Director of Public Prosecutions v Hazelwood Power Corporation Pty Ltd (Ruling 3)
[2019] VSC 875
•6 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0214
INDICTMENT NO G 10389739
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| HAZELWOOD POWER CORPORATION PTY LTD | Accused |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2019 |
DATE OF RULING: | 6 September 2019 |
CASE MAY BE CITED AS: | DPP v Hazelwood Power Corporation Pty Ltd (Ruling 3) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 875 |
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CRIMINAL LAW – Application for permanent stay – Occupational health and safety offences relating to risk to employees and non-employees of mine fire – Companies related to the accused previously convicted of environmental offences arising out of 2014 fire at Hazelwood mine – Separate indictment – Double jeopardy – Abuse of process – Offences have different elements and reflect separate criminality – Not oppressive – Application for stay refused – Occupational Health and Safety Act 2004 (Vic) ss 2, 4, 20, 21 and 23 – Occupational Health and Safety Regulations 2007 (Vic) Part 5.3 – Environment Protection Act 1970 (Vic) ss 41(1) and 62C – Interpretation of Legislation Act 1984 (Vic) s 51 – Pearce v the Queen (1998) 194 CLR 610 – Joud v the Queen (2011) 32 VR 400 – Lecornu v The Queen (2012) 36 VR 382.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | S Flynn QC with D Porceddu and A Roodenburg | John Cain, Solicitor for Public Prosecutions |
| For the Accused | I Hill QC with R O’Neill | King & Wood Mallesons |
HIS HONOUR:
The Hazelwood coal mine is located in the Latrobe Valley in Gippsland, adjacent to Morwell (‘the mine’). At relevant times the mine was operated by the accused, Hazelwood Power Corporation Pty Ltd (‘HPC’), and as at 9 February 2014 was under its management and control. Four related entities which made up the Hazelwood Power Partnership (‘the HPP entities’) were occupiers of the mine, and together with associated entities which include HPC, conducted the undertaking on the mine premises, being the mining of brown coal.
On 9 February 2014 a fire or fires ignited in the mine and burned for a number of weeks (‘the mine fire’).
The HPP entities were each charged under s 41(1) of the Environment Protection Act 1970 (Vic) (‘EP Act’) with three offences of polluting the atmosphere. The pollution was smoke emitted by the mine fire. On 22 July 2019 a jury found the HPP entities guilty of the EP Act charges.[1]
[1]The EP Act proceeding, including the outcome, is subject to a suppression order dated 18 March 2019.
HPC is charged with 14 offences under ss 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’). It is alleged that HPC exposed employees and other persons to risk to their health and safety posed by the spread of fire into the mine releasing smoke into the air around them.
The trial of the OHS Act charges is due to commence on 16 September 2019.
HPC has applied to permanently stay the OHS Act proceeding, on the basis that it is oppressive and an abuse of process in light of the EP Act proceeding.
For the reasons that follow, I have refused HPC’s stay application with respect to each charge.
The EP Act and OHS Act charges
The EP Act
The purpose of the EP Act is to create a legislative framework for the protection of the environment in Victoria.[2]
[2]Environment Protection Act 1970 (Vic) s 1A (‘EP Act’).
The HPP entities were charged under s 41(1) of the EP Act:
(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.
Definitions found in s 4 include:
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 EP Act indictment alleged the HPP entities caused the pollution in one or more of five ways. Therefore, the elements of each offence are:
(a) the atmosphere was polluted as described in s 41(1); and
(b) the accused caused the pollution by one or more of the alleged acts.
The indictment alleged, in the alternative, that the HPP entities were deemed to have polluted the environment. This allegation was based on s 62C of the EP Act:
Where 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.
On the alternate case, the elements of each offence are:
(a) the atmosphere was polluted as a result of emission from the mine premises;
(b) there was a commercial or industrial undertaking conducted on the premises;
(c) the HPP entities were occupiers of the premises; and
(d) the HPP entities do not establish that the pollution was unrelated to the commercial or industrial undertaking conducted on the premises.
