Island Maritime Ltd v Filipowski

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

Matter No S449/2005

ISLAND MARITIME LIMITED  APPELLANT

AND

BARBARA FILIPOWSKI  RESPONDENT

Matter No S450/2005

SACHIN KULKARNI  APPELLANT

AND

BARBARA FILIPOWSKI  RESPONDENT

Island Maritime Limited v Filipowski

Kulkarni v Filipowski

[2006] HCA 30
15 June 2006
S449/2005 & S450/2005

ORDER

In each matter, the appeal is dismissed.

On appeal from the Supreme Court of New South Wales

Representation

P Byrne SC with G J Grogin and C P Carter for the appellants (instructed by Ebsworth & Ebsworth)

A J Meagher SC with A L Hill and A J Payne for the respondent (instructed by Dibbs Abbott Stillman)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ, HEYDON AND CRENNAN JJ.        These appeals relate to an alleged discharge of oil from a ship, the "Pacific Onyx", into Botany Bay on 14 November 1999.  The owner of that ship is alleged to be Island Maritime Limited and the master is alleged to be Sachin Kulkarni ("the appellants"). 

  2. On 20 February 2002, the prosecutor, Barbara Filipowski ("the respondent"), filed two identically worded summonses in the Land and Environment Court of New South Wales alleging a contravention by each of the appellants of s 27(1) of the Marine Pollution Act 1987 (NSW) ("the Marine Pollution Act"). Section 55(1)(b) of the Marine Pollution Act provides that proceedings for an offence against the Act "may be dealt with summarily before ... the Land and Environment Court in its summary jurisdiction". A trial proceeded before that Court on 20 and 21 February 2003, in which the prosecution called all its evidence. Talbot J dismissed the summonses on 7 March 2003[1]. 

  3. On 18 November 2003, two further summonses relating to the alleged discharge of oil on 14 November 1999 were filed. This second set of summonses was identical to the first, save that the legislation allegedly contravened was not s 27(1) of the Marine Pollution Act, but s 8. It was the respondent's intention to use the same evidence as had been tendered at the trial of the first set of summonses. The appellants filed a notice of motion seeking a permanent stay of the second set of summonses on the grounds that the proceedings were barred by the principles of autrefois acquit or that the proceedings were an abuse of process. Bignold J dismissed the application for a stay[2].  The Court of Criminal Appeal dismissed an appeal[3]. 

  4. The question here is whether the Court of Criminal Appeal was correct to dismiss the appellants' appeal.  That question must be answered affirmatively.  The possibility of a bar arising from the principles of autrefois acquit does not exist because the appellants were never…

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Details
Case
[2006] HCA 30
Decision Date

CaseChat Overview and Summary

Island Maritime Ltd and others (the appellants) appealed to the High Court of Australia following the dismissal of their appeal by the Court of Criminal Appeal. The dispute concerned successive charges brought against the appellants under the *Marine Pollution Act 1987* (NSW). The first charge, brought under s 27(1) of the Act, was dismissed by a judge on the basis that s 27(1) did not apply where a charge was available under s 8 of the same Act. Subsequently, the appellants were charged under s 8. The appellants argued that the second charge was barred by the principles of *autrefois acquit* and constituted an abuse of process.

The High Court was required to determine two primary legal issues. Firstly, whether the appellants stood in jeopardy on the first charge, and consequently, whether a plea of *autrefois acquit* was available, particularly in circumstances where the offence charged first included all the elements of the offence charged second, plus an additional element. Secondly, the Court had to consider whether the respondent's conduct in bringing the second prosecution, following the dismissal of the first and considering the delays involved, amounted to an abuse of process.

The Court reasoned that the principles of *autrefois acquit* were not applicable because the appellants had not been "in jeopardy" in the strict legal sense on the first charge. This was based on a narrow definition of jeopardy, requiring exposure to the risk of a valid conviction. The Court endorsed the approach that for *autrefois acquit* to apply, all elements of the first offence must be included within the elements of the second offence. While acknowledging the unsatisfactory history of the proceedings, including significant delays, the Court concluded that the respondent's conduct did not constitute an abuse of process.

In each matter, the High Court dismissed the appeals. The Court held that a plea of *autrefois acquit* was unavailable and that a permanent stay of the second summonses was inappropriate, meaning the trial of the appellants on the second summonses should proceed.

Orders

Orders of the court

In each matter, the appeal is dismissed.

