Bell v Unimin Australia Ltd (No 2)
[2011] QMC 24
•9 September 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Bell & Anor v Unimin Australia Ltd (No 2) [2011] QMC 24
PARTIES:
GRAHAM BELL
(complainant/ respondent)
WILLIAM GORDON
(complainant/ respondent)
v
UNIMIN AUSTRALIA LIMITED
(defendant/ applicant)
FILE NO/S:
MAG245636/09(1), MAG245626/09(6), MAG113031/10(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for direction prosecutor call witnesses
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
9 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
14 June 2011, 16 June 2011
MAGISTRATE:
Lee G
ORDER:
The application seeking directions that the respondents call witnesses to be available for cross examination by the applicant in support of its application to strike out or permanently stay three complaints charging the applicant with an offence under the Integrated Planning Act 1997, an offence under the Environmental Protection Act 1994, and an offence under the Forestry Act 1959 respectively is refused.
CATCHWORDS:
ENVIRONMENT LAW – OFFENCES – PRACTICE AND PROCEDURE - application to strike out or permanently stay complaint - abuse of process – application for direction prosecutor call witnesses in application
Environmental Protection Act 1994 (Qld), s 427(1), s 490(6)
Forestry Act 1959 (Qld), s 53, s 95(g)
Integrated Planning Act 1997(Qld), s 4.3.1, s 4.4.10
Justices Act 1886 (Qld), s 83A
Mineral Resources Act 1989 (Qld), s 6
DPP (NSW) v Zhang [2007] NSWSC 308
Electronic Rentals Pty Limited et al v Anderson et al (1970-1971) 124 CLR 27
Furnell v Betts (1978) 20 SASR 300
Johnson v Miller (1937) 59 CLR 467
Postermobile plc v Brent London Borough Council The Times Law Reports, 8 December 1997 627
Power v Heyworth [2007] QSC 26
R v Petroulias (2006) 182 A Crim R 1; [2006] NSWSC 1422
Richardson v The Queen (1974) 131 CLR 116
Smithers v Andrews, ex parte Andrews [1978] Qd R 64
The Queen v Apostilides (1984) 154 CLR 563
The Queen v Butler (No 1) (1991) 102 FLR 341
The Queen v Cooper, 8 December 1995 (unreported) Supreme Court of Western Australia BC9502720
The Queen v Williams (1976) 14 SASR 1
Wells v The Queen, 30 April 2010 (unreported) Court of Appeal Victoria No S APCR 2010 0090
Whitehorn v The Queen (1983) 152 CLR 657
COUNSEL:
A Glynn SC for complainants
R Devlin SC for defendant
SOLICITORS:
Department of Environment and Resource Management for the complainants
Sparke Helmore Lawyers for the defendant
This is an application by Unimin Australia Limited (Unimin) to strike out or permanently stay three complaints made pursuant to the Justices Act 1886 (the JA) charging it with offences under the Integrated Planning Act 1997 (IPA), the Environmental Protection Act 1994 (EPA) and the Forestry Act 1959 (FA) respectively.
The application is based on two grounds. As to the first ground, that the charges under IPA and EPA were insufficient in law to found the jurisdiction of this court because they failed to plead essential factual ingredients, by judgment delivered 23 December 2010[1] I concluded that those two complaints were not incurably defective so as to deny jurisdiction in this court. The applicant had not pressed this ground in respect of the FA complaint. I refer to that judgment for the history of this application and an analysis of the legislative provisions.
[1] Bell & Anor v Unimin Australia Limited [2010] QMC 1 (23 December 2010);
The second ground of the application, which was adjourned pending the outcome of the first ground, is that all three complaints be struck out or permanently stayed as an abuse of process[2]. These reasons are concerned with an interim application (“the interim application”) by Unimin seeking orders that the respondents call a number of its witnesses so that they can be cross examined by Unimin’s counsel with a view to gathering evidence to support its “abuse of process” application. A determination of the “abuse of process” application itself is deferred pending the outcome of this interim question.
[2] Paragraph 5 Unimin’s first submissions;
For convenience I set out the substance of the three complaints again as follows:
Complaint 1
On dates unknown on or between 4 October 2005 and 18 December 2008 at North Stradbroke Island …Unimin…did, in contravention of section 4.3.1. Integrated Planning Act 1997, carry out assessable development without an effective Development Permit for the development
PARTICULARS
1.Assessable development: Making a material change of use of premises for an environmentally relevant activity, namely extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year
And the offence came to the complainant’s knowledge on 1 December 2009[3].
