Barbara Filipowski v Island Maritime Limited and Anor. - [2004] NSWLEC 366

No judgment structure available for this case.

Reported Decision: 135LGERA 229

Land and Environment Court

of New South Wales

CITATION: Barbara Filipowski v Island Maritime Limited and Anor. [2004] NSWLEC 366

PARTIES:
PROSECUTOR:
Barbara Filipowski
DEFENDANTS:
Island Maritime Limited and Anor.

FILE NUMBER(S): 50101; 50102 of 2003

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Defendants acquitted of offence against s 27. Charged with offence against s 8 in respect of same incident-Application for permanent stay-double jeopardy-abuse of process autrefois acquit.

LEGISLATION CITED: Marine Pollution Act 1987, ss 8, 27

CASES CITED: Connelly v Director of Public Prosecutions (1964) AC 1254;
Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502.;
Filipowski v Island Maritime Limited and Anor (2003) 124 LGERA 331;
Flatman v Light (1946) KB 414;
Pearce v The Queen (1998) 194 CLR 610 and R v Carroll (2002) 77 ALJR 157;
R v Carroll (2002) 77 ALJR 157;
R v Dodd (1991) 56 A Crim 451;
R v Humphreys (1977) AC 1R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219;
Regina v Dahhade (1994) QB 329;
State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517;
Walton v Gardiner (1993) 177 CLR 378

DATES OF HEARING: 22/03/2004

DATE OF JUDGMENT: 07/09/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr A J Meagher SC with Mr A Hill, Barrister
SOLICITORS
Dibbs Barker Gosling
DEFENDANTS:
Mr P Byrne SC with Mr G Grogic, Barrister
SOLICITORS
Ebsworth and Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

9 July 2004

50101 AND 50102 of 2003 BARBARA FILIPOWSKI v ISLAND MARITIME LIMITED AND ANOR.

JUDGMENT

1 By separate summonses filed on 18 November 2003, the Prosecutor sought an Order pursuant to the Criminal Procedure Act 1986, s 246(1)(c) that each of the Defendants appear before the Court to answer to the charge of an offence against the Marine Pollution Act 1987, s 8, alleged to have been committed on 14 November 1999 at Botany Bay.

2 The offence alleged against the Corporation Defendant was that it was the owner of the ship, the “Pacific Onyx” from which a discharge of oil occurred into State waters and the offence alleged against the other Defendant was that he was the Master of the ship, the “Pacific Onyx” from which a discharge of oil occurred into State waters.

3 On the same day, Talbot J issued Orders requiring each Defendant to appear before the Court on 13 January 2004 to answer the charge.

4 By Notice of Motion filed 22 December 2003, each Defendant sought a permanent stay of each of the prosecutions on the ground of abuse of process in that they offended the rule against “double jeopardy” inasmuch as the present prosecutions involved the bringing of multiple prosecutions arising out of the one set of events and based upon the same facts as those that had been raised in earlier prosecutions of each of the Defendants who had each been previously charged with an offence against the Marine Pollution Act, s 27 which prosecutions had been dismissed by this Court: see Filipowski v Island Maritime Limited and Anor (2003) 124 LGERA 331.

5 The Prosecutor opposes the Defendants’ Motion by submitting that none of the grounds asserted in support of the claimed orders for the permanent stay of the present prosecutions had been substantiated.

6 Central to the competing arguments is the effect of the history of the litigation including the previous prosecutions brought against the same Defendants in respect of the same alleged pollution incident that occurred at Botany Bay on 14 November 1999 which prosecutions were dismissed by Talbot J’s judgment delivered on 7 March 2003.

7 Accordingly, I propose first to examine that litigation history, before considering the parties’ competing arguments on the Defendants’ application for a permanent stay of the present prosecutions.

8 By separate summonses filed on 20 February 2002 each of the present Defendants was charged with having committed an offence against the Marine Pollution Act, s 27 on 14 November 1999 when a discharge of oil entered into State waters at Botany Bay from the ship “Pacific Onyx” of which the Defendants were respectively alleged to have been the “Owner” and “the Master” respectively.

9 Each Defendant pleaded not guilty to the respective charges of an offence against the Marine Pollution Act 1987, s 27(1).

10 Both charges were by consent heard together in the trial before Talbot J that was conducted on 20 and 21 February 2003. At the conclusion of the Prosecution case, Defence Counsel submitted on behalf of each Defendant that there was no case to answer. The “no case” submission was founded on two separate bases—firstly, that the Prosecution evidence did not establish that the discharge had occurred “in connection with a transfer operation “within the meaning of s 26(a) of the Act and secondly, upon the ground that the discharge was not a discharge to which Pt 4 of the Act (including s 27) applied”.

11 In his reserved judgment delivered on 7 March 2003, Talbot J dismissed each summons: see Filipowski.

12 His Honour accepted the no case submission upon the sole basis that properly construed, the offence created by s 27 did not apply to a discharge (of oil into State waters) in circumstances where that discharge was “a discharge to which Pt 2 or 3 (of the Act) applies”: vide s 26(d). Talbot J’s reasons for upholding the “no case to answer” submission are fully set forth at pars 31 to 39 (inclusive) of the reported judgment as follows:

Mr Hill, who appears for the prosecutor, acknowledges that the defendants could have been charged under Pt 2 of the Marine Pollution Act, pursuant to s 8. However, he says that the purpose of Pt 4 is to deal specifically with a discharge that takes place in or in connection with a transfer operation.

