Rodney Morrison v United Collieries Pty Ltd

PROSECUTOR: Ms AJ Katzmann SC with Ms KT Nomchong of counsel SOLICITORS: Moray & Agnew

LEGAL REPRESENTATIVES: DEFENDANT: Mr RJ Buchanan QC with Ms LM McManus of counsel SOLICITORS: Sparke Helmore

JUDGMENT: - 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

MATTER NUMBER IRC 4706 OF 2001 RODNEY MORRISON v UNITED COLLIERIES PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 4707 OF 2001 RODNEY MORRISON v UNITED COLLIERIES PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT

1 The defendant in these proceedings, United Collieries Pty Limited, has been charged with two offences under s15(1) of the Occupational Health and Safety Act 1983 ('the Act').

2 At the close of the prosecution case, Mr Buchanan QC, appearing with Ms McManus of counsel for the defendant, submitted that the two summonses should be dismissed, the prosecutor having failed to establish that the requirements of s48 of the Act had been met. It provides: 48. Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of the Minister or a prescribed officer, or (b) by an inspector, or (c) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by the Minister or a prescribed officer, shall be evidence of that consent without proof of the signature of the Minister or prescribed officer, as the case may be.

3 The prosecutions were commenced by Mr Rodney Morrison, the Department's Assistant Director of Performance Improvement. A consent to prosecute had been filed in each case. These documents were tendered. They were in identical terms, each signed by Mr Coutts, the Department's Director General, on 12 July 2001. There was no issue that he was a prescribed officer for the purpose of s48. They each provided: 'The Director - General of the New South Wales Department of Mineral Resources

HEREBY CONSENTS to proceedings being instituted by Rodney Dale Morrison against United Collieries Pty Limited ACN 001 990 209 for an offence against section 15(1) of the Occupational Health and Safety Act 1983 (NSW).'

4 In IRC 4706 the offence charged was: 'On or about 20 July 1999 at the United Colliery Warkworth in the State of New South Wales the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, in particular Kevin William Downes, in that it failed to maintain a place of work in a condition that is safe and without risks to health contrary to s15(1) of the Occupational Health and Safety Act 1983.'

5 In IRC 4707 the offence charged was: 'On or about 20 July 1999 at the United Colliery Warkworth in the State of New South Wales the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, in that it failed to provide and maintain a safe system of work that prevented Kevin William Downes from working in an area of the mine where the ribs were weak and/or unstable contrary to s.15(1) of the Occupational Health and Safety Act , 1983 .'

6 In the prosecution case, a number of other documents were tendered, going to the question of consent. They were extracts of a memorandum of 4 July from Mr Morrison, as the convenor of the Assessment and Review Committee concerning "SERIOUS INJURY KENNETH WILLIAM DOWNES UNITED COLLIERY A recommendation on the Prosecution of United Colliery Pty Ltd, Based on the Advice of Counsel", which Mr Coutts had signed on 10 July as approved, were also tendered. (Legal professional privilege was claimed in relation to the other parts of this document.) A memorandum of 12 July from Blake Maguire, solicitor legal services unit, to Mr Coutts, asking him to sign consents in relation to proceedings against the defendant was also tendered. Attached were extracts from the minutes of a meeting of the Department's Assessment and Review Committee of 26 June 2001, at which the Committee considered prosecution of the defendant.

7 The case advanced by Mr Buchanan went to the quality and character of the consent given to the two prosecutions. The two documents were identical, but had been separately executed, each authorising the same person to commence proceedings under s15(1) of the Act, but making no reference to the particular elements of the offence to be pursued. Each purported to authorise a single prosecution, of a completely unspecified nature or character.

8 The other documents tendered by the prosecution were submitted to be relevant. The memorandum of 4 July 2001 included a recommendation to the Director General by the Committee that 'a prosecution be initiated' against the defendant. It was submitted the minutes of the Committee's 27 June meeting took the evidence no further.

