Hakim v Waterways Authority of New South Wales

[2007] HCATrans 404

[2007] HCATrans 404

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 2007

B e t w e e n -

MICK BECHARA HAKIM

Applicant

and

WATERWAYS AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 11.45 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MR P.C. TOMASETTI, for the applicant.  (instructed by Henry Davis York Lawyers)

MR M.G. CRAIG, QC:   May it please the Court, I appear with my learned friend, MR A.K. DJEMAL, for the respondent.  (instructed by Herbert Greer & Rundle)

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Thank you, your Honours.  Your Honours, this application for special leave to appeal raises an important question in the law of criminal procedure, namely, the scope and application of the rule preventing duplicity in a criminal charge.  That rule is most simply and concisely expressed in terms that no one count of an indictment shall charge the defendant with having committed two or more distinct offences.  Your Honours, in this matter it is contended that the applicant was charged with an offence which, in effect, represented two offences ‑ ‑ ‑

KIRBY J:   It is those words “in effect”.  A lot hangs on those words “in effect” because one view of looking at it is that it was just one offence and that therefore there is no problem by the rule of strictness.

MR BYRNE:   Your Honours, the nature of the conduct alleged against the applicant extended over a significant period of time between October 2003 and February 2004.

GLEESON CJ:   In your case why were there only two offences?

MR BYRNE:   The first offence related to a course of conduct involved in the excavation of the land.

GLEESON CJ:   So a course of conduct can relate to one offence?

MR BYRNE:   Yes, it may.

GLEESON CJ:   Why do you not characterise the course of conduct as embracing what you say are two offences?

MR BYRNE:   There was in this case a single course of conduct which related to the construction of the foundations for the erection of the house.  That was the concrete slab which involved an excavation.  There was a completely separate excavation which related to attempts to remedy damage which had been caused to the land by a rock fall which was a completely independent and, we would submit, distinguishable course of conduct from that relating to the construction of the concrete slab.

GLEESON CJ:   Did he have to get separate development consent for that?

MR BYRNE:   Yes, there would need to be.  There was development consent in this case applied for for constructions relating to the waterfront, or the shore area, and there was development consent applied for in relation to the construction of the house.  The construction in relation to the house or the development consent in relation to that was granted, but the applications that had been made in relation to the development of the foreshore was not granted.  There were, in our submission, two completely separate exercises here.

Your Honours, one of the principles that has been identified as being important in the maintenance of the principle of duplicity is the need to ensure that there is precision in the charge and that serves a number of different purposes.  They have most recently been examined and most thoroughly examined by this Court in its decision in Walsh v Tattersall (1996) 188 CLR 77 and the most thorough examination of the principles was in your Honour Justice Kirby’s judgment in that case.

KIRBY J:   You are not trying to soften me up now, are you?

MR BYRNE:   Just stating the obvious, your Honour.

KIRBY J:   I have to tell you that I adhere to the rule of strictness of separate charging, but the Court of Criminal Appeal here took the view that this was a single overall enterprise, as the Chief Justice was putting to you, and therefore this is not really a good vehicle for examining any differences that exist between the view I take and the view that others in intermediate courts have suggested.

MR BYRNE:   We would contend in response, with respect, your Honour, that this is in fact an appropriate vehicle to examine the general question of duplicity.  What was said by the Court of Criminal Appeal and the judgment of the Court given by the Chief Justice relevantly was at page 132 of the application book.  If I could take your Honours to that and refer your Honours to paragraph 82 of the judgment of the Chief Justice where his Honour said:

As with any question of characterisation, duplicity always gives rise to matters of fact and degree.

You then made these important observations.

GLEESON CJ:   I am terribly sorry ‑ ‑ ‑

MR BYRNE:   Sorry, your Honour.  Your Honour, there is some repetition in the application book by reason of the inclusion of an affidavit which contains copies of the judgment, so there are effectively two copies of the judgment.

GLEESON CJ:   Yes, thank you.

MR BYRNE:   The most useful reference point perhaps is application book 132.

GLEESON CJ:   Yes.  I was looking at 184 to 186.

MR BYRNE:   Yes, it is reproduced there as well, your Honour.  Just reading paragraph 82 of the Chief Justice’s judgment.  He said:

As with any question of characterisation, duplicity always gives rise to matters of fact and degree.  It would have been open to the Respondent –

the prosecutor –

to formulate separate charges with respect to the slab excavation –

that is, the foundations excavation, what was described as –

the cliff face excavation and the ramp excavation.