As a matter of construction, a prosecution pursuant to s 27 cannot succeed where there is no transfer operation. According to Mr Hill, all that s 26(d) is saying is that a discharge per se cannot be brought under Pt 4. He says the provision in s 26(d) is only for abundant caution to ensure that a prosecutor does not bring (and the Court does not entertain) a charge under Pt 4 unless the circumstances in s 26(a) or s 26(b) apply.

Section 33 of the Interpretation Act 1987 (NSW) requires that regard be had to the purpose or objective of the provision. It would be simpler to accept the prosecutor's argument that Pt 4 deals exclusively with all discharges in or in connection with a transfer operation if the legislation did not contain s 26(d). It must be assumed that the legislators had in mind that there could be discharges to which Pt 2 or Pt 3 applies as well as Pt 4 and that in those circumstances the provision of Pt 2 or Pt 3 are to be treated as pre-eminent. It is not for the Court to determine in this case what these discharges might be. The discharge of oil from the vessel on 14 November 1999 does not fall within any of the exceptions in s 8(2) or s 8(4). Section 8 is not expressed to be subject to any provision other than s 8(2) or s 8(4). However, for example, an appropriate person charged under Pt 4 may not be able to rely on s 8(2)(b) which otherwise could relieve their liability under s 8(1). It is possible, therefore, to give effect to Pt 4 in respect of a discharge of oil from a ship in or in connection with a transfer operation notwithstanding that the oil escaped from the ship in consequence of damage of the type referred to in s 8(2)(b).

There is no evidence or submission to the effect that an exception to s 8 applies to the discharge of oil from the subject vessel. It follows that as a matter of construction Pt 2 applies to the discharge and, therefore, Pt 4 cannot apply. The concession by Mr Hill reinforces this conclusion.

The Court upholds the submission of no case to answer on the basis that the prosecutor has not proved that Pt 4 applies to the discharge from the vessel on 14 November 1999. It is not relevant to decide whether or not the discharge occurred in or in relation to a transfer operation. Even if the prosecutor is right and it did so occur nevertheless, in the circumstances, Pt 2 applies. In that respect, s 26(d) has effect.

Part 4 is capable of application to a discharge ... from a ship for the reasons explained above. The construction adopted, therefore, leaves those words of s 26(a) with some effect. It is not a result which renders the words redundant. This is not a case, as Mr Hill suggests it is, for reading s 26(d) as being inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular (see Mason J at 679 in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672). Rather, it is a case where the intention is to exclude the application of the particular where the more general provisions apply.

Each Part imposes the same penalty in respect of a discharge to State waters but the statutory defences and conditions of exculpation available to a person charged are distinct in each case. There is a separate and unique regime applied by each Part in respect of administrative matters such as the duty to report an incident and the keeping of records.

The Court finds that because the discharge is one to which Pt 2 applies, Pt 4 has no application to the present charges. In the light of that finding there is no case for the defendants to answer pursuant to a charge brought under Pt 4

13 Following the delivery of Talbot J’s judgment on 7 March 2003, the Defendants’ Solicitors corresponded with the Prosecutor’s Solicitors requesting the return of the letter of undertaking that had been lodged with the Prosecutor presumably by way of security required under the Act, when they were initially informed that the Prosecutor would be requesting the Judge to state questions of law to be submitted to the Court of Criminal Appeal pursuant to the Criminal Appeal Act 1912, s 5AE(1).

14 On 30 July 2003, the Prosecutor’s Solicitors informed the Defendants’ Solicitors that the Prosecutor no longer sought reference of the matter to the Court of Criminal Appeal (the Prosecutor’s Notice of Motion seeking the reference was dismissed with costs on 1 August 2003). When the Defendants’ Solicitors immediately renewed their request for the return of the letter of undertaking, the Prosecutor’s Solicitors notified the Defendants’ Solicitors for the first time that they would “shortly be issuing proceedings against both the Owner and the Master of the Pacific Onyx pursuant to s of the Marine Pollution Act”.

15 Thereafter, the Defendants filed a Notice of Motion seeking an order that the Prosecutor return the letter of undertaking. The Motion came before Talbot J on 4 November 2003, when the Prosecutor informed the Court that consideration was being given to commencing proceedings under the Marine Pollution Act, s 8. When the Motion again came before his Honour on 18 November 2003, it was withdrawn when the Prosecutor informed the Court that proceedings pursuant to the Marine Pollution Act, s 8 would be brought against both Defendants. On the same day, the summonses initiating the present prosecutions were filed in Court.

16 On 29 November 2003, both summonses and Court Orders were served on the Defendants’ Solicitors together with 22 supporting affidavits.

17 According to the affidavit of Mr Craig Carter, a Senior Associate employed by the Defendants’ Solicitors having day to day carriage of the case, he conducted a comparison of the 22 affidavits supporting the present charges against the Defendants with the 28 affidavits that had supported the earlier charges brought against the Defendants pursuant to the Marine Pollution Act, s 27 and found them to be “identical (or virtually identical) as being verbatim duplicates and set out the same facts and circumstances surrounding the alleged incident on 14 November 1999”.

