Environment Protection Authority v Wellington Council

[2017] NSWLEC 5

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority v Wellington Council [2017] NSWLEC 5
Hearing dates:	9 September and 29 November 2016
Date of orders:	02 February 2017
Decision date:	02 February 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [106]
Catchwords:	CRIMINAL LAW – prosecution by EPA of a council for water pollution from council sewage treatment plant – council enters “guilty” plea – council dissolved by proclamation (the First Proclamation) and amalgamated to form an element of a new regional council – new regional council applies to have prosecution struck out – bases advanced by the EPA for effectiveness of the First Proclamation in maintaining EPA’s prosecution as against the new regional council – second proclamation (the Second Proclamation) amending the First Proclamation – effect of the Second Proclamation – the Second Proclamation to play no substantive role in these interlocutory proceedings – First Proclamation ineffective to maintain prosecution against the new regional council – prosecution struck out COSTS – application by the new regional council for costs of the strike out application – consideration of provisions of the Criminal Procedure Act 1986 that permit making orders for costs against a prosecutor – no statutory basis to award costs to intervenor in these circumstances – no order for costs
Legislation Cited:	Criminal Appeal Act 1912, s 5AE(1) Criminal Procedure Act 1986, ss 3, 247G(1), 257B, 257C, 257D Local Government Act 1993, ss 213(1), 736, 737 Local Government (Bayside) Proclamation 2016, cl 6, Sch 1(9), 1(10) Local Government (Council Amalgamations) Proclamation 2016, cll 3(1), 17, 32, 33, 34 Protection of the Environment Operations Act 1997, ss 120, 216(1)(b), Pt 8.3, ss 243, 244(2)
Cases Cited:	Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309
Category:	Procedural and other rulings
Parties:	Environment Protection Authority (Prosecutor) Wellington Council (Defendant)
Representation:	Counsel: Dr K Stern SC and Mr P English, barrister (Prosecutor) Mr C Ireland, barrister (Intervener)   Solicitors: Environment Protection Authority (Prosecutor) Yeldham Price O’Brien Lusk (Intervener)
File Number(s):	150292 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The old Council is dissolved and the new Council is created

The new Council’s challenge to the status of the prosecution

The procedural foundation for these hearings

The correct characterisation of this interlocutory determination

The operation of the First Proclamation

The first hearing

The Second Proclamation

The subsequent mention

Relevant provisions of the Local Government Act 1993

The relevant provisions of the First Proclamation

The relevant provisions of the Second Proclamation

The limitation period for the offence charged

The effect of the Second Proclamation

Introduction

Section 736 of the Local Government Act

The correct role of the Second Proclamation

Conclusion

The Prosecutor’s “concession” on cl 17 of the First Proclamation

The competing positions on continuation of the proceedings

Introduction

The position of the new Council on the status of the prosecution

The position of the Prosecutor on the status of the prosecution

Introduction

A “provisional conviction”

The Part 8.3 of the POEO Act submissions

Transfer of a liability to a costs order

Consideration of the Prosecutor’s position

Introduction

A “provisional conviction”?

What follows from a provisional conviction

If there was a provisional conviction

Introduction

Part 8.3 of the POEO Act

The Criminal Procedure Act 1986

Costs

Conclusion

Orders

Judgment

Introduction

1. The Environment Protection Authority (the EPA) commenced criminal proceedings against Wellington Council (the old Council) by summons dated 21 April 2015. The old Council was charged with an offence of “causing water pollution” in breach of s 120 of the Protection of the Environment Operations Act 1997 (the POEO Act). The offence arose from the operation of the old Council's sewage treatment plant (the STP) at Brennan Way, Wellington. The summons alleges that, between 4 and 7 May 2014, over three megalitres of untreated or partially untreated raw sewage was discharged from the STP into Bushrangers Creek and entered the Macquarie River.

2. On 21 August 2015, before Biscoe J, the old Council entered a plea of “guilty” to the charge laid against it and the Court file was so annotated. Although a series of subsequent preparatory, procedural steps followed, the holding of a sentencing hearing had not occurred before the implementation of the relevant element of the NSW Government’s policy for council amalgamations intervened in the fashion described below. These procedural steps will need to be considered later in more detail.

The old Council is dissolved and the new Council is created

3. On 12 May 2016, the Local Government (Council Amalgamations) Proclamation 2016 (the First Proclamation) was signed by the Governor – coming into effect on that date. The First Proclamation had the effect of dissolving both the old Council and Dubbo City Council and constituting a new Council then to be known as the Western Plains Regional Council – now known as Dubbo Regional Council (the new Council).

The new Council’s challenge to the status of the prosecution

4. On 22 July 2016, the new Council indicated, at a directions hearing before Pain J, that it wished to seek to have the Court strike out the proceedings commenced by the EPA against the old Council, on the basis that the First Proclamation did not effect the transfer to the new Council of criminal liability for the actions of the old Council.

5. On this assumption, when the preliminary hearing commenced before me, Mr Ireland, counsel for the new Council, submitted that the charge laid by the EPA could not now be proceeded with against the new Council and that the plea of “guilty” entered by the old Council had no effect.

6. Unsurprisingly, this position was resisted by the EPA, with the EPA adopting the position that the First Proclamation effectively transmitted the undetermined prosecution, and the old Council’s “guilty” plea, to the new Council. The EPA advances three bases in support of this proposition – for the reasons set out, these do not have the effect proposed.

The procedural foundation for these hearings

7. In this context, it is appropriate to note the terms of a direction made by Pain J on 22 July 2016, being the direction that gives rise to this hearing. The direction was in the following terms:

Leave to approach the Registrar to obtain one day, towards the end of August 2016 if possible, for a preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 or otherwise on the question of whether the proceedings must be dismissed by reason of the dissolution of Wellington Council on 12 May 2016 pursuant to the Local Government (Council Amalgamations) Proclamation 2016 in the absence of any transfer of criminal liability to Western Plains Regional Council.

8. It seems to me that, in light of s 247G(1) of Criminal Procedure Act 1986 (the Criminal Procedure Act), this preliminary hearing must be dealt with pursuant to the “or otherwise” provision of her Honour's direction. This is as a consequence of s 247G(1) making it clear that preliminary hearings pursuant to that provision are ones that are contested by the Prosecutor and the Defendant, and the provision does not allow for an interventionary argument on the basis advanced by the new Council in these preliminary proceedings.

9. Given, in the hearings that I have undertaken, the position adopted by the new Council is that it is not, and never has been, the Defendant in these proceedings, it is appropriate for me to deal with the matter in the fashion outlined below.

The correct characterisation of this interlocutory determination

10. Mr Ireland has characterised the nature of that which I am asked to determine as being an application to strike out the proceedings against the old Council.

11. At the commencement of the second phase of the hearing on 29 November 2016, I raised with the parties my concern as to what should be regarded as the proper basis upon which I was being asked to determine the strike-out application that had been made by the new Council. This discussion occupies the first five-and-a-bit pages of the transcript of that day (Transcript 29 November 2016, page 1, line 16 to page 6, line 17).

12. The consequence of that discussion (set out at Transcript page 4, line 3 to line 8) was that I indicated that I proposed to treat these proceedings as being an application by the Prosecutor to change the name of the Defendant from Wellington Council to Dubbo Regional Council, coupled with an application by Mr Ireland, on behalf of Dubbo Regional Council, for leave to intervene in order to resist that application.