The maximum penalty for a breach of s 41 is 2400 penalty units.[3]
The OHS Act
[3]EP Act s 43. This section also provides for a daily penalty, however no indication has been given that circumstances on which a daily penalty could be applied arise in the EP Act proceeding.
The purposes of the OHS Act are to create a legislative framework to give effect to the objects of the Act, which are set out in s 2(1):
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
Definitions found in s 5 include:
employer means a person who employs one or more other persons under contracts of employment or contracts of training;
workplace means a place, whether or not in a building or structure, where employees or self-employed persons work.
The principles of health and safety are set out in s 4 of the OHS Act:
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5)Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.
HPC is charged with seven offences under s 21 of the OHS Act:
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
...
(c)maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
Each charge particularises an alleged failure by HPC to take a reasonably practicable step to eliminate or reduce an identified risk to employees.
Additionally, HPC is charged with seven offences under s 23 of the OHS Act:
(1)An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
The s 23 charges mirror the allegations particularised in the s 21 charges.
The concept of ensuring health and safety is dealt with by s 20 of the OHS Act:
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.
The prosecution relies on Part 5.3 of the Occupational Health and Safety Regulations 2007 (Vic), dealing with mines, which it says imposes additional relevant duties on HPC to:
(a) identify all ‘mining hazards’ at the mine: reg 5.3.7(1)(a); and
(b) assess the risks to health or safety (of any person) associated with those hazards: reg 5.3.7 (1)(b); and
(c) adopt risk control measures that eliminate, so far as is reasonably practicable, any risks to health and safety: reg 5.3.8(1)(a); or
(d) if it is not reasonably practicable to eliminate such risks, reduce those risks so far as is reasonably practicable: reg 5.3.8(1)(b); and
(e) review each of (a)–(d) above ‘after any incident involving a mining hazard occurs at the mine’: reg 5.3.9(2)(b); and
(f) conduct a comprehensive and systematic Safety Assessment of all ‘major mining hazards’: reg 5.3.23.
The common elements of offences under ss 21 and 23 of the OHS Act are:
(a) HPC was an employer at the relevant time;
(b) there was a risk in the working environment to health and safety of employees, or to others arising from the conduct of the employer’s undertaking;
(c) HPC failed to take an identified measure which would have eliminated or reduced the risk (as the case may be); and
(d) it was ‘reasonably practicable’ in the circumstances for HPC to have taken that measure.[4]
[4]DPP v Vibro-Pile (2016) 49 VR 676, 682–3 [6] (‘Vibro-Pile’); DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, 13 [25] (‘JCS Fabrications’).
The OHS Act offences are risk-based, not outcome-based. Materialisation of the risk is of evidentiary significance only.[5] In this case the prosecution does not need to prove that HPC’s breach caused the mine fire or the emission of smoke into the atmosphere, or that taking one of the identified measures would have changed the course of events at the mine on 9 February 2014.
[5]Vibro-Pile 682 [3], 683–4 [10], 701 [91], 703 [99]; JCS Fabrications 12 [24].
Background
The State Electricity Commission of Victoria established the mine in about 1949, and commenced mining in the 1950s.
In the mid-1990s the mine and the associated Hazelwood Power Station were privatised. Since 1996 HPC has operated the mine and held mining licence MIN5004 (‘the mining licence’). As at 9 February 2014 HPC managed and controlled the mine.
In the EP Act proceeding the HPP entities admitted they were occupiers of the area delineated in the mining licence, and that they conducted the undertaking of the mine together with related entities. HPC is a wholly owned subsidiary of the Hazelwood Power Partnership.
The area of the mine known as the northern batters was mined before privatisation, and has since been part of the worked out areas of the mine.
Fires were a commonplace event in the mine. A number of major fires occurred at the mine after privatisation. Fire prevention policies and procedures have operated at the mine since 1981.
There was evidence in the EP Act proceeding that the mine fire resulted from two bushfires impacting the mine in the early afternoon of 9 February 2014, causing spot fires in a number of locations within the mine.