18 After reviewing the totality of the Prosecution affidavit evidence filed in support of the earlier charges brought against the Defendants under s 27 and the present charges brought against the same Defendants under s 8 Mr Carter expresses the opinion “that the evidence relates to the same subject matter and seeks to establish a prima facie case arising from the same alleged incident” (par 36 of his affidavit sworn 22 December 2003).

19 On 1 December 2003, the Defendants’ Solicitors wrote to the Prosecutor’s Solicitors inviting the withdrawal of the present prosecutions in view of the earlier unsuccessful prosecutions of the Defendants, contending that the further prosecutions involved an abuse of the Court’s process and offended the double jeopardy rule of the criminal law.

20 Soon thereafter, and in the absence of a reply from the Prosecutor’s Solicitors, the Defendants filed their present Notice of Motion seeking a permanent stay of the prosecutions.

21 According to the affidavit evidence of Mr J Vaughan Williams, Solicitor in the employ of the Prosecutor’s Solicitors, with day to day carriage of the matter, following the Prosecutor’s decision not to proceed with its request for reference of the case to the Court of Criminal Appeal pursuant to the Criminal Appeal Act 1912, s 5AE (following Talbot J’s orders made on 1 August 2003 which included orders for the payment of the Defendants’ costs of the unsuccessful prosecutions), preparations were commenced for the prosecution of each of the defendants for an offence against the Marine Pollution Act, s 8. Those preparations included the re-swearing of affidavits by the deponents of the Prosecution affidavits that had supported the earlier charges prosecuted against the Defendants. This process had involved some difficulties and delay because of the unavailability of some of the witnesses.

22 The Defence case for a permanent stay was founded upon two fundamental propositions—

(ii) the current prosecutions involved an abuse of process inasmuch as the Defendants were suffering multiple prosecutions arising out of the one set of events and based upon the same facts as those that had been raised in the earlier prosecutions of the Defendants which had been dismissed.

23 These are alternative propositions and require separate consideration.

(i) Double jeopardy?

24 The competing arguments focussed principal attention upon two recent decisions of the High Court of Australia which have expounded the doctrine of double jeopardy, namely Pearce v The Queen (1998) 194 CLR 610 and R v Carroll (2002) 77 ALJR 157.

25 In Pearce the accused was convicted and sentenced on the one indictment containing two counts of—

Crimes Act 1900

maliciously inflicting grievous bodily harm with intent….

(ii) a charge under the Crimes Act, s 110 of “breaking and entering into the dwelling-house…..and while therein …inflicting grievous bodily harm”.

26 The question of double jeopardy arose in that case in the following circumstances as noted at 613 in the joint judgment of McHugh, Hayne and Callinan JJ:

Ryan v The Queen

R v Bowden

27 Having thus posed the question, the joint judgment immediately proceeds to examine the nature of double jeopardy and its rationale and its potential application (i) at the prosecution stage (was the accused entitled to enter a plea in bar to one or more counts on the indictment or was he entitled to a stay of proceedings on one or more counts?) and (ii) at the punishment stage, (was he entitled to be sentenced differently from the separate sentences to be served concurrently that had been imposed upon him?).

28 In the present case, it is only their Honours’ discussion of double jeopardy on the aspect of “double prosecution” at pp 615 to 620 that is relevant. That discussion was in response to the argument advanced on behalf of the accused (at 616) that “at common law a person cannot be convicted of different offences in respect of the same or substantially the same set of facts in circumstances where the two offences arose out of a single episode”.

29 The extended discussion contained in the joint judgment is too long to quote and an abridged recital will be sufficient for present purposes. At 616, the joint judgment enunciates the following principles:

R v Emden

R v Clark

R v Elrington

substantially the same

Li Wan Quai v Christie

R v O'Loughlin

R v Barron

practically the same

gist

gravamen

O'Loughlin

Wemyss v Hopkins

same matter

Wemyss

Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are substantially the same; and secondly, the attempt to identify the sameness of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real.

In each of Chia Gee v Martin (1905) 3 CLR 649) and Li Wan Quai v Christie ((1906) 3 CLR 1125), Griffith CJ identified the test for whether a plea in bar would lie as being whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first (Chia Gee v Martin (1905) 3 CLR 649 at 653; Li Wan Quai (1906) 3 CLR 1125 at 1131. See also Ex parte Spencer (1905) 2 CLR 250 at 251, per Griffith CJ; Paley's Law and Practice of Summary Convictions, 5th ed (1866), p 145; Broom, A Selection of Legal Maxims, 4th ed (1864), p 341). At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the inquiry suggested is different; it is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

Further, when it is said that it is enough if the offences are substantially the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.

30 Immediately following this passage, the joint judgment closely examines the decision in Wemyss “which is capable of being misunderstood” (at 617) on the test whether “the offences are substantially the same “before concluding at 618:

Wemyss

31 After noting that the course of decisions in the Supreme Court of the United States supported their conclusions, the joint judgment at 620 re-affirms that the test is “to look to the elements of the offences charged” before holding that no plea in bar could be upheld because each of the offences charged required proof of a fact which the other did not require.

32 In his separate judgment, Gummow J at 628 accepted that the principles explained in the joint judgment would have been applicable “had the occasion required comparison between the elements of the two disputed counts for the purposes of ascertaining the availability of a plea in bar”.