13. The Prosecutor submitted, in [4] of her written submissions of 4 November 2016, such an application is premised upon the proceedings being in existence and, therefore, capable of being struck out.

14. Although there was a discussion with both Mr Ireland and the Prosecutor on this procedural point, I am satisfied that dealing with the matter in the fashion I proposed is the appropriate course.

The operation of the First Proclamation

15. The First Proclamation contained a range of operative provisions to effect the constitution of the new Council and, relevantly, to facilitate the transmission to the new Council of a range of staffing, financial and legal responsibilities. Several of those provisions require consideration in these proceedings and are later set out in detail.

The first hearing

16. The strike-out application came on for hearing before me on 9 September 2016. Mr Ireland completed his submissions in support of the proposition that the First Proclamation did not act, in any effective fashion, to permit continuation of the prosecution against the new Council.

17. After he had completed his submissions, Dr Stern SC, senior counsel for the Prosecutor, put the contrary position. During the course of her submissions, she was handed a copy of the Local Government (Bayside) Proclamation 2016 (the Second Proclamation) – and a copy was provided to me and to Mr Ireland.

The Second Proclamation

18. The Second Proclamation had been made by the Governor on that day (9 September 2016) and had come into effect when published on the New South Wales Legislation website immediately after his Excellency had given his assent to the Second Proclamation.

19. Although the primary objective of the Second Proclamation was to dissolve the councils of the City of Rockdale and Botany Bay City, and to constitute a new local government area known as Bayside, the Second Proclamation also contained a number of provisions that were said, in the Second Proclamation, to effect amendments to the First Proclamation.

20. Amongst those amendments was the insertion of a provision (a new cl 34) into the terms of the transmitting provisions of the First Proclamation – this being a new provision which transmitted, expressly, criminal liability from dissolved councils to reconstituted councils where that dissolution and reconstitution had been effected by the First Proclamation. Relevantly, that provision applies to the dissolution of the old Council and the formation of the new Council.

21. Mr Ireland sought, and was granted, an adjournment to enable the new Council to be advised on, and consider its response to, the relevant elements of the Second Proclamation.

The subsequent mention

22. At a subsequent mention on 22 September 2016, Mr Ireland advised me that the new Council wished to continue to press the strike-out application. As a consequence, I set the matter down for a further hearing on 29 November 2016 and set a timetable for the exchange of written submissions prior to that date.

Relevant provisions of the Local Government Act 1993

23. There are a limited number of provisions of the Local Government Act 1993 (the Local Government Act) that require consideration in these proceedings. They are ss 213(1), 736 and 737.

24. The first of these sets out a non-exhaustive list of matters able to be encompassed in a proclamation having the effect of constituting a new council after an amalgamation of existing councils. That provision, s 213(1), is in the following terms:

213   Facilitating provisions of proclamations

(1)   A proclamation of the Governor for the purposes of this Division may include such provisions as are necessary or convenient for giving effect to the proclamation, including provisions for or with respect to:

the transfer or apportionment of assets, rights and liabilities

•    the transfer of staff

•    the application of regulations

•    the alteration of ward boundaries

•    the holding of elections

•    the delivery or retention of records

•    the termination, cessation, dissolution or abolition of anything existing before the proclamation takes effect

•    the preservation or continuance of anything existing before the proclamation takes effect

•    the making of appointments

•    the inclusion or exclusion, as a constituent council of any related county council, of the council of any area constituted or dissolved by the proclamation.

25. The other two provisions, ss 736 and 737, deal with the power to amend, amongst other things, proclamations of the type encompassed by s 213 and the circumstances in, and purposes for, which such amendments might be made. Those provisions are in the following terms:

736 Proclamations

(1) The Governor may, by proclamation, rescind, revoke, amend or vary any order, proclamation or notification under the Local Government Act 1919 or this Act, other than an order or notification given or made by a council.

(2)   Except with the consent of any council the interests of which may be concerned, this section or any proclamation under it is not to affect anything done before the publication of the proclamation.

737 Correcting errors

An error in a proclamation may be corrected by a subsequent proclamation which may be expressed to take effect at the same time as the earlier proclamation took effect or at a later time.

The relevant provisions of the First Proclamation

26. There are a limited number of provisions in the First Proclamation that require noting. Those provisions comprise:

1. Relevant elements of the definitions of terms used in the proclamations;

2. A generally descriptive transmission provision, cl 17 Activities of former councils, in a division of the proclamation entitled “Division 3 Council activities”; and

3. Two provisions, cl 32 Transfer of assets, rights and liabilities and cl 33 Provisions relating to transfers of assets, rights and liabilities, in a division of the proclamation entitled “Division 5 Transfer of assets, rights and liabilities”.

27. The three potentially relevant definitions are contained in cl 3(1) and are set out below:

assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents.

liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).

rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).

28. These various other provisions are set out below:

17 Activities of former councils

(1)   Anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council.

(2)   Without limiting subclause (1):

(a)   any approval, order or notice given or made by a former council, and that had effect immediately before the amalgamation day, continues to have effect as if it had been given or made by the new council, and

(b)   anything commenced but not completed by a former council may be completed or discontinued by the new council.

(3)   This clause does not:

(a)   limit any other provision of this Proclamation, or

(b)   apply to the extent to which it is inconsistent with any other provision of this Proclamation.

32 Transfer of assets, rights and liabilities

The assets, rights and liabilities of the former councils are transferred to the new council.

33 Provisions relating to transfers of assets, rights and liabilities

(1)   When any assets, rights or liabilities are transferred pursuant to this Proclamation from a former council to a new council, the following provisions have effect:

(a)   the assets of the former council vest in the new council by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,

(b)   the rights or liabilities of the former council become, by virtue of this clause, the rights or liabilities of the new council,

(c)   all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the former council or a predecessor of the former council and pending immediately before the transfer are taken to be proceedings pending by or against the new council,

(d)   any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the former council or a predecessor of the former council is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the new council,

(e)   the new council has all the entitlements and obligations of the former council in relation to those assets, rights and liabilities that the former council would have had but for the transfer, whether or not those entitlements and obligations were actual or potential at the time of the transfer.

Note. Clause 6 translates references in any instrument to former councils or areas and their predecessors.

(2)   The operation of this clause is not to be regarded:

(a)   as a breach of contract or confidence or otherwise as a civil wrong, or

(b)   as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c)   as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or

(d)   as an event of default under any contract or other instrument.

(3) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities. The notice is conclusive evidence of that transfer.

(4)   No attornment to the transferee by a lessee from the former council is required.