Complaint 2
On dates unknown on or between 3 December 2003 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 427(1) of the Environmental Protection Act 1994, carry out a level 1 chapter 4 activity, not being a registered operator for the activity and not acting under a Registration Certificate for the activity
PARTICULARS
1.Level 1 chapter 4 activity: extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year
[3] Section 4.4.10 IPA provided “In a complaint starting a proceeding a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter”.
And the offence came to the complainant’s knowledge on 1 December 2009[4].
Complaint 3
On dates unknown on or between 3 December 2003 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 53 of the Forestry Act 1959, get quarry material on lands, the property of the Crown, that were included in a lease or other entitlement granted under the Mineral Resources Act 1989 otherwise than in accordance with a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959, the Mineral Resources Act 1989 or another Act.
And the offence came to the knowledge of the complainant on 3 December 2009[5].
[4] Section 490(6) EPA provides “In a complaint starting a proceeding, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter”.
[5] Section 95(g) FA provides “the averment in any complaint of the date on which thePARTICULARS
1.Get: dig, gather, remove, convert, or obtain
2.Quarry material: sand that is not a mineral within the meaning of the Mineral Resources Act 1989
3.Lands, the property of the Crown, included in a lease or other entitlement granted under the Mineral Resources Act 1989: Mining Leases 1108, 1124, 1132 and 7064
4.Without authority: there did not exist any permit, lease, licence, agreement or contract to get the quarry material.
Complaints 1 and 2 were made by Graham Bell and summons issued on
1 December 2009 and filed in the court on 4 December 2009. Complaint 3 was made by William Gordon and summons issued on 4 June 2010 and filed 8 June 2010. After my judgment on the first ground the respondents provided further particulars in respect of all three complaints to Unimin. Those particulars were filed 11 March 2011.
I note that on 1 December 2010 two further summonses were issued and filed in the Cleveland Magistrates Court based on complaints that appear to be photocopies of the complaints by Graham Bell sworn and dated 1 December 2009[6] i.e. the IPA and EPA charges. This was probably sparked by a proposed challenge on behalf of Unimin to attack the validity of the process adopted by the Justice of the Peace in issuing the first two summonses on 1 December 2009 for the IPA and EPA charges with a view to denying jurisdiction in this court perhaps along the lines envisaged in Electronic Rentals Pty Limited v Anderson et al (1970-1971) 124 CLR 27.
[6] In this respect para 56 respondents’ submissions dated 28 February 2011 and filed 1 March 2011 states “We observe that the summonses for the EPA and IPA complaints were reissued on 1 December 2010”;
The same Justice of the Peace, Ms L. J. Hudleston-Holmes, issued the summonses on
1 December 2009 and 1 December 2010. The charges in the complaints upon which summonses issued on 1 December 2009 and 2010 are said to be one and the same. It appears that complainant Graham Bell caused summonses be issued again on 1 December 2010 in the event Unimin’s challenge as to the validity of the process adopted by the Justice of the Peace in issuing the summonses on the first occasion i.e. 1 December 2009 is successful. That question is for another day.
I note counsel for Unimin intend calling the Justice of the Peace in the “abuse of process” application with a view to challenging the jurisdiction of this court. These reasons for judgement are not concerned with this witness. On the issue about the photocopies however, if the photocopy complaints relied on by the Justice of the Peace in issuing fresh summonses on 1 December 2010 are treated as not freshly sworn, I note section 51(b) Justices Act 1886 that, unlike for warrants issued in the first instance, a complaint is not required to be sworn for a summons issued in the first instance[7].
[7] Contrary to s 51(b) JA, for an example where a written complaint must be “made on oath” for the issuing of a summons see sections 4(2A) & (4) of the Peace and Good Behaviour Act 1982 (Qld);
Jurisdiction to determine this interim application
Unlike other statutory regimes such as the Uniform Civil Procedure Rules 1999 (UCPR) for civil matters, the JA does not provide a detailed procedure in the hearing of interim applications such as this.