33 In his separate judgment, Kirby J having earlier noted at 644 that England, the United States and India had applied a “strict test” for the availability of a plea in bar namely “if the elements of the offences successively charged are different there is no foundation for the plea of autrefois acquit or autrefois convict, or for invoking constitutional protection against double jeopardy” his Honour concluded at 652 that “this Court should accept the same test for a complaint against duplication in a second indictment or second charge as that now adopted in England, the United States and other jurisdictions of the common law”.

34 The later High Court decision in Carroll (involving an indictment of the accused for perjury alleged to have been committed at his trial for murder some 14 years earlier at which he was acquitted) contains an exposition of the doctrine or concept of “double jeopardy” in the criminal law, but along lines that emphasises the judicial power to prevent abuse of process, while accepting the limitations of a plea in bar that had been enunciated in Pearce: see in particular discussion of “double jeopardy” commencing at 178 in the judgment of McHugh J.

35 In their joint judgment at 172, Gaudron and Gummow JJ refer to Pearce in the following terms—

Pearce v The Queen

((1998) 194 CLR 610 at 618 [24], 620 [28, 628 [63])

determined that that degree of coincidence between the elements of the two offences will ground a plea of autrefois acquit at common law.

36 Whereas the judicial recognition and development in the criminal law of the concept of “double jeopardy” since 1964, commencing with the decision of the House of Lords in Connelly v Director of Public Prosecutions (1964) AC 1254, has travelled beyond the now strictly established limits of the pleas in bar autrefois acquit and autrefois convict, to embrace a broad judicial power to prevent abuse of the processes of the Courts, I shall defer my consideration of these broader aspects of “double jeopardy” to my consideration of the alternative Defence foundation of “abuse of process” justifying the stay of the present prosecutions and shall confine my present consideration to the Defence case based upon the plea in bar autrefois acquit or more strictly its equivalent as applied to summary offences: see Flatman v Light (1946) KB 414; R v Humphreys (1977) AC 1; R v Dodd (1991) 56 A Crim 451; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502.

37 The Defence submission in support of the contention that the acquittal of the Defendants on the charge of the offences against the Marine Pollution Act, s 27 creates a plea in bar in respect of the present charges brought against them of offences against s 8 of that Act in respect of the same discharge incident proceeded on the following lines (and I here quote from the written submissions advanced on behalf of the Defendants):

It was, it is submitted, open to the prosecutor to bring, if considered appropriate, a charge under s.8 of the Act. Counsel for the prosecutor in the proceedings before Talbot J had at all times contended that the evidence he had adduced established the offences alleged under s.27, that there was a case to answer under s.27, and that the applicant should be convicted of the offences charged under s.27.

The orders made by Talbot J in his judgment of 7 March 2003 were that the applicants each had a valid defence to the charge under s.27, that there was no case for the defendants to answer on a charge brought pursuant to that section, and that in each case the summons should be dismissed. The applicants were accordingly acquitted of the charges which they faced by a court of competent jurisdiction following a hearing on the merits.

It is submitted that the applicants are now in a position where they can invoke the protection provided by the rule against double jeopardy. The acquittal of the applicants on the charges brought under s.27 is, it is submitted, a bar to their prosecution under s.8 because the prosecution under s.8 is for the same act, namely discharging oil into state waters, as the prosecution for s.27. The prosecution under s.8 is based on the same acts or omissions and the same set of facts as the prosecution for which the applicants were previously acquitted.

Even if the view is taken that the subsequent prosecution is not for precisely the same acts or omissions as the earlier prosecution, or that the facts upon which the respective prosecutions are based are not precisely the same, it is submitted that the prosecution is for substantially the same offence as that for which the applicants have already been acquitted: Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 at 509 to 511 per Gleeson, CJ. See also R v Dodd (1991) 56 A Crim R 451.

38 The Prosecution’s competing submissions (also in written form) were as follows:

in or in connection with a transfer operation

Before Talbot J the prosecutor argued that s26(d) was not to be construed as providing that discharges to which subs8(1) applied could not be the subject of an offence under subs27(1) and that s26(d) was there to ensure that charges were not brought under Part 4 unless the circumstances in ss26(a) or 26(b) were satisfied: see Reasons of Talbot J at [32], [33]. On that construction of the Act the defendants could have been charged under Part 2 (subs8(1)) or under Part 4 (subs27(1)) if the additional requirements in ss26(a) or 26(b) were satisfied.

However, the effect of Talbot J’s holding as to the construction of s26(d) was that a discharge of oil from a ship into State waters in or in connection with a transfer operation could not be the subject of a charge under subs27(1) unless subs8(1) did not apply to that discharge which would be the case if the discharge was within one of the exceptions in subss8(2) or (4).

………………..

In the present case a defence in the nature of a plea of autrefois acquit is not available to the defendants because the elements of a charge under subs8(1) are not the same as or included in the elements of the charge under subs27(1) for which the defendants have been acquitted: Pearce at 616 [18], 618 [24], 620 [28], 628 [63]. That is because the relevant element of the offence under subs8(1) is the discharge of oil from a ship into State waters in circumstances to which subss8(2) and (4) do not apply whereas the equivalent element of the offence under subs27(1) is the discharge of oil from a ship into State waters in circumstances where subs8(1) does not apply, ie in circumstances where one of the paragraphs in subss8(2) or (4) does apply. The offence under subs27(1) also contains an additional element, namely that the discharge occur in or in connection with a transfer operation.

