Director of Public Prosecutions v Hazelwood Pacific Pty Ltd and Ors (Ruling 3)
[2019] VSC 872
•17 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 00342
S CR 2017 00343
S CR 2017 00344
S CR 2017 00345
INDICTMENT NO C 1610715
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| HAZELWOOD PACIFIC PTY LTD, NATIONAL POWER AUSTRALIA INVESTMENTS LIMITED | Accused |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14, 16 May 2019 |
DATE OF RULING: | 17 May 2019 |
CASE MAY BE CITED AS: | DPP v Hazelwood Pacific Pty Ltd & Ors (Ruling 3) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 872 |
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CRIMINAL LAW – Admissibility of evidence – Formal admission of element of pollution – Admission relates to major issue in proceeding – Evidence may be relevant to complicated remaining issues – Some evidence likely to assist jury understanding the mine fire event and issues to be decided – Probative value not outweighed by unfair prejudice – Adequacy of defence response – No uncertainty as to basis of defence – Evidential burden in relation to the issue of honest and reasonable mistake – R v Longford (1970) 17 FLR 37 – Smith v The Queen (2001) 206 CLR 650 – Stubley v Western Australia (2011) 242 CLR 374 – Momcilovic v The Queen (2011) 245 CLR 1 – Environment Protection Act 1970 (Vic) ss 41(1) and 62C – Evidence Act 2008 (Vic) ss 55, 56, 135 and 137 – Criminal Procedure Act 2009 (Vic) ss 182 and 183.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | D Neal SC with S Russell and D Porceddu | John Cain, Solicitor for Public Prosecutions |
| For the Accused | I Hill QC with M Foley and R O’Neill | King & Wood Mallesons |
HIS HONOUR:
This ruling should be read in the context of my ruling delivered on 6 May 2019. I will not repeat relevant facts, which were briefly set out in my earlier ruling.
The two issues determined in this ruling are:
(a) admissibility of evidence that the atmosphere was polluted under s 41(1)(a), (b) and (e) of the Environment Protection Act 1970 (‘EP Act’); and
(b) the adequacy of the further amended defence response (‘defence response’).
Admissibility of pollution evidence
The accused, through their counsel, have indicated an intention to admit a number of facts pursuant to s 184 of the Evidence Act 2008 (Vic). The facts to be admitted include:
5.Subject to the intensity of the Northern and Southern Batters fires and prevalent wind conditions from time to time, the fires caused smoke to be emitted into the atmosphere outside of the Hazelwood Premises on certain days and in certain locations during the period in [4] above, with the result that the atmosphere was at times:
a.offensive to the senses and potentially harmful to the welfare of human beings, including through irritated eyes, respiratory symptoms (such as coughing, wheezing, and breathing difficulties), sore throats and headaches; and
b.detrimental to some of the beneficial uses that may be made of the atmosphere (including by reducing visibility, local amenity and aesthetic enjoyment).
6Persons exposed to the atmospheric pollution arising from the fires in the Southern and Northern Batters of the Hazelwood Mine included employees and contractors of the Hazelwood Mine, CFA and MFB fire-fighters, residents of Morwell (and particularly, persons located in the southern part of Morwell), other emergency services staff (including staff from EPA Victoria) and other persons who worked in, visited or were otherwise present in the Morwell area.
Previously the prosecution indicated an intention to call a total of 56 witnesses. That total has been reduced to 38, largely because of an indication by the accused that they did not put pollution in issue.
The prosecution still intend to call eight witnesses to give evidence relevant to pollution from the mine fire. The accused submitted that, after the formal admissions are made:
(a) because the element of pollution is no longer a fact in issue, evidence relating solely to that issue is not relevant or admissible at trial;[1]
(b) if pollution evidence is relevant, the court should refuse to admit the evidence because its probative value is substantially outweighed by the danger that leading the evidence might cause or result in undue waste of time;[2]
(c) alternatively the evidence should be excluded because the probative value is outweighed by the danger of unfair prejudice to the accused.[3]
[1]Evidence Act 2008 (Vic) ss 55 and 56; R v Longford (1970) 17 FLR 37 (‘Longford’); R v O’Sullivan (1975) 13 SASR 68; Stubley v Western Australia (2011) 242 CLR 374 (Heydon J) (‘Stubley’).
[2]Evidence Act 2008 (Vic) s 135.
