Environment Protection Authority v CSR Ltd (trading as CSR Woodpanels)

[1999] NSWLEC 173

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v CSR Ltd (trading as CSR Woodpanels) [1999] NSWLEC 173

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
CSR Ltd (trading as CSR Woodpanels)

NUMBER:

50080 of 1997

CORAM:

Pearlman J

KEY ISSUES:

Environmental Offences :- stated case - discretion

LEGISLATION CITED:

Criminal Appeal Act 1912 s 5AE
Environmental Offences and Penalties Act 1989 s 6(1)

DATES OF HEARING:

06/04/1999

EX TEMPORE JUDGMENT DATE:

06/04/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mrs J C Kelly (Barrister)

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr P D McClellan QC

SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND 50080 of 1997

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 4 June 1999

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

CSR LTD (trading as CSR WOODPANELS)

Defendant

JUDGMENT

1. Before me this morning is a notice of motion put on by the defendant seeking a case to be stated to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912.

2. A draft stated case has been furnished which raises three questions for the Court of Criminal Appeal, namely:

Did I err in:
(a) permitting the prosecutor to amend the summons so as to add the words “or was likely to harm” after the word “harmed” in paragraph 1 of the summons;
(b) holding that the prosecutor has furnished the further particulars which I ordered to be provided on 18 December 1997; and
(c) dismissing the defendant’s/appellant’s motion of 1 April 1999?

3. I say at once that the third question is consequential upon the other two.

4. The application arises, as I have said, under s 5AE of the Criminal Appeal Act subsection (1) which relevantly provides as follows:

At any time before the completion of proceedings before … the Land and Environment Court in its summary jurisdiction, …, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

5. It is clear, of course, that the power which I now exercise, since the application is made by the defendant, is entirely discretionary.

6. The defendant claims that two fundamental questions arise for determination in the stated case and each involves a question of the proper construction of s 6(1) of the Environmental Offences and Penalties Act 1989 (“the EOP Act”). Each of them raises, in the defendant's submission, a question of law.

7. Mr McClellan QC, appearing for the defendant, says that the questions are fundamental. The first question, he submits, raises a question of duplicity. If I erred in permitting the prosecutor to amend the summons and the case proceeds to trial without that error being corrected, then the defendant is faced with a question of duplicity at the trial. That is fundamental, in Mr McClellan’s submission. Secondly, he submits that the second question raises also a fundamental question, namely, whether a continuing offence may be the subject of an offence under s 6(1) of the EOP Act.

8. My decision (5 May 1999, unreported) was based, as reference to my judgment will show, upon the prosecutor’s claim that the offence was a continuing offence. The Prosecutor furnished particulars of a continuing offence, which I have noted in par 13 and par 15 of my judgment. In par 21 and par 22, I accepted that particularisation as adequate on the basis that the offence was a continuing offence which commenced in 1992 and continued until the Blue Lagoon was decommissioned because it was leaking over the whole of that period.

9. If I erred in reaching the conclusion that I did, then the particulars were not framed adequately and that is the basis of the second question.

10. In response to those submissions, Mrs Kelly, for the prosecutor, makes a number of points. First she says that nothing has been put by the defendant to show that it will be prejudiced by a refusal to state a case on these questions. Secondly, she points to the lengthy delay that this case has already suffered. It commenced in August 1997. It has not been to trial. It is now 18 months since it started and a reference to the Court of Criminal Appeal will incur a much greater delay than has already occurred.

11. Mrs Kelly next says that the answer that the Court of Criminal Appeal might give to the first question will not bring the proceedings to an end, a fact which Mr McClellan acknowledges. It might mean that I erred in granting leave to amend the summons and, if so, the summons will have to proceed unamended. She also says that, in circumstances when the case will not be brought to an end, when there has already been great delay, when there is no prejudice raised by the defendant, then judicial administration and case management require me to refuse to exercise my discretion in the defendant’s favour.

12. As to the second question, Mrs Kelly submits that it raises simply a procedural matter, that is, the adequacy of the furnishing of particulars. That does not raise any question of legal principle in the way that the prosecutor reads the circumstances of the case thus far. She submits that I should take into account, as a factor in the exercise of my discretion, the attitude of the Court of Criminal Appeal to dealing with an interlocutory order on a matter of practice and procedure, especially in the light of the guidelines which are compiled by Justice Kirby in Queensland v JL Holdings (1997) 189 CLR 146 at p 173. His Honour there set out the bases for appellate intervention to set aside a discretionary interlocutory order and referred to the special restraint which will be exercised where the interlocutory order challenges are concerned with practice or procedure.

13. Lastly, Mrs Kelly submits that, if the matter proceeds to trial and the defendant is found to have committed the offence, then it will have a right of appeal. By refusing to exercise my discretion in the defendant’s favour at this stage, I do not shut it out from appealing against the matters which might arise in this case.

14. Having considered all those matters, I have come to the conclusion that I should exercise my discretion in the defendant’s favour, and I do so for the following reasons.

15. I think that the first two questions are fundamental. The first question goes to the framing of the summons. If I was wrong, then there are questions of duplicity and they ought to be dealt with before the trial commences rather than later. The second question goes to the whole basis of the charge. A reading of the whole of my judgment shows that I accepted that the basis for the charge was a continuing offence on the part of the defendant. If it is not possible for a continuing offence to be prosecuted under s 6(1) of the EOP Act, then that ought to be decided as a fundamental question at the beginning of the case.

16. Mr McClellan called the questions “threshold” and I think he is right. The charge as now framed subsequent to my amendment does extend the scope of the evidence on the part of the defendant. It puts a different light on the case which the defendant has to meet.

17. I could not be more aware of the admonition of the Court of Criminal Appeal that stated cases ought to be framed to that court on the basis of facts as found by the trial judge but the facts that are the basis of these questions are found in the two judgments I have already delivered in this case and in particular in the last judgment delivered on 5 May 1999. The questions depend on the wording of the summons; they depend on the particulars now furnished and the basis for the furnishing of those particulars.

18. I am also deeply aware of the necessity to case manage trials in this Court in the interests of efficiency but I do not think matters of efficiency and management outweigh principles of fairness and justice.

19. The defendant is charged with a serious environmental offence. It is a tier one offence under the EOP Act and it brings with it a maximum penalty of $1,000,000. That is very serious. In the interests of fairness and justice, I think the threshold questions ought to be determined in advance and I propose therefore to state a case under s 5AE. That brings the question of the framing of that stated case.

20. I would like the parties to consult with each other to try and prepare a further draft. I would ask you to contact my associate and make an appointment to see me in chambers to settle that draft.