Morrison v Peacock and Roslyndale Shipping Company Pty Ltd

PROSECUTOR Mr R G Forster SC with Mr A L Hill (Barrister) SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: DEFENDANT Mr B W Larkin (Barrister) SOLICITORS Norton White

IN THE LAND AND 50006 of 1998 and 50007 of 1998 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 1 March 2000

No 50006 of 1998 ANTHONY PATRICK MORRISON Prosecutor v HAROLD ANTHONY PEACOCK Defendant

No 50007 of 1998 ANTHONY PATRICK MORRISON Prosecutor v ROSLYNDALE SHIPPING COMPANY PTY LTD Defendant JUDGMENT

The current question for determination in these proceedings is whether the Court should state a case to the Court of Criminal Appeal for determination.

The relevant facts are these. The defendants were charged with offences against the Marine Pollution Act 1987, and the proceedings came on for hearing. After the hearing had finished but before delivery of judgment, the prosecutor asked the Court to desist from making final orders until he had had the opportunity to consider the Court's findings with a view to deciding whether to request the Court to state a case to the Court of Criminal Appeal. In a judgment dated 6 August 1999 ("the judgment"), I made findings of fact in the proceedings from which I concluded that the defendants had made out a defence to each of the charges and were entitled to be acquitted. I did not make final orders.

Between August and December 1999, endeavours were made to settle the form of questions to be submitted to the Court of Appeal. I will refer later to the detail of these endeavours, but it is sufficient for the purpose of this introduction to note that the matter ultimately came to a head when two notices of motion came on for hearing.

By the first notice of motion, the defendants sought orders that they each be acquitted of the charges against them. By the second notice of motion, the prosecutor sought an order pursuant to s 5AE of the Criminal Appeal Act 1912 submitting certain questions to the Court of Criminal Appeal for determination.

Section 5AE of the Criminal Appeal Act relevantly provides as follows: (1) At any time before the completion of proceedings before … the Land and Environment Court 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.

Two things are immediately apparent from s 5AE. The first is that this Court must submit questions of law if so requested by the Crown. The second thing is that, apart from that obligation, the Court has a discretion as to whether or not to submit questions of law. Accordingly, the following questions now arise for determination:

(1) Does the prosecutor constitute the Crown for the purpose of s 5AE? If this is answered in the affirmative, the Court has no discretion, but is obliged to submit the questions of law ( State Pollution Control Commission v Australian Iron and Steel Pty Ltd [No 2] (1992) 75 LGRA 327 at 331); (2) If the prosecutor does not constitute the Crown, should the Court, in the exercise of its discretion, submit the questions of law?

The prosecutor has, however, asked the Court, in the event that the Court should decide both those questions adversely to the prosecutor, to submit to the Court of Criminal Appeal the question whether the prosecutor constitutes the Crown for the purposes of s 5AE.

Each summons in these proceedings was filed on 23 January 1998 returnable for 6 March 1998. At the foot of each summons, three headings appear - prosecutor, solicitor and prosecutor's address for service. Against each of those headings, the following words appear identically: Anthony Patrick Morrison General Counsel, Office of Marine Administration, Level 11, 207 Kent Street, SYDNEY NSW 2000

Mr Morrison gave evidence that, at the date of commencement of the proceedings, he held office as General Counsel for the Ministry for Forests and Marine Administration. From his evidence the following, remarkably convoluted, background to that assertion is derived.

Under s 3 of the Public Sector Management Act 1988, a department of the public service is defined to mean a department specified in sch 1 to that Act. On 13 October 1995, the name of the Office of Marine Safety and Port Strategy was inserted in sch 1 of that Act.

On 1 January 1997, the name of the Office of Marine Safety and Port Strategy was changed to the Office of Marine Administration and that name was inserted into sch 1 of the Public Sector Management Act..

On 3 December 1997, the name of the Office of Marine Administration was changed to the Ministry for Forests and Marine Administration, and that name was inserted into sch 1 of the Public Sector Management Act.

On 10 August 1995 the Minister for Ports, under s 27 of the Ports Corporatisation and Waterways Management Act 1995 ("the PCWM Act"), delegated in writing to the Executive Director of the Office of Marine Safety and Port Strategy all the functions of the Minister under "marine legislation" which was defined to include the Marine Pollution Act 1987. The delegation also contained a power to sub-delegate to an "authorised person" under s 27 of the PCWM Act. An "authorised person" under s 27 includes a "public servant".