The EP Act charges were not solely directed to fire on the northern batters, though a great deal of the evidence given in the trial concerned that area of the mine. The indictment alleged the five acts of the HPP entities were an inadequate response to fire at the mine, and caused the smoke which made, or was reasonably expected to make, the atmosphere noxious, poisonous or offensive, harmful or potentially harmful to human beings, and detrimental to the beneficial use made of the atmosphere. For example, one of the pleaded particulars alleged the HPP entities caused the pollution by:
Failing to have adequate water reticulation systems in the worked out areas of the Hazelwood mine.
The OHS Act charges focus on seven steps which, it is alleged, were reasonably practicable means of eliminating or reducing the risk posed by fire spreading into the mine, igniting coal in the northern batters and exposing employees and others to harmful smoke. The particulars to charge 3 allege, in relation to water reticulation:
HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to have an adequate reticulated fire water pipe system to supply water to the northern batters.
It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having and maintaining an adequate reticulated fire water pipe system to supply water to the northern batters.
Charge 4 mirrors these allegations with respect to the risk to persons other than employees.
Evidence supporting the allegation in the EP Act proceeding that the failure to have an adequate water reticulation system on the northern batters caused the pollution may be briefly summarised as including:
(a) exposed brown coal is highly flammable;
(b) there was exposed brown coal in the worked out northern batters;
(c) water is critical to suppressing fire risk and extinguishing fires;
(d) on 9 February 2014 parts of the northern batters were not covered by the water reticulation system, so that sprays could not be operated to supress the risk of fire, and water was not available to extinguish spot fires which ignited; and
(e) on 9 February 2014, in the working areas of the mine, which were covered by the water reticulation system, fires did not ignite or were extinguished.
In relation to water reticulation, the Summary of Prosecution Opening in the OHS Act proceedings states, among other things:
(a) water reticulation pipes were removed from part of the northern batters prior to February 2014;
(b) anything less than 100% spray coverage of areas of exposed coal is inadequate to meet the risk of fire which eventuated on 9 February 2014.
There is a similar level of overlap between the particulars of allegations and the evidence led in the EP Act proceeding in relation to vegetation management on the northern batters, the failure to install a backup power supply to the water reticulation system, and the failure to have sufficient staff to respond to the risk of fire on 9 February 2014, and the OHS Act indictment and Summary of Prosecution Opening in relation to these matters. This level of overlap does not exist with respect to OHS Act charges 1 and 2, relating to the adequacy of risk assessments.
The overlap in evidence and issues is reinforced by the fact that 14 of the prosecution witnesses in the OHS Act proceeding gave evidence in the EP Act trial.
Procedural history
The EP Act proceeding
The EP Act proceeding was commenced on 15 March 2016. The hand-up brief was served on 10 June 2016. The committal took place over eight days and concluded on 13 November 2017. The indictment was filed in this Court on 20 December 2017. At directions hearing on 12 February 2018 the trial was listed to commence on 29 April 2019 on an estimate of 8–12 weeks. The trial was delayed by the need to determine various pre-trial issues, and ran between 16 May – 22 July 2019.
The HPP entities made a number of formal admissions when the trial commenced. The only elements of the offences which remained to be determined by the jury were:
(a) on the principal case, whether the prosecution had proved beyond reasonable doubt that the HPP entities caused the pollution in one or more of the ways alleged; or
(b) on the alternate case, whether the HPP entities proved, on the balance of probabilities, that the pollution was unrelated to the undertaking, which was the coal mine.
After the prosecution case was closed, I ruled that the evidence did not leave open the following causation allegations:
(a) failing to have an adequate back-up power supply for the water reticulation system; and
(b) failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire.
On 22 July 2019 the jury returned a verdict of guilty on all charges. The avenues open to the jury to reach a unanimous guilty verdict were one or more of the three remaining causation allegations, or the deeming provision. The jury was not asked to disclose the basis on which they reached their verdict.