Having said that, the parties proceeded on the basis that this court has the power to make interlocutory orders or directions on the procedure to be adopted in the hearing of this interim application and indeed the “abuse of process” application itself.
For completeness, in proceedings for an offence section 83A JA[8] provides a procedure for a party to apply for a directions hearing upon notice to the other party: ss 83A(1), (3) & (4) JA. Section 83A(5) then provides that a magistrate “may give a direction about any aspect of the conduct of the proceeding including” (my emphasis) a range of matters, for example, the provision of expert reports and having the defendant medically examined[9]. The list in s 83A(5) is not exhaustive. In my view section 83A encompasses the hearing of the subject matter of this interim application. Whether the application is successful is another question.
[8] In Division 10A (Direction hearing) of Part 4 (General procedure);
[9] Section 83A(5)(a)(i) & (b);
Further, this question was thoroughly examined by Byrne J (as he then was) in Power v. Heyworth [2007] QSC 26. A permanent stay by way of preliminary determination was sought on the basis that the complaint was brought out of time. At [15] Byrne J. rejected submissions that Division 3 of Part 6 JA[10] was an exhaustive statement of available procedures and at [16] that a Magistrates Court has implied “powers reasonably necessary to enable it to act effectively within its jurisdiction”. At [19] Byrne J. concluded that nothing in the JA “is at odds with the trial Court’s entertaining an application for a stay before the prosecution case begins”. In my view, for the same reasons, those conclusions equally apply to the determination of this interim application.
[10] Division 3 (Hearing) of Part 6 (Proceedings in case of simple offences and breaches of duty) – ss 144 to 148;
The Interim Application
There have been a number of written submissions by the parties in respect of the “abuse of process” application itself. The parties however, have provided written submissions specifically on the orders sought in this interim application, namely, whether I should make directions that the respondents call a number of departmental witnesses to enable counsel for Unimin to cross examination them in the “abuse of process” application.
For the sake of convenience oral evidence was given in the “abuse of process” application on 7 September 2010 by former Mines and Energy Minsters The Hon Tony Mc Grady and The Hon Tom Gilmore as well as Bob Harris who was at material times the Mines Administrator for Unimin. These witnesses were primarily called for the purposes of tendering documents (exhibits 1 to 14) including correspondence between Unimin’s predecessor (Australian Consolidated Industries Limited [ACI]) and the Department of Mines and Energy from 1996, departmental memoranda to the minister, mining leases, and quarterly “Mineral Royalty Returns” lodged by Unimin (or ACI) with the Department of Mines and Energy covering the period 1 January 2001 to 31 March 2010.
By way of background[11], in March 2001 Unimin purchased a sand mining operation from ACI where Unimin was appointed as independent contractor over ACI’s mining operations on Stradbroke Island over three mining tenements. ACI had also transferred an environmental authority to Unimin in respect of carrying out mining activities on the tenements. Unimin also holds a fourth mining lease. Over the years Unimin paid royalties to the relevant government department. Mining operations included extracting “Glass Grade” silica sand and “B Grade” silica sand. In broad terms, Unimin was authorised to mine “mineral[s]” as that term is defined in the Mineral Resources Act 1989 (Qld): section 6.
[11] Taken from [9] – [10] of submissions for the respondents dated 28 February 2011and filed 1 March 2011; and exhibits 9 & 10;
Briefly, the bases for seeking a permanent stay of the complaints are said to be three fold:
· The circumstances of making the complaints by the complainants and the issuing of the summonses by the Justice of the Peace are under scrutiny; if defective, this may affect jurisdiction;
·
The receipt by DERM in 2009 of information that royalties had been paid for
B Grade silica sand with Ministerial approval in 1995 years prior to the making of the complaints. The respondents characterise this ground as “entrapment” or “representation”[12].
· The IPA and EPA complaints were made on 1 December 2009 just after the Supreme Court delivered judgment on 30 November 2009[13] (Applegarth J) in which Unimin unsuccessfully sought a declaration that B Grade silica sand[14] was a “mineral” within the meaning of the Mineral Resources Act 1989 (Qld). By unanimous decision of the Court of Appeal, Unimin’s appeal was unsuccessful[15].