At the time of that delegation, Mr Matthew Taylor held the position of acting executive director. On 28 May 1997, he was appointed to the position of executive director of what was then called the Office of Marine Administration. After the Office of Marine Administration became the Ministry for Forests and Marine Administration, Mr Taylor was appointed as its acting secretary.

Finally, an order was made under the PCWM Act on 23 June 1995 transferring former Maritime Services Board staff to a position in the public service. Listed as one of those persons was Mr Morrison and the position to which he was transferred was deputy secretary and general counsel of the Office of Marine Safety and Port Strategy.

On 9 January 1997, Mr Morrison made a written submission to Mr Taylor as executive director of the then Office of Marine Administration seeking approval for the commencement of these proceedings, and recommending that he, Mr Morrison, be appointed as prosecutor. Mr Taylor noted his approval on that submission on 13 January 1997.

I should interpolate here that Mr Larkin endeavoured to place some emphasis on the fact that, in the summonses in these proceedings, Mr Morrison was stated to be general counsel of the Office of Marine Administration. He occupied that role when the submission to which I have referred was prepared and approved by Mr Taylor on 13 January 1997, but by the time of commencement of proceedings, Mr Morrison was general counsel of the Ministry for Forests and Marine Administration. I do not think that anything turns on these facts, because the change which occurred on 3 December 1997 was merely a change of name, and the public department remained at all times a public department.

In the submission of Mr Forster SC, appearing for the prosecutor, the prosecutor's actions in these proceedings are effectively those of the Minister and the Minister is the Crown, with the consequence that the prosecutor constitutes the Crown for the purpose of s 5AE.

In Mr Forster's submission, that follows from the "Carltona principle" which establishes that, where functions entrusted to a minister are performed by an official employed in the ministry or the departments, there is generally in law no delegation because the official's act or decision is constitutionally that of the minister ( Carltona Ltd v Commissioners of Works and Ors (1942) 2 All ER 560). He submitted that the facts which demonstrate an application of the "Carltona principle" in this case were, firstly, that the functions of the Minister had been delegated to the executive director of the Office of Marine Safety and Ports Strategy (which effectively became the Office of Marine Administration), secondly, that the executive director of the Office of Marine Administration was at all relevant times Mr Taylor, thirdly, that in exercise of a power to sub-delegate those functions to a "public servant", Mr Taylor authorised the prosecutor to institute the proceedings and to act as prosecutor in them and, fourthly, that the prosecutor was and remained at all relevant times a public servant in his position in the Office of Marine Administration. Therefore, in Mr Forster's submission, the prosecutor's actions are those of the Minister.

The next plank in Mr Forster's argument is that the Minister is the Crown. For that proposition, he relied upon Town Investments Ltd and Ors v Department of the Environment (1978) AC 359 where, at p 381, when speaking of ministers of the Crown and parliamentary secretaries under whose direction the administrative work of the government is carried out by civil servants, Lord Diplock said: Executive acts of government that are done by any of them are acts done by "the Crown" in the fictional sense in which that expression is now used in English public law.

These submissions, however, do not dispose of the problem, because they beg the question as to whether the prosecutor, in bringing the proceedings, was carrying out a function of the Minister. Section 5A of the Marine Pollution Act provides that it is subject to the PCWM Act. Section 103 of the PCWM Act provides that " [p]roceedings for an offence against the marine legislation may be brought by any person (my emphasis) " . As I have earlier noted, the expression "marine legislation" means, amongst other Acts, the Marine Pollution Act. Accordingly, it is not specifically a function of Minister to bring proceedings for an offence against the Marine Pollution Act. The Minister does, however, have general functions under the PCWM Act, one of which, set out in s 24, is general responsibility for marine safety, including "the protection of the environment in connection with the use of vessels in State waters".