39 The nub of the competing arguments is whether the elements of the charge of the Defendants of an offence against the Marine Pollution Act, s 8 are the same as, or are included in, the elements of the earlier charge of the Defendants of an offence against s 27 of that Act: see Pearce at 616.

40 The answer to this question requires consideration and comparison of the two statutory offences. In this respect, it is necessary first to set forth the relevant provisions of the Marine Pollution Act, then to identify the essential elements of the two offences and finally, to compare the elements of the two offences.

41 Section 8 which appears in Pt 2 of the Act provides as follows:

(1) Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding:

(b) if the offender is a body corporate—$10 000 000.

(b) if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of oil or oily mixture, as the case may be,

(c) in the case of an oily mixture, if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by a prescribed officer, or

(d) if the discharge was authorised by the Minister for training purposes.

damage

(ii) acting recklessly and with the knowledge that damage would probably result, or

(iii) acting negligently,

(c) damage arising through wear and tear,

(d) defects that develop during the normal operation of the ship or equipment.

(ii) the oil tanker is proceeding en route,

(iii) the instantaneous rate of discharge of oil content does not exceed 60 litres per nautical mile,

(iv) the total quantity of oil discharged into the waters does not exceed:

(B) in the case of an oil tanker that is a new tanker—one part in 30 000 parts of the total quantity of the cargo of oil of which oil discharged formed a part,

Navigation Act 1912

(ii) the ship is proceeding en route,

(iii) the oil content of the effluent is less than 100 parts in 1 000 000 parts,

(iv) the ship has in operation an oil discharge monitoring and control system, oily-water separating equipment, oil filtering equipment or other installation as required by regulations made by virtue of section 35 or by virtue of section 267A of the Navigation Act 1912 of the Commonwealth,

(d) the discharge from an oil tanker, or another ship that has a gross tonnage of 400 or more, of an unprocessed oily mixture, not being an oily mixture that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied:

(ii) the oil content of the unprocessed oily mixture without dilution is not more than 15 parts in 1 000 000 parts,

(ii) the oil content of the effluent without dilution is not more than 15 parts in 1 000 000 parts,

(iii) the ship has in operation oil filtering equipment as required by regulations made by virtue of section 35 or by virtue of section 267A of the Navigation Act 1912 of the Commonwealth,

(g) the discharge within a special area from an oil tanker, or another ship that has a gross tonnage of 400 or more, of processed bilge water from machinery spaces, not being bilge water that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied:

(ii) the oil content of the effluent without dilution is not more than 15 parts in 1 000 000 parts,

(iii) the ship has in operation oil filtering equipment as required by regulations made by virtue of section 35 or by virtue of section 267A of the Navigation Act 1912 of the Commonwealth,

(iv) the oil filtering equipment is equipped with a stopping device that automatically prevents any discharge of effluent when the oil content of the effluent without dilution is more than 15 parts in 1 000 000 parts,

(ii) the following conditions are satisfied:

(A) the ship is proceeding en route,

(B) the oil content of the effluent is less than 100 parts in 1 000 000,

(C) the discharge is made as far as practicable from land and is not less than 12 nautical miles from the nearest land,

(j) the discharge from a ship of clean or segregated ballast.

(b) chemicals or other substances that have been introduced for the purpose of attempting to prevent the application of subsection (1) to the discharge of an oily mixture from a ship.

42 Section 27, which appears in Pt 4 of the Act, provides as follows:

(b) if the offender is a body corporate—$10 000 000.

(b) if the discharge was carried out by the holder of a licence under the Protection of the Environment Operations Act 1997 in accordance with that licence.

43 In order to appreciate the full extent of the offence created by s 27, it is necessary to note the provisions of s 26 which relevantly define the expression “a discharge to which this Part applies” and of s 25 which provides relevant definitions for the purposes of Part 4 (including of course ss 26 and 27):

(1) In this Part:

appropriate person means:

(a) in relation to a discharge from an apparatus on a ship:

(ii) the master of the ship, or

(iii) the owner of the apparatus, or

(iv) the person in charge of the apparatus, and

(b) in relation to a discharge from a ship:

(i) the owner of the ship, or

(ii) the master of the ship, or

(iii) the person in charge of the transfer operation of the ship, and

(ii) the owner of the apparatus, or

(iii) the person in charge of the apparatus, and

(e) in relation to a discharge from a purpose built pipeline:

(ii) the person in charge of the pipeline, or

(iii) the owner of the pipeline.

liquid substance

mixture includes ballast water, tank washings and other residues.

occupier:

(a) in relation to a place on land (other than a pipeline) means:

(ii) if there is no occupier—the owner of the land, and, in the case of a vehicle, includes the person in charge and the owner of the vehicle, but does not include the occupier or owner of the land on or over which the vehicle stands or moves, and

(ii) the lessee, licensee or user of any lease, licence or right of user for the use of the pipeline for the carriage of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance.

oil

place on land includes:

(a) any structure or apparatus on or above or below the surface of any land,

(b) any thing or vehicle resting on or moving over land,

(c) any thing resting on or lying under the bed, bank or shore of any State waters,

(d) a pipeline, and

(e) any thing afloat (other than a ship) if it is anchored or attached to the bed, bank or shore of any State waters or is used in any operation for the exploration of the sea-bed or subsoil beneath any State waters or for the exploitation of the natural resources of that sea-bed or subsoil.

purpose-built pipeline means a pipeline prescribed for the purposes of this definition.

transfer operation means any operation that is involved in the preparation for, or in the commencement, carrying on or termination of, a transfer of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance to or from a ship or a place on land.