9 A detailed analysis was made of various authorities, which I will not here outline. On the basis of those authorities, it was submitted that an onus fell upon the prosecution to demonstrate that consent to the commencement of the proceedings had been given. The standard of proof required being proof beyond reasonable doubt, as with other essential elements of the case.

10 Here, there were two documents in identical terms, bearing identical printed marks in every respect and differing only in execution. These documents were signed pursuant to a decision making process, which on its face suggested 'a prosecution' under s15, but not a decision to initiate more than one prosecution under s15.

11 It was argued that on the evidence it was impossible to say which of the two prosecutions commenced was lawfully supported by the consent given. The second consent was mere surplusage and had no legal effect. Because it was impossible to detect which of the two prosecutions had the support of the consent, neither prosecution could succeed. The prosecution had not demonstrated consent to the requisite standard, that being the jurisdictional foundation of the case and thus both summonses should be dismissed.

12 It was further submitted that if the view that proof to the criminal standard was required was wrong, the same result would be reached, because the prosecutor could not establish consent to either prosecution, even to the lower standard. It was impossible on the material to form a view as to which prosecution should be preferred and it was not a matter where the prosecutor was entitled to make any election as between the two prosecutions.

13 The strict legal result which flowed was that neither prosecution could proceed. Even if this view were incorrect, the highest result which the prosecutor could achieve was a right of election, as though in the case of duplicity. It was, however, argued that there was no such right, the prosecutor having no privileges to exercise in relation to the Court's jurisdiction.

14 For these reasons it was submitted that both prosecutions should be dismissed.

15 The case put for the prosecutor by Ms Katzmann SC appearing with Ms Nomchong of counsel, was that the summonses would not be dismissed, the prosecutor having established that Mr Coutts, the Department's Director General and a prescribed officer under the relevant regulation, had consented to each prosecution, as required by s48.

16 It was submitted that there was no substance in the defendant's argument and complaint was made as to the time that the submission was advanced. It was submitted that the inescapable fact was that two prosecutions had been commenced, each authorised by Mr Coutts in the two documents he had signed on 12 July and as a result, two summonses had been issued. That was the end of the defendant's argument.

17 The only conceivable question which could arise was whether the terms of the consent in each case was sufficient. The authorities all led to the conclusion that they were.

18 The defendant's argument was that what appeared on the face of each consent was no consent at all. It was submitted that this had no substance. The evidence was that on 10 July, the Director General had recorded his approval to a prosecution arising out of the injuries Mr Downes had suffered. This was noted on the memorandum of 4 July. On 12 July, the Director General signed two separate consents. The fact that the consents were identical was irrelevant. They reflected that the charges had arisen out of the same circumstances and were brought under the same section of the Act. The Act even contemplated, in s49A that such offences could be dealt with in the same, or separate proceedings.

19 No particular form of written consent was prescribed by the Act, even if it were, s80(1) of the Interpretation Act 1987, provided that strict compliance was unnecessary. Consent in writing was sufficient, as was consent in general terms.

20 It was argued that the Director General's approval on 10 July to the institution of 'a prosecution', did not indicate anything about the charge or charges to be laid. It could mean one or multiple counts were to be charged. 'A prosecution' simply meant proceedings to prosecute. Even if it did not, two consents were later signed, which satisfied Hungerford J that consent to the issue of two summonses had been obtained. There was no good reason to now take a different view. The terms of the charges and the form of the summonses were, in any event, matters for the lawyers, as the authorities made clear.

21 If a question of duplicity might render an information void, it could not be said that consent to 'a prosecution' could prevent a prosecutor pressing more than one information. The question of whether one or more charges should be laid was a drafting matter. Once consent to a prosecution was given, the statutory obligation had been discharged. Here even this would not matter in any event, because there were, in fact, two consents given.

22 The memorandum of 4 July and the other documents had been tendered to explain the circumstances in which the consents had been signed. Having approved the recommendation to prosecute, the Director General signed two consents to prosecute.