29. I have added the emphasis to cl 33(1)(c) above and below for reasons that are obvious from that which follows.

The relevant provisions of the Second Proclamation

30. As earlier indicated, the Second Proclamation, in addition to amalgamating the former Botany Bay and Rockdale City Councils, also, amongst other things, made a number of amendments to the First Proclamation. Two of these amendments require consideration in these proceedings. The first of them, contained in Sch 1(9) of the Second Proclamation effected the repeal of cl 33(1)(c) of the First Proclamation, thus now having it read:

33 Provisions relating to transfers of assets, rights and liabilities

(1)   When any assets, rights or liabilities are transferred pursuant to this Proclamation from a former council to a new council, the following provisions have effect:

(a)   the assets of the former council vest in the new council by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,

(b)   the rights or liabilities of the former council become, by virtue of this clause, the rights or liabilities of the new council,

(c)   repealed,

(d)   any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the former council or a predecessor of the former council is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the new council,

(e)   the new council has all the entitlements and obligations of the former council in relation to those assets, rights and liabilities that the former council would have had but for the transfer, whether or not those entitlements and obligations were actual or potential at the time of the transfer.

Note. Clause 6 translates references in any instrument to former councils or areas and their predecessors.

(2)   The operation of this clause is not to be regarded:

(a)   as a breach of contract or confidence or otherwise as a civil wrong, or

(b)   as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c)   as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or

(d)   as an event of default under any contract or other instrument.

(3) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities. The notice is conclusive evidence of that transfer.

(4)   No attornment to the transferee by a lessee from the former council is required.

31. The second amendment, as a consequence of Sch 1(10) of the Second Proclamation, inserted a new provision into the First Proclamation, with this new provision – cl 34 Continuation or institution of proceedings by or against new councils – having the effect of rendering the noted repealed provision redundant (hence its repeal). The new provision, added to the end of the First Proclamation, is in the following terms:

34 Continuation or institution of proceedings by or against new councils

(1)   Proceedings that were instituted by or against a former council before its dissolution, or that could have been instituted by or against a former council but for its dissolution, may be continued or instituted by or against the new council.

(2)   For that purpose:

(a)   proceedings instituted by or against the former council are taken to be proceedings instituted by or against the new council, and

(b)   anything done by or in relation to the former council is taken to have been done by or in relation to the new council.

(3)   In this clause:

proceedings means criminal proceedings, civil proceedings, civil penalty proceedings or other legal proceedings (including the issue of penalty notices for alleged offences and proceedings arising out of the issue of any such penalty notice).

The limitation period for the offence charged

32. It is the agreed position of the new Council and the EPA that, if the charge laid against the old Council of “polluting waters” in breach of the POEO Act has abated and does not continue against the new Council, the effect of s 216(1)(b) of the POEO Act is called into play. This provision requires that charges such as that laid against the old Council must be laid within 12 months of the date of the offending conduct.

33. The effect of that provision would be that, although the asset that comprises the STP that gave rise to the charge against the old Council has been transferred to the new Council (together with such various civil liabilities as might properly attach to that asset), the time within which it would be possible for the EPA to lay charges arising out of the water pollution event founding the charge against the old Council has now expired.

34. Thus it would not be possible for the EPA to charge, afresh, the new Council for the incident of pollution giving rise to the charge against the old Council (if such fresh charge were otherwise legally permissible).

The effect of the Second Proclamation

Introduction

35. The Prosecutor and the new Council both filed written outlines of submissions concerning the extent, if any, to which the Second Proclamation might play a role in my consideration of the issue as to whether or not the prosecution of the old Council had abated as a consequence of the First Proclamation and therefore could not be maintained against the new Council.

36. It is convenient to dispose of the Second Proclamation before turning to discuss the true issues between the new Council and the Prosecutor arising out of the First Proclamation.

Section 736 of the Local Government Act

37. The new Council and the EPA agree that s 736 of the Local Government Act cannot have the effect of transferring the criminal liability here in dispute unless the new Council was to agree to that occurring and it has not done so (see s 736(2)). As a consequence, the Second Proclamation can have no substantive operative effect in these proceedings.

38. The position of the new Council is that, therefore, this provision is of no relevance.

39. On the other hand, the Prosecutor's position is that the combination of ss 736 and 737 act as confirmation of the transfer of liability for the offence that was effected by the First Proclamation.

The correct role of the Second Proclamation

40. The limited nature of the relevant provisions of the Second Proclamation was conceded by the Prosecutor in [10] of her written submissions of 4 November 2016. This element of the written submissions was in the following terms:

In its terms and effect, clause 34 of the Amending Proclamation is a procedural provision which deals with the continuation of proceedings already commenced or which could, having regard to all the circumstances, including the provisions of the May 2016 Proclamation, be instituted. There is no retrospective effect in the submissions on behalf of the New Council are not to the point.

Moreover, it is clear, in its terms – it is intended to enable the continuation of proceedings against new councils, and to provide that those proceedings are taken to have been instituted against the new council, in circumstances in which the former councils were dissolved under the May 2016 Proclamation.

Conclusion

41. It is unnecessary, in my view, to address further the terms of the Second Proclamation as I am satisfied that both the Prosecutor and the new Council accept the proposition that, if the First Proclamation did not have the effect of maintaining the proceedings commenced against the old Council as being proceedings continued against the new Council, then the Second Proclamation can achieve nothing substantive for the purposes of these proceedings.

The Prosecutor’s “concession” on cl 17 of the First Proclamation

42. In his written submissions of 14 October 2016, Mr Ireland asserted, at [2] and [3]:

The Prosecutor is not relying on clause 17 of the Proclamation [the First Proclamation], and this express concession (Transcript pages 35 – 36) is vital to its argument that the Proclamation transferred criminal liability to the New Council, as no other clause achieves this result.

However, the concession by the Prosecutor was correctly made. The New Council has also submitted that clause 17 has no application to the transfer of criminal liability, with clause 33 being the part of the Proclamation transferring liabilities.

43. On the other hand, in the Prosecutor's written submissions of 4 November 2016, the following appears, at [5], concerning, inter alia, cl 17 of the First Proclamation:

Moreover, for the reasons set out in the EPA's previous submissions, the proceedings could (before the Amending Proclamation) now properly be taken to be proceedings against New Council by the virtue of the combined effect of cll 17, 32 and 33 of the May 2016 Proclamation in circumstances in which there was a guilty plea at an early stage of these proceedings by Wellington Council, a series of directions, all of which have been focused upon the making of appropriate orders in the light of that plea, and the admission of all elements of the offence which Wellington Council's guilty plea entailed. Those matters (together with the contravening acts which are also subject to cl 17 of the May 2016 Proclamation) rendered Wellington Council, and now New Council, susceptible to such orders as the court now considers appropriate. That those proceedings can continue even if they are considered to be criminal proceedings is now clarified by the Amending Proclamation.

44. To resolve the question of whether or not the Prosecutor has made the “concession” asserted to have been made in Mr Ireland’s submissions (as such a concession would be inconsistent with the above extract from the Prosecutor’s written submissions of 4 November 2016), it is necessary to set out the relevant extract from pages 35 and 36 of the transcript of the hearing on 9 September 2016. The relevant extract (from page 35, line 33 to page 36, line 40) is in the following terms:

Your Honour, the fourth matter is the subject of cl 17 of the proclamation. That's a matter upon which your Honour has questioned or raised a number of issues in the submissions of Mr Ireland. We have not relied upon cl 17 as a means itself of transferring liability which would, if you like, rebut or act as a defence to the application made today for this reason, and that is that cl 17 on its face transfers an act rather than transferring proceedings or a liability. So whatever use might be able to be made of cl 17 in some subsequent proceedings, we don't construe or we don't submit to your Honour that your Honour should construe cl 17 as, as it were, enabling the proceedings to continue from the old council to the new council.