The OHS Act proceeding
The OHS Act proceeding commenced on 4 February 2016, with the hand-up brief served on that day. The committal took place over eight days and concluded on 28 June 2017. The indictment was initially filed in the County Court on 8 September 2017, however it was subsequently determined that the matter would be dealt with by this Court. The proceeding was listed for trial at Morwell on 4 April 2018. An application to change the venue of the trial to Melbourne was granted, and the trial re-listed for 6 August 2018 on an estimate of eight weeks. Issues arose in mid-2018 relating to proposed additional witnesses, and as a consequence it became necessary to adjourn the trial.
HPC’s response to proposed admissions of fact include that it was an employer, and the mine including the worked out batters was a workplace, within the meaning of s 5 of the OHS Act, and that the mine was a mine within the meaning of reg 5.3.1 of the Occupational Health and Safety Regulations 2007 (Vic).
At a directions hearing involving both proceedings on 6 September 2018, senior counsel then appearing for the prosecution in the OHS Act proceeding mooted the possibility of consolidating the proceedings and having a joint trial. Senior counsel for the accused stated that any application to hold a joint trial would be opposed.
Sentencing will be considered at the conclusion of both trials.
Submissions on the stay application
HPC
HPC submitted, for the following reasons, the OHS Act proceeding is an abuse of process and unfairly oppressive, and should be stayed. First, the factual allegations underpinning the OHS Act indictment are the same as the factual allegations made in the EP Act trial. There is almost total overlap between the two prosecutions in terms of circumstances and witnesses and the same deficiencies in conduct are alleged to result in the same risks to the same groups of people. The OHS Act charges are risk based, whereas the EP Act indictment was based on the actuality of pollution. In that sense, the EP Act charges are an aggravated form of the criminality alleged in the OHS Act indictment. The actus reus alleged in the two indictments is the same. While, strictly speaking, there was no direct overlap in the elements of the offences, as a practical matter the essence of the alleged criminality in each case is indistinguishable.
Second, whilst it was not possible on the indictments as framed for there to be one trial, because of the complexity of issues which a jury would be required to determine, and overlap in the EP Act and OH&S Act charges, a second trial is oppressive. Oppression results from the overlap of facts and witnesses, the identity in the conduct alleged and the criminality associated with that conduct, the delay of over five years since the mine fire, and the cost and resources involved in defending two substantive trials, relying on Joud v the Queen (‘Joud’).[6] A distinguishing feature which makes this case exceptional was the choice by the prosecution to bring separate indictments under the EP Act and the OHS Act in respect of the same conduct and circumstances. The prosecution has been unable to point to other cases where there have been successive trials under different Acts in respect of the same facts and circumstances.
[6](2011) 32 VR 400 (‘Joud’).
Third, a conviction in the OHS Act proceeding based on allegations which the Court ruled should not go to the jury in the EP Act trial, would be inconsistent with that ruling, and should not be permitted. Further, it is oppressive for the prosecution to have a second opportunity to prove an allegation which it failed to establish at the first trial. An acquittal on OHS Act charges would be potentially inconsistent with the convictions on the EP Act charges.
Fourth, there is no meaningful distinction, for the purposes of the two indictments and this application, between HPC and the HPP entities.
Prosecution
The prosecution submitted, for the following reasons, the case falls well short of the requirements for granting a permanent stay, and the continuation of the OHS Act proceeding would not involve unacceptable injustice or unfairness or would not be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
First, the criminality alleged in the two proceedings is different, and the offences are discrete and different in character. The purposes of the two Acts are different. The OHS Act is concerned with eliminating risks to the health, safety or welfare of employees or other persons, and by contrast the EP Act is concerned with the protection of the environment. The common law rule against double jeopardy requires assessment of whether the elements of the offences are the same. If the elements are different, and different in important respects, there is no abuse of process that would otherwise preclude the laying of charges that, together, reflect the whole criminality of the accused. Here the elements of the charges in the two indictments are demonstrably different. The two Acts and the different charges fasten upon different aspects of the same facts, so that the gist or gravamen of the offences is different. The charges in the EP Act proceeding are not an aggravated form of the OHS Act charges, or vice versa.