A case which dealt with a similar problem is John L Pty Ltd v The Attorney General for NSW (1987) 163 CLR 508. That was a case where an officer of the Department of Consumer Affairs had both laid an information alleging an offence under the relevant Act and filed a summons also in his own name. The proceedings came before the Supreme Court in its summary jurisdiction, and the information was dismissed and the summons was struck out. On appeal the Court of Criminal Appeal reversed this decision. The company then appealed to the High Court and one question which arose for determination was whether the appeal to the Court of Criminal Appeal was competent under s 5C of the Criminal Appeal Act which provided that an appeal would lie where the Supreme Court had quashed an information (the first limb) or, in its summary jurisdiction in proceedings "to which the Crown was a party", had quashed an application made under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (the second limb).

It was held by the High Court (Mason CJ, Deane and Dawson JJ, with Brennan and Toohey JJ dissenting), that an appeal lay because the judge had quashed the information. It was not necessary, therefore, to decide whether an appeal also lay under the second limb, but, on that question, the High Court was also divided. Mason CJ, Deane and Dawson JJ expressed the opinion (in a passage that was clearly obiter dicta) that an appeal under the second limb was not available because the proceedings were not proceedings "to which the Crown was a party". Brennan and Toohey JJ considered that such an appeal was available because they were proceedings taken by an officer of a government department with the authority of the Minister and were accordingly proceedings in which the Crown was a party.

The question for determination in that case was different to the question in this case. Section 5C allowed an appeal if the Crown was "a party" to the proceedings, whereas s 5AE compels an appeal if a request is made by the Crown, and there is no reference to it being a party (a distinction which was noted by Gleeson CJ in dealing with a similar issue in SPCC v Australian Iron and Steel at p 331). It is in that context that the reference by the majority in John L Pty Ltd v The Attorney General to "a person" in the following passage at pp 518 - 519 is to be understood: The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by Mr Clayton as "a person" (s 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs: contrast e.g., proceedings to which " the Minister" (s 56B) or "the Commissioner with the consent of the Minister" (s 56A(1)) is a party. They were not proceedings to which the Crown was a party in any accepted meaning of the words "Crown" and "party". 25. The facts in this present case demonstrate the difference. Mr Morrison has brought the proceedings under a written delegation which conferred upon him, as general counsel in the Office of Marine Administration, an entitlement to prosecute in his own name. In this sense, he was no interested bystander, but rather was under an obligation as an official of a department of the public service. To that extent, the interpretation favoured by the minority judgments in the High Court seems to me with respect to be more appropriate. The opinion of Brennan J (at p 524) was that "[t]he legislature must have meant the second limb to relate to proceedings in which a representative of the Government, acting in his official capacity, is a party; i.e. to a prosecution commenced either by a Minister or by a government official acting in performance of his official functions". Toohey J reached a similar conclusion (at p 542) where he said that "… proceedings taken by an officer of a government department with the authority of the appropriate Minister are proceedings to which the Crown is a party".

It is relevant also to note that the majority opinion in the High Court was predicated in part upon a view that "[I]n the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to "the Crown" being "a party" a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey" (at p 518). As Mr Forster pointed out, a narrow construction might be preferred where it involves a challenge to a decision given in favour of a defendant, whereas, in this case, the consequence of finding that the prosecutor constitutes the Crown is simply that questions of law are to be submitted to the Court of Criminal Appeal for determination and there have been no final orders in favour of the defendants.

SPCC v Australian Iron and Steel , which as I noted above, deals with a similar issue. In that case, a prosecution under the Clean Air Act 1961 had been brought in this Court by an officer of the SPCC in the name of the SPCC. One of the issues for determination was whether a request to this Court to state a case under s 5A(1A) (the predecessor to s 5AE and in relevantly identical terms) had been made by "the Crown". That case is not on all fours with this case because a critical factor in that case was that the legislation specifically envisaged the commencement of prosecutions by officers of the SPCC in the name of the SPCC and it expressly provided that the SPCC was to be deemed to be a statutory body representing the Crown. However, it is of some assistance to consider two of the facts which Gleeson CJ took into account (at p 331) in holding that the request was a request by the Crown. First, as I have already noted, Gleeson CJ observed that the case was "concerned to interpret a reference to "the Crown" (without any additional reference to "a party" ). Secondly, Gleeson CJ took into account the fact that the powers and responsibilities of the SPCC included functions of a supervisory and regulatory nature in relation to pollution control. Here, the Minister's functions are similar although more generally stated as a responsibility for "the protection of the environment" (s 24 PCWM Act).