[12] Paragraphs [27] to [28] (entrapment), [37] (representation) respondents’ submissions 28 February 2011;
[13] Unimin Australia v State of Queensland [2009] QSC 384;
[14] “B Grade silica sand” is used in the construction industry for white mortars and white renders and is of lower purity than “Glass Grade” silica sand extracted for use in glass manufacturing. “Glass Grade” silica sand is a “mineral” whereas “B Grade silica sand” is not;
[15] [2010] QCA 169 (2 July 2010);
The thrust of the application in support of a permanent stay is alleged oppressive and vexatious conduct on the part of the prosecution and a gross misuse of the criminal law in commencing proceedings by way of two complaints made on 1 December 2009 and the FA complaint made 4 June 2010 which is said to undermine public confidence in the criminal justice system.
The complainants do not consent to calling the following witnesses to be available for cross examination by Unimin in its “abuse of process” application. They all appear to be public servants:
· Graham Bell (the complainant in the IPA and EPA complaints)
· Mr Dave Johnson (Departmental Manager of Royalty and Rent)
· Ms Deanne Caruso (DERM[16] investigator)
· Mr John Bradley (former Director General of DERM)
· Mr Matthew Peate (legal officer of DERM)
· Mr Andrew Kwan (legal officer of DERM)
· Mr Wall (Associate Director General of DERM)
[16] Department of Environment and Resource Management was formed in early 2009 with amalgamation of the Department of Natural Resources and Water, and the Environmental Protection Agency (EPA);
The respondent contends that, apart from Ms Deanne Caruso, to its knowledge the others “give no evidence relevant to the subject matter of the trial” none of whom “played an active part in the investigation”[17]. With the possible exception of Ms Caruso those witnesses will not be witnesses at the trial should the matter proceed to trial.
[17] Last 2 sentences of Page 1 submissions for the respondents in the “interim application”;
I note Unimin’s submissions that it had summonsed those witnesses because, contrary to “recognise[d] accepted practice”, the respondents have declined to call them except William Gordon who is the complainant in the FA complaint[18]. It is submitted for Unimin that this course is contrary to the standards of fairness in relation to public prosecutions, is not in discharge of the prosecutor’s duty to act fairly and contrary to the principles of a model litigant, among other things, that “the power of the State is to be used for the public good and in the public interest, and not as a means of oppression, even in litigation”[19]. It is alleged that DERM has breached its own enforcement guidelines[20] in resorting to criminal prosecution instead of exploring less intrusive methods of resolution eg administrative enforcement action or, alternative dispute resolution according to model litigant principles.
[18] At [1] to [4] submissions for Unimin on this interim application;
[19]Search “Model Litigant” - “Model litigant principles to be adopted in the conduct of litigation, including significant litigation” (revised as at 4 October 2010) consisting of 1.5 typed pages;
[20] Search “Enforcement guidelines” at (October 2010) for current version; see also “document 7” to respondents’ submissions dated 28 February 2011 for previous EPA version;
Further, it was submitted for Unimin that as these witnesses will not be witnesses at a trial, there will be no opportunity for Unimin to explore and test the background circumstances extending over a period of years leading up to the making of the complaints with a view to establishing “abuse of process”. The submission continues that this opportunity should be afforded Unimin as it is not known what these departmental witnesses will say until they give evidence tested by cross examination. It appears to me that Unimin does not know the precise basis for its “abuse of process” application and simply wants to see what falls from those witnesses under the rigours of cross examination.
Briefly, the thrust of Unimin’s case is that Minister McGrady approved the mining by ACI of B Grade silica sand in 1995 subject to the same royalty payments as “Glass Grade” silica sand (exhibit 1). Unimin submits this formed the basis of a commercial agreement between ACI and the relevant department. This is disputed by the respondent in that the focus of the minister’s attention at the time was simply the calculation of rate of royalty to be paid. In any event the respondent says generally speaking an individual including a minister cannot declare something otherwise unlawful, lawful.