HIS HONOUR: So you say that all that would go would be the Act, not the consequences of it.

STERN: We say not necessarily that because the Act may have consequences but we say that the effect of cl 17 isn't on its own sufficient to enable the proceedings which were commenced against old council to be transferred to proceedings against new council. That's why in our submissions we rely upon cl 17 to the extent that we say certainly the plea is something which falls fairly and squarely within cl 17 and that that is--

HIS HONOUR: Yes, that is something that is done.

STERN: That is something that is done but we don't rely upon it beyond that, albeit that it's part of the overall legislative context. So your Honour, that's our submission in relation to that. If I could move then to our substantive submissions.

HIS HONOUR: Do you say to me that if I find no force in your invocation of cl 33 that cl 17 is sufficient to carry forward the guilty plea in itself without recourse to cl 33?

STERN: The guilty plea would carry forward. The question would be: what is the consequence of that because unless the - if the proceedings abate as they would naturally do, subject to there being a specific provision which would enable the proceedings to continue from one to the other. The guilty plea we would say would remain and it's something which may be something that could be relied upon in other proceedings, but in terms of whether the guilty plea alone could prevent strike out, that's not something we rely on, but, and your Honour will have seen from our submission, we do place considerable significance on the guilty plea, and that is because it amounts to two things: one is an admission as regards the factual elements that would be required to prove the offence which is obviously highly significant. The second is on its face it's an admission of criminal responsibility and an acceptance of criminal responsibility.

The consequence of that is twofold. The first, by virtue of the admission, is that it means there's nothing left to prove as regards the offence. So when one looks at the potential application of pt 8.3 upon which we do place considerable significance, the offence would effectively be found proved on the basis of that admission.

The second is that because there is an acceptance of criminal responsibility, your Honour is not concerned with a regime in these circumstances; that is, trying to allocate criminally responsibility upon someone because that criminal responsibility has already been accepted and that plea is continued by virtue of cl 17. So we do place considerable significance upon the plea in the way that we frame our submissions.

45. It seems to me that a correct understanding of what was said by the Prosecutor on that occasion is inconsistent with the interpretation placed upon it by Mr Ireland.

46. Entirely consistent with the proposition in the Prosecutor’s written submissions of 4 November 2016 is that that upon which reliance is placed for the maintenance of the proceedings is the combined effect of cll 17, 32 and 33 of the First Proclamation. These are said by the Prosecutor, in the fashions later dealt with, to continue several elements flowing from the August 2015 “guilty” plea entered by the old Council so that these have the effect of continuing the prosecution in the fashion that would necessarily follow from the entry of that plea.

47. I have therefore proceeded to deal with this interlocutory skirmish on that basis of considering whether the First Proclamation does have any of the effects proposed by the Prosecutor.

The competing positions on continuation of the proceedings

Introduction

48. Although the matter was dealt with on two hearing days nearly three months apart, this arose as a consequence of the legislative intervention occasioned by the advent of the Second Proclamation, rather than as a consequence of the complexity of the issues involved.

49. Both Mr Ireland and the Prosecutor provided relevant written submissions lucidly capturing and joining contest on the issues. Each explained to me their party’s position orally and responded to testing by me of those issues.

50. For the purposes of this decision, although recourse to the transcript of the oral submissions has been necessary for limited purposes, the material contained in the written submissions is able to provide a proper basis for explaining and determining the substantive issues in the proceedings as argued for the Prosecutor and for the new Council.

The position of the new Council on the status of the prosecution

51. Put simply, the position of the new Council is that, unless the First Proclamation clearly and unambiguously, by its language, provides a basis for concluding that the proceedings have been maintained, it necessarily follows that the proceedings must have abated. For these proceedings, the new Council acknowledges no exceptions to this proposition.

52. Mr Ireland’s written submissions (26 August 2016) on this point were concise:

13.   Absent express statutory provision and clear language it is inconceivable that a legal person, not in existence at the time of an alleged offence, could be criminally responsible for that offence, an offence said to have been committed by the actions or defaults of another person. This is an application of the clear statement principle in Lee v NSW Crime Commission (2013) 251 CLR196 at [3] (French CJ) and [171]-[173] (Kiefel J) and [307]-[314] (Gageler and Keane JJ).

14.   …

15. The plain language of the Proclamation does not purport to effect any transfer of criminal liability to the New Council. Due to both the plain language of the Proclamation and (it follows) the absence of any clear language displacing the above principles and statutory provisions (s120, s216(1)(b) POEO Act), the Proclamation does not, and cannot, transfer the Defendant’s criminal liability to the New Council.

16.   …

17.   This principle was applied to the effect that criminal proceedings against Sydney Electricity abated when that entity was dissolved and a new entity, Energy Australia, was created by statute in the important case of Workcover Authority of New South Wales (Inspector Gilbert) v Energy Australia (Formerly Sydney Electricity) (1998) 85 IR 99 (Hungerford J). The prosecutor in that case contended (at 110) that as an Order made pursuant to the Sydney Electricity Act transferred all liabilities from one entity to another, defined as meaning “any liabilities, debts or obligations (whether present or future and whether vested or contingent)”, criminal liability had been transferred. This submission was rejected and it was found that Energy Australia was not the proper defendant and the charge against Sydney Electricity had abated and lapsed due to the dissolution of that body (at 113). There, as here, the relevant statute had not created the new body as the same legal person as the old.

18.   …

19.   …

20.   In Country Energy v Malone [2005] NSWIRComm 78 the Industrial Relations of NSW in Court Session (Wright, Boland and Staff JJ) after a detailed examination of the case law isolated the following principles governing the transfer of criminal liability from a dissolved body to a newly created body:

(a)   Absent statutory provisions to the contrary, the dissolution of a statutory body or corporation results in the abatement of criminal proceedings against that body;

(b)   If there is a successor of the defunct corporation the question whether any criminal liability of the former body will be assumed by the new body will depend on the terms of the statutory provisions (or possibly the delegated legislation) dissolving the former body and creating the new one;

(c)   Examples of situations where criminal liability would be assumed by a successor body include where there is express legislative provision that the original and successor bodies are the same legal person or where the new body is created with the same legal personality as the former body;

(d)   The ordinary meaning of the word “liability” is apt to embrace both criminal and civil responsibility but whether, in a particular case, the word does embrace criminal liability will depend on the statutory context in which it is used;

(e)   The mere transfer of the former body’s staff, assets, rights and liabilities to the new body is unlikely to result in the two bodies being the same legal person;

(f)   Equating the two bodies (the body dissolved and the new one) as the one body for the purposes of succession to criminal liability could only occur by legislative enactment which would usually be expected to be accomplished in words “clearly so stated”.

21.   …

22.   …

23.   …

24.   These principles in Country Energy were recently adopted and approved as a correct statement of the law at [33]-[35] in Rockhampton Regional Council v Magistrate Barry Cosgrove [2015] QSC 22 (McMeekin J) in the Queensland Supreme Court. The reasoning at [35] and [38] – [40] of that decision is particular apposite:

[35]   Absent express statutory provision it is inconceivable that an entity, not in existence at the time of the alleged offence, could be criminally responsible for that offence, an offence said to have been committed by the actions or defaults of another existing entity. Self-evidently the new entity could not have done the acts or filed to do the acts said to constitute the offence.