In summary, having regard to these authorities and to the facts and circumstances of this case, I have taken into account the following factors to reach a conclusion that the prosecutor constitutes the Crown for the purpose of s 5AE:

(1) The prosecutor, in taking these proceedings, was acting as an officer of a public department in the performance of his official duties; (2) In that capacity, the prosecutor was carrying out a function of the Minister, that function being a general responsibility for the protection of the environment in connection with the use of vessels in State waters; (3) Although "any person" is entitled to bring proceedings for an offence under the Marine Pollution Act, the prosecutor was doing so in the capacity I have outlined; (4) Because the submission of questions of law to the Court of Criminal Appeal under s 5AE involves no challenge which presently jeopardises rights of the defendants, there is no justification for a narrow interpretation of the word "the Crown" in s 5AE.

I conclude, for these reasons, that, as a matter of the construction of s 5AE, the prosecutor's request for the submission of questions of law for determination by the Court of Criminal Appeal is a request by the Crown. However, in case my conclusion is wrong, I turn to consider whether, in the exercise of my discretion, I should state a case to the Court of Criminal Appeal.

It is necessary to set out a brief chronology of the proceedings following delivery of the judgment on 6 August 1999. It is as follows: 17 August 1999 Defendants' solicitors request prosecutor's solicitors to furnish a draft of the questions which the prosecutor seeks to have the Court of Criminal Appeal determine ("the questions"); 31 August 1999 Draft of the questions faxed to defendants' solicitors; 1 September 1999 Conference in my chambers to settle the questions. Defendants seek an adjournment to allow further consideration; During the period 9 September 1999 through to 29 October 1999 there was a debate between the respective solicitors as to whether the defendants were entitled to seek amendments to the questions; 5 October 1999 Further conference in my chambers to settle the questions. The Court orders a formal judgment to be taken out of the reasons for decision on a point of evidence which arose during the trial; 7 October 1999 Formal judgment on evidentiary point taken out. Parties directed to make a further appointment to settle the questions; 29 October 1999 Defendants' solicitors press prosecutor's solicitors for a further draft of the questions; Between 19 November 1999 and 2 December 1999, discussions took place between the respective solicitors as to a mutually convenient date for a further appointment suitable to the Court. Initially 2 December 1999 was fixed, but it was altered to 20 December 1999. Proceedings listed for mention on 2 December 1999 in any event; 25 November 1999 Filing of defendants' notice of motion seeking dismissal of the proceedings; 2 December 1999 Defendant's notice of motion adjourned for hearing on 10 December 1999 and appointment for settling the questions is vacated; 8 December 1999 Filing of prosecutor's notice of motion that the questions be submitted; 10 December 1999 Hearing adjourned to 22 December 1999

22 December 1999 Hearing of both notices of motion concluded.

It is now convenient to set out the questions. They are as follows: Wear and Tear (i) As a matter of law can the wear and tear in consequence of which oil escapes come within the word "damage" under s 8 of the Marine Pollution Act 1987?

(ii) Can the particular wear and tear in the circumstances of this case come within the word "damage" in s 8 of the said Act?

Findings Relevant to the Question of "Recklessly" under s 8 (i) As a matter of law, in order to determine whether a person acted "recklessly" for the purposes of s 8(3)(b) of the Marine Pollution Act, is it appropriate to apply a subjective or objective test?

(ii) Whether on the evidence, it can properly have been found that the defendants did not act "recklessly" ?

I accept that, in relation to the exercise of the Court's discretion, two factors support submission of the questions to the Court of Criminal Appeal. First, the questions are important issues in the statutory defences which are available to defendants under s 8 of the Marine Pollution Act and they raise significant matters of construction under that section.