(2) Except in so far as the contrary intention appears, an expression that is used in this Part and in Annex I or Annex II to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Part, the same meaning as in that Annex.

(3) For the avoidance of doubt, more than one appropriate person in relation to a discharge may be found guilty of an offence under section 27 or 28.

26 Discharges to which Part applies

This Part applies to a discharge of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance into State waters:

(a) from a ship or place on land in or in connection with a transfer operation, or

(b) from any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used,

but does not apply:

(c) to a discharge that occurs on the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, or at any other place prescribed for the purposes of this section, or

(d) to a discharge to which Part 2 or 3 applies.

44 Section 8(1) creates a number of offences inasmuch as separate liability is imposed upon:

(ii) the owner of the ship; and

(iii) any other person whose act caused the discharge in respect of the following composite act—

(ii) occurs from the ship;

(iii) into State waters.

45 The liability created by subsection (1) is expressed to be “subject to subsections (2) and (4)” where each subsection prescribes circumstances in which “subsection (1) does not apply to the discharge” but by virtue of subsection (6), the operation of subsections (2) and (4) is by way of defence to be established by the defendant (it being sufficient for the prosecution to allege and prove that the discharge of oil or of an oily mixture occurred from a ship into State waters).

46 It is to be noted that in the present prosecutions, the Defendants have been charged as being respectively the owner and the master of the ship from which the discharge of oil occurred into State waters.

47 Section 27(1) of the Act creates a number of offences inasmuch as separate liability is imposed upon the “appropriate person” defined to potentially mean up to 5 persons having different capacities (including (i) the owner of a ship, and (ii) the master of a ship) together with “any other person whose act caused the discharge” (s 27(1)) in respect of the following composite act (as prescribed by s 26(a), (b), and (c))—

(ii) into State waters;

(iii) from (a) a ship or place on land in or in connection with a transfer operation or (b) any apparatus or purpose—built pipeline used in or in connection with a transfer operation.

48 However, by force of pars (c) and (d) of s 26 Pt 4 does not apply to a “discharge” referred to in either of those paragraphs. Accordingly, such a discharge falls outside the scope and operation of the offence created by s 27. It was the interpretation of s 26(d) adopted by Talbot J that led to his upholding the ‘no case to answer” submission advanced on behalf of the Defendants in the earlier prosecutions alleging an offence against s 27.

49 It is readily apparent that by way of contrast to s 8, the offences created by s 27 are not limited to discharges of oil etc into State waters occurring from a ship. However, if attention be confined to the offences created by s 27 in respect of discharges into State waters occurring from a ship, it is apparent that such offences which impose liability on “the owner or master of the ship” (s 25(1)) include as an element of the offence a “transfer operation” (s 25(1)) in relation to the ship.

50 In comparing the elements of the offences respectively created by ss 8 and 27 in respect of a discharge of oil etc into State waters occurring from a ship and imposing liability on the owner and the master of the ship, it is obvious that the offence created by s 27 includes the fact that the relevant discharge occurs from the ship “in or in connection with a transfer operation” whereas the offence created by s 8 simply includes the factual element that the discharge occurs from the ship. But for that differentiating element, the two offences in respect of discharges from a ship imposing liability on the owner and the master of the ship from which the discharge occurs, would entirely overlap.

51 Notwithstanding this overlap, it is clear that the elements of the offences respectively created by ss 8 and 27 are not the same—with the fact of a “transfer operation” in relation to the ship being an essential element of the offence created by s 27 but not being an essential element of the offence created by s 8. Moreover, the evidence necessary to support the second prosecution of a charge under s 8 would not have been sufficient to procure a conviction of the first charge of an offence against s 27. It follows, conformably to Pearce, that no plea in bar is available to the Defendants.

52 So far my comparison of the two offences and my conclusion based upon that comparison that the offences are not the same offences and that a plea in bar is not available, have been based upon the relevant legislative text without regard to the legal effect of s 26(d) on the legal possibility that a single act (involving the discharge of oil into State waters occurring from a ship) could involve two or more offences: cf EPA v Australian Iron and Steel Pty Ltd at 508 per Gleeson CJ:

It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provision or administrative action, there are some kinds of conduct which almost inevitably involve participants in multiple breaches of the law.

53 Such an approach to the comparison of the offence creating provisions of ss 8 and 27 of the Marine Pollution Act reflects an outcome that is most favourable to the Defence “double jeopardy” submission because it yields two offences with overlapping elements except for the element of a “transfer operation” which is present in the offence created by s 27 but absent from the offence created by s 8.

