Island Maritime Ltd & Anor v Filipowski

[2005] HCATrans 667

[2005] HCATrans 667

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S28 of 2005

B e t w e e n -

ISLAND MARITIME LIMITED

Applicant

and

BARBARA FILIPOWSKI

Respondent

Office of the Registry
  Sydney  No S29 of 2005

B e t w e e n -

SACHIN KULKARNI

Applicant

and

BARBARA FILIPOWSKI

Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 10.08 AM

Copyright in the High Court of Australia

__________________

MR P. BYRNE, SC:   May it please your Honours, I appear with my learned friend, MR G.J. GROGIN, for the applicants in each matter.  (instructed by Ebsworth & Ebsworth)

MR A.J. MEAGHER, SC:   If the Court pleases, I appear for the respondents with my learned friend, MR A.L. HILL.  (instructed by Dibbs Barker Gosling)

CALLINAN J:   Mr Byrne, I should say I know Ms Filipowski.  I have not spoken to her for some years.  She is here on the record in an official capacity.

MR BYRNE:   Yes, your Honour.

CALLINAN J:   Is there a problem about my sitting?

MR BYRNE:   No, of course not.  No, there is no difficulty, your Honour.

GUMMOW J:   Why do we have two applications?

MR BYRNE:   Your Honour, there were two parties prosecuted in each case, the master of the ship and the owner of the ship.

GUMMOW J:   That is right, yes.

MR BYRNE:   I should say, your Honour, that the issues raised are identical in each case and it is ‑ ‑ ‑

GUMMOW J:   Yes, that is right.

MR BYRNE:   ‑ ‑ ‑ subject to anything your Honours may say ‑ ‑ ‑

GUMMOW J:   Just pardon me one moment.  Yes, I think we would be assisted if we heard first from Mr Meagher.

MR BYRNE:   May it please your Honours.

MR MEAGHER:   Your Honours, could I say this briefly.  There are two reasons why we would say there should not be a grant of special leave.  The first is we submit that the Full Court has correctly applied the test as to whether the plea was available.  There is, we accept, an ambiguity in the way in which the test is expressed in Pearce, and I will take your Honours to that.

GUMMOW J:   I do not think there is an ambiguity in relation to Pearce.

MR MEAGHER:   The second point we make, your Honours, is that the effect of the ‑ ‑ ‑

GUMMOW J:   One can only speak so clearly I suppose.

MR MEAGHER:   I will come to it, your Honour, but the effect of the holding of Justice Talbot and of the Court of Appeal is that the offence charged under Part 2 contains elements which cannot include all of the elements of the offence charged under Part 4.  In effect, they are mutually exclusive because of the operation of section 26(d). 

Perhaps in order to illustrate that if I could take your Honours to the legislation first which you will find set out in the application book relevantly at pages 36 and following.  Could I take your Honours first to section 8,which is the offence which was secondly charged.  Subsection (1), the elements of the offence:

discharge of oil or of an oily mixture occurs, from a ship into State waters –

and then there are some defences provided in subsections (2) and (4).  Subsection (6), which is on page 40, makes it clear that:

it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters –

Then could I take your Honours to section 27, which is again on page 40 of the application book, which is in Part 4.  It provides that there is an offence if there is “a discharge to which this Part applies”.  Then if your Honours go to section 26 on page 43, it provides relevantly:

This Part –

namely Part 4 –

applies to a discharge of oil or of an oily mixture or of a liquid substance . . . into State waters:

(a)      from a ship or place on land in or in connection with a transfer operation –

So that on the face of it there is an additional element in the Part 4 offence, namely “in or in connection with a transfer operation”, but then section 26 goes on to say that the part does not apply, relevantly (d):

to a discharge to which Part 2 or 3 applies.

GUMMOW J:   Section 8 is in Part 2.

MR MEAGHER:   Yes.  The way in which the matter comes ultimately before ‑ ‑ ‑

GUMMOW J:   Was this distinction adverted to in the court below?