Secondly, there is, at least to some extent, a dearth of appellate authority in relation to each matter. As I pointed out at p 5 of the judgment, there was a division of opinion, in this Court, about whether, on its proper construction, the reference to "damage" in s 8(2)(b) of that Act includes fair wear and tear. I must say that, at least after the judgment was delivered, the weight of opinion in this Court has shifted to the view that the word "damage" does include fair wear and tear. Only Bannon J (in Morrison v Spliethoffs Bevrachintingscantoor BV and Anor (1996) 91 LGERA 318) held a contrary opinion. Bignold J adopted the view, in two decisions, that fair wear and tear was included - Morrison v Dilmun Navigation Co Pty Ltd (1995) 78 A Crim R 576 and Morrison v ANL and Ors (1996) 91 LGERA 437. I adopted the reasoning of Bignold J in the judgment. As to the second matter, which is whether a subjective or objective test should be applied to the determination of whether a person acted "recklessly" within the meaning of s 8(3)(b) of that Act, there is no direct authority, as I pointed out at p 9 of the judgment, although an identical phrase in a different statutory provision was considered in Goldman v Thai Airways International Ltd (1983) 3 All ER 693.

Against these matters, issues of delay and prejudice to the defendants must be considered. At first glance there seems to be an inordinate delay between the delivery of the judgment on 6 August 1999 and the hearing of the notices of motion on 20 December 1999, but close analysis of the chronology I have set out does not reveal any delay on the part of the prosecutor which would disentitle him to an exercise of discretion in his favour. There was a period between 7 October 1999 (when the formal reasons for the evidentiary decision were made available to the parties) and 2 December 1999 (when the proceedings were listed for mention) but that was not a period of inaction. As appears from the chronology, there was an ongoing debate about the defendants' entitlement to amend the questions, and there were endeavours to make an appointment for settling the questions which would be convenient to the parties and to the Court. In addition, as Ms L A Whitehouse, the solicitor for the prosecutor, explained in her affidavit of 1 December 1999, there was a meeting on 5 November 1999 between representatives of the prosecutor and the Australian Maritime Safety Authority (which, apparently, had an interest in the determination of the questions by an appellate court) and also there were difficulties with the availability of Mr Ellicott QC to represent the prosecutor and settle the draft of the questions. I conclude that the prosecutor may have acted with more alacrity to bring the questions to finality, but his conduct was not such as to warrant the Court declining to exercise its discretion in his favour.

However, the defendants claim that the prosecutor has acted unfairly. They claim that it was unfair of the prosecutor to assert that the defendants had no right to take an interest in the formulation of the questions, and that it was unfair that the defendants were furnished with a draft of the questions only the day prior to the first chambers appointment. I do not place any weight upon these claims. Whatever the prosecutor has said or done about the defendants' right to participate in the formulation of the questions, the fact is that the defendants have been permitted by the Court to make submissions in relation to the questions and I refer to those submissions later in this judgment.

The defendants have not raised any particular prejudice that they might suffer if the questions are submitted to the Court of Criminal Appeal but they claim that they will be prejudiced generally by further delay. In this regard, they claim that they are entitled to a prompt determination of the proceedings, and that submission of the questions to the Court of Criminal Appeal will delay the final outcome. This claim warrants careful consideration, particularly in view of the fact that I have published my finding that the defendants have made out a defence to the charges. But the defendants have not been convicted of any offence, and s 5AE contemplates the submission to the Court of Criminal Appeal of questions of law arising out of the proceedings. Any such stated case will involve some element of delay and I accept the prosecutor's claim that the legislature must have intended that a stated case would involve some inconvenience and delay.

Taking all these matters into account, I conclude that, if it was to be found that the prosecutor does not constitute the Crown for the purpose of s 5AE, I would nevertheless exercise my discretion in favour of the prosecutor and submit the questions to the Court of Criminal Appeal.

Mr Larkin, appearing for the defendants, has raised some concerns as to the form of the questions.

He first raised an issue as to whether it was appropriate to append a copy of my judgment. In State Pollution Control Commission v Aerosols of Australia Pty Ltd (13 November 1991, Court of Criminal Appeal, unreported), Gleeson CJ stated, at pp 4 - 5, that a stated case should contain a statement of the findings of fact in a summary form and it was "normally inappropriate for the stated case to have annexed to it the reasons for judgment of the judge". However, Gleeson CJ's stricture was not absolute, and in this case, the judgment is almost entirely a setting out of findings of fact. Furthermore, the greater part of the judgment, from p 4 to p 14, contains the findings of fact which are relevant to the questions, and a summary would achieve little purpose.