It was submitted for Unimin that the circumstances surrounding the making of the IPA and EPA complaints are highly relevant to the exercise of the court’s discretion to stay them permanently. In support of that submission, attention was drawn to a briefing note signed off by then Director General, Mr John Bradley, in January 2009 in which Ms Caruso, an investigator, had said to him it was unlikely that royalties had been paid in respect of B Grade silica sand. Some days later Ms Caruso was informed that royalties had been paid and it is not known if this position was corrected prior to the Director General signing off on the complaints on 4 December 2009 in circumstances where it was usually the function of the Associate Director General to do so. The complaints were in fact made by Mr Graham Bell on 1 December 2009. The full circumstances are not clear but it appears Ms Caruso had liaised with Mr D Johnson, Manager of Royalties with then Department of Mines and Energy, on the question of royalties. Consistent with his letter of 26 September 1995 to ACI and email of 20 February 2003, in April 2009 Mr Johnson confirmed with DERM investigators that ACI and then Unimin had been paying royalties for B Grade silica sand and, erroneously, that such sand was deemed a “mineral”. Unimin wishes to cross examine these witnesses to see if prosecution was launched under a false premise, I gather namely, that royalties were not paid for B Grade silica sand when they had been paid with ministerial approval in 1995 and that B Grade silica sand was treated as being a “mineral”. As I understand it, the false premise is not whether or not B Grade silica sand had actually been mined or sold. Prosecutions were not commenced until the Supreme Court determined that B Grade silica sand was not a mineral.
Further, in respect of the FA complaint made by William Gordon on 4 June 2010, it was submitted for Unimin that it is tainted because it is said to be a response to its submissions to DERM in April 2010. The respondents do not accept that it was in response to those submissions and says further that, in any event, that submission has no basis in law. The respondents have agreed to call William Gordon in the abuse of process application and he will be available to be cross examined by Unimin’s counsel.
Mr M Peate and Mr A Kwan, legal officers with DERM, are sought for cross examination as to what they can say about what transpired at or around the making of the IPA and EPA complaints. They made remarks in internal documents in December 2009 prior to, or around the time the complaints were made and then signed off by the Director General. It is envisaged that these witnesses may claim legal professional privilege should they be required to give evidence.
Submissions for Unimin cite a number of passages from judgments in support of various propositions concentrating on fairness in relation to the decision by a prosecutor in calling or not calling witnesses. First, The Queen v Apostilides (1984) 154 CLR 563 at 576 was cited[21] as follows:
A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call a witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare …In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.
[21] Paragraph 5 (p2) submissions in this interim application;
The respondent submits that this case does not assist here as it involves a jury trial, not a preliminary application and it only provides guidance in the case of witnesses whose names appear on the information “and who would be expected to be able to give evidence which is material to the matters in issue in the trial”[22]. In this interim application in which Unimin bears the onus of proof, the proposed witnesses, with the possible exception of one, are not witnesses in the trial itself let alone being named on the “information”. Further, Apostilides recognises in an adversarial system the wide discretion in prosecutors who bear the lonely and heavy responsibility of deciding whether or not to call witnesses at a trial and that a court cannot direct a prosecutor to call a particular witness although failure to call a witness may be the subject of comment by the trial judge during summing up.
[22] The Queen v Apostilides (1984) 154 CLR 563 at 565 (point 3);
Next, there is Richardson v The Queen (1974) 131 CLR 116 at 119[23]:
[The Crown Prosecutor] also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, …whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.
[23] Judgment of the Court; Paragraph 5 (p 3) submissions in this interim application;
And Whitehorn v R (1983) 152 CLR 657 at 663-4 per Deane J[24]:
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against the accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however, regrettable, will not warrant the interference of a appellate court with a conviction. On occasion however, the consequences of such failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.
[24] Paragraph 5 (p 3) submissions in this interim application;
The respondent submits that Whitehorn gave useful guidance to prosecutors in obiter noting the general obligation on prosecutors to call available evidence at trial. In that case the conviction of indecent assault on an eight year old girl was quashed primarily on the basis that the prosecutor did not provide an acceptable explanation as to why the girl was not called to give evidence and this was unfair to the accused. I agree with the respondent that Whitehorn does not assist here.
Richardson was an unsuccessful appeal against conviction for assault occasioning bodily harm and malicious injury to property on the basis that the prosecutor “failed in his duty” to call an eye witness in the Crown case which led the witness to be called by the defence and then cross examined by the prosecutor[25]. Again, as in Whitehorn, Richardson gave useful guidance to prosecutors as to their duties. In my view, it does not assist in this application. Having regard to Unimin’s submissions about prosecutors’ duties, pertinent to this application is a passage in Richardson after the passage cited above. After referring to a prosecutor exercising personal judgement as to what witnesses will be called at trial, the joint judgment in Richardson continues at 120:
It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The misconception has arisen, we venture to think, from treating some observations in the decided cases, which have been made with the intention of offering guidance to prosecutors in how they are to approach their task, as the prescription of an inflexible duty to call all material witnesses, subject to certain exceptions or to special circumstances. Although the pursuit of certainty may have its advantages, the rigid circumscription of a practical decision to be made by the Crown prosecutor in the conduct of the Crown case is not to be numbered among them.