[3]Ibid s 137.
At trial on 16 May 2019 I ruled against the accused, and indicated my reasons would follow. These are those reasons.
The accused acknowledged they will not admit each and every indicia of pollution upon which the prosecution rely. However, they submitted the facts they intend to admit are sufficient to constitute an admission of the element of pollution for the purposes of s 41(1) of the EP Act.
The approach the accused intend to take is demonstrated by charge 2, which alleges that the accused:
… at Morwell in Victoria between the 9th day of February 2014 and the 25th day of March 2014 polluted the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere harmful or potentially harmful to the health, welfare, safety or property of human beings.
The admission the accused intend to make in relation to charge 2 is more limited in a number of ways than the allegations made in the indictment, including:
(a) smoke was emitted from the Hazelwood mine premises only on certain (unspecified) days and in certain (unspecified) locations; and
(b) the smoke was potentially harmful to the welfare of human beings.
The accused submitted, despite these limitations, once the admission was made the element of pollution was no longer in issue, and evidence relating to that element no longer relevant or admissible.
As to the question of relevance the accused relied on the decision of the High Court in Smith v The Queen (‘Smith’)[4] in which the Court said:
In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.[5]
[4](2001) 206 CLR 650 (‘Smith’).
[5]Ibid [7]; see Evidence Act 1995 (NSW) s 55(1).
In relation to the question of admissibility, the accused relied on what was said by Gibbs J in R v Longford (‘Longford’):[6]
[6](1970) 17 FLR 37, 38.
It seems to me that there are three propositions that may be laid down as to the effect of s. 404. The first is that admissions made under that section render it unnecessary for the Crown to call evidence to prove the matter admitted. In other words, an admission under s. 404 dispenses with the necessity of proof of the matter admitted.
Secondly, it follows that the Crown ought not call evidence to prove a matter which has been the subject of an admission, at least if the calling of such evidence would be likely to have any prejudicial effect on the accused.
Thirdly, however, if the evidence in question not only goes to prove a matter admitted, but also has probative value on another issue, the admission of one fact does not prevent the evidence as to that fact being given when it is relevant to another issue.
The accused submitted this passage from the judgment of Gibbs J in Longford was approved by the Full Court of the Supreme Court of South Australia in R v O’Sullivan,[7] in which Bray CJ said:
[7](1975) 13 SASR 68.
I add that, in my view, the last part of the second proposition only means that if the evidence can have no possible prejudicial effect on the accused it is not worth while excluding it. It does not mean that it ought to be admitted over the objection of counsel based on an allegation of possible prejudice or that the learned judge should address himself to the same questions that he would have to consider in the exercise of his discretion.[8]
The accused relied on the judgment of Heydon J in Stubley v Western Australia (‘Stubley’),[9] in which the High Court allowed an appeal on the basis that similar fact evidence had been led on an issue which was not live in the trial, the only live issue being consent to sexual acts. No formal admission pursuant to a statutory provision had been made, but counsel for the accused had expressly made admissions in his opening to the jury to the effect that the sexual acts had taken place. Justice Heydon dissented on the basis that a formal statutory admission would be required to preclude the Crown from calling evidence as to a matter not in issue, but said:
A common forensic tactic seeks to prevent damning evidence being called, or to water down the evidence which is called, by narrowing the issues in the case. The making of an admission under s 32 is an example of this tactic. It is a particularly advantageous tactic because there is substantial authority for the view that once an admission of a matter of fact has been made by the defence, not only is it not necessary for the prosecution to call further evidence on that matter of fact, but it is not open to it to do so, unless that evidence is relevant to another issue.[10]
[8]Ibid [74].
[9](2011) 242 CLR 374.
[10]Ibid 94 (citations omitted).
In relation to prejudice, the accused submitted it was difficult to think of an example of evidence more likely to result in an undue waste of time than evidence which is in dispute, in the sense that the parties disagree about its truth, accuracy or reliability, but not in dispute in the sense that it is not necessary for the jury to determine the issue in order to decide whether an element of the offence has or has not been proven beyond reasonable doubt. Further, there is prejudice to the accused in being required either to refrain from disputing evidence which paints it in a worse light, or to be seen by the jury as unproductively wasting court time in cross-examining witnesses about issues which the jury does not need to determine.