54 However, the ultimate and true comparison between the offences respectively created by ss 8 and 27 must give effect to s 26(d) which, according to the interpretation adopted by Talbot J in dismissing the earlier prosecutions of the Defendants for an offence against s 27 excludes from the offence created by s 27 a discharge of oil into State waters occurring from a ship being “a discharge to which Pt 2 applies”. It follows from Talbot J’s judgment that the discharge into State waters in respect of which the Defendants had been charged under s 27 was not a discharge to which Pt 4 applies because it was held to be a discharge to which Pt 2 applies, with the legal consequence that there was no case for the Defendants to answer.

55 It must follow from Talbot J’s judgment that there was no possibility that the discharge of oil into State waters that occurred from the ship “Pacific Onyx” on 14 November 1999 could have given rise to separate offences against s 8 and against s 27.

56 Accordingly, the present case does not involve the legal possibility of there being an offence against both ss 8 and 27 in respect of the relevant discharge incident that occurred on 14 November 1999.

57 In so understanding the effect of the interpretation of s 26(d) adopted by Talbot J in dismissing the earlier prosecutions by virtue of upholding the Defendants’ submission of no case to answer, I do not overlook the more sophisticated analysis of his Honour’s reasons provided in the Prosecution’s written submissions that I have earlier recited. This, it may be recalled, was to the effect that the elements of the offence created by s 8(1) involved the non-existence of the circumstances prescribed by subsection (2) or (4) whereas the elements of the offence created by s 27 involved the existence of such circumstances. With great respect, I do not think this analysis of the elements of the offences created respectively by ss 8 and 27 is a correct analysis (because it impermissibly conflates the elements of the offence created by s 8(1) with the statutory defences prescribed by subsections (2) and (4)) or that it captures his Honour’s reasons for interpreting s 26(d) in the manner that he did in holding that Pt 4 did not apply, but Pt 2 did apply, to the relevant discharge into State waters.

58 Moreover, there is an important legal consequence of my understanding of the effect of Talbot J’s decision dismissing the earlier prosecutions of the Defendants that, with great respect, to the otherwise very helpful competing submissions that were advanced in argument, appears to have been overlooked in respect of the double jeopardy debate.

59 This concerns the following passage at par 59 of “The Doctrine of Res Judicata” by Spencer Bower, Turner and Handley (3rd ed 1996):—

However, it is essential that the defendant has been in jeopardy on the charge. If summary dismissal occurs because the charge is defective, or because as a matter of law the evidence available to the prosecution cannot support a conviction, the defendant will never have been in jeopardy……..Where the dismissal was not founded upon a consideration of the merits, even in the largest and most liberal sense of that expression, there is no adjudication of the innocence of the accused. Thus where the complainant absented himself from the court on the hearing of a summons for assault, having given notice of his intention to do so, and afterwards sue in the county court, and the defendant obtained a dismissal of the summons, this was not a decision that no assault had been committed; and, similarly, where the dismissal was on the ground that the summons disclosed no offence (footnotes omitted).

60 One of the references cited in the text is the decision of the Court of Appeal in Regina v Dahhade (1993) QB 329 which contains a detailed discussion and survey of the English cases on the question whether an accused had been “put in jeopardy” in the earlier proceedings.

61 The Court’s judgment at 341 derives from its analysis of the decided cases a number of principles which includes the following:

Director of Public Prosecutions v Porthouse [1989] R.T.R. 177 and

62 In the present case, the vital question is whether it can be concluded that the Defendants, in facing the earlier prosecution were in jeopardy in view of the fact that the sole basis for Talbot J’s upholding the Defendants’ “no case” submission was his Honour’s interpretation of s 26(d). It is true that if his Honour had adopted a different interpretation, the result could have been different in that the “no case” submission would have failed and the Defendants would have been in jeopardy of conviction on the charge. But this hypothetical consideration is not readily accommodated by conventional wisdom that the proper meaning of a statutory provision is, and always is taken to have been, that adopted by a Court having the function of interpreting the law.

63 Although I incline to the view that for the reasons given the Defendants were not relevantly in jeopardy by virtue of the earlier prosecution, since the parties’ competing submissions have not canvassed this matter, it is preferable for me to determine the Defendants’ application for a permanent stay of the present prosecutions upon the basis of the rival submissions.

64 Having held conformably to Pearce that the elements of the offence created by s 8(1) are not the same as, or included within, the elements of the offence created by s 27(1), it remains for me to consider the Defence variant submission, citing R v Dodd and Environment Protection Authority v Australian Iron and Steel, that the offence now charged against the Defendants is “substantially the same offence as that for which the Defendants have previously been acquitted”.

65 In my judgment, this submission must be rejected principally for the reason that it is not conformable to the principles enunciated in Pearce, but additionally, for the reason that the two decisions of the NSW Court of Criminal Appeal (which predated the decision in Pearce) that are cited in the Defence submission do not support the submission. In each of the cited cases, Gleeson CJ, in giving the judgment of the Court of Criminal Appeal expressly held that the Court was applying “settled principle” concerning double jeopardy without involving the “more problematic issues” concerning the decision in Wemyss which had been embraced by the earlier decisions of the Full Court of the South Australian Supreme Court, including R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219.

66 In this respect, I can do no better than record my respectful agreement with the analysis of the earlier NSW Court of Criminal Appeal decisions contained in the judgment of Abadee J in State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517.

67 In my respectful opinion, Abadee J’s analysis of the earlier relevant cases has been vindicated by the more recent decision of the High Court in Pearce.