[38]   The absence of an express statement of intention is against, and in my view strongly against, RRC’s construction. The imposition of criminal responsibility is no light matter. As the submissions point out the potential fine is substantial and if found guilty a conviction is recorded, assuming the discretion in s 12 of the Penalties and Sentences Act 1995 is not invoked. To burden even a corporate entity with a criminal conviction for acts or omissions for which it was not responsible seems anomalous. There is force in the argument that it tends against the usual justifications for imposing criminal sanction, namely punishment, rehabilitation, deterrence, denunciation and protection of the community to make criminally liable an entity not in fact responsible for the crime. That is not to say that the legislature cannot bring about that result. But as the Full Bench concluded in Malone, generally speaking, one would expect Parliament’s intention to bring about such a result to be clearly stated.

[39]   To like effect, in a slightly different context, is the observation of Gibbs J in Beckwith v The Queen:

“in determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … .”

[40]   I am not here concerned with construing the statute that imposes the criminal penalty (the WHS Act) but rather the Regulations. Thus, Gibbs J’s observation is not directly apposite. But the principle is just as applicable here. I note that Eames J took the same approach in Roads Corporation v Gerkens where the question before the Court had similarities to that here. To the extent that there is any doubt it ought to go in favour of not extending criminal responsibility.

25.   The conclusion that the criminal liability in these proceedings of the Defendant, Wellington Council, has not been transferred to Western Plains Regional Council follows ineluctably from the law as distilled from the decided cases above. There is no clear statement or clear language in the Proclamation that criminal liability is transferred to Western Plains Regional Council. The New Council has not assumed the criminal liability of Wellington Council.

53. The language of cll 32 and 34 of the First Proclamation (unamended by the Second Proclamation), Mr Ireland submitted, is to be read as confined clearly to transferring civil liabilities, relevantly, and not criminal ones. This, he submitted, is to be seen from the terms of these provisions themselves.

54. The new Council denies that any of the preliminary steps (including the entry of the “guilty” plea or anything said by the EPA to flow from it) fall within matters that could “remain alive” to continue the prosecution after the coming into effect of the First Proclamation.

55. The new Council submitted that, as the prosecution had abated, as a consequence of no effective transference by the First Proclamation, it was “gone” and was not revived by the Second Proclamation.

56. In general terms, I accept these submissions on the principal element of them – namely, the need for clear and express language to transfer the criminal proceedings as a package, as it were, to the new Council.

57. However, as discussed below, the more nuanced position of the Prosecutor is that other matters, when considered in the alternative, have the effect of transferring consequences for the new Council as a result of, and in the Prosecutor’s submission, necessarily flowing from, the old Council’s August 2015 entry of a “guilty” plea.

The position of the Prosecutor on the status of the prosecution

Introduction

58. The Prosecutor accepts the broad proposition concerning the need for clear and unambiguous language to transfer the criminal proceedings simpliciter but submits that several elements arising from the way that the proceedings have unfolded, commencing with the “guilty” plea, have preserved the proceedings. These are to be viewed as a continuing process following on from that which has been the procedural process since the plea. The Prosecutor summarised the steps (written submissions 6 September 2016) as follows:

8.   All steps since 21 August 2015 have been premised upon that guilty plea and, save for in respect of the present application, the only remaining issue in the proceedings has been that of sentencing and determining any appropriate further orders. Thus:

a.   On 21 August 2015, the Court made orders for the:

i.   filing of agreed facts;

ii.   Defendant to file and serve evidence on environmental harm and contrition; and

iii.   application of Division 2A of Part 5 of the CP Act to be waived by consent.

b.   On 6 November 2015, orders were made for an extension of the date by which agreed facts were to be filed.

c.   On 4 December 2015, the Court made orders for:

i.   the filing of further expert evidence;

ii.   an expert conclave to be held on the question of environmental harm; and

iii.   the filing of agreed facts.

d.   On 13 May 2016, the matter was adjourned for three weeks as a consequence of the issue of the Proclamation. However, the adjournment went to the extant proceedings which related only to sentencing and/or further orders.

59. As a consequence, the Prosecutor advances what are submitted to be valid and sustaining bases for concluding that the proceedings commenced against the old Council remain on foot against the new Council.

60. In broad, the Prosecutor says that the combined effect of cll 17, 32 and 33 (the latter in its 12 May 2016 form) of the First Proclamation act to transfer the act of pollution; the plea of “guilty” and the liabilities that attached to each of these from the old Council to the new Council. In this regard, the Prosecutor says that the language of the First Proclamation does provide a clearly expressed basis for reaching this conclusion.

61. The reason for this, the Prosecutor says, is that what is transmitted is not merely liability but is a sequential combination of the act of pollution giving rise to the charge; the submission to the jurisdiction of the Court after the Prosecutor commenced the proceedings against the old Council; and consequences of the entry, by the old Council, of a plea of “guilty” at the second directions mention of the Summons.

62. The Prosecutor's position is that the new Council remains bound by the conduct of the old Council, although, should the new Council wish to revisit the “guilty” plea entered by the old Council, the Prosecutor accepts that it would be open to the new Council to seek leave to withdraw that plea and substitute a “not guilty” plea if the new Council wished to do so.

A “provisional conviction”

63. The Prosecutor proposes that, as a consequence of the entry of the “guilty” plea, the old Council should be regarded as having been “provisionally convicted” and, thus, liability for orders pursuant to Part 8.3 of the POEO Act and for an order for Prosecutor's costs pursuant to s 257B of the Criminal Procedure Act have been transferred to the new Council and that these transferences are sufficient to maintain the prosecution.

Defendant's provisional conviction

34.   Further or in the alternative, the EPA submits that in the circumstances set out above, there has already been a provisional conviction of the Defendant. The distinction between the formal and provisional conviction of an offender is explained below.

35.   In Maxwell v The Queen (1996) 184 CLR 501 at 509, Dawson and McHugh JJ gave the following guidance as to the circumstances and mechanisms by which a conviction will formally be entered against an offender:

"Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.

In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court (see Griffiths v The Queen (1977) 137 CLR 293 @ 313-314), a plea of guilty is not, in the ordinary course of events, acceptance until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 @ 488:

“It has long been the law that when a man pleads guilty to an indictment he trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise."

It is the disposal of the case which results in the judgment of the court embodying a determination of guilt."

36.   Having discussed these distinctions, Dawson and McHugh JJ went on at 510 to explain the effect of a provisional conviction entered in circumstances where a charge is yet to be finally disposed of:

“... “it all depends upon whether the plea of guilty was unequivocal and finally accepted or was equivocal and only accepted provisionally". Obviously, a court when it embarks upon a consideration of sentence is accepting a plea of guilty at least for that purpose, but there should be no difficulty in regarding that acceptance as provisional pending actual sentence or some other disposal of the matter. With respect, that seems to us to be a better way of viewing the process than that suggested by Aicken J in Griffiths v The Queen, namely, that although remand for sentence might amount to a conviction, a change of plea operates to set aside the conviction."

