Barbara Filipowski v Gerard Ethell

[1998] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION:	BARBARA FILIPOWSKI v. GERARD ETHELL [1998] NSWLEC 25
PARTIES:	BARBARA FILIPOWSKI v. GERARD ETHELL
FILE NUMBER(S):	50015, 50016 & 50017 of 1998
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act 1979 s 43 Land and Environment Court Rules 1996 Pt 10, r 1 Marine Pollution Act 1987 ss 27(1), 28(1) Ports Corporatisation and Waterways Management Act 1995 sch 4, 4.14(5)
CASES CITED:	R v O'Neill (1979) 2 NSWLR 582 at 588; R v Chin (1984) 157 CLR 671 at 676; R v Altham (1992) 62 A Crim R 126 at 127; Vella v The Queen (1990) 2 WAR 537; Gouldham v R (1970) WAR 119; Hornsby Shire Council v Winsloe (Bignold J, 20 August 1998, unreported at paras 18-30; Environment Protection Authority v Genkem Pty Ltd (1992) 79 LGERA 47; see Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197; Ex parte Lovell; Re Buckley and Anor (1938) 38 SR 153; Johnson v Miller (1937) 59 CLR 467 ; Broome v Chenoweth (1946) 73 CLR 583
DATES OF HEARING:	10 September 1998
DATE OF JUDGMENT:	10/27/1998
LEGAL REPRESENTATIVES:	Mr A L Hill, Barrister Mr B W Larkin, Barrister

JUDGMENT:

22

Introduction

1. Three prosecutions have been brought under the Marine Pollution Act 1987 arising out of an incident where a substance known as nonyl phenol escaped into the waters of Port Botany during a discharge of cargo from a vessel to the terminal. The defendants, Terminals Pty Ltd (Terminals) and Mr G Ethell have respectively pleaded guilty to the charges against them.

2. Upon the pleas of guilty being entered, the proceedings were set down for a hearing on penalty and costs, and, by leave, the three proceedings were heard together. The hearing concluded and judgment was, and still is, reserved.

3. However, since then, two issues have arisen. First, the defendants seek to re-open their case in order to lead evidence about the amount of the discharge. Secondly, a question has arisen as to a possible defect in the charge relating to the prosecution of Mr Ethell under s 28(1) of the Marine Pollution Act.

4. I deal with each of these issues in turn.

Re-opening the case

5. At the commencement of the hearing, counsel for the defendants advised the Court that the parties had reached an agreement that the amount of nonyl phenol which discharged into the waters of Port Botany was 60 litres. The hearing proceeded on the basis of that agreement, and, in particular, the evidence adduced by the prosecution as to the environmental harm occasioned by the discharge was based on an understanding that 60 litres had escaped into the waters.

6. By notice of motion, the defendants now seek orders which will:

(a) permit them to resile from the agreement as to 60 litres; and

(b) re-open their case in order to tender a Sydney Ports Corporation Marine Response Report Form (the Report Form) and to make submissions on the issue of the amount of the discharge.

7. Three affidavits were read in support of the notice of motion - that of Ms D A Wilmshurst, the solicitor for Mr Ethell, that of Mr N Brunton, the solicitor for Terminals, and that of Mr P A Reddie, the general manager of Terminals.

8. Their evidence may be summarised as follows:

· The prosecution had apparently sought reimbursement from the defendants of the cost of clean-up of the discharge;

· To that end, on the day before the hearing, at approximately 5pm, Ms L Peterson, the solicitor for the prosecutor, faxed to Mr Brunton an invoice from Sydney Ports Corporation relating to the clean-up costs;

· Whilst counsel for the defendants was making his final address to the Court, at the conclusion of the hearing, the solicitors for the parties were engaged in discussions with a view to reaching agreement on the amount of the clean-up costs. Ms Wilmshurst and Mr Brunton then became aware of the Report Form for the first time. It formed part of the invoice faxed to Mr Brunton on the previous afternoon;

· Amongst other things, the Report Form, which was dated 8 July (the day after the discharge occurred) noted the “pollution extent” as being less than “100 m2” and contained a written comment as follows:

“chemical spill marine pollution nonyl phenol (6.2) 20-30 LTRS.”

