Natural Resources Access Regulator v Budvalt Pty Ltd; Harris; Harris; Timmins

Land and Environment Court (NSW)|2019-10-28|Before: Duggan J

Background

By four Notices of Motion (one in respect of each Defendant) the Prosecutor seeks an order pursuant to s 29 of the Criminal Procedure Act 1986 (CP Act) that the ten Summons issued against the four Defendants be heard together, or in the alternative, that the seven charges relating to what are described below as the "metering offences" be heard together with a separate trial for what is described below as the "channel offences". The Defendants consent to the proceedings being heard in three groups but oppose either all ten of the proceedings being heard together, or the two trials as proposed by the Prosecutor.
The Prosecutor indicated that it did not consent to the grouping as proposed by the Defendants but made no submissions that such an order should not be made in the event that the Prosecutor's Notices of Motion were dismissed. The Defendants indicated that they consented to the grouping proposed by them in the event the Notices of Motion were dismissed.
For the reasons that follow I have determined that with respect to the Notices of Motion the relevant circumstances required to engage the discretion in s 29(2) are not present. I have further determined that the Court should make the orders permitting the hearing together of the proceedings as consented to by the Defendants.

Nature of Proceedings

Legislation 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

The Prosecutor indicated that it relies upon the circumstances in s 29(2)(c) to justify the orders sought in the Notice of Motion for a single trial.

The issue for determination

Counsel for the Prosecutor and the Defendants agreed that whilst the power in s 29 is discretionary, the discretion can only be exercised if any one of the circumstances identified in the relevant sub-paragraphs (a)-(c) of s 29(2) were present.
The Defendants submit that the required circumstance in s 29(2)(c) do not relevantly arise in this case (on either alternatives put in the notices of motion) as the Prosecutor has not established that: the offences form or are part of a series of offences of the same or a similar character. Therefore, the Defendants submit, there is no discretion to be exercised.
The Prosecutor contends that I would find the relevant circumstances in s 29(2)(c) to exist and therefore there is a discretion to be exercised.
As the determination of this question will determine whether there is a discretion engaged I will determine this question first.

The evidence

The Prosecutor read two affidavits from Mr Josh Pallas, the first sworn 19 September 2019 and the second sworn 28 October 2019. The affidavits attested to general matters relating to the exercise of the discretion which are not relevant to the determination as to whether the relevant circumstances required by s 29(2)(c) exist, and accordingly, I will not recite it here. With respect to the relevant circumstances Mr Pallas, in his first affidavit identified the following factors: [8] By Notices of Motion filed in respect of each of the defendants in all ten proceedings, the prosecutor seeks to have all ten proceedings heard together on the basis that the proceedings concern related defendants, charges and locations. And [30] The prosecutor anticipates that, subject to certain exceptions, the evidence in one proceeding should be admissible in the other proceedings and will also seek orders to this effect. Relevant submissions in this regard will be made at the hearing of the motion.
In addition the affidavit exhibited, by way of background: the Statement of Facts in each proceeding; the Amended updated 247E Notices in each proceeding; the 247J Notices in each proceeding; the Defendants' 247K Notices in each proceeding. Collectively, these documents became Exhibit A.
The second affidavit exhibited two records of interview, the first, with one of the Prosecutor's proposed witnesses (Mr Coert Pretorious) and the second, one of the Defendants' (Mr Jack Harris). Each of the records of interview contains questioning relating to both the channel and metering offences at Miralwyn and it was submitted this fact evidences some relationship between the two types of offences.

Prosecutor's submissions

The Prosecutor filed written submissions on the Notices of Motion. The written submissions, in so far as they could be seen as relating to the issue of the circumstances of s 29(2)(c), submitted that: 1. Although the facts underlying the metering offences alleged to have been committed at Mercadool are necessarily different from the facts underlying the metering charges at Miralwyn (given that water was taken from different pump sites), there is much commonality of the witnesses (including evidence given by meter reader Mr Pearce) and a commonality of some facts relating to meter reading, systems and documentation. The elements of the offence are the same and as such there are likely to be issues of law common to each proceeding: Prosecutor's submissions [28]; 2. Each of the 10 offences arise out of the same set of circumstances, namely 6 metering offences at Mercadool and 3 channel offences and one metering offence at Miralwyn: Prosecutor's submissions [22].
The Prosecutor submitted, in argument, that the notion of a "series" merely requires that there be more than one offence of the same or similar character. The Prosecutor also submitted that a series can be comprised by proximity of time and, in particular, relied upon R v Annakin (1988) 17 NSWLR 202 as cited in R v Jones (No 1) [2007] NSWSC 769 at [15], where it stated: The circumstances appropriate to a joint trial were considered in R v Assim [1966] 2 QB 249 where the court state (at 261): As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases. Again, while the court has in mind the classes of case that have been particularly the subject of discussion before it, such as incidents which, irrespective of there appearing a joint charge in the indictment are, contemporaneous (as where there has been something in the nature of an affray)…the court does not intend the operation of the rule to be restricted so as to apply only to such cases to have been discussed before it. (my emphasis added)
The Prosecutor submitted that there was a sufficient correlation between the ten offences to enable them to be characterised as a series as: 1. All of the offences related to water and the same offence at law; 2. All of the metering offences related to a MACE meter; 3. All of the metering offences relate to engine run time meters; 4. There is a relationship between Mr Peter Harris as a director of Budvalt and directions given by him to Mr Timmins as Budvalt's agent or employee.
These factors indicate that the offences are sufficiently related to form part of a series for the purposes of s 29(2)(c).