Secondly, by reference to Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 and Wheeler v Cahill (1943) 61 WN 1, Mr Larkin sought to argue that the questions were not correctly framed. Thus he said that the first question, relating to wear and tear, was hypothetical and not grounded in appropriate facts. He said that the second question, relating to the objective or subjective test, was again hypothetical, because the finding of the Court was that, on either test, the defendants were not acting "recklessly".

I reject this submission. This case is different to Environment Protection Authority v Ampol, where no findings of fact had been made, and where, accordingly, the questions were entirely abstract. But here findings of fact have been made, and the questions are directly founded upon them. In Wheeler v Cahill , the question of law said to arise was rejected because it was a question of fact, not law. Here, the questions turn on construction of parts of s 8 of the Marine Pollution Act, and they are questions of law. They do not raise questions of fact, but rather whether the facts as found fall within the relevant statutory provisions properly construed.

In my opinion, the questions are correctly framed, and it is appropriate, at least in this case, to append the judgment as setting out the facts upon which the questions are founded.

In summary, I have concluded that I am obliged to submit the questions of law which have been raised by the prosecutor to the Court of Criminal Appeal for determination on the basis that, for the purpose of s 5AE of the Criminal Appeal Act, the prosecutor constitutes "the Crown". In any event, I would, in the exercise of my discretion if I were not bound to do so, submit those questions to the Court of Criminal Appeal. I find that the questions of law are correctly framed for that purpose.

(1) I direct the prosecutor to bring in for signature by 5 pm on 2 March 2000, an engrossed set of questions in the form set out in the prosecutor's notice of motion; (2) I dismiss the defendants' notice of motion; (3) I reserve the question of costs.

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

(i) As a matter of law, in order to determine whether a person acted "recklessly" for the purposes of s 8(3)(b) of the Marine Pollution Act, is it appropriate to apply a subjective or objective test?

(ii) Whether on the evidence, it can properly have been found that the defendants did not act "recklessly"?

32. I accept that, in relation to the exercise of the Court's discretion, two factors support submission of the questions to the Court of Criminal Appeal. First, the questions are important issues in the statutory defences which are available to defendants under s 8 of the Marine Pollution Act and they raise significant matters of construction under that section.

33. Secondly, there is, at least to some extent, a dearth of appellate authority in relation to each matter. As I pointed out at p 5 of the judgment, there was a division of opinion, in this Court, about whether, on its proper construction, the reference to "damage" in s 8(2)(b) of that Act includes fair wear and tear. I must say that, at least after the judgment was delivered, the weight of opinion in this Court has shifted to the view that the word "damage" does include fair wear and tear. Only Bannon J (in Morrison v Spliethoffs Bevrachintingscantoor BV and Anor [1996] NSWLEC 200; (1996) 91 LGERA 318) held a contrary opinion. Bignold J adopted the view, in two decisions, that fair wear and tear was included - Morrison v Dilmun Navigation Co Pty Ltd (1995) 78 A Crim R 576 and Morrison v ANL and Ors (1996) 91 LGERA 437. I adopted the reasoning of Bignold J in the judgment. As to the second matter, which is whether a subjective or objective test should be applied to the determination of whether a person acted "recklessly" within the meaning of s 8(3)(b) of that Act, there is no direct authority, as I pointed out at p 9 of the judgment, although an identical phrase in a different statutory provision was considered in Goldman v Thai Airways International Ltd (1983) 3 All ER 693.

34. Against these matters, issues of delay and prejudice to the defendants must be considered. At first glance there seems to be an inordinate delay between the delivery of the judgment on 6 August 1999 and the hearing of the notices of motion on 20 December 1999, but close analysis of the chronology I have set out does not reveal any delay on the part of the prosecutor which would disentitle him to an exercise of discretion in his favour. There was a period between 7 October 1999 (when the formal reasons for the evidentiary decision were made available to the parties) and 2 December 1999 (when the proceedings were listed for mention) but that was not a period of inaction. As appears from the chronology, there was an ongoing debate about the defendants' entitlement to amend the questions, and there were endeavours to make an appointment for settling the questions which would be convenient to the parties and to the Court. In addition, as Ms L A Whitehouse, the solicitor for the prosecutor, explained in her affidavit of 1 December 1999, there was a meeting on 5 November 1999 between representatives of the prosecutor and the Australian Maritime Safety Authority (which, apparently, had an interest in the determination of the questions by an appellate court) and also there were difficulties with the availability of Mr Ellicott QC to represent the prosecutor and settle the draft of the questions. I conclude that the prosecutor may have acted with more alacrity to bring the questions to finality, but his conduct was not such as to warrant the Court declining to exercise its discretion in his favour.