23 It was conceded that where the issue of consent was raised, the prosecutor had the burden of proving the consent. However, it was argued to be on the balance of probabilities, not the criminal standard, the defendant's submissions on the point being misconceived. Notions of strict proof and proof beyond reasonable doubt should not be confused.

24 Analogies were also drawn with the approach of the Full Court in Workcover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 at [93]. It being submitted that consent was not an element of the offences here in question, in the same way as the time limitation for bringing a prosecution did not form an element of an offence under the Act.

25 In reply, Mr Buchanan submitted that there was a distinction between the essential elements of an offence and the essential ingredients of the case which must be made out. Consent was an essential ingredient of the case which the prosecutor had to demonstrate under the statutory scheme. The onus was the criminal one. The point in Lucon was submitted to be different.

26 It was also argued that while one consent might support multiple counts, it could not support multiple prosecutions. The prosecutor having tendered the background material was bound by the fact that it did not provide support for the idea of multiple prosecutions.

27 After I reserved my decision, Haylen J gave judgment in Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] NSWIRComm 127. The matter was relisted and the defendant made further short submissions on that decision, namely that the 'preliminary view' expressed by Haylen J as to the standard of proof was incorrect and should not be followed. His Honour's approach to the consent given in that case strengthened the defendant's submissions here.

28 The basis for the defendant's application emerged from the documents tendered by the prosecutor, which put the two separate consents to prosecute the defendant under s15 of the Act, each signed by Mr Coutts, into context. The difficulty emerged because in Mr Morrison's memorandum of 4 July, which Mr Coutts himself signed, indicating that it was 'approved', it was recorded that: ' 4.2 Conclusions reached by Committee In view of the advice of Kylie Nomchong Counsel and the available evidence, the Committee had reached an unanimous decision to recommend to the Director General that a prosecution be initiated against United Colliery Pty Ltd on the advice of Counsel that a prima facie case does exist in this matter. 6 Recommendations 6.1 The Committee recommends that a prosecution against United Colliery Pty Ltd be initiated by the Department under section 15 of the Occupational Health and Safety Act, based on the advice of Counsel.'

29 On 12 July, Mr Coutts was, however, presented with two separate consents to proceedings being commenced against the defendant under s15 of the Act. He then had before him the minutes of the Committee's meeting on 26 June, which noted under the heading 'outcome': '(i) A confidential memorandum be prepared for the Director General recommending: · Prosecution against United Colliery P/L under section 15 OH&S Act, ……."

30 The Committee did not there appear to have limited itself to recommending 'a prosecution', as the memorandum of 4 July had noted. Mr Coutts then signed both consents and the two prosecutions, each brought under s15 of the Act, were launched. The consents were filed with the applications and Hungerford J issued the relevant order in each case.

31 Section 49A of the Act appears to have made it unnecessary for the two offences to have been dealt with separately, as they were. That section provides: 49A. Multiple contraventions of Part 3

(1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

(2) This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence.

(3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence.

32 Why the defendant was charged with two separate offences was not explained. The undoubted fact was, however, that two separate consents were executed by Mr Coutts on 12 July and that Mr Morrison instituted two separate proceedings against the defendant for offences under s15 of the Act. In its terms, each consent provided a proper basis for the offence charged. Nevertheless, two questions have arisen. The first, whether or not the background material tendered throws doubt on the apparent consent given by Mr Coutts to the two prosecutions. The second question, if such doubt has arisen, whether it must be resolved by concluding that the prosecution has not met the onus falling upon it to demonstrate that the necessary consent was given in either case, so that both prosecutions must be dismissed. These questions require consideration of the standard of proof falling upon the prosecutor in relation to the giving of consent under s48 of the Act.

33 The starting point for a consideration of these questions is the High Court's judgment in Berwin v Donohoe (1915) 21 CLR 1. There the Court was dealing with a consent given by the Attorney General to a prosecution of an offence against the Trading with the Enemy Act 1914. The objection then taken was that the Attorney General's consent did not specify the exact offence which he had authorised to be instituted. The consent provided: 'The Attorney-General of the Commonwealth hereby consents to a prosecution being instituted against Arthur George Berwin for an offence against the Trading with the Enemy Act .'