Second, although there is overlap in evidence, the OHS Act proceeding is not re-litigation of the same issue. There are a multitude of cases where the courts have held that the same act, facts or circumstances can appropriately give rise to multiple prosecutions and convictions. These cases make clear that where there is some additional criminality, the double jeopardy principle plays no part until sentencing. Section 51 of the Interpretation of Legislation Act 1984 (Vic) (‘IL Act’) confirms that there is no requirement for an additional act or an additional omission for a prosecution to be brought against an offender in relation to two or more laws, and that provision guards against double punishment.
Third, the ‘no case’ ruling in the EP Act trial is not tantamount to an acquittal and does not raise an issue of double jeopardy. The OHS Act charges dealing with the allegations which were the subject of the ruling are framed differently to the relevant EP Act charges, and different evidence will be led about those matters. Consequently, no issue of oppression arises.
Fourth, HPC’s reliance on Joud in relation to oppression is misplaced, as the facts of that case are very different. The additional criminality reflected by the OHS Act indictment is significant. The different nature of the charges and the different identity and function of the accused were good reason why the two indictments could not be heard as one trial. When the matter was raised the accused indicated they would object to a single trial. The personal oppression suffered by the applicants in Joud is absent in this case. Further, there is no significant or undue delay in the OHS Act trial.
Fifth, there is a strong public interest in the disposition of charges of ‘serious offences’, including in pursuing those who pollute the atmosphere as well as those who put employees and others at risk.
Legal principles
A single act or course of conduct can give rise to various different criminal offences and penalties, particularly in the context of statutory multiplication of offences.[7] Issues of double jeopardy may arise where there is overlap between different charges. The expression ‘double jeopardy’ is not always used with a single meaning, and can apply at different stages of criminal proceedings, including prosecution, conviction and punishment.[8]
[7]Pearce v the Queen (1998) 194 CLR 610, 614–5 [11] (‘Pearce’); Joud 432 [89].
[8]Pearce 614 [9].
The basis for the concept of double jeopardy was summarised by Neave JA in Joud:
a)Because the State’s resources and power are greater than those of individuals, there is a danger that the power to prosecute may be used as an instrument of oppression.
b)There is a public interest in finally resolving disputes and a corresponding need to limit the scope for conflicting court decisions.
c)The consequences of a criminal conviction are very serious and individuals should be protected from repeated or multiple prosecution and trial. (This is often expressed in the maxim that individuals ought not be twice vexed for one and the same cause.)
d)Orders and other solemn acts of the courts must be treated as incontrovertibly correct.
e)A cause of action is changed by judgment recovered in court into a matter of record, which is of a higher nature.
f)In Carroll, Gleeson CJ and Hayne JJ said that the principles which underpin the double jeopardy principle must be balanced against the desirability of prosecuting and justly punishing offenders for their criminal conduct.[9]
[9]Joud 432 [88] (Neave JA, Ashley and Weinberg JJA agreeing) (citations omitted).
In Lecornu v The Queen (‘Lecornu’),[10] Maxwell P, with whom Hollingworth and Cavanough AJJA agreed, described the three rules laid down by the High Court in Pearce v the Queen (‘Pearce’)[11] as follows:
[10](2012) 36 VR 382 (‘Lecornu’).
[11](1998) 194 CLR 610.
Rule1: A plea in bar (autrefois convict or autrefois acquit) is available only in relation to an offence the elements of which are the same as, or are included in, the elements of an offence for which an accused has been tried to conviction or acquittal.
Rule 2:Where no plea in bar is available in relation to the second offence, prosecution of that offence may nevertheless be stayed as an abuse of process if it would be vexatious or oppressive or unfair.
Rule 3:As a matter of sentencing, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.[12]
In this application HPC relies on Rule 2.
[12]Lecornu 386 [12] (citations omitted).