35. However, the defendants claim that the prosecutor has acted unfairly. They claim that it was unfair of the prosecutor to assert that the defendants had no right to take an interest in the formulation of the questions, and that it was unfair that the defendants were furnished with a draft of the questions only the day prior to the first chambers appointment. I do not place any weight upon these claims. Whatever the prosecutor has said or done about the defendants' right to participate in the formulation of the questions, the fact is that the defendants have been permitted by the Court to make submissions in relation to the questions and I refer to those submissions later in this judgment.

36. The defendants have not raised any particular prejudice that they might suffer if the questions are submitted to the Court of Criminal Appeal but they claim that they will be prejudiced generally by further delay. In this regard, they claim that they are entitled to a prompt determination of the proceedings, and that submission of the questions to the Court of Criminal Appeal will delay the final outcome. This claim warrants careful consideration, particularly in view of the fact that I have published my finding that the defendants have made out a defence to the charges. But the defendants have not been convicted of any offence, and s 5AE contemplates the submission to the Court of Criminal Appeal of questions of law arising out of the proceedings. Any such stated case will involve some element of delay and I accept the prosecutor's claim that the legislature must have intended that a stated case would involve some inconvenience and delay.

37. Taking all these matters into account, I conclude that, if it was to be found that the prosecutor does not constitute the Crown for the purpose of s 5AE, I would nevertheless exercise my discretion in favour of the prosecutor and submit the questions to the Court of Criminal Appeal.

38. Mr Larkin, appearing for the defendants, has raised some concerns as to the form of the questions.

39. He first raised an issue as to whether it was appropriate to append a copy of my judgment. In State Pollution Control Commission v Aerosols of Australia Pty Ltd (13 November 1991, Court of Criminal Appeal, unreported), Gleeson CJ stated, at pp 4 - 5, that a stated case should contain a statement of the findings of fact in a summary form and it was "normally inappropriate for the stated case to have annexed to it the reasons for judgment of the judge". However, Gleeson CJ's stricture was not absolute, and in this case, the judgment is almost entirely a setting out of findings of fact. Furthermore, the greater part of the judgment, from p 4 to p 14, contains the findings of fact which are relevant to the questions, and a summary would achieve little purpose.

40. Secondly, by reference to Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 and Wheeler v Cahill (1943) 61 WN 1, Mr Larkin sought to argue that the questions were not correctly framed. Thus he said that the first question, relating to wear and tear, was hypothetical and not grounded in appropriate facts. He said that the second question, relating to the objective or subjective test, was again hypothetical, because the finding of the Court was that, on either test, the defendants were not acting "recklessly".

41. I reject this submission. This case is different to Environment Protection Authority v Ampol, where no findings of fact had been made, and where, accordingly, the questions were entirely abstract. But here findings of fact have been made, and the questions are directly founded upon them. In Wheeler v Cahill, the question of law said to arise was rejected because it was a question of fact, not law. Here, the questions turn on construction of parts of s 8 of the Marine Pollution Act, and they are questions of law. They do not raise questions of fact, but rather whether the facts as found fall within the relevant statutory provisions properly construed.

42. In my opinion, the questions are correctly framed, and it is appropriate, at least in this case, to append the judgment as setting out the facts upon which the questions are founded.

43. In summary, I have concluded that I am obliged to submit the questions of law which have been raised by the prosecutor to the Court of Criminal Appeal for determination on the basis that, for the purpose of s 5AE of the Criminal Appeal Act, the prosecutor constitutes "the Crown". In any event, I would, in the exercise of my discretion if I were not bound to do so, submit those questions to the Court of Criminal Appeal. I find that the questions of law are correctly framed for that purpose.

(1) I direct the prosecutor to bring in for signature by 5 pm on 2 March 2000, an engrossed set of questions in the form set out in the prosecutor's notice of motion;