37.   In R v Holton [2004] NSWCCA 214, having analysed the various authorities on the meaning of the word "conviction", Grove J concluded at [30] that "the common thread is that a conviction is a final determination by a court of the guilt of an accused person".

38.   Consistent with the reasoning of Dawson and McHugh JJ from Maxwell v The Queen, Grove J held that a plea of guilty that was accepted by the Court was entered provisionally in the sense that up until the time that the charge is finally disposed of by sentence or otherwise, it remained open to an offender to be permitted to change his plea to not guilty at any time ([33] - [37]). Smart AJ also held that it was correct to treat the acceptance of an offender's plea of guilty as provisional only pending actual sentence or some other disposal of the court ([147]-[148]). R v Holton has been subsequently approved by the Full Court of the ACT Supreme Court in Gomez v R (2006] ACTCA 18 at [8].

39.   In accordance with the authorities referred to above, this Court should find that the Defendant was provisionally convicted prior to its dissolution. This status is consistent with Preston CJ’s decision in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [9], [137] in which the Chief Justice accepted that the defendant's entry and the Court's acceptance of its plea of guilty to the charge perfected the conviction.

The Part 8.3 of the POEO Act submissions

64. Next, the Prosecutor advances the submission, based on Part 8.3 of the POEO Act, that the plea of “guilty” entered by the old Council and the provisional conviction flowing from it has the effect of engaging various provisions contained in Part 8.3 in a fashion that continues them to have application to the new Council, whatever the effect of the First Proclamation might be.

65. The proposition that liability for orders pursuant to Part 8.3 of the POEO Act can be understood from the following extract from the Prosecutor’s 6 September 2016 written submissions:

20.   A separate part of the PEO Act deals with a range of orders which can be made “in connection with offences” but which are not described in the PEO Act as part of the sentencing process, nor are they described as penalties. Thus, the heading to Part 8.3 of the PEO Act is “Court orders in connection with offences”. Further, under s 244(2) (within Part 8.3) it is provided that “Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence”. Further s 244(3) provides that “Orders may be made under this Part regardless of whether any penalty is imposed, or other action taken, in relation to the offence” (emphasis added).

21.   Such orders should, in the circumstances, be distinguished from orders made solely by way of penalty and in pursuit of a purpose of punishment of the offender.

22. That is consistent with the scope, object and purpose of Part 8.3. By way of example, section 245 (within Part 8.30) is headed “Orders for restoration and prevention”. The steps which may be ordered under s 245 are:

“(a)   to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or

(b)   To make good any resulting environment damage, or

(c)   To prevent the continuance or recurrence of the offence.”

23.   Such orders are plainly designed to protect and restore the environment. Similarly, s 248 headed “Orders regarding costs and expenses of investigation” which provides for an order that such costs be paid to the regulatory authority is not an order with a purpose of punishment. By contrast, s 249 which provides for the repayment of monetary benefits is expressly described by Parliament as “part of the penalty for committing the offence”.

24.   A range of further additional orders are available under s 250 including orders providing for training, publicising of the offence and its environmental consequences, and orders for a specified work program for the restoration and enhancement of the environment. As Preston CJ acknowledged in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 at [242], there is a distinction between a penalty and a publication order which serves the purpose of improving ‘the effectiveness of sentences as a deterrent”.

25. It is clear from the terms of Part 8.3 that (other than as expressly stated in s 249) these orders are not intended by Parliament to be characterised as a penalty. Equally, it is submitted, there is no reason why the liability to such orders should not transfer under the Proclamation.

26. Under s 243(1), Part 8.3 only applies where a court has found an offence against the PEO Act “proved”. Thus, orders under Part 8.3 are available even if no conviction is recorded. Whilst s 243(2) identifies some circumstances when a court finds an offence provided, it is expressly provided that s 243(1) does not “limit the generality of subsection (1)”. The EPA submits that here the precondition to Part 8.3 is satisfied.

27.-29.   …

30.   It is plainly the intention of the Proclamation that liability of an old council should transfer to a new council. Whilst there is authority directed to similar wording to that in the Proclamation which held that "there is nothing on the face of [the Proclamation] which would indicate that what is being referred to is anything other than civil rights or liabilities or legal proceedings in respect of such civil rights or liabilities" (see eg County Energy v Malone (2005) 138 IR 221 at [37]; see also WorkCover Authority (NSW) (Inspector Gilbert) v Energy Australia, formerly Sydney Electricity (1998) 85 IR 99), on its face the Proclamation is readily capable of transferring liability to orders with the protective and restorative effect such as those identified above under Part 8.3, and orders in relation to costs or compensation for investigative expenses; cf Inspector Wong v Clarence Valley Council [2006] NSWIR Comm 250). Moreover, the analysis of the principles relating to the transfer of criminal liability in those cases is readily distinguishable from the circumstances of the present case where:

a.   There is no ongoing issue as to criminal liability given the guilty plea and the ongoing conduct of this litigation;

b.   This is thus not a case in which the question is the allocation of criminal responsibility. That criminal responsibility has already been accepted by the Defendant (cf, eg Rockhampton Regional Council v Magistrate Barry Cosgrove [2015] QSC 22 at [35] & [38] where McMeekin J focused upon the "imposition of criminal responsibility", and the "usual justifications for imposing criminal sanction"); and

c. The nature of orders under Part 8.3 or as to costs under the CP Act are protective, restorative and compensatory.

Liability to orders under Part 8.3 of the PEO Act transfers to WPRC

31. The EPA submits that this Court has power to make orders under Part 8.3 of the PEO Act which power arises "in connection with offences". The principal submission is that this is because, in the circumstances set out above, namely the Defendant's guilty plea and the directions made by the Court thereafter, the Court has already found an offence against the PEO Act proved within the meaning of s 243(1). The Defendant is accordingly an offender within the meaning of s 3 of the Crimes (Sentencing Procedure) Act 1999.

32. Liability to orders under Part 8.3 of the PEO Act which are principally aimed at restoration and protection of the environment, preventing a recurrence or returning the environment and people to their pre-offence position are readily within the ambit of liabilities transferred under the Proclamation. Considerations which have led to Courts construing analogous provisions as to transfer of liabilities so as to exclude a transfer of criminal responsibility do not apply here, and there is no reason to read the Proclamation as not extending to such liabilities.

33. Thus liability to orders under Part 8.3 of the PEO Act can readily transfer to the WPRC under Division 5 of the Proclamation and the proceedings should continue as proceedings against the WPRC. Proceedings to determine which, if any, of the available orders should be made against the WPRC are properly constituted and there is no justification for them to be struck out or summarily dismissed. Whilst this Court may, ultimately, determine that liability to an order under Part 8.3 of the PEO Act that had punishment as its primary purpose should not be made against the WPRC, that does not prevent the proceedings from properly continuing as against WPRC.

Transfer of a liability to a costs order

66. Further, the Prosecutor advances the submission, based on s 257B of the Criminal Procedure Act, that the plea of “guilty” entered by the old Council and the provisional conviction flowing from it has the effect of rendering the old Council liable for the Prosecutor’s costs in a fashion that continues to have application to the new Council, whatever the effect of the First Proclamation might be.