[25] At p 118 (point 3);
Having regard to those comments in relation to a trial which is at a time when the issues would usually have been refined and after full disclosure, the directions sought in this interim application at a time when the substantive matters are in a relative inchoate state in seeking the prosecutor call a range of witnesses who are not witnesses at trial to be available for wide ranging cross examination is, to say the least, tenuous in my view. No authorities were cited on the very question to be determined in this interim application.
Then a number of cases were cited as to the usual practice in a voir dire that has been granted by a court. First, R v Petroulias (2006) 182 A Crim R 1 at 6 per Johnson J (NSW)[26]:
Thirdly, it is usual practice on a voir dire for the Crown to call witnesses. Once a voir dire has been accepted as being an appropriate procedure to be used, even in a case involving objection by the accused seeking the discretionary rejection of evidence where the accused bears the onus, the usual practice is that the Crown will call witnesses relevant to matters for determination on the voir dire, who will be cross examined on behalf of the accused.
[26] Paragraph 6 (pp 3-4) submissions in this interim application;
Next, is a passage from R v Butler (No 1) (1991) 102 FLR 341 at 349 per Kearney J (Northern Territory)[27]:
I consider that the Crown does not bear an onus when the question is the discretionary exclusion of voluntary admissions. Though in general Crown witnesses testify first on the voir dire, this has nothing to do with onus; it is within the Court’s discretion as to who begins, based upon convenience; see the analysis by Wells J in R v Williams (1976) 14 SASR 1 at 3; and in Furnell v Betts [(1978) 20 SASR 300] at 302.
[27] Paragraph 6 (p 4) submissions in this interim application;
In respect of Petroulias and Butler the respondent submitted these cases were dealing with applications to exclude evidence which the Crown sought to lead at trial. It was submitted there was nothing in these cases to suggest that this court should invite the prosecutor to call witnesses who will not be witnesses at trial for cross examination in Unimin’s application for a stay on the grounds of abuse of process. I agree with that.
Wells v The Queen [2010] VSCA 100 (8 December 2010) was an unsuccessful appeal against the refusal of the Victorian County Court to permanently stay a charge for culpable driving involving a nose to tail collision between two vehicles that were extensively damaged. Both vehicles were destroyed after the police expert examined both vehicles for defects. One year later the defendant was charged. The County Court heard the stay application on a voir dire on the basis that evidence had been destroyed. Three witnesses were called i.e. the police expert, the informant, and an expert engaged by the defendant who was unable to examine the vehicles because they had been destroyed. It is not clear from the judgement who called them[28] although, unlike the present case, they most likely would have been material witnesses at trial. It is also clear that, unlike the present case, the stay application there was based on a recognisable category of case i.e. destruction of evidence[29]. In Wells, the focus of the voir dire was to determine if the defendant would suffer prejudice at a trial by reason of destruction of the motor vehicles. The Court of Appeal held not[30]. I do not think that case is of great assistance here.
[28] See in particular para [11] of judgment of Ashley JA with whom the other members of the court agreed;
[29] At paras [20] & [21] per Ashley JA;
[30] At para [25] per Ashley JA;
Other statements of principle relied on by Unimin are that it is settled practice that a vior dire can be held in the Magistrates Court: Smithers v Andrews; ex parte Andrews [1978] Qd R 64 (this is not contentious) and that an application for a stay is an interlocutory application where evidence is to be called on a voir dire: Wells v The Queen [2010] VSCA 100 and Electronic Rentals Pty Ltd c Anderson (1971) 124 CLR 27 at 33[31].
[31] Paragraphs 7, 8 & 9 submissions in this interim application;
The respondent submits that Electronic Rentals neither approves nor disapproves what occurred in that case where the defendants challenged the validity of proceedings and wanted the two Justices of the Peace available for cross examination. The complainant agreed to this course. It was simply a position agreed between the parties. The reasons why are not evident. Further, the nature of that case went to jurisdiction and not, as in the present case, a discretionary remedy of staying proceedings for abuse of process. I agree that that case is not helpful here for those reasons.