Now, the observation having been made, the conclusion having been reached that it would have been open to the prosecutor to formulate separate charges, that is, in our submission, the approach that should have been taken here.  The nature of the conduct that was alleged against the applicant, as he is in this Court, was entirely different and insofar as it concerned his activity or those who he had authorised in relation to what might be referred to as the first process of excavation involving the foundations and the second process of excavation involving the remedy to the foreshore, it is ‑ ‑ ‑

GLEESON CJ:   Did paragraph 84 contain a fair representation of the argument that you have put to the Court?

MR BYRNE:   It was not entirely a question of whether there was a lack of clarity.  That was one of the bases that was argued in the Court of Criminal Appeal.  Perhaps, your Honours, the best illustration of the duplicity that exists in this case is to be found in what the learned primary judge said in his remarks on penalty.  Those are often a source of useful information in determining the nature of a case that has been presented to the Court.

KIRBY J:   Yes, and some members of this Court always look at the remarks on sentencing.

GLEESON CJ:   They are very useful reality check.

MR BYRNE:   Yes, and in this case, we would submit, they are of considerable assistance to the applicant in his contention that there is here clear duplicity in the single charge that has been brought.

GLEESON CJ:   Where do we see that?

MR BYRNE:   It is at page 90 of the application book and, in particular, at paragraph 22 which is just below line 40.  What his Honour said was this:

With regard to proceedings 50057 –

that is the excavation charge –

the Court accepts the defendant’s submission that in relation to that part of the excavation which occurred prior to the rockfall, the breach was technical in nature.

That part of the excavation occurred in October 2003.  As his Honour observed:

Waterways had indicated that a Pt 3A permit would be issued for such excavation.

It was merely on one view of it an oversight that the formal permit had not been obtained because the works to which they related had been authorised by the Waterworks Authority and, as his Honour said in relation to that, that it was effectively a technical breach, and I will come to that in a moment.  But what his Honour said at the end of paragraph 22 is important:

It was only the defendant’s failure to apply for such permit which rendered that part of the excavation unlawful.

Three months later there was a different process of excavation and about that his Honour said at paragraph 23:

Different considerations apply to that part of the excavation which took place on 6 February 2004, after the rockfall.  Waterways would not have been required to issue a Pt 3A permit –

in relation to that part of the excavation.  But there was an important distinguishing feature about that second process of excavation which is disclosed, again helpfully in his Honour the primary judge’s remarks on penalty, to be found at application book 94 and, in particular, at paragraph 33 where his Honour says:

The Court takes into consideration the fact that the offence in 50057 of 2004 has resulted from the defendant’s reliance upon his builder in the development of the site.

Then he says in relation to the incident on 6 February 2004, which was the second part of the process of excavation, as we would submit:

The Court accepts the defendant’s submission that the instructions from Sydney Water conflicted with the order, and that the excavation on 6 February 2004 was carried out solely to comply with Sydney Water’s instructions.

So that there were in this case very clear distinctions between the two different excavations which were conceivably the subject of the single charge.  The matters that are said to be relevant in determining whether two separate matters can be charged together have been set out in your Honour’s judgment in Walsh v Tattersall (1996)188 CLR 77 and, in particular, in your Honour’s judgment at page 108. Approximately halfway down the page after footnote (102) ‑ ‑ ‑

KIRBY J:   It depends a bit on the nature of the crime though, does it not?  I mean, in many areas of crimes against the person they will be individual acts, but here in the case of crimes against the environment from the point of view of the environment what was – the anti-social act was the ongoing activity of excavation from the point of view of the neighbours.  That is what they would see as the anti-social act.

MR BYRNE:   Your Honour, with respect, what your Honour says about the anti-social nature of the act, that is of course an important measure of the seriousness of the conduct as well.  The anti-social component of the first excavation was virtually negligible because it was an excavation which had been approved in principle and the nature of the breach was said by the primary judge to be merely a technical one.  In relation to the second process of excavation, the level of anti-social conduct in that was, arguably, significantly greater but there were other issues to be determined to establish the level of culpability in the applicant in relation to that matter.

What happened ultimately was that he came to be dealt with for two separate courses of conduct under the one charge, one of which was the kind of case which might have been expected in the normal course to have been dealt with without the recording of a conviction.  The second component of the charge was a different matter but it was an issue where, according to the case put on behalf of the applicant, those who were in fact doing the physical work which constituted the excavation were acting in accordance with instructions that they had been given by an authority they considered to be binding.

GLEESON CJ:   You were partly successful in your appeal to the Court of Criminal Appeal, were you not?

MR BYRNE:   In relation to one of the charges, yes.