67. As with the Part 8.3 of the POEO Act submission, this proposition can also be understood from an extract from the Prosecutor’s 6 September 2016 written submissions:

Liability to costs transfers

40. In the circumstances set out above, it was, immediately prior to dissolution, open to the Court to make a costs order against the Defendant pursuant to s 257B of the CP Act, which section provides as follows:

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:

(a)   the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

41.   As Mason CJ said in Latoudis v Casey (1990) 170 CLR 534 at 543:

"If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."

42.   An order for costs in these proceedings is in the nature of a civil debt which is transferrable to the WPRC under the terms of the Proclamation (see Proclamation cll17, 32 and 33; WPRC's submissions at [9]).

43.   As is demonstrated by the following cases, the Defendant's dissolution does not affect the Court's powers with respect to ordering costs.

44.   In Halpin v Department of Gaming and Racing [2007] NSWSC 815, Hall J went onto consider whether a costs order should be made against a prosecutor pursuant to s. 70 of the Crimes (Appeal and Review Act) 2001 in circumstances where the appellant had died before orders were made setting aside his conviction on appeal. At [71], Hall J said the following:

"However, I do not consider that it is necessary for the plaintiff’s executor or administrator to be substituted before the Court can make the consequential orders to give effect to the judgment of 5 September. This is not a case in which it is necessary for there to be a substituted party following death of a party to carry on proceedings, it having been determined that the conviction was wrongly entered. In those circumstances, the Court is in a not dissimilar position to the magistrate in Healey v Williams (above) who was found to be entitled to enter consequential orders following upon the primary order discharging the deceased party. This is particularly so in circumstances in which I have determined that there should be no benefit conferred by way of a costs order under s 70 of the Crimes (Appeal and Review) Act and that the only orders to be made to give effect to the judgment are orders setting aside the conviction and setting aside the order made by the Local Court for costs in favour of the prosecutor."

45.   In the case alluded to above, Healey v Williams (1985) 64 ALR 140, Barwick CJ upheld a costs order made by a magistrate in circumstances where the person in whose favour the order was made had died after she had been formally discharged from committal proceedings but before the reasons for discharge were delivered and an argument heard for costs.

46.   As to the effect of the person's death on the Court's ability to make a costs order, Barwick CJ said at 142:

“It does not appear to me that the death of Miss Wong on 23 March terminated the power of the magistrate to complete his order. Her death did not affect the information nor in a practical sense did it render inoperative, as it were, the issue of costs.”

47.   Consistent with these authorities, it is presently open for the Court to make a costs order against the WPRC in the EPA' s favour.

Consideration of the Prosecutor’s position

Introduction

68. I turn now to address three aspects of what the Prosecutor’s say support the continuation of the prosecution after the dissolution of the old Council. In the order it seems to me appropriate to consider them, these are:

• has there been a “provisional conviction” of the old Council? and

• if so, does the new Council remain liable for orders pursuant to Part 8.3 of the POEO Act as a consequence? and/or

• if so, does the new Council remain liable for costs orders pursuant to s 257B of the Criminal Procedure Act?

69. For the reasons set out below, the answer to the first of these questions is “yes” but the answer to each of the following questions concerning potential consequences of that answer is “no” and, therefore, the final consequence of these determinations, when coupled with the absence of express language transferring criminal liability to the new Council, means that the strike-out application must succeed.

A “provisional conviction”?

70. As the above extract from the Prosecutor’s submissions sets out, in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, at [16], Dawson and McHugh JJ discussed how a provisional conviction may arise in circumstances where a charge is yet to be finally disposed of:

“... “it all depends upon whether the plea of guilty was unequivocal and finally accepted or was equivocal and only accepted provisionally". Obviously, a court when it embarks upon a consideration of sentence is accepting a plea of guilty at least for that purpose, but there should be no difficulty in regarding that acceptance as provisional pending actual sentence or some other disposal of the matter. With respect, that seems to us to be a better way of viewing the process than that suggested by Aicken J in Griffiths v The Queen, namely, that although remand for sentence might amount to a conviction, a change of plea operates to set aside the conviction."

71. It is implicit that the provisional conviction arose at the time Maxwell entered his “guilty” plea and McInerney J remanded Maxwell until the substantive sentencing hearing took place.

72. It therefore follows that, for the old Council, the entry of the “guilty” plea by it in August 2015 did effect the provisional conviction of the old Council.

What follows from a provisional conviction

73. However, the paragraph in Maxwell which follows the one quoted above provides, in my view, additional and appropriate context for consideration of what procedural steps follow and must be considered to understand why the Prosecutor’s submission on the provisional conviction in this case does not lead to the consequences the Prosecutor submits result. Their Honours wrote, at [17]:

17   In the present case it is clear that McInerney J did not purport to dispose of the matter before him by accepting the appellant's plea of guilty, other than for the purpose of embarking upon the sentencing process. By remanding the appellant for sentence he did not accept the plea in any way which amounted to a determination of guilt and, hence, a judgment of the court. There were no unusual features in the course adopted by the judge which would displace the ordinary consequence that a determination of guilt upon a plea of guilty would take place only upon sentence being passed upon the appellant. That did not occur in this case.

74. Most usually (but not invariably), for “guilty” pleas in environmental prosecutions in this Court, this plea will be entered at an early time in order to maximise the sentencing benefit from such a plea (as per R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309).

75. There will then follow, at a time somewhat after the “guilty” plea is entered to the Court, a sentencing hearing – akin to the process embarked upon by McInerney J. Indeed, the “guilty” plea may have been entered some considerable time prior to the sentencing hearing (in this instance, a little over a year prior to this strike-out application being heard).

76. Subsequent to entry of the plea, there will be a Statement of Agreed Facts settled on behalf of the Prosecutor and the Defendant(s) and tendered as evidence in the sentencing proceedings. This may also be supplemented by additional factual material that is either expanding on the Statement of Agreed Facts or may be the subject to contest as to the accuracy of those additional asserted facts.

77. In the sentencing hearing, whatever the nature of the factual material that forms the evidence accepted by the Court, it is nonetheless necessary for the sentencing judge to be satisfied that that factual material provides a proper and sufficient basis to support a conviction based on the “guilty” plea earlier entered.

78. When that occurs, the first of the orders made by the sentencing judge is one which convicts the defendant(s).

79. In circumstances such as these where there has been no evaluative process undertaken by this Court to determine that there is such a proper basis to convict founded on the “guilty” plea in conjunction with the agreed facts or such contested facts as are accepted by the judge concerning the alleged offending conduct, the entry of the plea of “guilty” does not mean that the Court has already found the offence proved, or that the provisional conviction has crystallized into a formal conviction for or order founded on the offence.

80. Certainly no order convicting any party has been made by a sentencing judge in these proceedings.

What, if anything, flows from the old Council’s provisional conviction?

Introduction

81. I now turn to consider whether the old Council’s provisional conviction acts to engage either Part 8.3 of the POEO or s 257B of the Criminal Procedure Act on an ongoing basis.

82. For the reasons set out below, I am satisfied that the terms of each Act do not found the necessary engagement. As a consequence, even though there was a provisional conviction of the old Council, nothing flows from it to continue any liability or consequence attaching to the new Council.

Part 8.3 of the POEO Act

83. The foundational provision of the POEO Act for applicability of Part 8.3 of that Act is contained in s 243 Operation of Part of the Act itself. This provision reads:

243   Operation of Part

(1) Application to proved offences This Part applies where a court finds an offence against this Act or regulations proved.