9. In those circumstances, the defendants wish to abandon the agreement as to the amount of 60 litres, and to re-open their case in order to tender the Report Form. They oppose the prosecution being granted leave to adduce evidence to rebut the estimation of the amount of the discharge set out in the Report Form.

10. The prosecution does not object to the defendants abandoning the agreement as to the amount of 60 litres, but it contends that, if the defendants are permitted to tender the Report Form, the issue of the amount of the discharge is opened up, and therefore the prosecution contends that it should be permitted to adduce evidence on that issue.

11. It is important, at the outset, to emphasise that the hearing was confined to the question of penalty and costs, the pleas of guilty carrying with them an admission of the essential legal ingredients of the respective offences admitted by the respective pleas ( R v O’Neill (1979) 2 NSWLR 582 at 588). I emphasise that fact because, in opposing any leave being granted to the prosecution to adduce evidence on the issue of the amount of discharge, Mr Larkin, for the defendants, relied upon the usual rule that the prosecution must present its case completely before the defendants are called upon for their defence, and that the prosecution will not usually be permitted to re-open its case or call further evidence in rebuttal (see, for example, R v Chin (1984) 157 CLR 671 at 676). That rule has no application in this case, where the evidence adduced by both parties was relevant, not to conviction, but to the question of sentence.

12. That can be seen by reference to the charges which are the subject of the proceedings. Two of the charges allege a contravention of s 27(1) of the Marine Pollution Act, which makes it an offence to discharge a substance into State waters during a transfer of a substance from a ship to a place on land. One of the charges alleges a contravention of s 28(1) of the Act, which makes it an offence to fail to report to the Minister a discharge of a substance into State waters. Accordingly, the amount of substance which is discharged is not an essential ingredient of any of the offences with which the defendants are charged. However, it is a fact which is relevant to the question of penalty.

13. I should also point out that the Court is not bound by the agreement between the parties, and it is the responsibility of the judge to decide the facts upon which sentence is to be based ( R v Altham (1992) 62 A Crim R 126 at 127). That principle is particularly apposite in this case, where the defendants wish to resile from the agreement as to the amount of the discharge, and the prosecution has no objection to the defendants doing that.

14. The real question for determination is whether the defendants should be permitted to tender the Report Form (and any other evidence relating to the issue of the amount of the discharge) and, if so tendered, whether the prosecution should be permitted to tender contrary evidence (which counsel for the prosecution foreshadowed was available). As to this question, some passages from the judgment of Moffit ACJ in R v O’Neill are pertinent. At p 588, his Honour said:

“I think three elemental matters can be stated. First a plea of guilty, in itself, carried with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Second, beyond that, any facts relied upon by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles, including resolving relevant doubt in favour of the accused.


…

Where the accused disputes the facts, the appropriate course is for the accused to give evidence on oath and for the Crown to call before the judge any contrary evidence, except so far as he properly has before him admissions of the accused or evidence given on some other occasion, eg. committal depositions sufficient to enable him to resolve the dispute facts.”

15. It is appropriate, in the circumstances where the Court is not bound by the agreement between the parties and where the parties have, in any event, indicated an intention to abandon that agreement, that the Court should disregard the amount of 60 litres as an estimate of the discharge.

16. That being the case, there is simply no evidence about the amount of the discharge, and that issue is one which, in my opinion, is critical to the question of penalty. In those circumstances, commonsense and fairness dictate that the Court should grant leave to the defendants to tender the Report Form and any other evidence relating to that issue.

17. Having regard to what was said in R v O’Neill , and to the foreshadowed contrary evidence in the possession of the prosecution, it is, I think, appropriate that the prosecution be granted leave to tender contrary evidence on the issue of the amount of discharge, so that the Court can itself make a finding of fact on the issue, and take it into account in determining the appropriate penalties to impose.