GLEESON CJ:   That aspect in respect of which you were successful is not something that we are concerned with?

MR BYRNE:   No, your Honour.

GLEESON CJ:   Your partial success in the Court of Criminal Appeal explains what they said about costs.

MR BYRNE:   Yes, certainly.

KIRBY J:   The costs are payable in criminal proceedings of this kind, are they, under the Act?

MR BYRNE:   Yes, the normal course is that ‑ ‑ ‑

KIRBY J:   I noticed at 307 they are sought by the respondent if you fail in this application.

MR BYRNE:   The costs that were ordered to be paid at first instance by the applicant were very considerable.

KIRBY J:   Yes, I saw that.

MR BYRNE:   He, of course, has to pay the costs ‑ ‑ ‑

GLEESON CJ:   That has been remitted to the Land and Environment Court.

MR BYRNE:   It has.  Your Honours, if I can just briefly point out those criteria which your Honour Justice Kirby identified in your Honour’s judgment in Walsh v Tattersall as being factors to be taken into account to determine whether or not matters can be regarded as a continuing course of conduct or whether they constitute separate offences, it is at page 108 of your Honour’s judgment at about halfway down the page where your Honour says:

The indicia include: (a) the connection of the events in point of time –

These events are very clearly separated in time –

(b) the similarity of the acts –

The acts here are very different and cannot be said to constitute part of a single enterprise such as, for example, the drug cases where people are charged with multiple supply of drugs on individual occasions constituting a general offence of supplying a commercial quantity of drugs –

(c) the physical proximity of the place where the events happened –

Here again there are clear distinctions between the excavation that took place on the level site where the house was built and the process of excavation at the water’s edge.  And, finally –

(d) the intention of the accused throughout the conduct.

In each case the accused’s intention in this case is entirely different.  One is to construct the house which he had been given development consent to do.

KIRBY J:   The Court said that ultimately the question is whether you have suffered an unfairness in the way in which a number of things had been bundled up in the one charge.  That is the ultimate criterion to which the particularities conduce.

MR BYRNE:   The Courts have said that, your Honour is quite correct.

KIRBY J:   In the Court of Criminal Appeal, and I think at first instance, certainly the Court of Criminal Appeal, the view was taken that there was no relevant unfairness to you in the way in which this matter was prosecuted.

MR BYRNE:   If it had been prosecuted as two separate charges in relation to what was described as the technical breach, almost certainly there would have been a plea of guilty because the work had been done without the necessary permit, but the real issue in this case was the defence that was raised to the allegation that the defendant was responsible for the rock fall which was part of the excavation which was in process in February.

There is one final matter if I could put it to your Honours which is, in our submission, of significance and importance in determining whether special leave should be granted here and that is what Chief Justice Doyle said in his Honour’s judgment in the case of GNN (2000) 78 SASR 293. His Honour said at page 299 at paragraph [32]:

The High Court has not settled the law of Australia on this point.

That is duplicity –

Conflicting views were expressed in Walsh v Tattersall.  My view, for what it is worth, is that at a certain level the rule against duplicity or uncertainty has to be applied in a practical way.  There are situations in which a practical judgment leads inevitably to the conclusion that an allegation of possession cannot meaningfully or sensibly be expressed in relation to separate items . . . Then there will be cases in between these extremes, in which the High Court has yet to determine whether Australian Courts should take a practical approach or what might be called a more analytical approach.

That was a case, GNN, involving possession of drugs which were in two different receptacles in the same room, the same type of drugs on the same day, and there was a very serious issue arising as to whether there should be a finding that the indictment was duplicitous, but that was a situation which it was said the clear issue was whether the offender was in possession of the drugs and it was an all or nothing case.  The individual drugs found in two different locations could not be distinguished.  In this case, the two different phases of the allegedly single investigation are clearly, in our submission, distinguishable.  May it please the Court.

GLEESON CJ:   Yes, thank you, Mr Byrne.  We do not need to hear you, Mr Craig.

The Court of Criminal Appeal of New South Wales concluded on the facts that the conduct of the applicant alleged to be in breach of the Rivers and Foreshores Improvement Act 1948 was a single overall enterprise. In our view that characterisation of the facts was open to the Court of Criminal Appeal. On that basis the case would not be an appropriate one for further examination by this Court beyond that given in Walsh v Tattersall (1996) 188 CLR 77 as to the requirements of particularity in charging criminal offences. No other feature of the case attracts a grant of special leave.

We are not convinced that any miscarriage of justice has occurred.  Special leave to appeal is refused with costs.

AT 12.07 PM THE MATTER WAS CONCLUDED