MR MEAGHER:   Yes.  What happened was that the applicants were first charged under Part 4 and in response to that charge they submitted no case to answer on the basis that the discharge was of oil into State waters from a ship and, therefore, it was a discharge to which Part 2 applied and, therefore, by reason of section 26(d), Part 4 did not apply.  That argument was accepted by Justice Talbot and, as a result, the applicants were acquitted of the charges under Part 4.  There was then charges brought under Part 2.  In response to that proceeding, the application was made for a stay on the basis that a plea of autrefois acquit was available. 

If I could take your Honours then to the way in which the matter was dealt with by the Court of Criminal Appeal.  Relevantly, if I first of all go to page 68 of the application book, paragraph 19, the court says:

Even disregarding s 26(2)(d), it can be seen that the elements of the current charges under s 8 are –

and then there are the four elements –

whilst the elements of the earlier charges under s 27 –

and then there are set out the five elements.

It follows that the elements of the two charges are not the same and the elements of the charges in respect of which the applicants have been acquitted are not all included in the elements of the second or current charges, and so pleas of autrefois acquit is not available.

HAYNE J:   Now, is that not an inversion?  Is that not an inversion of the test stated in Pearce?

MR MEAGHER:   If one reads paragraph 18 of Pearce as, in effect, overruling or broadening the earlier decisions of this Court of Sir Samuel Griffith, then I think I have to answer your Honour’s question yes.  Does the Court have a copy of Pearce?

CALLINAN J:   It is in the applicants’ authorities.

MR MEAGHER:   Yes.  Well, could I take your Honours to the joint judgment at paragraph 18, where we accept the problem, on our submission, arises.

HAYNE J:   Now, what the Court of Criminal Appeal does in paragraph 20 is invert the first sentence of paragraph 18, does it not?

MR MEAGHER:   I think I have to accept that it does, your Honour, but we submit that properly understood ‑ ‑ ‑

HAYNE J:   Yes?

GUMMOW J:   Just as well Justice McHugh is not here today.  He had views about that phrase.

MR MEAGHER:   Could I at least seek to make the point, your Honour?  If your Honours go to paragraph 18:

It is clear that the plea in bar goes to offences the elements of which are the same –

that is not this case, and the Court cites Emden, among others –

or are included in –

and the judgment cited is Elrington’s Case.  Now, Elrington’s Case was a decision of Chief Justice Cockburn where the defendant had been acquitted of assault and then charged with the offence of assault causing grievous bodily harm.  It was said in a passage which is in effect taken up in subsequent decisions by Chief Justice Cockburn that the well-established principle is:

that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.

In other words, you cannot, in effect charge up.  But that is not our case.  Putting aside the section 26(d) argument, in the present case the elements of the offence for which these accused are currently charged were not all included in the offence of which they were acquitted.  If I could conclude that the passage in paragraph 18 we have to accept puts the test around the wrong way, having regard to the decision which is cited, and stands for a broader proposition than the decision which was cited.

HAYNE J:   If that is right, is that not reason enough for leave to be granted, if Pearce is wrong?

MR MEAGHER:   Subject to what we say about section 26(d), your Honour, I do not think I can say otherwise.  I should just refer the Court though to paragraph 20 of the joint judgment, where there is the reference to the two judgments of Sir Samuel Griffith where he:

identified the test for whether a plea in bar would lie as being “whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first”.

If you assume, again putting aside section 26(d), that the second charge contains four elements and that the first charge contained five, the answer to the test posed by Sir Samuel Griffith would be, no, it would not be available, because the evidence necessary to support the section 8 charge would not have been sufficient to procure a legal conviction upon the section 27 charge because you would have had to prove in addition that the discharge occurred “in or in connection with the transfer operation”.

Your Honours have to remember that in Pearce the issue was not as to precisely what the test was as to whether the plea was available but as to whether one could have regard to the gist or gravamen of the offences as distinct from the elements of the offences.  That is the first point we make.  The second point is that in Pearce the Court was concerned with concurrent charges.  It was not concerned with a situation such as the present where ‑ ‑ ‑

GUMMOW J:   Is there anything in the Fifth Amendment cases bearing upon two statutory offences?