In an application for a stay based on double jeopardy, it is important to consider the elements of each offence, and the criminality they reflect.
In Pearce the applicant broke into the victim’s house and beat him. The indictment charged the applicant with inflicting grievous bodily harm with intent to do the victim grievous bodily harm, and breaking and entering a dwelling and while therein, inflicting grievous bodily harm. The majority said:
The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.[13]
[13]Pearce 621 [31] (McHugh, Hayne and Callinan JJ) (citations omitted).
The applicant in Lecornu was subject to an extended supervision order (‘ESO’) made by a County Court judge under s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic). On the basis that he was found to be in possession of child pornography, the applicant was charged with breach of the ESO (‘the breach offence’) and possessing child pornography (‘the CP offence’). On appeal, addressing the issue of abuse of process, Maxwell P said:
In the present case, in my view, the CP offence and the breach offence are likewise “different in important respects”. As counsel for L properly conceded in argument, the offence of failing to comply with an order of the Court (ESOs being, of course, Court orders) is different in character from the offence of possessing child pornography. The breach offence involves separate and distinct criminality from the substantive offence which constituted the breach of the order. To hold that L should not have been charged with, or convicted of, the breach offence would be (in the language of Pearce) to “preclude the laying of charges that, together, reflect the whole criminality of the accused”.[14]
In an earlier decision of Environment Protection Authority v Australian Iron & Steel Pty Ltd,[15] considering the issue of double jeopardy, Gleeson CJ said:
Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.
In Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 510, Hope J said: “There is no reason why an act may not be prohibited by two separate statutes and involve an offence under each statute”.[16]
[14]Lecornu 388 [19]. See also Loader v The Queen (2011) 33 VR 86, 92 [29].
[15](1992) 28 NSWLR 502.
[16]Ibid 507–8 (Gleeson CJ, Carruthers and Smart JJ agreeing).
The grant of a stay application involves balancing factors which include the public interest in having those charged with criminal offences brought to trial, including with respect to all of their criminality.[17] In Walton v Gardiner (‘Walton’)[18] the process was described as follows:
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of the charges or serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.[19]
[17]Pearce 614–5 [11]–[13], 621 [31]; Island Maritime Ltd v Filipowski (2006) 226 CLR 328, 340–1 [32]; Joud 440‑1 [134]; Clark v The Queen (2016) 258 A Crim R 511, 515 [18] (‘Clark’); Lecornu 385 [8].
[18](1993) 177 CLR 378 (‘Walton’).
[19]Ibid 395–6 (Mason CJ, Deane and Dawson JJ).
Circumstances which might justify a stay cannot be exhaustively defined,[20] but may include issues such as double jeopardy,[21] re-litigation of issues and the prospect of manifest inconsistency with decisions or conflicting judgments,[22] oppression or unfairness,[23] delay,[24] cases which are foredoomed to fail,[25] an absence of a fair trial,[26] proceedings instituted for an improper purpose,[27] or unlawful conduct in the investigation.[28] Because the power to grant a stay is discretionary and involves a subjective balancing of factors, minds may differ as to whether particular circumstances amount to an abuse of process.[29]
[20]R v Carroll (2002) 213 CLR 635, 657 [73] (‘Carroll’); R v Garth (2008) 21 VR 203, 208 [21] (‘Garth’).
[21]Walton.
[22]Rogers v The Queen (1994) 181 CLR 251 (‘Rogers’); Carroll; Garth.
[23]Williams v Spautz (1992) 174 CLR 509 (‘Williams’); R v Sessions (1998) 2 VR 304; Joud; Clark.
[24]Jago v District Court (NSW) (1989) 168 CLR 23 (‘Jago’).
[25]Little v The Queen (2015) 45 VR 816.
[26]Dupas v The Queen (2010) 241 CLR 237 (‘Dupas’).
[27]Williams.
[28]Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1.
[29]Jago 30–4 (Mason CJ); Walton 395–6, 398–9 (Mason CJ, Deane and Dawson JJ); Carroll 651 [47] (Gleeson CJ and Hayne J), 657 [73] (Gaudron and Gummow JJ); Garth 208 [21]. Noting appellate review is subject to the principles set out in House v The King (1936) 55 CLR 499, 505.