The evidence
The prosecution intend to call five Morwell residents who will give evidence as to the offensiveness of the smoke and its effect on their health and beneficial use of the environment; two Environment Protection Authority officers who will give evidence as to the approach to measurement of pollution, measurements actually made, and, in the case of one of the officers, adverse effects of the smoke; and an epidemiologist as to the likely or potential harm to health caused by the pollution.
Analysis
In Stubley, Heydon J made the following further remarks:
No s 32 admission was made. That is so substantially for the reasons given by Pullin JA in reliance on The State of Western Australia v Wood. Counsel’s statement was too vague. It was not clear enough. It was not formal enough. It did not relate to what Hoffmann called “uncontroverted and uncomplicated” facts but to facts integrally tied up with controverted and complicated questions of consent. An admission under s 32 would debar the prosecution from calling any evidence about what actually happened on each occasion apart from evidence going to the consent issues: if counsel's opening address was to have this radical effect, more was required from it. It was totally lacking in the concreteness and verisimilitude which testimony could convey.
…
Further, Wigmore spoke of “the added dramatic force which might sometimes be gained from the examination of a witness to the fact (a force, indeed, which the admission is often designed especially to obviate)” as not being “a thing which the party [calling the witness] can be said to be always entitled to.” On the other hand, he thought there were limits to the capacity of one party to use an admission to neuter testimony, for he said: “a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases), so as to be technically but not practically a waiver of proof.”[11] These issues do not arise here for the reasons just given.
It may be very difficult to make admissions under s 32 except in relation to particular discrete factual matters. Thus it may be difficult to make an admission about a major issue in proceedings.[12]
[11]Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1981), vol 9 at 824–825 [2591] (emphasis in original).
[12]Stubley [106]–[108] (citations omitted).
Smith is an example of a case where the fact in issue was very narrow, and was able to be reduced to, ’[i]s the person standing trial the person who is depicted at the right-hand side of some of the photographs tendered in evidence?’.[13] If an accused admitted such a discrete, narrow fact, the admission might have the effect that evidence as to that fact is not admissible because it is not relevant to a fact in issue.
[13]Smith [10].
The circumstance here is quite different. What is admitted is a major issue in the proceeding. The facts which are to be admitted are not discrete and narrow. The facts relate to a complex event, which is the Hazelwood mine fire.
The elements of the offence which remain in issue, namely causation, honest and reasonable mistake, and the relatedness of the pollution to the undertaking conducted at the Hazelwood mine, are undoubtedly controverted and complicated questions. Whilst it is too much to say that the facts relevant to pollution are integrally tied up with these issues in the same way that the circumstances or extent of an assault may be tied up with the issue of consent, some evidence as to the pollution facts is likely to assist the jury understanding the mine fire event, and the issues it will be required to decide.
The admissions do lack a ‘concreteness and verisimilitude which testimony could convey’, are colourless, and, whilst technically sufficient to establish pollution, would, if no evidence was given about the matter, deprive the jury of the opportunity to properly understand the event. I do not agree that, in the circumstances of this case, the accused can neutralise the allegation of pollution so as to remove it entirely from the hearing of the jury by making limited and imprecise admissions that technically satisfy the element, but are colourless.
Arguably evidence as to pollution could rationally affect (directly or indirectly) other facts in issue, such as causation, honest and reasonable mistake, and whether the pollution is unrelated to the undertaking of the coal mine. The accused are alleged to have caused the pollution. The accused allege the pollution was unrelated to the commercial or industrial undertaking conducted at the Hazelwood mine premises. Evidence of what it was the accused are alleged to have caused, or what it was that is said to be unrelated to the undertaking, could possibly be relevant, at least indirectly, to the issues in dispute.
I do not accept that the probative value of the pollution evidence is substantially outweighed by the danger the evidence might result in undue waste of time, or by the danger of unfair prejudice to the accused. In the context of this extensive criminal proceeding and what is expected to be a lengthy trial, the time likely to be taken by this evidence is modest.
The pollution evidence simply relates to the mine fire event. Evidence to be led in relation to that event includes evidence going to operation of the mine for many years up to February 2014; the more immediate circumstances of weather, bushfires, acts of third parties, and preparations at the mine for the risk of fire; ignition of fires within the mine; fire activity from 9 February to 25 March 2014 and steps taken to extinguish the fire; and the relatedness of the pollution to the undertaking conducted at the Hazelwood mine. It is artificial, and would be unhelpful to the jury if they were to hear no evidence as to pollution. The evidence sought to be led simply completes the picture of the event the jury is required to consider. I do not agree the evidence is prejudicial to the accused.