34 Isaacs J observed that the purpose of the statutory requirement for consent was 'obviously to prevent persons being harassed by private prosecutions, which patriotic fervour might induce, without a careful examination of the circumstances of the particular case' (at p24). At p25 his Honour stated the applicable principles as: 'From recent cases of high authority I deduce the following propositions: - (1) If the Attorney-General has not in fact consented to that prosecution, the prosecution must fail ( R. v. Bates (1911) 1 K.B., 964); (2) if the defendant does not object that the consent has not been in fact given to that prosecution, the consent in fact will be presumed ( R. v. Metz 11 Cr. App. R., 164); (3) the principle is that the officer designated is presumed to do his duty ( R. v. Waller (1910) 1 K.B., 364, at p.367.); (4) the defendant will be confined to the scope of his objection.'

35 At pp25-6, his Honour held: If it is presumed that the Attorney-General had done his duty in examining the circumstances of this case, his consent in the terms in which he has given it is sufficient. And that is the conclusion to which I come. But if that is not to be the presumption, if the written consent is to be treated as a memorandum under the Statute of Frauds , it would be disastrous. A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving it to the Crown Solicitor to formulate the charge. If the precise form of the charge were necessary to be stated, then the provisions in the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative. If the defence definitely challenges the fact that the Attorney-General has examined the facts of that particular case the prosecution may be put to prove that he has; but, as I say, no such challenge was made here. The objection was merely as to the form of the documents. Then I see no distinction between this and a consent specifying sec. 3. Sec. 3 embraces a multiplicity of offences any one of which may have been or may not have been the subject of a consent merely specifying the whole section. In my opinion the protection intended by the sub-section has been fully afforded, and the objection should be overruled.'

36 Powers J agreed with the approach of both Isaacs and Higgins JJ on the question of consent. At p27, Higgins J observed that a challenge to consent in such a statutory scheme went to jurisdiction.

37 Applying this approach to this case, the position would be that the defendant having raised the question of whether consent was given by the Director General to the two prosecutions, the presumption that consent had been given was displaced. The burden of proof thus fell upon the prosecutor to establish the Court's jurisdiction in these matters.

38 I turn then to the evidence. It demonstrated that the Director General had put before him the various documents earlier mentioned, before he signed the two separate consents. It was not suggested by the defendant that the Director General had not examined that material and had not in fact determined that proceedings for breach of s15 should be instituted. The challenge went rather to whether the Director General had in fact consented to two prosecutions of the defendant under the same section being instituted.

39 The defendant's argument plainly flowed from the fact that the consents were identical, framed in the widest terms possible, leading to two prosecutions under the same section and arising out of the same circumstances. This legislative scheme would have permitted the same charges being laid in the one prosecution. The result of the approach adopted by the prosecutor had significant ramifications for the penalties which might be imposed upon the defendant, if found guilty of both charges.

40 The difficulty with the defendant's submissions however, was the very fact that the Director General did execute two separate consents, albeit in general terms and identical form, to proceedings being instituted under s15. The Director General was thereby plainly leaving it to others to formulate the terms of the charge or charges to be laid pursuant to his consent.

41 Section 15 embraces 'a multiplicity' of offences, which might be the subject of a consent specified by general reference to the section. In this statutory scheme, the fact that two consents were executed, is extremely difficult to overlook.

42 While the defendant relied upon the terms of the memorandum prepared by Mr Morrison, referring as it did to 'a prosecution', which the Director General signed as having been 'approved', the Committee itself had used the more general term 'prosecution', in the view which it had reached and recorded in the minutes of its meeting. It was that document which was before the Director General when he signed the separate consents then presented to him. It is difficult to conclude in those circumstances that the Director General, while executing two separate consents, in fact intended that there be only one prosecution of the defendant under the section.