An abuse of process case of Postermobile plc v Brent London Borough Council, The Times Law Reports, 8 December 1997 at 627[32] was cited for Unimin during oral submissions for the proposition I think that citizens should be able to rely on statements of public officials. The defendant was advised by council officers that planning consents were not required for displaying advertisements. In reliance, the defendant erected advertisements. Without any preliminary correspondence or notice, the council laid
25 separate informations. In quashing convictions by a Magistrates Court, the appeal by way of case stated upheld that it was unfair for the defendant to be tried as an abuse of process. It is not clear from the brief judgment the process adopted in the Magistrates Court.
[32] Queen’s Bench Divisional Court constituted by Lord Justice Schiemann and Mr Justice Moses;
It appears though that the situation in the present case is not as clear cut where advice was sought at one meeting and acted on in Postermobile. Submissions for the respondents highlight antecedent dealings with Unimin or its predecessor. For example, there is a letter to ACI dated 30 August 1996 enclosing a portion of a Mining Warden’s decision (document 1) differentiating between sand used for brick making being a “mineral” under the Mineral Resources Act 1989 and sand used in conjunction with concrete being “quarry material” under the Forestry Act 1959. There is an email dated 30 July 2007 to Greg Watkins of Unimin confirming that Unimin would need dual permits, one for mining activities and the other for removing B Grade silica sand (document 2). Further, there are minutes of meetings between the Redland Shire Council and Unimin making Unimin aware among other things that trucking sand for sale was “impact assessable” and that an application would need to be made to the EPA (document 3). An internal memorandum from Unimin dated 14 July 2008 states that “the site does not have the appropriate license” in respect of the sale of construction material (document 4). This was also confirmed in email reports of the EPA dated 14 July 2008 (document 5). On
17 November 2008 Unimin’s Greg Watkins told EPA officer Lousie Jordan during a site visit that Unimin was not permitted to deal with construction sand (document 6). In her statement (document 6), after asking Greg Watkins whether stockpiles of sand by the driveway were building or construction sand, Louise Jordan said at [10]:
Greg Watkins told me Unimin are not permitted to do that and that they had been advised by one of my predecessor’s [sic] that they were not approved to do this. Greg Watkins stated that my predecessor told them to stop doing it.
While that evidence is untested in this interim application, the position appears to be in stark contrast to what happened in Postermobile. I note from the respondent’s submissions that a warrant was executed by the EPA on 16 December 2008 where evidence was obtained indicating that Unimin was selling B Grade silica sand. In that context, after the 18 December 2008 being the end dates of the offending behaviour alleged in the complaints, in April 2009 Mr Johnson makes an erroneous statement that
B Grade silica sand is a “mineral” at a time when, according to the royalty returns in exhibit 13, the last royalties paid for B Grade silica sand was for the quarter 1 October 2008 to 31 December 2008. If the above is accepted, Unimin had been put on notice that there was an issue about this. Then on 27 August 2009 Unimin launched declaratory proceedings in the Supreme Court on that very question. Thus, the position is in stark contrast to Postermobile.
The respondent further submits that, while the prosecution may in some cases make available witnesses for cross examination in preliminary applications such as this, it is not “accepted practice” as each case depends on the circumstances and the overall discretion resides with the prosecutor. In this case all witnesses bar one are not witnesses for trial. They are irrelevant to the issues to be determined at trial. Further, the effect of the model litigant principles including “fairness” does not mean that the prosecutor should simply give Unimin everything it asks for or “roll over” as senior counsel for the respondent put it during oral submissions. Balanced against “fairness” is “duty to the community” and to the courts. Indeed, consistent with “fairness” is “firmness” including, for example, appropriately testing all claims, contesting all spurious claims or vexatious claims, claiming legal professional privilege and acting properly to protect the State’s interests[33].
[33] See point 2 of Model Litigant Principles;
The respondent submits that Unimin’s abuse of process application should not be a general inquiry to see what unfolds. It is not the function of a model litigant to call witnesses for cross examination which will be very difficult to control particularly as the basis for the application has not been sufficiently articulated, certainly not to the standard usually required upon an application for a voir dire in a jury trial, or indeed a voir dire in the Magistrates Court. I agree with those submissions.