I have ruled that the prosecution may lead some evidence as to pollution. In argument I was not taken to the detail of the evidence the prosecution intend to lead. Other issues as to admissibility may still arise in relation to that evidence. To the extent the evidence relates solely to the pollution element, there may remain an issue as to the number of witnesses the prosecution can call to address the matters referred to above. Those further issues will be dealt with if and when they arise.
Adequacy of defence response
The summary of prosecution opening (‘prosecution opening’) and defence response are required by ss 182 and 183 of the Criminal Procedure Act 2009 (Vic) (‘CPA’).
182 Summary of prosecution opening and notice of pre‑trial admissions
(1)Unless the court otherwise directs, at least 28 days before the day on which the trial of the accused is listed to commence, the DPP must serve on the accused and file in court—
(a) a summary of the prosecution opening; and
(b) a notice of pre-trial admissions.
(2) The summary of the prosecution opening must outline—
(a)the manner in which the prosecution will put the case against the accused; and
(b)the acts, facts, matters and circumstances being relied on to support a finding of guilt.
…
183Response of accused to summary of prosecution opening and notice of pre-trial admissions
(1)After being served with a copy of the documents referred to in section 182, the accused must serve on the prosecution in accordance with section 392 and file in court, at least 14 days before the day on which the trial of the accused is listed to commence—
(a)a copy of the response of the accused to the summary of the prosecution opening; and
(b)a copy of the response of the accused to the notice of pre-trial admissions.
(2)The response of the accused to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.
…
(4) Despite subsections (2) and (3), the accused is not required to state—
(a)the identity of any witness (other than an expert witness) to be called by the accused; or
(b) whether the accused will give evidence.
Adequacy of the defence response principally relates to two issues in the proceeding, namely, whether the pollution was unrelated to the undertaking conducted on the Hazelwood mine premises, and honest and reasonable mistake.[14]
[14]In relation to these matters the prosecution relied on paragraph [74] of my ruling of 6 May 2019. That paragraph was poorly expressed. What I intended was that the accused provide a further response in accordance with their obligations under s 183 of the CPA.
Unrelated to the undertaking
The indictment relies, in the alternative, on the accused being deemed to have polluted the environment in accordance with s 62C of the EP Act. Many of the facts alleged by the prosecution and outlined in the prosecution opening are relevant to the relatedness of the pollution to the undertaking conducted at the Hazelwood mine premises.
The defence response puts in issue various facts in relation to the operation of the mine. The issue of whether the pollution was unrelated to the undertaking is specifically addressed as follows:
As to the allegation that the accused as occupiers are responsible for the pollution by reason of s 62C, the accused will establish that the smoke and ash which emanated from the Hazelwood mine fire was unrelated to the commercial or industrial undertaking conducted at the mine by the accused.
The commercial or industrial undertaking of the accused was the extraction of brown coal resource pursuant to mining licence MIN5004 and its transfer via conveyors to the Hazelwood power station for the purposes of the production of electricity with emissions from eight units of the Hazelwood power station being authorised under the EPA licence No 46436.
It has never been any part of the commercial or industrial undertaking at the Hazelwood premises to discharge smoke from the burning of coal other than inside the power station for the purpose of generating electricity. The coal had not been placed on the Northern Batters by the accused or uncovered by the accused. That had happened many years before the accused occupied the land. It was simply part of its landholding.
It can be seen from the above that on the unrelated issue the defence response:
(a) characterises the undertaking conducted on the premises and alleges, on the basis of that characterisation, that the pollution is unrelated to the undertaking; and
(b) states the coal on the northern batters was not put in place or uncovered by the accused, had been uncovered many years before the accused occupied the land, and was simply part of its landholding.
There is no uncertainty as to the basis upon which the accused allege the pollution was unrelated to the undertaking.
Section 183(2) of the CPA requires that the accused identify the acts, facts, matters and circumstances in the prosecution opening with which issue is taken, and the basis on which issue is taken. There is nothing in the CPA which imposes any more onerous obligation on the accused in respect of an element on which it bears an evidentiary or legal onus.