43 If s48 is concerned to provide protection to a defendant against charges which the Director General might not regard as appropriate to be brought in particular circumstances, the fact that the Director General here executed two separate consents, in the light of the material which he had before him, tends to lead to the conclusion that the purpose of s48 was satisfied, in each case by the signing of the consent given. I am satisfied that by signing two consents, the Director General consented to two proceedings under s15 being instituted against the defendant, having had the relevant circumstances put before him.

44 I have been fortified in this conclusion by the authorities to which I was referred by the parties. In Berwin, Higgins J contemplated the possibility that one consent might be given, leading to two prosecutions. He observed at pp28-9: 'It is quite true that the words in the written consent might also be applicable to some other offence than that specified in the information; but the words are distinctly applicable to that so specified. An indictment of John Smith would not be bad because there are other John Smiths to whom it might refer. A devise in a will of "my farm in the parish of Wycobe" is not void for uncertainty even if the testator had two farms in that parish; and evidence would be admissible to show which farm was referred to. Here there are not two prosecutions of Berwin, and the difficulty of showing which prosecution is referred to does not arise. The words of the Act providing for the consent of the Attorney-General are similar to those found in leases providing for the consent of the landlord to an assignment. If we had before us the words "an assignment of the lease shall not be made without the written consent of the lessor," and if the lessor signed a written consent to "assignment," without restricting it to assignment to any definite person, how could anyone say that there was a breach of the covenant? Inasmuch as the prosecution in this case answers the description of the prosecution to which consent has been given, it is not necessary for the prosecutor to give evidence identifying the former with the latter. It is for the accused to rebut the presumption that the consent refers to this prosecution ( Sewell v Evans 4 Q.B., 626); Leake on Contracts , 5th ed., p. 137). It is for the accused to show that the written consent which on its face, and without any straining of words, can fit this prosecution, does not relate to it (and see R. v. Metz 31 T.L.R., 401). Even if there were two prosecutions to which the consent is applicable; the consent would not be a bad consent. There would be a sufficient description even if evidence had to be given to show to which prosecution the consent referred ( Shardlow v Cotterell (20 Ch. D., 90); Plant v. Bourne (1897) 2 Ch., 281.)'

45 If that approach be followed here, the result would appear to be that it was a matter for the defendant to demonstrate that the Director General, in issuing the two consents on 12 July, had in fact only intended to consent to one prosecution of the defendant for an offence against s15. In my view, that burden was not here met. This was not a case, where there was one consent and two prosecutions flowing from it. Here two consents were signed and two proceedings initiated. The form of consent given in each case was 'distinctly applicable' to the offence charged. The defendant did not demonstrate that the offence charged did not fit the consent given.

46 Other authorities were relied upon by the defendant. The decision of the Full Federal Court in Traveland Pty Ltd v Doherty (1982) 41 ALR 563 requires consideration. There consideration was given to a consent signed by the relevant Minister, for the institution of proceedings under the Trade Practices Act 1974, against two defendants. The consent approved six offences being pursued against each defendant. The Full Court analysed s53 of that Act, observing that under s53(c) 96 different combinations of the elements specified in the introductory words of the section and the paragraph were possible. Unlike the consent here in question, the offences to which consent was given, were set out in detail in the consent. At p566, after referring to one of the offences set out in the consent, the Full Court noted: 'This description makes clear that what is alleged is an offence under s 53(c). It specifically identifies the fixed elements of such an offence, namely, that there was a representation made by a corporation in trade and commerce. It plainly selects and identifies the two variable elements of such an offence contained in the body of para (c) in that it states that the representation was that services (as distinct from goods) had benefits which they did not have. It fails, however, to allege any of the eight variable elements contained in the introductory words of the section. It reduces the possible selection to two in that it alleges that the representation was in connection with promotion, as distinct from supply or possible supply, and that it related to services as distinct form goods. It does not, however, allege that the representation was in connection with the promotion of either the supply or use of services. It simply alleges that the representation was in connection with the promotion of services.'

