the prosecution thereupon said, "What I'm talking about is that the prosecution evidence is the same in the three matters." He indicated that he wished to tender that evidence only once, thereby relieving the Court from having to listen to three lots of identical evidence from the prosecution. The defendants agreed to that course.

7 There the matter rested until mid afternoon on the third day of the hearing. The prosecution then closed its case against the chief engineer and indicated all that remained in the case against the other defendants was to tender some documents that had been produced to the Court that day, which the prosecution wished to consider further before tendering. Counsel for the prosecution also stated that he wished to have the opportunity of considering those documents further before cross-examining any defence witnesses.

8 In order that the rest of the day would not be wasted the parties agreed, on the basis of what had gone before, that the defendants would tender their written evidence-in-chief in their respective cases but that cross-examination would not proceed that day. The defendants then proceeded to read their written evidence-in-chief. After that process had commenced, the prosecutor made an application that evidence in each case should be evidence in the other; this application was opposed. While it was being debated, a consensus emerged between counsel for the prosecution and counsel for the owner and master that in the absence of such an order, there would be substantial difficulty thereafter in working out what evidence was admitted against which defendant if the hearing of the three matters continued together. Therefore, the further hearing beyond that day should be bifurcated. That is, there should be a further hearing of the balance of the case against the owner and master and a separate further hearing of the rest of the case against the chief engineer. Counsel for the chief engineer neither agreed nor disagreed with their view of the perceived difficulty. I held that I was not persuaded there should be an order that evidence in one be evidence in the other at that stage of the trial, meaning at that late stage. By consent, I then directed that further hearings after that day should be bifurcated in the way that I have indicated previously.

9 The reading of the documentary evidence of the defendants in chief then continued and was completed. At the end of the day the proceedings against the owner and master were adjourned to the 27 February 2007, for a further two days hearing; and the proceedings against the chief engineer were adjourned to 13 March 2007, for a further two days hearing. Liberty to apply on 48 hours notice was granted. I said that if there were any problems, I expected the parties to make application to me and that matters must flow smoothly now as we were so far beyond the original estimates of the time.

10 Copies of the notices of motion before me were sent to the offices of the solicitors for the defendants after 6pm on the evening of 26 February 2007, and were not seen by them until approximately 8am the next morning. At 10am, when the hearing of the balance of the proceedings against the master and owner were due to resume, the solicitor for the chief engineer appeared in the absence of counsel for the chief engineer who was unavailable at such short notice. The prosecutor filed the notices of motion in Court. The defendants opposed them being heard instanter because they needed to consider them, and in order to give counsel for the chief engineer an opportunity to be present. By consent, I stood the notices of motion over to 2pm that day.

11 At that time counsel for the chief engineer also appeared and the rest of the afternoon was taken up with argument on the motions. I then stood the matter over until today with a view to giving judgment on the notices of motion. On resumption today, the affidavit of Matthew Karam, a solicitor in the proceedings, was read in support of the motions.

12 As a result of the lateness of service of the notices of motion, the witnesses for the master and owner who attended Court yesterday for cross-examination, as requested by the prosecutor, have had to leave. As they are not available today, even if I were to dismiss the motions, the two days set aside for completion of the hearing against the owner and the master have been lost.

13 This has come about because counsel for the prosecutor has, upon reflection, decided (it seems on 26 February) that the evidence of the master and the chief engineer which the defendants elected to read in their respective cases on the 22 February, should be introduced as evidence against the other defendants. This is sought to be achieved by orders that evidence in one be evidence in the other and that all the proceedings be heard together (thus abandoning the agreed bifurcated procedure); or alternatively, by orders that the prosecutor have leave to adduce further evidence against the owner and master and to reopen for that purpose in the proceedings against the chief engineer. Discussion 14 Against this background I turn to the prosecutor's notices of motion before me in each of the three matters.

15 Counsel for the prosecution has told me that when the case commenced he had mistakenly assumed that an order had been made at an interlocutory hearing that evidence in one be evidence in the other. In fact, no such order had been made. This should have been clear to counsel for the prosecution soon after the hearing began in view of the discussion, which occurred within minutes of the beginning of the hearing to which I have referred. It should have been known to the prosecutor, as distinct from his counsel, at all times. I therefore, do not accept the statement, which is really in the nature of a submission in an affidavit sworn by a solicitor in support of the motion, that the prosecutor conducted the case on the basis that evidence in one be evidence in the other. Indeed, I did not understand counsel for the prosecution to put his submissions in that way.