(2) Meaning of proved offences Without limiting the generality of subsection (1), a court finds an offence proved if:

•    the court convicts the offender of the offence, or

• the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case the order is not a punishment for the purposes of that section).

(3) Definitions In this Part:

the court means the court that finds the offence proved.

the offender means the person who is found to have committed the offence.

84. I am satisfied that the Prosecutor’s position concerning continuation of Part 8.3 liability exposure of the new Council is simply untenable from the terms of the relevant foundational provision itself.

85. There has certainly been no finding in these proceedings pursuant to s 243(1) that an offence against the POEO Act has been proved.

86. The terms of s 243(2) set out the two fundamental bases for a court making a finding that an offence has been proved. Whilst there may be other circumstances (such as mental incapacity), where such issues of proof of offence might arise, they are clearly inapplicable in these circumstances. There has also certainly been no finding pursuant to that provision in these proceedings.

87. In environmental offences such as these, where a “guilty” plea has been entered, despite that plea it remains necessary for a court first to be satisfied that there is a proper basis to convict founded on that plea prior to convicting.

88. Absent, in these proceedings, any order satisfying s 243(2)(a) or (b), Part 8.3 of the POEO Act can provide no sustenance to the proposition advanced by the Prosecutor that Part 8.3 of the POEO Act operates in some fashion to maintain this prosecution.

The Criminal Procedure Act 1986

89. The Prosecutor also proposes that a liability for the payment of costs pursuant to s 257B of the Criminal Procedure Act has been transferred to the new Council and that this has the effect of maintaining the prosecution.

90. The terms of s 257B are identical, in prerequisite qualification, to those set out earlier in s 243(2) of the POEO Act. The Criminal Procedure Act provision reads:

257B   When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:

(a)  the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

91. “Provisional conviction” does not constitute the formality of actual “conviction or order” for the purposes of this provision. The requirement in s 257B(a) or (b) has not been satisfied.

92. For the same reasons earlier explaining the unavailability of s 243 of the POEO Act to provide a basis for maintaining the prosecution of the new Council, s 257B of the Criminal Procedure Act also cannot do so.

Costs

93. Mr Ireland, on behalf of the new Council, submitted that, if the new Council was successful, it should have its costs paid by the Prosecutor. His submissions on this point were contained in [59] of his written submissions of 24 November 2016. Those submissions said, on this point:

The Court should award the Applicant its costs pursuant to s257C(1) as the proceedings would have been dismissed. Costs should be awarded upon satisfaction of the jurisdictional matter and s257D(1)(d) as the exceptional circumstance concerning the conduct of these proceedings by this Prosecutor, being the persistent attempt to continue these proceedings against a third party to them after the dissolution of the Defendant, and after their abatement on 12 May 2016, including by reliance upon an Amending Proclamation that is now relied upon in scant respects, in all the circumstances make it just and reasonable to award professional costs.

94. For the reasons I have set out in this decision, the new Council is not, and has never been, a party to these proceedings, as these proceedings abated as a consequence of the First Proclamation on 12 May 2016.

95. It seems to me that the new Council is, on the question of costs, in a classic double-bind situation of the type made famous in Joseph Heller's seminal novel Catch-22 – where the members of the fictional 256th Squadron could only be excused from flying combat missions if they were crazy but anybody who applied to be excused on this basis was held to be showing a rational concern for their safety and was, therefore, sane and required to continue flying.

96. The double-bind that faces the new Council in these proceedings arises from the terms of ss 257C and 257D of the Criminal Procedure Act, these being the sections to which Mr Ireland has adverted in the portion of his written submissions quoted above. As a first step, s 257C(1) is to be noted. It is in the following terms:

(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. [emphasis added]

97. The criteria for consideration of whether such costs should be awarded against a Prosecutor are set out in s 257D(1). It is unnecessary to consider the totality of the provision – merely its introductory, framing terms. These are:

(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following: [emphasis added]

98. As can be seen from each of these provisions, costs can only fall to be paid to an accused person. The term “accused person” is defined in s 3 of the Criminal Procedure Act, a definition in the following terms:

Accused person includes, in relation to summary offences, a defendant and, in relation all offences (where the subject matter context allows or requires), an Australian legal practitioner representing an accused person.

99. The whole of the focus of Mr Ireland's successful endeavours has been to persuade me that, as a consequence of the First Proclamation, the new Council did not become (and never has been) the “accused person” for the purposes of the proceedings that were commenced against the old Council. Having successfully so persuaded me, it seems to me that, by virtue of the provisions of ss 257C(1) and 257D(1), the additional consequence of that success is necessarily the disentitlement of the new Council from being awarded its costs in these proceedings.

100. The third of the orders made below reflects this consequence by making no order as to costs.

Conclusion

101. I have earlier set out how I have come to deal with these proceedings and their proper characterisation as an application by the Prosecutor to substitute the new Council as the Defendant in the prosecution by the EPA for a breach of s 120 of the POEO Act, with the participation of the new Council in these proceedings to be regarded as an intervention proposing that the proceedings should be struck out.

102. The basis for that strike-out application made by the new Council was that the First Proclamation had not had the effect of transferring the criminal proceedings against the old Council to the new Council and that the Second Proclamation did not in any way alter that position.

103. I have concluded, after careful consideration of the competing submissions that, despite the old Council’s entry of a “guilty” plea in August 2015 resulting in a provisional conviction of the old Council, neither of the bases which the Prosecutor submits that the provisional conviction effects transmission of the prosecution to the new Council is established.

104. It therefore follows that the outcome of the First Proclamation was to abate the proceedings against the old Council. In light of this, the application by the Prosecutor to substitute the new Council for the old Council should be refused and the application by the new Council, as an intervener, to have the prosecution of the old Council struck out should be granted.

105. Although the new Council seeks an order for costs in its favour, I am also satisfied that there is no basis arising out of the relevant provisions of the Criminal Procedure Act that would permit me to make such an order in favour of the new Council.

Orders

106. For the reasons earlier set out, it follows that the orders of the Court I propose to make after 14 days are:

1. The application by the Prosecutor to change the name of the Defendant from Wellington Council to Dubbo Regional Council is refused;

2. The prosecution of Wellington Council for a breach of s 120 of the Protection of the Environment Operations Act 1997 is struck out; and

3. No order as to costs.

unless any application has been made as potentially foreshadowed from the Prosecutor pursuant to s 5AE(1) of the Criminal Appeal Act 1912 or other provision of that Act.

Addendum

After the expiry of the time period provided in [106] allowed for the purposes of the Prosecutor to consider its options, junior counsel for the Prosecutor advised me, at a mention on the afternoon of 16 February 2017, that the Prosecutor did not propose to take any action that would prevent me from making the orders proposed in [106]. As a consequence, the following orders were made on 17 February 2017:

1. The application by the Prosecutor to change the name of the Defendant from Wellington Council to Dubbo Regional Council is refused;

2. The prosecution of Wellington Council for a breach of s 120 of the Protection of the Environment Operations Act 1997 is struck out; and

3. No order as to costs.

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Amendments

17 February 2017 - Addendum added.

Decision last updated: 17 February 2017