A heavy onus to establish an abuse of process lies with the party alleging it. A permanent stay is tantamount to an immunity from prosecution, and as such the power to grant a stay will only be exercised rarely and in exceptional circumstances.[30] The applicant for a stay must establish actual prejudice and that unfairness would, not merely could, follow if the proceeding continues.[31]
[30]Williams 529; Jago 34; R v Glennon (1992) 173 CLR 592, 605; Walton 392; R v Edwards (2009) 83 ALJR 717, 720–1 [23] (‘Edwards’); Dupas 245; Clark 515 [17].
[31]Walton 392; Edwards 721 [23]; Jago 72, 78; Clark 515 [19].
A second trial of separate charges on the same or similar facts may be oppressive, and is a relevant consideration on a stay application. In Pearce the majority observed:
The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.[32]
In Joud, the Court found the prosecution decision to indict the applicants separately, rather than take a course which was open and would have led to a single trial, was an important factor to take into account on the exercise of discretion on the stay application because it was unfairly oppressive to the accused. Whether the applicant for a stay accepted, or acquiesced to, the prosecution decision may be relevant.[33]
[32]Pearce 620–1 [30] (citations omitted).
[33]Jago 62; see also Connelly v DPP [1964] AC 1254, 1360 (Lord Devlin).
Multiplicity of offences is envisaged by s 51 of the IL Act which provides:
(1)Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
(2)In subsection (1) law means—
(a)an Act or a provision of an Act;
(b)a subordinate instrument or a provision of a subordinate instrument; or
(c)common law.
This provision is a statutory embodiment of the rule against double punishment for acts which are common to multiple offences,[34] described by the majority in Pearce as follows:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[35]
[34]Lecornu 399 [67].
[35]Pearce 623 [40].
Analysis
Criminality
There are a number of matters which lead to the conclusion that the two indictments reflect significantly different criminality. First, the difference in the elements results in offences which are of a different character, and which fasten upon different qualities or attributes of the circumstances from which the charges result. The duty of an employer to take steps to eliminate or reduce, so far as is reasonably practicable, risks to health and safety, is clearly different in character and quality to the obligation of a person not to cause the atmosphere to be polluted. The foundation of the employer’s duty is the nature of the employer/employee relationship and the power of the employer to direct employees and to control the workplace. The employer’s duties are codified in the OHS Act and the regulations made thereunder. The OHS Act indictment alleges that HPC, as employer in control of a workplace which was a mine, breached duties imposed on it. The matters relevant to the concept of ensuring health and safety which are set out in s 20 of the OHS Act find no equivalent in the EP Act. Reasonable practicability is not relevant to the determination of causation under the EP Act. The EP Act charges required proof of causation, whereas materialisation of the risk is not an element of the OHS Act charge, and is of evidentiary relevance only.
Second, the difference in criminality is reinforced by the different purposes and objects of the two Acts. The EP Act is directed to protecting the environment. The OHS Act is directed to the health and safety of workplaces, and the risks to health and safety of employees and persons other than employees which might arise from the conduct of workplaces.
Third, the maximum penalties for contravention of the OHS Act provisions is higher, which gives some support, in the context of the matters to which I have referred, to the view that they involve more serious criminal conduct than the EP Act offences.[36]
[36]Joud 436 [107].
Fourth, I do not accept HPC’s submission that the actus reus of each offence is the same. The actus reus of an offence is delineated by construing the statute creating the offence, and includes the objective elements of the offence.[37] In the case of the OHS Act charges the actus reus is not, for example, simply the act of establishing and maintaining the water reticulation system on the northern batters. It includes the circumstances that HPC was an employer and that it failed to take a reasonably practicable measure which would have eliminated or reduced a risk to a class of persons. On the EP Act charges the actus reus is that the HPP entities caused the atmosphere to be polluted.