16 Counsel for the prosecution informed me that except for the election of the defendants to read the evidence of the master and the chief engineer in their respective cases, he would have simply relied upon the evidence, which had been adduced against each defendant in the prosecution case. In other words, these notices of motion would not have been filed. He acknowledged that before the hearing began he was aware from the statements of the master and chief engineer that if they elected to go into evidence there would be a contest as to responsibility between them. However, he mistakenly thought that there had been a direction that evidence in one be evidence in the other.

17 The prosecutor submits that a hearing on a plea of guilty is concerned with the contrition of the defendant and that it is important to arrive at the truth, which may not emerge unless the evidence of the master is given in the proceedings against the chief engineer and vice versa. The possibility of different findings of fact in the final judgments against the master and owner, on the one hand, and the chief engineer on the other, was raised as to why it was in the interest of justice to accede to the notices of motion. It was submitted that a hearing of a plea of guilty is "not a contested case", in the sense that it is inherent in a plea that all the evidence comes before the Court and the Court has a right and a duty to hear all the evidence.

18 Counsel for the prosecutor submitted that in any discussion of fairness it is imperative to consider the position of all parties. I agree. In Moss v Brown [1979] 1 NSWLR 114 at 126 it was held: In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law ... it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in R v Grondkowski [1946] KB 369 at 372: The judge must consider the interests of justice as well as the interests of the prisoners. 19 Reference was made by the prosecutor to R v Payne (1949) 35 CAR 43 at 45, where the Lord Chief Justice held: It may be a very convenient course to sentence prisoners who plead guilty on the first day, but that ought not to apply where several persons are indicted together and one pleads guilty and the other or others not guilty. In such a case the proper course is to postpone sentence on the prisoner who has pleaded guilty until the other or others have been tried and then to bring the prisoner who has pleaded guilty up in the Court where the other or others have been tried and let all who have been convicted be dealt with together, because by that time the Court will be in possession of the facts relating to all of them and will be able to assess properly the degree of guilt among them. The reason why the appellant received a heavier sentence than his other two co-prisoners is because he was tried in a different Court on a different day. It is a most inconvenient practice and it is a practice which is wrong, which ought to cease. Quarter Sessions should be informed that where more than one prisoner is joined in an indictment and one pleads guilty and the other or others plead not guilty, the sentencing of the first one should be postponed until the others have been tried and all whose guilt has been established should be sentenced together.

20 Payne was a case where several prisoners were joined in a joint indictment. This case suggests in such single proceedings, the evidence would be evidence against all and it would be unnecessary for there to be an order that evidence against one would be evidence against the other.

21 The prosecutor also referred to the Sentencing Manual- Law, Principles and Practice in New South Wales, published by the Judicial Commission of New South Wales at 166, where it is stated: "While a sentencing judge must rely upon the assistance of counsel, sentencing judges have an independent duty to ensure that material which comes before them is dealt with appropriately. This is true, whether or not counsel has raised the particular issue before him or her: Bulling (Steven Shane) [1999] NSWCCA 429 (29 October 1999) per Kirby J at [22]". In Bulling Kirby J at [22] held: Though the Sentencing Judge unquestionably must rely in large measure upon the assistance of counsel, nonetheless, the Judge does have an independent duty to ensure that material which comes before him is dealt with appropriately, whether or not counsel does raise particular issues before him.

22 I do not think that Bulling is really on point. The judgment of Simpson J (with whom Kirby J agreed) at [12] - [15] indicates that the context of those remarks was a sentencing hearing where there was evidence the applicant had a long-standing problem with alcohol; however, it was not put to the sentencing judge that he should consider that issue or make a finding.

