Morrison v Peacock and Roslyndale Shipping Company Pty Ltd

In Mr Ellicott's submission, the stating of a case for determination of the Court of Criminal Appeal set in motion a process, which has not yet been completed. The Court of Criminal Appeal answered the questions of law, but it did not make any orders for the further disposition of the proceedings. However, the prosecutor has a right to seek special leave to appeal to the High Court from the judgment of the Court of Criminal Appeal. The right to seek special leave is not disputed by the defendants, at least for the purpose of determining the question of a stay. In Mr Ellicott's submission, this Court should not take a step in the disposition of the proceedings until the prosecutor has exercised that right so far as it is able to do so.

On the other hand, Mr Gee QC, appearing for the defendants, submitted that this Court is bound by the judgment of the Court of Criminal Appeal, and it follows from that judgment, the questions of law having been answered in favour of the defendants, that this Court is bound to acquit the defendants.

I accept Mr Ellicott's submission. The Court of Criminal Appeal was entitled, under s 5AE(2), to make an order or give directions, but it did not do so, and accordingly there is no order obliging this Court to make final orders acquitting the defendants. An appeal process was set in train under s 5AE(1), and I am be reluctant to interfere with the prosecutor's desire to test the answer given by the Court of Criminal Appeal to a question of law which it considers to be fundamental in the proper interpretation of the Marine Pollution Act.

Mr Ellicott submitted that an acquittal of the defendants at this stage would render hypothetical the question raised by the special leave application, and would as a consequence jeopardize the success of that application, since the High Court would not be likely to entertain a hypothetical question. He relied for this proposition upon the following passage from the joint judgment of Mason CJ and Dawson, Toohey and Gaudron JJ in Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564 at 582: Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties (citations omitted).

In response, Mr Gee submitted that an acquittal of the defendants would not result in the loss of the prosecutor's right to appeal to the High Court. He relied in particular upon two cases where the High Court has entertained an appeal despite the acquittal of parties charged with criminal offences. One of those cases was Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289. The relevant facts of that case were that, after the accused had been discharged, the Attorney-General raised for the determination of the Court of Criminal Appeal of Queensland several points of law pursuant to s 669A of the Criminal Code (Q). The accused applied for special leave to appeal from the answers given by the Court of Criminal Appeal. The High Court held that the opinion of the Court of Criminal Appeal on the points of law raised under s 669A was a judgment, decree or order within s 73 of the Constitution from which an appeal might be brought to the High Court.

The other case cited was Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566. That was a case where the accused had been acquitted. The Director of Public Prosecutions then applied to the trial judge pursuant to s 350(1A) of the Criminal Law Consolidation Act 1935 (SA) to reserve certain questions for the determination of the Full Court of the Supreme Court of South Australia. The Director of Public Prosecutions was granted special leave by the High Court to appeal from the answers given by the Full Court. Section 350(1A) applies to "any question of law arising at the trial". The High Court (Gaudron, McHugh, Gummow and Hayne JJ, Kirby J dissenting) held that the questions referred to the Full Court were not questions arising at the trial within s 350(1A) in the circumstances of the case. Accordingly the questions should not have been reserved by the judge and it was inappropriate for the Full Court to have answered them. However, for present purposes, Mr Gee pointed to the statement made in the course of their judgment by Gaudron, Gummow and Hayne JJ, at p 575, that "[I]t must now be accepted that the answers to questions reserved for consideration after an acquittal may be the subject of appeal to this Court".

It may be, as Mr Ellicott submitted, that both these cases turned upon the particular provisions which gave rise to the questions of law in the first place. In Mellifont v Attorney-General, s 669A of the Criminal Code of Queensland relevantly provides that the Attorney-General may refer any point of law that has arisen at the trial to the Court of Criminal Appeal for its consideration and opinion "if … the person has been acquitted of the charge …". Section 350(1A) of the Criminal Law Consolidation Act (SA) is similar in this respect, for it relevantly provides that, where a person is tried on information and acquitted, the court shall, on application by the Director of Public Prosecutions, reserve any question of law arising at the trial for consideration and determination of the Full Court.

I would not wish to reach a conclusion upon whether or not the High Court would entertain the special leave application if the defendants had been acquitted, nor is it appropriate or necessary for me to do so. But it should be noticed that s 5AE is quite different to both s 669A and s 350(1A). It requires this Court, if requested by the Crown, to submit any question of law to the Court of Criminal Appeal "[a]t any time before the completion of proceedings …". An acquittal of the defendants would complete the proceedings before this Court, and there is at least a risk, in my opinion, that the effect of the different wording of s 5AE might jeopardise the special leave application if the defendants had been acquitted. Again, I would be reluctant to take such a step where it might interfere with the prosecutor's right to seek special leave.