As noted above Unimin has relied on various statements in jury trials. A voir dire, a trial within a trial, is used for a variety of purposes including determining the admissibility of confessions. The principles therein show that the overall discretion resides with the prosecutor in the conduct of the case. Johnson v Miller (1937) 59 CLR 467 was also cited as a prime example where the prosecutor declined to further particularise the complaint although that resulted in the complaint being dismissed because it was defective.
The cases relied on by Unimin assume that a voir dire has been granted. Other authorities were cited by the respondent in support of the proposition that the granting of a voir dire is a matter of discretion and not of right: see for example The Queen v Cooper, Supreme Court of Western Australia per Kennedy J[34] (8 December 1995) where he cited Badgery-Parker J in the New South Wales Court of Appeal decision of R v Hawkins at 6 (unreported, 17 December 1992):
..that a party who seeks a voir dire must first satisfy the Judge that there is a reasonable ground for departing from the ordinary procedure of the trial to that extent. It is important that counsel seeking a voir dire identify the issues to which it is directed. A voir dire on the admissibility of confessional material is not an inquiry at large conducted in the hope of throwing up some circumstance to which at the end of the day the accused can point as offering a basis for exclusion of the confession. It is for the accused at the time when the application is made for the voir dire to identify the bases upon which it is going to be alleged that the confession is not admissible in evidence or, if admissibility is conceded or is found by the Judge after the voir dire, the general nature of the matters upon which reliance is intended to be placed in order to secure its exclusion as a matter of discretion.
[34] BC9502720;
Similar principles were applied by Johnson J in DPP (NSW) v Zhang [2007] NSWSC 308 at [112]:
The grant of a voir dire by a Court is a matter of discretion and not a right. A party seeking a voir dire must first satisfy the Judge or Magistrate that there are reasonable grounds for a voir dire, and counsel must identify the issues to which it is directed. Specification by counsel of issues to be examined on a voir dire is important to allow objections to be taken and considered on relevance: R v Lars (1994) 73 A Crim R at 114-115; R v Meir (NSW Court of Criminal Appeal, 21 May 1996, unreported, BC9601936 at pages 16-18).
Indeed, that is made clear in Petroulias cited at [33] above where the joint judgment said “Once a voir dire has been accepted as being an appropriate procedure to be used …”
Unimin brought this application to hold what is essentially a separate hearing before trial in seeking a discretionary remedy of staying proceedings for abuse of process which requires it to establish special or unusual circumstances. In referring to this as a voir dire, which is traditionally granted as a matter of discretion and not of right, Unimin then seeks to draw upon principles in authorities applicable to voir dire proceedings with regard to procedure and the practice of the prosecution calling witnesses. I agree with submissions for the respondents that the cases relied on do not assist in this interim application.
I am of the view that I ought not to direct the prosecution to call the witnesses listed above to be available for cross examination by Unimin’s counsel. I agree with the respondent’s submissions that the issues sought to be canvassed with these witnesses are not relevant to the allegations the subject of the complaints. This is exemplified by the fact that they will not be called by the prosecution as witnesses at the trial.
In my view, directing the prosecution to call those witnesses would be almost tantamount to descending into the arena for reasons not dissimilar to why it would be extremely rare for a judge to call a witness at trial. In that regard, in referring to Richardson, Dawson J in Whitehorn said at 682 in the context of a trial[35]:
A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case of either side……It is no part of the function of the trial judge to prevent [a miscarriage of justice] by donning the mantle of prosecution or defence counsel. He is not equipped to do so ….he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision
[35] Cited with approval in The Queen v Apostilides (1984) 563 at 576;
I am of the view that there is no clear practice set in stone where the prosecution must call all witnesses at the behest of the defence, whether at trial or on an application such as this. As the cases cited above have repeatedly stated, the decision to call or not call a witness for the prosecution is within the sole province of a prosecutor. In my view, while this court may have discretion as to how proceedings such as these are conducted, that principle generally applies to applications such as this. I am not prepared to depart from that.
For the above reasons I do not propose to direct the prosecutor to call the above witnesses to be available for cross examination by Unimin’s counsel.
I grant the parties liberty to apply for any outstanding matters in the event they cannot agree.
commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter”;
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