18. In coming to that conclusion, I have not overlooked the submission made by Mr Larkin that the prosecution was in breach of its duty to do nothing which would prejudice a fair trial and to provide the defence with any material which may tend to assist the defence case (see, eg. Vella v The Queen (1990) 2 WAR 537; Gouldham v R (1970) WAR 119). That breach was established, it was said, by the failure of the prosecution to provide the Report Form to the defendants until the eve of the hearing, and then only in connection with the costs of the clean-up.

19. But Mr Larkin did not claim that the hearing on penalty and costs had been unfair or that there had been a miscarriage of justice. Nor did the defendants resile from their respective pleas of guilty. Those matters are important considerations to take into account in determining the matter now in dispute. Moreover, the only prejudice which was alleged was that the defendants may not have agreed to an amount of 60 litres had they had the Report Form in their possession at an earlier date, or, alternatively, they may have been able to secure an agreement as to a lesser amount of discharge. It was contended that such prejudice could not now be cured.

20. I disagree with that contention. In my opinion, the just and fair course for the Court to adopt is that which I have set out above; namely, that leave be given to both parties to adduce evidence on the issue of the amount of the discharge, so that the Court can make a finding of fact on that issue.

21. I propose to make orders to that effect.

Defect in the charge

22. In proceedings 50015 of 1997, Mr Ethell is charged with a contravention of s 28(1) of the Marine Pollution Act, which relevantly provides as follows:

“28 (1) If a discharge to which this Part applies occurs, each appropriate person in relation to the discharge shall, without delay, notify, in the prescribed manner, the Minister of the occurrence.”

23. Such proceedings fall within class 5 of the Court’s jurisdiction, and are commenced by filing a summons seeking an order under s 41 of the Land and Environment Court Act 1979. The charge is as formulated in the order made pursuant to s 41 (see Hornsby Shire Council v Winsloe (Bignold J, 20 August 1998, unreported at paras 18-30)).

24. In the present case, the material part of the charge is in the following terms:

“… that on the 7th July, 1996 he was the appropriate person to notify the Board that a discharge of a liquid substance had occurred into State waters, namely, the waters of the Bulk Liquids Berth, Port Botany and he failed to do so in contravention of Section 28(1) of the Marine Pollution Act”.

25. It is immediately apparent that the charge alleges a failure to report to the Board, whereas the offence provided for in s 28(1) involves a failure to report to the Minister.

26. How this defect came about has not been disclosed, but it is relevant to note that s 28(1) of the Marine Pollution Act was amended by cl 4.14(5) of sch 4 of the Ports Corporatisation and Waterways Management Act 1995 whereby the word “Board” was replaced with the word “Minister”.

27. Neither the prosecution nor the defence adverted to this defect during the hearing. However, it became apparent to me after the hearing had concluded, and as a consequence, I relisted the proceedings for submissions on this point.

28. Faced with the possible defect, Mr Hill, for the prosecutor, submitted that the words “the Board” are mere surplusage, and may be ignored. He submitted that the true nature of the offence is a failure to report. He relied by analogy on Environment Protection Authority v Genkem Pty Ltd (1992) 79 LGERA 47. That was a prosecution for polluting waters under s 16 of the Clean Waters Act, 1970. Bignold J (whose judgment was upheld on appeal - see Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197) found (at p 55) that the prosecutor’s particularisation of the relevant waters as being “a swamp” was properly regarded as an immaterial or erroneous particular which could be cured by amending the particulars in the summons by omitting reference to “swamp”.

29. I do not consider, however, that the words “the Board” can be regarded as mere surplusage. The offence created by s 28(1) is not a failure to report at large - it is a failure to report to a specific person, “the Minister”. In my opinion, the identity of the person to whom the report of a discharge is to be made is an essential element of the offence.

