Director of Public Prosecutions v Hazelwood Pacific Pty Ltd and Ors (Ruling 6)
[2019] VSC 877
•27 November 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 | Offenders |
---
JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 October 2019 |
DATE OF RULING: | 27 November 2019 |
CASE MAY BE CITED AS: | DPP v Hazelwood Pacific Pty Ltd & Ors (Ruling 6) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 877 |
---
CRIMINAL LAW – Basis of sentence – Various particulars of causation or deemed causation before jury – General jury verdict does not resolve which particulars of causation were proven – Deemed causation has same actus reus with different evidentiary path – Sentencing judge to determine degree of culpability of offenders’ conduct – Findings of fact to be consistent with jury verdict – Environment Protection Act 1970 (Vic) ss 41(1) and 62C – Cheung v The Queen (2001) 209 CLR 1 – Chiro v The Queen (2017) 260 CLR 425.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | D Neal SC with S Russell and D Porceddu | John Cain, Solicitor for Public Prosecutions |
| For the Offenders | I Hill QC with M Foley and R O’Neill | King & Wood Mallesons |
HIS HONOUR:
Background
The offenders operated the Hazelwood brown coal mine in the Latrobe Valley, Gippsland (‘the mine’), and were occupiers of the land on which the mine was situated.
On 9 February 2014, a fire or fires ignited in the mine and burned for a period of weeks (‘the mine fire’).
The offenders were each charged with three offences of polluting the atmosphere under s 41 of the Environment Protection Act 1970 (Vic) (‘EP Act’). The pollution was smoke emitted by the mine fire.
The trial of the charges commenced on 16 May 2019. On 22 July the jury found each offender guilty on all charges.
The prosecution and the offenders are in dispute as to the basis on which I should sentence. The prosecution submitted that for the purposes of sentencing I should determine the facts relevant to culpability. The offenders submitted that I should sentence on the basis most favourable to them consistent with the jury verdict.
For the reasons which follow I accept the prosecution submissions.
Legislation
The charges were brought under s 41(1) of the EP Act, and relied on pollution of the atmosphere in accordance with subsections (a), (b) and (e):
41 Pollution of atmosphere
(1)A person shall not pollute the atmosphere so that the condition of the atmosphere is so changed as to make or be reasonably expected to make the atmosphere –
(a)noxious or poisonous or offensive to the senses of human beings;
(b)harmful or potentially harmful to the health, welfare, safety or property of human beings; …
(e)detrimental to any beneficial use made of the atmosphere.
In relation to each charge the prosecution also relied, in the alternative, on s 62C of the EP Act:
62C Presumption that occupier caused discharge etc.
If any segment or element of the environment is polluted as a result of a discharge, emission or deposit of any substance from or on any premises on which there is conducted any commercial or industrial undertaking, the occupier of the premises is deemed to have polluted that segment or element of the environment unless the occupier proves that the discharge, emission or deposit was unrelated to the commercial or industrial undertaking.
Definitions in s 4 of the EP Act include:
occupier in relation to any premises includes a person who is in occupation or control of the premises whether or not that person is the owner of the premises and in relation to premises different parts of which are occupied by different persons means the respective persons in occupation or control of each part;
pollute includes causing or permitting pollution;
polluted means the condition of the environment described and referred to in section 39(1), 41(1) or 45(1) as the case may be;
The charges
The offenders were charged with polluting the atmosphere over and nearby to the township of Morwell between 9 February and 25 March 2014. The particulars to each charge alleged the offenders caused the pollution in five different ways. After the prosecution case closed, I acceded to an application by the offenders to remove two of the causation particulars from the jury. The remaining particulars were:
(a)Failing to have adequate water reticulation systems in the worked out areas of the Hazelwood mine.
(b)Failing to adequately control vegetation in the worked out areas of the mine.
(c)Failing to maintain adequate staff resourcing to prepare for and respond to fires.
The particulars to each charge included an alternative allegation based on s 62C of the EP Act, expressed as follows:
Further and in the alternative, [the offenders] were occupiers of the Hazelwood mine, and are deemed to have polluted the environment as a result of the discharge or omission of the smoke … from those premises.
Before the trial commenced the offenders made a number of formal admissions, including that:
(a) the environment was polluted by smoke emitted by the mine fire in the ways described in s 41(a), (b) and (e);
(b) they were occupiers of the mine premises;
(c) as at February 2014 there was a commercial or industrial undertaking conducted on the mine premises, comprising the mining of brown coal.
Because of the admissions the two questions which the jury had to consider were whether the offenders caused the pollution in one or more of the three ways that were particularised, and whether the pollution was unrelated to the undertaking of mining brown coal.
The jury were given an extended unanimity direction. There were four paths to a guilty verdict, being any one or more of the three causation particulars, or the s 62C alternative.
Neither party submitted I should ask the jury on what basis the guilty verdicts were reached. The jury’s verdict remains inscrutable.