47 There were also difficulties with the offences specified in the information and the summonses issued pursuant to the consent. The prosecutor sought leave to amend the information. Traveland sought to have the summonses dismissed on the ground that they were void for want of jurisdiction in that they did not comply with the Minister's consent and that they did not allege an essential ingredient of the offence. The prosector succeeded before the trial judge. At p568 the Full Court observed: 'It is clear from the provisions of s 163(4) that the consent in writing of the Minister to the institution of a prosecution for an offence against the Act must be given before the proceedings are instituted. The sub-section contains no express provision as to the form which the consent should take or as to the detail or particularity with which the proceedings must be identified. The object of the requirement in s 163(4), that a prosecution shall not be instituted without the designated consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. Consistently with that object, the requirements of s 163(4) will not be satisfied unless the Minister has in truth consented to the proceedings in question. It does not, however, follow that it is incumbent upon the Minister to restrict his consent to the institution of a prosecution for but one offence or that the consent should either define or particularize the precise offence or offences with which the prospective defendant should be charged. What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. It may be that this requirement precludes a consent being given in such wide terms as to be a consent to no proceedings in particular: see Crichton v Victorian Dairies Ltd [1965] VR 49 at 59. On the other hand, it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings.'

48 The approach adopted here - of consent being given in the same terms, to prosecution for two separate offences under s15 of the Act - was, in my view, not inconsistent with this approach.

49 Reference was made in Traveland to the High Court's judgment in Berwin and later cases which followed it, including the decision of the English Court of Appeal in R v Cain [1976] 1 QB 496, where reference had been made to Berwin at p502. There, it was concluded that there was nothing to preclude consent being given in wide terms, if the Attorney General considered that 'the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence'. In Traveland the Full Court then went on to observe that consent may properly be given in more narrow terms, in which event it will operate within those terms and will not provide a basis for the institution of another offence. (at p569)

50 The Full Federal Court concluded that the proceedings there in question were of a kind to which the Minister had given consent, even though there had been a variation between the terms of the consent and the information and summonses. That variation was found not to have been of such a kind as to lead to the conclusion that the proceedings had gone beyond the consent. (at p570) It was also concluded that while it was not necessary for the Minster's consent to allege all of the necessary elements of an offence under s53(c), the summons, upon information, instituting the prosecution had to make the offence clear and had to allege all of the elements of the offence. In the particular case, the charge failed to allege any of the possible 96 offences available under the section. (at p571)

51 It is plain that the consent and summonses here in question, did not raise for consideration problems of the kind dealt with in Traveland. Here, the Director General elected to give consent to two prosecutions under s15 of the Act, each in wide terms, leaving it to others to formulate the terms of each charge. It cannot be doubted that the offences charged fell within the wide terms of the consent given. Nor was it suggested that the consent given was in such wide terms as to have provided no consent at all, to any particular proceedings. The reference to s15 of the Act in each consent, would preclude such a conclusion.

52 Berwin and Traveland have been considered in various later cases. In Dever v Creevy (1993) 1 Qd R 232 the Queensland Supreme Court had to consider a consent to prosecute under the Fair Trading Act 1989. The question of when consent to prosecute had to be established was there considered. The authorities were reviewed by both McPherson ACJ and by Thomas J. They each took the view that the authorities were not easy to reconcile. Byrne J did not deal with these matters in his judgment. McPherson ACJ observed at 236, that the authorities made it clear that if the required consent has not been given and this emerges in the course of the case, the prosecution must fail. He then said: 'It is, I think, also clear from the decision in that and other cases that the requisite consent is not to be considered as in the nature of an element of the offence. It is one of procedure: …'

53 At p242, Thomas J took a similar view, referring to the decision of Isaacs J in Berwin.

54 In Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 the Supreme Court of Western Australia was dealing with consent to a prosecution under the Environmental Protection Act 1986. Malcolm CJ took the view that consent was essential to the validity of the proceedings and without it, the prosecution would have been a nullity (at p227). His Honour, however, accepted that proof of consent was only necessary if challenged (at 229). Rowland J took a similar view at p248.