Defendants' submissions

The Defendants also provided written submissions where they submitted at [15]-[20] that: 1. The term "series" connotes more than that suggested in R v Jones, which case was dealing with an application under s 21(2) for a separate trial and not s 29. Consistent with the decision in De Jesus v The Queen (1986) 68 ALR 1 (at 15) where it was said: (I)t is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a "series" without straining the word beyond the meaning which it is reasonably capable of bearing. 1. To the extent that there may be a series as required either by s 29(2)(c) or similarity of circumstances as required by s 29(2)(b) the Defendants have consented to those matters being grouped into the relevant 3 separate trials; 2. Apart from the grouping as consented to by the Defendants, the balance of the matters involve: different defendants; on different dates; undertaking alleged different criminal offences under the WM Act; 3. Whilst there may be a similarity in the offence alleged (e.g. "metering offences") that is insufficient to meet the characterisation of a series when it does not address the fact that the "factual settings" (date, time, location, defendant) are disparate.
In oral submissions it was also contended that, whilst the Prosecutor identifies the pump and meter types as common factors, the allegations relating to the circumstances that give rise to the offence are sufficiently different. By way of illustration, some charges allege the MACE meter was not working properly and others assert that it was not working at all. There are similar differences in the allegations relating to the "engine hour" meters. The extraction of the water to be metered also takes place at different places on different days.
It was also submitted that there is no true commonality of evidence but rather a commonality of witnesses. The commonality of witnesses arises because of the nature of the employment of inspectors who have responsibility for a nominated region - rather than a peculiar relationship of observation to the particular properties to which these charges relate.

Findings

I accept the submission of the Defendants that in order for a number of offences to form or be part of a series for the purposes of s 29(2)(c) something more must be present than merely more than one offence. When s 29 is read as a whole it is to be noted that both s 29(1)(c) and s 29(2)(c) contain the term "series". Both ss 29(1) and 29(2) are directed to two or more proceedings either by virtue of the number of offences relating to a single accused (29(1)) or by the number of accused persons (29(2)). When the section is read as a whole its entire premise is that there will be more than one offence in existence, else there would be no need to make the order sought. Therefore, the term "series" must be intended to mean something more than a number of offences.
Further, something more than a similarity in character of the offences is required. The section specifically identifies that the series must be of a similar character of offences thereby indicating that the notion of "series" is different (or additional) to the concept of similarity of character.
I further accept the Defendant's submission based upon De Jesus that the ordinary meaning of the word 'series' indicates that there must be a "sufficient correlation" to enable the offences to be described as a series and that timing, without more (as was contended was the principle to be derived from Annakin), is insufficient to provide such correlation. There must be some connection (determined on the circumstances of each particular case) to suggest that the offences are a series. Here, the proximity of location, time and commonality of witnesses does not so much relate to the offences being a series as it speaks to the manner of the execution of duties of the Prosecutor's authorised investigative officers.
The differences between each offence with respect to: the identity of the defendant; the specific location of water pumped, the time and date of the offence; and the differences in the circumstances of the particular breach speak of the offences being separate offences against the same prohibition in the WM Act rather than a series of a similar character. As the Defendants submitted, and I accept, to the extent that there will be similar legal issues to be determined and evidence of similar investigative techniques and technology this arises not because of a relationship between the offences but because the offences are charged under the same section of the WM Act, and the same could be said of most offences brought under the same provision.
For those reasons I find that the Prosecutor (on either of the alternative order sought) has not identified the existence of the necessary circumstance as required by s 29(2)(c) to engage the discretion. Therefore, I do not further consider the submission relating to the exercise of that discretion. Accordingly, the Prosecutor's Notices of Motion should be dismissed. However, I also find there are present in the grouping as proposed by the Defendants the necessary circumstances as identified in s 29(2)(b) and/or (c) such that an order should be made that the proceedings be heard in the three trials as identified by the Defendants.

Orders

The Court orders that: 1. Pursuant to s 29(2)(c) of the Criminal Procedure Act 1986, proceedings:

2018/231608;
2018/231598; and
2018/231599 are to be heard and determined together; 1. Pursuant to s 29(2)(c) of the Criminal Procedure Act 1986, proceedings:
2018/238837;
2018/238838;
2018/238839;
2018/238877;
2018/238878; and
2018/238879 are to be heard and determined together. 1. The Prosecutor's Notices of Motion are otherwise dismissed.

The Court directs that the matters be listed before the list judge for mention on Friday, 22 November 2019 for further directions and (if appropriate) to obtain hearing dates.

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. Decision last updated: 08 November 2019

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (3)

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