Submissions
Prosecution
The prosecution relied on the decision of the High Court in Cheung v The Queen (‘Cheung’)[1] which, it submitted, established the principle that an offender’s culpability should be determined on the basis of facts found by the sentencing judge, subject to the qualifications that those facts may not be inconsistent with the jury’s verdict and must be found by the judge beyond reasonable doubt. Only those matters which are express or necessarily implied in the jury’s verdict are binding on the judge. Where the judge does not know what evidence was relied on or which facts were found by the jury, the judge must decide those matters.
[1](2001) 209 CLR 1 (‘Cheung’).
The prosecution submitted that the High Court reaffirmed the principle set out in Cheung in the later decision of Chiro v The Queen (‘Chiro’).[2] The result in Chiro was different because the actus reus of the offence was not a general course of conduct. The offence in Chiro was persistent sexual exploitation of a child, which was comprised of two or more discrete underlying offences. Given that six different sexual acts were alleged, the majority ruled that the sentencing judge ought to have asked the jury which acts they found to be established. In the absence of that information, the trial judge was obliged to sentence on the basis most favourable to the accused.
[2](2017) 260 CLR 425 (‘Chiro’).
The prosecution submitted that, as with the offence under consideration in Cheung, charges under s 41 of the EP Act are general in nature, and the particulars of causation and the deeming alternative in s 62C are not separate criminal offences. The gravamen of the offence is to have polluted. The different particulars and s 62C were simply different paths to the conclusion that the offenders had polluted. By contrast, in Chiro, the gravamen of the offence lay in the two or more discrete sexual offences which comprised persistent sexual exploitation of a child.
The offenders
The offenders submitted that where alternative actus rei of an offence are in issue, the trial judge must either ask the jury which one has been proved, or sentence on the basis most favourable to the accused. This is because it is for the jury to find the acts which comprise the actus reus.[3]
[3]R v Kidd (1998) 1 WLR 604.
The offenders submitted the present case is directly comparable to the situation in Chiro. Each charge alleged the offenders caused the pollution by the particularised acts, or, in the alternative, were deemed to have caused the pollution by reason of s 62C. The way the charges were framed by the prosecution in the indictment meant that a guilty verdict in relation to each charge could be on either basis. The actus reus under s 41 is causing pollution. Under the s 62C alternative the actus reus is that the environment was polluted by emission from premises occupied by the offenders, and the emission was not unrelated to the commercial or industrial undertaking conducted there. A finding that the offenders caused the pollution is a finding that they were, at least in a broad sense, at fault in a way which led to the pollution. A verdict based on the deeming effect of s 62C implies no such finding. To now sentence on the basis of a finding of causation risks punishing the offenders for an offence of which they have not been found guilty by the jury.
Relevant principles
The role of the jury is to determine whether an accused is guilty of the offence charged by reference to the issues joined by the parties.[4] When a guilty verdict is returned by a jury, it is the sentencing judge’s role to determine, beyond reasonable doubt, facts relevant to the accused’s culpability.[5]
[4]Cheung 9 [4] (Gleeson CJ, Gummow and Hayne JJ).
[5]R v Isaacs (1997) 41 NSWLR 374, 377–8 (‘Isaacs’).
The appellant in Cheung was charged, and found guilty by jury verdict, with being knowingly concerned with the importation into Australia of a quantity of heroin being not less than a commercial quantity contrary to s 233B of the Customs Act 1901 (Cth). Evidence led at trial established two different paths to the guilty verdict, one of which reflected greater criminality than the other. The jury verdict did not decide, expressly or by implication, between those paths. The trial judge reviewed the evidence and sentenced the offender on the basis that the path to the guilty verdict which reflected greater criminality was established. The High Court approved the procedure adopted by the trial judge of making findings of fact relevant to sentencing which were not resolved by the jury’s verdict.
The majority in Cheung affirmed[6] the principles summarised by the New South Wales Court of Criminal Appeal in R v Isaacs (‘Isaacs’):[7]
1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …
2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of sentencing proceedings …
3.The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury …
4.A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be oblige, for that reason, to sentence upon a view of the facts which is most favourable to the offender …
[6]Cheung 12–3 [14].
[7]Isaacs 377–8.
In relation to the third proposition from Isaacs, Gleeson CJ, Gummow and Hayne JJ said:
It is at this point that the distinction between issues, facts relevant to an issue,
and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.[8]
[8]Cheung 14 [17].
The High Court revisited the issue in Chiro, in which the appellant was found guilty by a jury of an offence of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA), which read:
An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
‘An act of sexual exploitation’ was defined for the purposes of s 50(1) in s 50(2):
a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
The prosecution in Chiro particularised six acts comprising the offence, ranging from the appellant kissing the complainant to him inserting his penis into the complainant’s mouth. The trial judge directed the jury that to find the appellant guilty they must be satisfied, unanimously, that the same two or more of the six acts which were particularised had occurred. The jury found the appellant guilty, but were not asked to say what acts they found had been established. The trial judge proceeded to sentence the appellant on the basis of her finding that all six acts were proved beyond reasonable doubt.