23 As regards the application to reopen, the prosecutor referred to Henning v Lynch [1974] 2 NSWLR 254. In Henning, at the conclusion of the prosecution's case, it was submitted on behalf of the defendant that there was no case to answer because of absence of proof on a particular point. The prosecutor sought leave to recall the informant to give that proof. The defendant objected and the magistrate refused leave to reopen for that purpose. Geoffrey J held at 258 - 259: Justices have a discretion, after the case for the prosecution has closed, to permit the prosecutor to reopen his case for the purpose of supplying a technical defect in the evidence for the prosecution. Here it was plain that any omission actually to say that the device bore on it the vital word was an inadvertence, and it was equally plain from the evidence which Constable Henning actually gave about the defendant undergoing an alcotest what his evidence about the nature of the device would be. There is a distinction between such a failure to tender evidence and an election not to tender it; and it is no doubt important to respect the principle that the prosecution should stand or fall by the evidence it chooses to lead and should not be allowed to support its case by calling fresh evidence to meet the case for the defendant which contradicts it. But that principle had no application here. The applicable principle is one which in the circumstances obtaining here strongly favours the reopening of the prosecution case: where the defendant's case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed, it is - to use the words of Cave J. in Hargreaves v. Hilliam ((1894) 58 J.P. 655) a very fit and proper thing to allow the evidence to be given unless there is some very good reason . And in Duffin v. Markham ((1918) 88 L.J.K.B. 581, at p. 582) the Divisional Court spoke disapprovingly of justices who availed themselves of a mere oversight on the part of the prosecution to dismiss the informations. The spirit of these utterances has been echoed in this State: Kench v. Bailey ((1926) 26 S.R. (N.S.W.) 268; 43 W.N. 81). 24 The case of Henning is distinguishable, in my view, on two grounds: the first, is the defendant's case had not begun, whereas in the present case it has; and secondly, in that case the additional evidence was not tendered due to accident, mistake or want of foresight. In my view, the same cannot be said in the present case, where the prosecution knew before the trial commenced that there could be a potential contest, (as perceived by the prosecution), between the master and the chief engineer if they elected to go into evidence. The prosecutor must be attributed with knowledge that no order had been made for the evidence in one to be evidence in the other, even if counsel for the prosecution was labouring under a mistaken assumption in that respect. It is the fact that the defendants elected to go into evidence that has caused the prosecutor to bring these motions.

25 Still on the application for leave to reopen, the prosecutor referred to Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 475B, where Clarke JA held: "The first observation I would make is that the respondent would not have been prejudiced in any way by the grant of the application" to reopen the case. It seems to me, however, in the present case it cannot be said that the defendants would not be prejudiced by granting the application to reopen because in these criminal proceedings they have elected to go into evidence on the basis of the way that the prosecutor conducted the case. Indeed, in Nweiser, which was a civil case, Clarke JA held at 475C that that case was to be distinguished from one in which the plaintiff seeks leave to reopen it's case in chief after evidence has been called by the defendant, and said, in that context, events may have occurred which might render it unjust to allow the party seeking the indulgence to call further evidence. In Nweiser, all that had occurred was that some time had passed between the closing of the applicant's case and the application by the appellant to reopen. In Nweiser at 475F, it was held: It is true that the fact that there has been a deliberate decision not to call the witness whose evidence it is later sought to lead in a re-opened case is a relevant consideration. But there may be a number of reasons why a deliberate decision is made. It may, for instance, be made for tactical reasons.

On the other hand it may be that in the heat of the moment counsel has inadvertently overlooked facts proven in the opponent's case or has otherwise acted on some misapprehension. Where the failure to lead evidence from a witness whom it is afterwards desired to call results from a tactical decision by counsel the courts would usually be disinclined to grant an application to re-open. Even in these circumstances, however, the court has a discretion to grant an application by a party to re-open its case and the interests of justice may dictate that the application be allowed. In short the fact that a deliberate decision is taken for tactical reasons is not decisive but remains an important factor.

The primary purpose for the rules pursuant to which cases are contested in this State is the furtherance of the interests of justice. For this reason the exercise of the discretion to allow an application to re-open depends essentially upon the trial judge's view as to whether the interests of justice are served better by granting than refusing the application. Of course, there needs to be finality in litigation….

26 In my view, the following matters should also be taken into consideration, either in addition or contrary to the matters referred to in the prosecution's submissions:

(1) The sentencing hearing is a real contest at which the onus of proof remains with the prosecution: R v Olbrich (1999) 199 CLR 270 at 280; Filipowski v Vopak Terminals Sydney [2006] NSWLEC 104 at [12] - [13]; Filipowski v Island Maritime Ltd [2006] NSWLEC 750 at [32]. See also Weininger v The Queen (2003) 212 CLR 629 at 635 [18] - [19]. (2) On the first day of the hearing, at the outset, counsel for the prosecutor confined himself to saying that the prosecution's evidence against each defendant was the same and that he wished to tender it only once, which was acceptable to the defendants, but made no application that evidence in one be evidence in the other. (3) An application was made by the prosecutor on the afternoon of the third day, of the hearing for an order, that evidence in one be evidence in the other, this application was unsuccessful. (4) On the afternoon of the third day of the hearing, the prosecutor and the defendants agreed to bifurcate the further hearing. (5) The prosecution closed its case against the chief engineer, and also closed against the other defendants, save for reserving the right to tender some documents that had been produced to the Court. It is an important rule of fairness that all available evidence on which the prosecution intends to rely should be presented before the prosecution closes its case: Killick v The Queen (1981) 147 CLR 565 at 569. (6) Parties are normally bound by the conduct of their case: Metwally v University of Wollongong (1985) 60 ALR 71. In Crampton v The Queen (2000) 206 CLR 161 at 217, Hayne J quoted from Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 517: [The criminal trial] is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility ... [an accused] must bear the consequences of his own decision as to the calling and treatment of evidence at the trial. The same should be said of the prosecutor. (7) On the basis of (2) to (5) above, the defendants elected to go into evidence. (8) The defendants submitted that if an order was made as sought by the prosecutor that the hearings proceed together and evidence in one be evidence in the other, then s 17 of the Evidence Act 1995 would prevent the master or the owner being compellable as witnesses in the hearing of the other. It is unnecessary to rule on this submission. (9) The defendants submitted an order, that evidence in one case be evidence in the other, is objectionable in principle in a case such as this. Whether or not that is so, if such an order had been sought at an interlocutory stage, the defendants would have been entitled, in my view, to refuse to consent, and they indicated to me that they would have refused to consent, to directions that they serve before trial the evidence on which they would rely if they went into evidence. Such a direction, in the absence of consent by a defendant, in my view, is contrary to a defendant's right to silence. (10) Whether the Crown should be permitted to reopen its case depends upon the application of the principles in Shaw v The Queen (1952) 85 CLR 365 which were quoted in Killick v The Queen (1981) 147 CLR 565 at 568 - 569. In Killick at 569, it was held: "The general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness". In Bulejcik v The Queen (1996) 185 CLR 375 at 408 McHugh and Gummow JJ held, "Whether the Crown should be permitted to reopen its case depends upon the application of the principles in Shaw v The Queen. But the circumstances are likely to be rare where the proper exercise of the Judges' discretion would permit such an exercise of discretion". Counsel for the prosecutor submitted, as I understood him, that two matters constituted exceptional circumstances: first, the defendants had gone into evidence in the way that they had with the resultant apprehended conflict in the evidence between the master and chief engineer; and secondly, the refusal of the application made on the afternoon of the third day of the trial that evidence in each proceeding be evidence in the others. In my view, they do not constitute exceptional circumstances for the purposes of discharging the test in Shaw . Any dispute or conflict between the chief engineer and the master was apparent from their written evidence, of which the prosecution was aware before the case commenced. As to the second matter, a ruling as to how the trial should be conducted cannot be characterised as an exceptional circumstance in the relevant sense. (11) The notices of motion are unreasonably late. On the afternoon of the third day of the hearing I stated: "I'll give liberty to apply on 48 hours notice. If there are any problems I expect you to make application to me. This must flow smoothly now as we are so far beyond our original estimates". (12) Related to the last point, witnesses in the owner's and master's case, whose written evidence had been read on the third day of the hearing, were present yesterday for cross-examination, as required by the prosecutor. These witnesses have now had to leave, consequently two hearing days have been lost. (13) The application for an order that evidence in one proceeding be evidence in the other is the same application that was rejected on the afternoon of the third day of the trial. That is further reason for not entertaining this application. If it is necessary to go further, two things may be said: (a) Within minutes of counsel for the prosecution opening the case he was disabused of his mistaken assumption that such an order had been made at an interlocutory stage and he stated, " I understand there may be a dispute between Mr Mahon [the chief engineer] and the other two defendants and the only purpose that I am putting the order forward is that the prosecution evidence be the same in each matter because it is the same and that alleviates me and the court from having to listen to three lots of evidence from the prosecution which is exactly the same in three separate matters ". In my view, in the circumstances, the prosecution should be held to that statement. (b) If it is necessary to point to prejudice to the defendants in relation to such an order being made now, it is sufficient to say that the defendants have gone into evidence.

27 Overall, in my view, these factors outweigh the considerations to which the prosecution has pointed.

28 Accordingly, I dismiss the prosecutor's notices of motion with costs. The prosecutor is also to pay the costs of the owner and master thrown away occasioned by the hearing of the notices of motion.

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