30. As an alternative, Mr Hill sought leave to amend the charge by replacing the word “Board” with the word “and Environment Court Rules, 1996, to permit amendment of any Minister”. He relied upon the Court’s wide power under pt 10 r 1 of the Land document. That rule is relevantly in the following terms:

“1 (1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document filed in the proceedings be amended in such manner as the Court thinks fit.

(2) All such amendments shall be made so as to lead to the determination of the real questions raised by or otherwise depending on the proceedings, or the correction of any defect or error in any proceedings, or the avoidance of a multiplicity of proceedings.”

31. In Mr Hill’s submission, the defect was one which falls within s 43 of the Land and Environment Court Act, which provides as follows:

“43 No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.”

32. Mr Larkin opposed leave to amend being granted. He contended that the defect in the charge was a defect which could not be cured by amendment, because the offence which is charged, being a failure to report to the Board, is an offence which is not known to the law.

33. In my opinion, Mr Larkin is correct in saying that the charge sets out an offence which is not known to the law. In that circumstance, s 43 cannot assist the prosecutor. Section 43 is substantially the same as s 65 of the Justices Act, 1902, in respect of which, in Ex parte Lovell; Re Buckley and Anor (1938) 38 SR 153, Jordan CJ had this to say at p 173:

“Section 65 of the Justices Act, 1902, does not enable a magistrate to convict of an offence upon an information which discloses no offence … there is nothing in s 65 which obviates the necessity for an information and summons accurately charging the accused with a statutory offence of which it is proposed to convict him. If the magistrate convicts upon an information or charge which discloses no offence … the conviction is bad.”

34. The question then arises as to whether the defect in the charge is fatal, or whether it may be cured by amendment.

35. In considering this question, it is important to keep in mind that the purpose of the amendment which is sought is to charge Mr Ethell properly with the statutory offence under s 28(1), that is, to convert a charge which alleges no offence known to the law into a charge which properly specifies a statutory offence.

36. The power to amend can be called into operation in order to cure duplicity or uncertainty in the charge, that is, to require the prosecutor to state with precision the set of facts which is the subject of the charge so that the defendant may know the case against him or her (see Johnson v Miller (1937) 59 CLR 467 per Dixon J at 489-490). But that is not the circumstance in this case.

37. The question as to whether a charge which discloses no offence can be amended was discussed by Dixon J in Broome v Chenoweth (1946) 73 CLR 583 in the following passage at p 601:

“Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion … Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.”

38. In Hornsby v Winsloe Bignold J considered that the defect of the charge in that case brought it closer to the former end of the spectrum suggested by Dixon J, but his Honour regarded as significant the fact that any amendment to the charge would be made at a time beyond the statutory period for commencing proceedings for the offence, and accordingly found that the power of amendment should not be exercised in that case (see paras 106 -114 and the cases there cited).

39. In this case, no statutory time limitation arises. But the charge does not identify any offence known to the law. In my opinion, that defect in the charge is closer to the latter end of the spectrum suggested by Dixon J. It follows, therefore, that the power to amend should not be exercised in this case to overcome the defect in the charge.

40. The order which I would therefore propose to make is to strike out proceedings 50015 of 1998 as failing to disclose any offence, and to dismiss the summons.

Orders

41. In accordance with the foregoing, my formal orders are as follows:

As to the notice of motion seeking to tender evidence in respect of the quantity of the discharge:

1. I grant leave to the defendants to tender the Sydney Ports Corporation Marine Response Form and to adduce further evidence limited to the issue of the amount of nonyl phenol which was discharged into Port Botany;

2. I grant leave to the prosecution to adduce contrary evidence limited to the same issue;

3. I stand proceedings 50016 of 1998 and 50017 of 1998 over for mention on a date to be fixed for directions as to the filing and service of such further evidence.

As to the defect in the charge in proceedings 50015 of 1998:

1. I order proceedings 50015 of 1998 to be struck out as failing to disclose any offence and I order that the summons be dismissed.

2. I order the prosecutor to pay the costs of the defendant in proceedings 50015 of 1998 as agreed or as assessed.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.