68 For all of the foregoing reasons, I conclude that the Defendants cannot raise a plea in bar to the present prosecutions for an offence against s 8 based upon their acquittal of the earlier charges of an offence against s 27.

(ii) Abuse of Process?

69 There is no doubt that this Court, as a superior court has the power to permanently stay criminal proceedings on the grounds of abuse of process.

70 The joint judgment of the High Court in Walton v Gardiner (1993) 177 CLR 378 contains an extended discussion of the power available to a superior court commencing at 392. It includes the following passage:

Metropolitan Bank v Pooley

General Steel Industries Inc v Commissioner for Railways (NSW)

Voth v Manildra Flour Mills Pty Ltd

Reichel v Magrath

Connelly v Director of Public Prosecutions

Hunter v Chief Constable of the West Midlands Police

the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people

71 The joint judgment includes the following reference to the earlier decision of the High Court in Jago v Disrict Court (NSW) (1989) 168 CLR 23. At 394 it quotes the following passage from the judgment of Deane J:

The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.

72 A further reference is made at 395 when it states:

Jago

73 Later decisions of the High Court illustrating the availability this power in criminal proceedings are collected and discussed in Carroll.

74 The Defendants submitted that the present prosecutions involved an abuse of process because of the following matters—

(ii) it had been open to the Prosecutor in the earlier prosecution to have sought to amend the charge by charging the Defendants with an offence against s 8, but the Prosecutor chose not to seek amendment of the charge; and

(iii) by the time the present prosecutions were filed, some four years had elapsed since the commission of the alleged offence.

75 In my judgment, the Defendants have not substantiated their case alleging abuse of process.

76 As to the first matter relied upon by the Defendants, it is not the case that they are being prosecuted for the same offence. It is true that the present charge arises out of the same events which had given rise to the earlier charge. But the present charge had arisen directly out of Talbot J’s decision to uphold the Defendants’ no case to answer submission and dismiss the original charge against each Defendant.

77 Although there had been a lapse of four years from the date of the alleged offence until the laying of the present prosecutions that delay is in large part taken up by the laying of the original charge and the prosecution of the charge against each Defendant. The Defendants did not allege any particular prejudice by dint of delay and they have been on notice of the discharge incident from when it occurred (when it was investigated by the Port officials) and had been aware of the Prosecution evidence when the first charges were laid against them.

78 It is to be noted that the Marine Pollution Act does not impose any time limitation for the prosecution of offences before this Court and the Act contains its own regime conformable to the International Convention which inspires the Act for reporting and investigating discharge incidents.

79 Although it would have been open to the Prosecutor, even when faced with the Defendants’ submission of no case to answer, to have sought to amend the charge, the laying of a separate charge of an offence against s 8 after the dismissal of the earlier charge against s 27 was in truth little different in legal and practical consequences, from seeking to amend.

80 Finally, it is to be noted that there can be no suggestion (unlike the case in Carroll) that the present prosecutions involve any attempt to question the integrity and finality of the Court’s judgment dismissing the original prosecution.

81 For the foregoing reasons, I do not find any basis for concluding that the present prosecutions involve any relevant element of abuse of process.

82 For all of the foregoing reasons, the Defendants’ application for a permanent stay of the present prosecutions is dismissed. The question of costs is reserved.

Actions

Download as PDF Download as Word Document

Citations

Barbara Filipowski v Island Maritime Limited and Anor. [2004] NSWLEC 366

Most Recent Citation

Island Maritime Ltd v Filipowski [2004] NSWCCA 453

Cases Citing This Decision

1

Island Maritime Ltd v Filipowski [2004] NSWCCA 453

Cases Cited

14

Statutory Material Cited

1

Filipowski v Island Maritime Limited [2003] NSWLEC 59

Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42

CITATION:	Barbara Filipowski v Island Maritime Limited and Anor. [2004] NSWLEC 366
PARTIES:	PROSECUTOR: Barbara Filipowski DEFENDANTS: Island Maritime Limited and Anor.
FILE NUMBER(S):	50101; 50102 of 2003
CORAM:	Bignold J
KEY ISSUES:	Environmental Offences :- Defendants acquitted of offence against s 27. Charged with offence against s 8 in respect of same incident-Application for permanent stay-double jeopardy-abuse of process autrefois acquit.
LEGISLATION CITED:	Marine Pollution Act 1987, ss 8, 27
CASES CITED:	Connelly v Director of Public Prosecutions (1964) AC 1254; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502.; Filipowski v Island Maritime Limited and Anor (2003) 124 LGERA 331; Flatman v Light (1946) KB 414; Pearce v The Queen (1998) 194 CLR 610 and R v Carroll (2002) 77 ALJR 157; R v Carroll (2002) 77 ALJR 157; R v Dodd (1991) 56 A Crim 451; R v Humphreys (1977) AC 1R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219; Regina v Dahhade (1994) QB 329; State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517; Walton v Gardiner (1993) 177 CLR 378
DATES OF HEARING:	22/03/2004
DATE OF JUDGMENT:	07/09/2004
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr A J Meagher SC with Mr A Hill, Barrister SOLICITORS Dibbs Barker Gosling DEFENDANTS: Mr P Byrne SC with Mr G Grogic, Barrister SOLICITORS Ebsworth and Ebsworth