Insofar as it is a relevant consideration at this point, there is currently no apparent prejudice to the prosecution which arises from the accused response. As is apparent from the opening, the prosecution is in a position to lead evidence as to the nature of the undertaking conducted on the premises, that the undertaking includes, pursuant to relevant licences and the operation of the Hazelwood mine, the worked out batters, and that the pollution is related to the undertaking.
On the unrelated issue the defence response satisfies s 183 of the CPA.
Honest and reasonable mistake
The defence response states:
In the event that the prosecution established that the accused polluted the atmosphere in contravention of s 41(1)(a), (b) and/or (e) of the EP Act, the accused will say that they are nevertheless not guilty of an offence by reason of an honest and reasonable mistake of fact. The mistaken belief, honestly held, is that:
a.there could not be multiple fires in disparate locations in the Hazelwood mine caused by spotting from two external bushfires (both of which were likely deliberately lit); and
b.the accused had sufficient and adequate measures in place to respond to the threat of bushfire.
The prosecution submitted that to make out an honest and reasonable mistake there must be evidence that someone adverted to the relevant facts and formed an honest but mistaken belief. It was submitted that the defence response does not provide the factual basis for the asserted beliefs, and does not comply with the obligations in s 183(2) of the CPA.
The accused bear an evidential burden in relation to the issue of honest and reasonable mistake. In Momcilovic v The Queen (‘Momcilovic’),[15] the High Court said:
An evidential burden is not an “onus of disproof”. An evidential burden does no more than oblige a party to show that there is sufficient evidence to raise an issue as to the existence (or non-existence) of a fact (1068). Discharge of an evidential burden may require that an accused lead evidence in a defence case. It may be discharged by evidence adduced in cross-examination of witnesses in the prosecution case. In rare cases it may be discharged by reference to evidence adduced by the prosecution in chief.[16]
[15](2011) 245 CLR 1 (‘Momcilovic’).
[16]Ibid 665 (citations omitted).
The accused are not required by s 183 of the CPA to identify any witness to be called.
In effect, the prosecution submission seeks to impose on the accused an obligation to identify the evidence which will be adduced to make out the basis for honest and reasonable mistake which is alleged. In my view, no such obligation is imposed by s 183 of the CPA. The accused have clearly identified the asserted beliefs upon which they rely. The evidential onus the accused bear may be discharged in the manner described in Momcilovic.
In those circumstances it then falls to the prosecution to negative honest and reasonable mistake. The prosecution might do so by establishing beyond reasonable doubt that:
(a) the identified beliefs are not honestly held;
(b) the identified beliefs are not a reasonable mistake of fact; or
(c) the beliefs, if honestly and reasonably held, are not exculpatory.
In my view the current form of the defence response does not prejudice the prosecution in relation to these proofs.
The scheme of the CPA is to hold the parties to the opening and response served under ss 182 and 183. Any substantial departure from the defence response, whether in opening or evidence, requires leave,[17] may result in comment,[18] and may justify the prosecution being given leave to call evidence in reply.[19]
[17]Criminal Procedure Act 2009 (Vic) ss 225(a), 233(1)(b).
[18]Ibid s 222.
[19]Ibid s 233(2).
Any further issues which arise in relation to the matters unrelated and honest and reasonable mistake will be dealt with during the running of the trial. At this point I conclude that the defence response in respect of these matters is not inadequate.
Further matters in relation to defence response
I understand the issue in relation to paragraph 45 of the defence response is resolved by an alteration to the response the accused have agreed to make.
It is not possible to conclude at this stage that evidence of matters raised by paragraphs 29 to 35 of the defence response could not rationally affect the issue of causation.
The accused should say what issue the payment referred to in paragraph 25 of the defence response relates to.
Paragraph 50(d) is not responsive to paragraph 62 of the prosecution opening. Whether ‘there was no or poor water coverage’ is to be measured by the degree of water coverage, not by reference to whether water coverage satisfies a standard set by reference to local industry practice.
The prosecution are entitled to raise in the opening measures taken during and after the fire as relevant to establish it was possible to install or implement adequate mitigation measures, and risk assessments as relevant to the obviousness of the risk.
Conclusion
I have concluded:
(a) evidence as to pollution may be led by the prosecution;
(b) the defence response in relation to unrelated and honest and reasonable mistake is not inadequate; and
(c) the defence response should be amended in accordance with the paragraphs [41]–[43] above.
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