But in this context there is a further reason for imposing a stay of proceedings. The question at issue, if special leave is granted, goes directly to the statutory defence upon which the defendants relied at the hearing of the charge against them. If, contrary to the answer given on the stated case by the Court of Criminal Appeal, wear and tear does not come within the word "damage" in s 8 of the Marine Pollution Act, then it would follow, I think, that the statutory defence may not have been made out. That is because of my finding that the oil escaped from the ship in consequence of the rupture of one of the hydraulic hoses which were attached to a crane through the plinth on which the crane was standing. The rupture occurred because the hydraulic hoses suffered abrasion and chafing at the base of the steel sleeve in the crane column at the point where the crane sat on the top of the plinth and at that point the column of hoses was able to turn in excess of 400 degrees, resulting in a sawing motion of all the hoses against a sleeve which was corroded and rough (see pars 16 and 26 of my judgment). At the very least, a decision of the High Court contrary to that of the Court of Criminal Appeal would require a determination as to whether the damage I have outlined was in fact wear and tear.

In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, it was held that, where an application for special leave to appeal is made to the High Court, an application for a stay should be made to the court below, that court being, as Brennan J pointed out at p 684, "the court in which the matter is pending and which is familiar with the matter …".

Following that decision, the Court of Appeal, in John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510, decided to depart from its usual practice of requiring a stay to be granted, if at all, by the High Court or a justice of that court. Instead, at p 512, the Court of Appeal noted that it would grant a stay, conditional upon the following matters: (i) the application for special leave being made in accordance with the rules of the High Court of Australia;

(ii) an undertaking by the applicant to prosecute with due diligence; and

(iii) where appropriate, undertakings being given as to any damages suffered in consequence of the stay by the opponent.

The application for special leave in this case has already been made, as I have earlier indicated, and there does not appear to be any issue about whether or not it has been prosecuted with due diligence. Nor does there appear to be any issue of damages which might be suffered by the defendants as a consequence of the stay (although the defendants have raised the question of the prejudice being suffered by them as a consequence of their not having yet been acquitted of the charge, a matter which I deal with below).

Having regard to these matters, I am prepared to accept that this Court is the appropriate court to deal with the application for a stay, and that the matters noted by the Court of Appeal in John Fairfax v Kelly, although a civil and not a criminal case, are effectively complied with.

In John Fairfax v Kelly, the Court of Appeal noted, at p 512, the discretion of that court to refuse a stay where it deems the application for special leave "to be plainly hopeless".

Mr Gee expressly refrained from putting the proposition that the special leave application is "plainly hopeless", but he submitted that, in his words, it is "not likely to be attended with success". Mr Ellicott, on the other hand, put forward a number of reasons why the prosecutor believes that the special leave application will succeed, such as the existence of identical legislation in all States and the Commonwealth, and the public importance of the proper construction of the statute in the interest of appropriate criminal sanctions for serious pollution.

It would be entirely inappropriate for this Court to speculate on the outcome of the special leave application. A relevant consideration is whether or not that application is "plainly hopeless", but that is not in question.

The final, and important, consideration is the possible prejudice to the defendants by granting a stay and refraining from entering an acquittal at this stage.

The discharge of oil from the Sitka II occurred on 1 December 1996. The summonses were filed on 23 January 1998, and the trial occupied six days commencing in December 1998 and finishing in May 1999. Judgment of this Court was delivered on 6 August 1999, and on 1 March 2000 I agreed to submit questions of law to the Court of Criminal Appeal. The hearing before that court took place on 4 October 2000, and its judgment was delivered on 30 October 2000.

Mr Gee submitted that, at least from 30 October 2000, the defendants were entitled to be acquitted of the charge against them, and that they have had to suffer the opprobrium and adverse consequences of a criminal charge against them since January 1998, a period of over three years. Although no evidence of any particular prejudice was furnished, Mr Gee claimed that the cloud of criminal proceedings has practical consequences, personally, financially and commercially.

I am acutely conscious of the lengthy period during which the defendants have had to wait for completion of these proceedings, but I do not think that the delay outweighs my earlier conclusions for granting a stay of proceedings.

For the reasons I have given, I have concluded that it is appropriate to grant a stay of the proceedings, and to refrain at this stage from making orders acquitting the defendants.

Both parties made submissions about the costs of these notices of motion. Mr Gee submitted that, if a stay was to be granted, the prosecutor should nevertheless be ordered to pay the costs of the defendants, because the prosecutor is seeking the indulgence of the Court and because the purpose of the appeal is to test the law generally rather than particularly in relation to the actions of the defendants. Mr Ellicott submitted that costs should follow the event.

It seems to me, however, that I should reserve the question of costs at this stage. Until special leave is refused, or, if it is granted, until the determination of the High Court, this Court does not know the ultimate outcome of the prosecution against the defendants. Furthermore, although the question the subject of any appeal to the High Court will have general implications because it is a question of the proper construction of the Marine Pollution Act, it will also have particular implications for the statutory defence relied upon by the defendants. The determination of costs should, for these reasons, await the final determination of the proceedings.

(1) I grant a stay of the proceedings until the determination of the prosecutor's application for special leave to appeal to the High Court of Australia or, if leave is granted, until the final determination of the matter by the High Court of Australia. (2) I dismiss the defendants' notice of motion filed on 25 November 1999.

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