In the High Court the majority found the actus reus of the s 50(1) offence was not a general course of sexual exploitation. By adopting the particular form in s 50(1), Parliament signified that the actus reus of the offence was the doing of an act which constitutes a sexual offence against a child, on two or more occasions separated by not less than three days. Because the underlying acts of sexual exploitation were the actus reus of the offence, it was for the jury to find which of those acts had been proved. The majority concluded:
If the accused is convicted, however, the sentence to be imposed is to be determined by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been
convicted of each of those offences. For that reason, the principle laid down in R v De Simoni is instructive. Plainly, an accused is not to be sentenced for an offence which the jury did not find the accused to have committed.[9]
[9]Chiro 447–8 [44] (citations omitted).
The majority concluded the jury should have been asked to disclose which of the particularised acts of sexual exploitation they found had occurred. Because that course had not been taken, it was necessary to sentence the appellant on the basis most favourable to him, which was consistent with the jury verdict.[10]
[10]Chiro 451 [52].
Analysis
The actus reus of the offence under s 41(1) of the EP Act is to pollute the atmosphere with the consequence that its condition is changed in one of the ways described in s 41(1)(a)–(e). The offence is a general course of conduct leading to a particular outcome. Unlike Chiro, the offence is not constituted by a number of underlying acts which are themselves offences.
The prosecution gave particulars for each charge alleging the offenders caused the pollution in the three ways set out at [10] above. The guilty verdict may be based on a unanimous finding by the jury that one or more of the particulars of causation were made out. The general verdict does not resolve which, if any, of the particulars were found by the jury to have been proved. However, that does not mean there is any ambiguity or uncertainty as to the actus reus found by the jury. If each charge had been limited to s 41(1), and no reliance had been placed on s 62C, there would be no doubt that the actus reus found to have been proved by the jury was that the offenders polluted the environment.
It would then be my task, as part of the sentencing process, to determine the degree of culpability of the offenders’ conduct. That may involve findings of fact as to which of the particulars of causation were proved beyond reasonable doubt. A finding by me as to which of the causation particulars were proved would be consistent with the jury’s verdict.
Of course the jury’s verdict may be based on a unanimous finding in accordance with s 62C of the EP Act. Section 62C does not operate independent of s 41(1). In order to rely on s 62C the prosecution must prove that the atmosphere was polluted by its condition being as described and referred to in s 41(1), the pollution was emitted from or on premises on which there was conducted a commercial or industrial undertaking, and that the offenders were occupiers of the premises. Each of those matters were formally admitted by the offenders. The jury’s verdict may reflect a unanimous decision that the offenders failed to discharge the onus they bore to prove that the pollution was unrelated to the undertaking at the mine.
In the second-reading speech introducing an earlier version of the s 62C deeming provision, the Minister for Planning and Environment said:
Clause 26 amends section 63(2) and deals with prosecutorial proofs where a polluting discharge occurs from trade premises. The section is amended to provide that where it can be established that pollution has been caused by a discharge from any commercial or industrial premises then the occupier of those premises is deemed to have caused the pollution to occur unless he can establish that the discharge was unrelated to any commercial or industrial undertaking. This represents a significant change as perhaps the most serious difficulty confronting the authority in enforcing the act is to prove that the defendant caused the polluting discharge which emanated from his premises.
To similar effect, the explanatory memorandum stated:
The circumstances where the Authority can prove that a particular polluting discharge emanated from certain premises, but is not in a position to prove that the occupier of the premises caused or permitted the polluting discharge to occur.
Section 62C is an evidentiary provision designed to assist with prosecutorial proofs. It does not create a different offence, or alter the actus reus of an offence charged under s 41(1). Rather, s 62C provides an alternate evidentiary path to proof of the actus reus of offences under ss 39(1), 41(1) and 45(1). If the prosecution proves the conditions for operation of s 62C, and the occupier does not prove the pollution is unrelated to the undertaking conducted on the premises from which is it emitted, the occupier is deemed to have polluted the environment. That is, the occupier is deemed to have engaged in a general course of conduct leading to a particular outcome.
The issue to be determined by the jury at all times remained whether they were satisfied beyond reasonable doubt that the offenders polluted the atmosphere. The facts and evidence relevant to that issue depended on the evidentiary path being considered: whether the offenders caused the pollution in one or more of the ways particularised, or were deemed to have polluted the atmosphere by operation of s 62C. The jury returned a general verdict of guilty to each of the charges. That verdict resolved the issue of whether the offenders polluted the atmosphere. The verdict did not resolve, expressly or by necessary implication, what facts relevant to the issue the jury found, or what evidence relevant to those facts was accepted by the jury.
As part of the sentencing process I must consider the evidence and make findings of fact relevant to the offenders’ culpability. Undertaking that task may involve me finding which of the four paths to a guilty verdict have been proved beyond reasonable doubt. Such findings would be consistent with the jury’s verdict.
0
3
0