MR MEAGHER:   Well, the Blockburger rule, which is in effect the rule for the construction of the Fifth Amendment, provides that the offences are not the same if each contains an element that the other does not, which is not addressing the same question as the question which we have here, which is whether the plea in bar is available.  The final point we wish to make on the Pearce question is that in Pearce it is, in our submission, clear that the Court was not seeking to depart from the test ‑ ‑ ‑

GUMMOW J:   What is the rationale of all of this?  What is the rationale of the rule and how does the rationale support what you say the rule is?

MR MEAGHER:   The rationale of the rule, so far as it is concerned with autrefois acquit, is based on principles of estoppel.  If the offence charged contains all of the elements of an offence of which the accused has been previously acquitted, then one can say with some confidence that the charging of the second offence is inconsistent with the earlier acquittal, which necessarily involves a finding that one or more of those elements was not present.  But if the position is the other way around, the same result does not follow. 

If one is charged with an offence containing five elements and acquitted and then one is charged with an offence containing four of those elements, one cannot say by reason of the earlier acquittal that there has been an earlier finding that all of those elements are not present or have not been made out.  So for that reason we submit that looking at it as a matter of principle the way we submit Pearce should be understood is correct.

GUMMOW J:   You cannot just say estoppel.  That is a house with many rooms in it, a particular aspect of estoppel.  …..estoppel by record in some way or other, or something broader than that?

MR MEAGHER:   The question was dealt with in Pearce, I think in fact by your Honour, in paragraphs 59 and following.  At paragraph 61 your Honour pointed out, referring to the judgment of Justices Deane and Gaudron in Rogers v The Queen, at the bottom of page 627:

the preclusive aspect of the plea of autrefois acquit (which prevents re-litigation . . . ) derives from the principle known as the rule against double jeopardy.  Further, where the matter arises not in a court of record but in a court of summary jurisdiction, the court gives effect not to the technical plea, there being no record, but to the maxim which is reflected in the double jeopardy rule.

GUMMOW J:   You see often there may not be courts of record.

MR MEAGHER:   I am sorry, your Honour?

GUMMOW J:   There may not always be a court of record.

MR MEAGHER:   I accept that, your Honour.

GUMMOW J:   So we have moved outside that in some fashion.

MR MEAGHER:   Could I turn to the second point, which is the point which relies on the effect of section 26(d), and that is dealt with most shortly again in the judgment of the Full Court at page 68 of the application book in – I have taken your Honours to paragraph 20 – paragraph 21:

The respondent’s position becomes only stronger when one takes into account the provisions of s 26(d) and the wording of s 27 which is the section creating the offence.  There is only an offence under s 27 if it is a “discharge to which this Part applies”, and if it is a discharge to which Part 2 (including s 8) applies, Part 4 does not apply, and no offence is committed under s 27.

It is idle to talk of whether the same conduct violates two distinct statutory provisions when one provision expressly excludes conduct which violates the other, as is the effect of s 26(d).  The discharge into State waters in respect of which the defendants had been charged under s 27 was not a discharge to which Part 4 applied because it was a discharge to which Part 2 applied.

Now, the consequence of that, even if one accepts the broad view of the formulation in Pearce at paragraph 18, this is not a case where the elements of the offence for which the accused has been tried to conviction are included within the second offence for which the accused is charged, because the effect of section 26(d) is that it is not an element of the offence charged under section 27 that there be a “discharge of oil . . . from a ship into State waters”, because if those elements are present then it is necessarily caught by Part 2 and not by Part 4.

CALLINAN J:   Does it depend at all upon the way you allege it, having regard to section 8(6)?

MR MEAGHER:   We would submit that when one is looking to identify the elements of the relevant offences, in relation to the section 8 offence they are set out in subsection (1), that is “discharge of oil . . . from a ship into State waters”, whereas when one looks at section 27 it takes account of the way that the provisions are ‑ ‑ ‑

CALLINAN J:   All you have to allege for a section 8 offence is that the discharge occurred from the ship in State waters.