55 In MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 the Supreme Court of Western Australia was dealing with a consent to prosecution under the Occupational Health and Safety Act 1984. Kennedy J, in the minority, dealt with the standard of proof of the giving of consent, taking the view that it was the civil standard. His Honour applied the High Court's decision in Thompson v The Queen (1989) 169 CLR 1 at pp12-13. There Mason CJ and Dawson J were dealing with the standard of proof required of the place at which an alleged murder had been committed. The place was significant because the defendant had been charged under ACT law and there was doubt as to whether the events in question had taken place in the ACT or in NSW. It was concluded in those circumstances that proof of location of the death was required to the civil, not the criminal standard, as it went to jurisdiction. Deane J came to the same conclusion but for different reasons. On his approach locality did not relate only to jurisdiction. His Honour, nevertheless, concluded that in the peculiar circumstances of the case, where murder was an offence under both ACT and NSW laws, adherence to the rationale of the requirement of proof beyond reasonable doubt, would lead to the possibility that a guilty person could not be punished under either of the possibly applicable laws, unless location could be proved to the criminal standard (at 37). In those circumstances, his Honour too concluded that proof of location was required only to the civil standard.

56 Kennedy J also referred to a decision of Pidgeon J in Rabczynski v Morrison [1988] WAR 71. There at p75 his Honour was dealing with an authority to prosecute under the Wildlife Conservation Act 1950. Pidgeon J had concluded "As the matter was brought into question by the defendant, I consider the onus was on the complainant to establish the authority beyond reasonable doubt: Schultz v Virgin [1966] SASR 94." Kennedy J said at p336: 'A number of authorities were cited to us, but in none of them have I been able to find any reference to the standard of proof in relation to the authorising of proceedings being required to be beyond reasonable doubt.'

57 There is an obvious tension in this part of Kennedy J's judgment. It seems to me that the answer perhaps is this. In Schultz, cited by Pidgeon J as authority for his conclusion that authority to prosecute must be established to the criminal standard, that question was not expressly dealt with.

58 In Schultz, Walters AJ was dealing with consent to prosecute under the Health Act 1935-1963 (SA). Walters AJ referred to various authorities, taking the view that the section there in question 'clearly contemplates strict proof of the authority by which the complaint is laid. To this end it prescribes one method by which such proof can be given' (at p99). After referring to the 'normal practice' followed and contemplated by the legislature, that a certificate under the hand of the Chairman or Secretary of the Board be tendered to the Court, his Honour concluded that "To depart from the requirement of strict proof would, in my view, frustrate the intention of the legislature."

59 Walters AJ then turned to the evidence led at the hearing, where the certificate he had referred to was not tendered, but rather evidence was called from an inspector, who disclosed that he had instituted the complaint after an investigation. His Honour thereupon concluded that the prosecution had failed for want of necessary proof of consent.

60 It is not clear to me that Walters AJ was expressing the view that under the legislative scheme there in question, the existence of consent had to be established to the criminal standard, when he was talking of the requirement of 'strict proof'. Rather, what his Honour appears to have been dealing with was that under that legislation, there was no presumption available that consent to prosecute had been obtained, in the way discussed by the High Court in Berwin. The section in question contemplated strict proof of authority, prescribing one method by which it could be established. The existence of such consent thus had to be proved as a part of the prosecution case, or the prosecution would fail.

61 Walters AJ was plainly dealing with a statutory provision different to that dealt with in cases such as Berwin, Traveland, and Palos Verdes, where it was accepted that various presumptions operated. A requirement for strict proof of consent flowing from a statutory scheme which prescribes the way in which such consent might be proven, would appear to be inconsistent with the operation of a presumption that the necessary consent had been given.

62 This may well explain why Kennedy J took a different view in relation to the legislation that the Full Court was considering in MacCarron - namely, that there was available a presumption as to consent and that if its existence was challenged, it had to be established by the prosecution, but to the civil standard.