[37]KBT v The Queen (1997) 191 CLR 417, 422–3.
Decision to file separate indictments
I do not accept HPC’s submission that this case is exceptional simply because of the prosecution decision to file separate indictments resulting in the accused facing two trials in relation to the same acts or circumstances. Whether the circumstances are exceptional, and warrant a stay of the OHS Act proceeding, will be determined by the degree of oppression suffered by the accused balanced against the other considerations to which the authorities refer.
The prosecution decision to proceed with separate trials appears well founded. The differences in the elements of the offences are compounded by the alternate case run by the prosecution in the EP Act trial, and the different but related identity and function of HPC and the HPP entities. In my view, the complexity of the task for a jury charged with determining the matter on the two indictments as framed, was such that a single trial would not have been in the interests of justice. I note that at a directions hearing involving both proceedings concerned with trial dates, when the possibility of a joint trial was mooted, senior counsel appearing for HPC and the HPP entities indicated that course would be opposed. I do not regard the effect of the prosecution decision to proceed with separate indictments and successive trials to be unfairly oppressive to HPC.
In oral submissions HPC agreed that, because of the complexity of the issues involved, the indictments, as framed, could not be the subject of one trial. I understood HPC to propose as a solution which would have allowed one trial, that the prosecution should have amended the OHS Act indictment by removing charges 3 to 14 inclusive, which rely on conduct particularised in the EP Act indictment charge as causing pollution. The foundation of that proposal is the same as the double jeopardy/indistinguishable criminality argument, which I have rejected. I do not agree that the prosecution ought to have proceeded in the manner proposed by HPC.
The passage from the majority judgment in Pearce,[38] which I have set out at [59], on which HPC relies allows for the possibility of circumstances which justify the prosecution proceeding with charges arising out of the same event or series of events at different times or in different trials. For the above reasons, this is an occasion on which that course was justified.
[38]Pearce 620–1 [30].
Inconsistency
HPC submitted that a verdict on the OHS Act charges will or may controvert my ruling in the EP Act trial that two of the five pleaded causation particulars not go to the jury, or the jury verdict itself. My ruling simply went to the sufficiency of evidence called, not to the admissibility of critical evidence.[39] As I understand it the depositions give notice that there will be different witnesses and evidence called in the OHS Act trial in relation to the alleged conduct which was the subject of my ruling. Whether or not evidence given at the second trial is sufficient for charges to go to the jury remains to be determined. The question of what must be open to the jury depends on the elements of the offences, which I have pointed out are materially different on the two indictments. I do not agree that any issue of incontrovertibility arises.
[39]Rogers.
Oppression
The EP Act trial ran for just under 10 weeks. The estimate of the OHS Act trial is eight weeks. I accept there is a degree of oppression associated with having to face two separate trials of significant length, arising out of the same series of events, where there is an overlap in the conduct on which the charges are based, evidence and witnesses to be called. The second trial will involve significant cost, will consume significant resources and will commence more than five years after the mine fire.
While each application for a stay based on oppression must be decided on its own particular facts and circumstances, it is instructive to compare the detriment which will be suffered by HPC to that experienced by the applicants in Joud which, together with the unfairness caused by a second trial, justified a stay. Clearly oppression caused to HPC by the second trial falls well short of that experienced by the applicants in Joud. The oppression HPC will suffer because of the second trial cannot be described as exceptional or extreme, and falls well short of that which would justify a stay.
Had I found it was possible for the prosecution to formulate the indictment so as to have a single trial, I would come to the same conclusion in relation to oppression and the application for a stay. Any additional oppression suffered by HPC as a consequence of the unfairness of having to face a second trial does not elevate oppression to a level which would justify a stay.
When the oppression suffered by HPC is balanced against the public interest in prosecuting and justly punishing offenders for their criminal conduct, it becomes clear that this application should fail. This is particularly so because of the conclusions I have reached that the two indictments reflect significantly different criminality.
Conclusion
For the above reasons the application by HPC to stay the OHS Act proceeding is refused.
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