MR MEAGHER:   That is so.

GUMMOW J:   Is there some Convention lying behind this distinction?

MR MEAGHER:   The distinction between?

GUMMOW J:   The two sections, the two parts?

MR MEAGHER:   Well, Part 2 just deals generally with discharges of oil and Part 4 deals with discharges in the course of operations involving the loading or unloading of vessels.

GUMMOW J:   I realise that.

HAYNE J:   But Part 2 is giving effect to the Convention, is it not?  See section 7.

MR MEAGHER:   Yes.  Part 2 is giving effect to the Convention but Part 4 is not.

CALLINAN J:   That is right.

MR MEAGHER:   I do not think there is any more I can usefully say.

GUMMOW J:   Mr Byrne, what do you say about this last point that Mr Meagher has developed, the watertight compartments of Part 2 and Part 4?

MR BYRNE:   Your Honours, the proposition that my learned friend just put to you that Part 4 does not apply to discharges that occur from ships seems to be, with respect, inconsistent with the words of section 26.  They are, as my friend took you to, at page 43 of the application book.  The proposition was just put that this does not apply to discharges from ships, whereas the terms of section 26 set out alongside line 35 on application book 43 say:

This Part applies to a discharge of oil or of an oily mixture . . . into State waters:

(a)      from a ship or place on land in or in connection with a transfer operation –

The proposition that my learned friend seems to place significant reliance on, namely that section 26(d) effectively creates an element of the offence under section 27, is, in our respectful submission, wrong.  Section 26(d) is a procedural provision, in our submission, rather than a provision which creates an element.

The judgment of the Court in Pearce to which your Honours have been taken concentrated very particularly on the question of the elements of the particular offences.  In turn my friend has taken your Honours to paragraph 19 of the judgment of Justice Dunford, who gave the judgment of the Court of Criminal Appeal ‑ ‑ ‑

HAYNE J:   Now, Mr Byrne, sections 8 and 26 are directed to different persons, are they not?  Section 8 is directed to the master and the owner.  Section 26 is directed – see 27 – to each appropriate person in relation to the discharge.  Is that right?

MR BYRNE:   Yes.  Section 26 has a potentially wider ambit than section 8, as I understand it.

GUMMOW J:   And “the master and the owner” links back into the Convention, does it not?

MR BYRNE:   Yes your Honour, that is my understanding.  The other important distinction between the two separate offences, namely an offence under section 27, which was the original charge, is that there is a very restricted scope for defences to a charge under that section provided by the legislation, whereas under section 8 there is a broad range of defences available.  To put it another way, the liability created by section 27 is much stricter than that created by section 8.  It is not clear from the materials, but that may be part of the reason why the approach was taken to charge each of the owner and the master under section 27 initially.  When that charge was unsuccessful, the charge under section 8 was brought.

It is, in our submission, clear that if one looks to the elements of the offence as they were found by the Court of Criminal Appeal to be in that passage to which the Court’s attention has already been drawn – that is at application book 68 – the elements of the separate offences are there set out.  The conclusion, in our submission, should comfortably be reached, with respect, that the elements under section 8 are contained wholly within the

elements under section 27, and that satisfies the test as formulated by the unanimous decision of this Court in Pearce. 

The manner in which the test to be applied was formulated by the Court of Criminal Appeal was, as your Honour Justice Hayne has said, in our submission, an inversion of the test as it was established in two separate parts of the judgment in the majority reasons in Pearce, which were agreed in by each of your Honour the presiding Judge and Justice Kirby, so it was a unanimous decision.  Those passages in Pearce have been ‑ ‑ ‑

GUMMOW J:   We do not need to hear you further, Mr Byrne.

MR BYRNE:   May it please your Honours.

GUMMOW J:   There will be a grant of leave in this matter.  This is a one‑day case, I would think.  We will adjourn to reconstitute.

AT 10.33 AM THE MATTERS WERE CONCLUDED