63 I am inclined to the view that s48 of the Act should be approached in the same way as the provisions dealt with by the High Court in Berwin and the cases which have followed it, namely that there is a presumption that the necessary consent has been given. I can see no basis in the legislation for adopting any other view. The Act does not require proof of consent to be given in a particular way, or at a particular time. Given the way in which prosecutions such as this are brought pursuant to the provisions of the Supreme Court (Summary Jurisdiction) Act 1967, I am satisfied that the view might properly be taken that a presumption arises that the consent has been given, if the summons is issued. Presumably the summons will not be issued if the judge has no basis for satisfaction that the requisite consent existed (see for example the discussion in Creevy at p236). Here, Hungerford J, who made the orders, was plainly so satisfied by the filing of the original consent documents in each case.

64 The question of consent, nevertheless, remains an important one. Without the relevant consent having been given, these proceedings will be a nullity (Berwin). It follows that the existence of the consent having been challenged, the onus falling on the prosecutor to prove consent arose for consideration. At that point a second presumption also had to be considered, namely, that the Director General had done his duty and that the consent in each case referred to the proceedings instituted (Berwin). As I earlier found, that presumption was not here displaced by the defendant.

65 As to the standard of proof required as to the giving of consent, it is relevant that such proof does not go to the establishment of any element of the offences with which the defendant has been charged. Rather, the proof goes to a procedural requirement, going to the Court's jurisdiction (Berwin). The prosecutor had the onus to establish that jurisdictional fact - the giving of consent - on the evidence. Haylen J reached the same view in Dartbrook at [60].

66 In my view the standard of proof required of that fact is not the criminal one. The purpose of the higher standard of proof of a criminal offence has often been discussed. In Thompson, for example, it was observed at p12: 'The fundamental principle of our criminal law is that the accused's guilt must be established beyond reasonable doubt. The law requires that standard of proof of the commission of a criminal offence in order to eliminate or minimize the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and of the community generally: Brown v. The King (1913) 17 C.L.R. 570 at pp. 584-585.'

67 That is the standard which applies to the offences with which the defendant here has been charged. The purpose of the requirement of consent to prosecute is a different one, as earlier outlined (Traveland). I can see no reason in principle why that purpose also requires that the evidence establishing consent be tested against the criminal standard of proof, if the existence of consent to prosecute is put in issue. To the contrary, if consent were truly a procedural matter going to jurisdiction which required proof to the criminal standard, it is difficult to see how the presumptions as to consent discussed in Berwin, could properly ever arise. These concepts seem entirely incompatible.

68 Kennedy J in MacCarron came to a similar view. The other cases earlier referred to do not seem to have addressed the point, other than in the decision of Pidgeon J to which I earlier referred. I do not agree that the conclusions there reached by his Honour, have application in this statutory context.

69 I also note that while arising in quite different circumstances to those considered in Thompson, the point which has here arisen for determination, is, in my view, not dissimilar. What I have in mind is that in Thompson, the factual question at issue, the place at which the murder had been committed, went to the Court's jurisdiction to hear the charges in question, rather than to whether or not the offence charged had been committed. Likewise here the question of consent also goes to jurisdiction, rather than to whether the offences charged in fact were committed. I note that Haylen J in Dartbrook came to a similar conclusion at [80], while not expressing any final view on the point.

70 For these reasons, I am of the view that proof to the criminal standard is not required in respect of consent to a prosecution under s48 of the Act. In any event, as earlier outlined, I have not been persuaded that any real doubt was thrown on the two separate written consents given by Mr Coutts, as having been intended to authorise the two prosecutions launched by the prosecutor.

71 As I have noted, both prosecutions, on their face, fell within the terms of Mr Coutts' written consents. He is presumed to have done his duty in relation to the giving of those consents. The documents argued to raise the doubt that it had been his intention that the defendant be prosecuted only for one offence under s15, in my view when considered together and with the sequence in which they were presented to the Director General and with the circumstance that he then in fact executed two consents to prosecute the defendant under s15 of the Act, do not raise the doubt asserted.

72 For all of these reasons, I decline to dismiss the summonses. ------------------------

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