Background

Background to the litigation

The question here is whether the Court of Criminal Appeal was correct to dismiss the appellants' appeal. That question must be answered affirmatively. The possibility of a bar arising from the principles of autrefois acquit does not exist because the appellants were never in the relevant sense "in jeopardy" on the first set of summonses; and, unsatisfactory though the history of these proceedings may be, the respondent's conduct is not an abuse of process.Statutory background The damaging effects of discharging oil into the sea or other waters have attracted the attention of the New South Wales legislature for some time. Section 3(1) of the Oil in Navigable Waters Act 1927 (NSW), which was modelled on United Kingdom legislation[4], prohibited the discharge of oil into the territorial waters of New South Wales and other waters such as harbours, estuaries, rivers and canals, whether the discharge was from vessels, from the land or from apparatus used to transfer oil to or from vessels. That legislation was repealed and replaced by the Prevention of Oil Pollution of Navigable Waters Act 1960 (NSW). That Act remained in force until the Marine Pollution Act came into force on 4 May 1990[5]. [4]Oil in Navigable Waters Act 1922, s 1. [5]New South Wales Government Gazette, No 57 at 3509, 4 May 1990. The Marine Pollution Act was part of a cooperative scheme with the Commonwealth. The scheme was developed as a result of Australia's adhesion to the International Convention for the Prevention of Pollution from Ships, 1973 ("the Convention")[6]. Annex I to the Convention deals with oil pollution and Annex II with pollution by noxious liquid substances in bulk. The Convention obliges State parties to enact laws prohibiting discharges from their own ships "wherever the violation occurs" and from foreign ships "within the jurisdiction" of the party[7]. [6]The original Convention is Sched 1 to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). The Protocol of 1978 amending the Convention is Sched 2 to that Act. [7]Articles 1 and 4 of the Convention. The Commonwealth met its obligations under the Convention by enacting the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 ("the Commonwealth Act"). Parts II and III prohibited discharges from Australian ships into the sea outside the territorial sea of Australia; Pt II applied to discharges of oil (s 9) and Pt III to discharges of noxious fluid substances (s 21). When the Commonwealth Act was enacted in 1983, it was assumed that complementary State and Territory legislation would be enacted containing identical prohibitions in relation to the territorial sea of Australia and that sea on its landward side[8]. Delay took place in enacting that legislation, and in consequence the Commonwealth Act was amended in 1986 by the Protection of the Sea (Prevention of Pollution from Ships) Amendment Act 1986 (Cth)[9]. The amendments extended the prohibitions in Pts II and III to cover discharges by ships into the territorial sea of Australia and into that sea on its landward side. The responsible Commonwealth Ministers pointed out that this would not infringe any State or Territory rights because there was a saving provision to ensure that the Commonwealth Act would not apply when State or Territory legislation came into force for the territorial sea and that sea on its landward side. What they meant can be seen by taking the provisions affecting oil discharges in relation to States as an example. Section 9(1) of the Commonwealth Act provides that, subject to s 9(1A), the master and the owner of a ship from which a discharge of oil or an oily mixture into the sea takes place is guilty of a criminal offence. Section 9(1A) provides:"Subsection (1) does not apply in relation to the sea near a State ... to the extent that a law of that State ... makes provision giving effect to Regulations 9 and 11 of Annex I to the Convention in relation to that sea."Regulation 9 of Annex I prohibits discharges of oil or oily mixtures from ships into the sea, and reg 11 creates exceptions to the prohibition. The Commonwealth Act, in s 3(1A), defines the "sea near a State" as a reference to:"(a)the territorial sea of Australia adjacent to the State; and(b)the sea on the landward side of the territorial sea of Australia adjacent to the State". [8]Australia, House of Representatives, Parliamentary Debates (Hansard), 19 February 1986 at 870-871.[9]Australia, Senate, Parliamentary Debates (Hansard), 20 March 1986 at 1367-1369.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ, HEYDON AND CRENNAN JJ GUMMOW AND HAYNE JJ KIRBY J CALLINAN J
The approach that Gummow and Hayne JJ have adopted to the "values encompassed by double jeopardy", wherever all of the elements of one offence (of which an accused stands, or stood, in jeopardy) are included in the other offence (of which that accused stands, or stood in jeopardy) is closer to the approach that I favour, as expressed in Pearce. I would therefore endorse what their Honours have said in this case as a statement of the applicable Australian law. Future criminal practice and procedure should evolve by reference to the identified "values" that lie behind the universal double jeopardy rule. Further refinement and elaboration of this point must await cases in which it is actually presented for determination and application.Conclusion and orders A plea of autrefois acquit being unavailable, and an order for a permanent stay of the second summonses being inappropriate in this case, the trial of the appellants on the second summonses should proceed. Their appeals to this Court should be dismissed. As appears from the reasons of the other judges in these appeals, the respondent, inexplicably and without any apparent justification, more than two years after the relevant events, charged the appellants on summons with a contravention of s 27(1) of the Marine Pollution Act 1987 (NSW) ("the Act"). The matter proceeded to a full trial in the Land and Environment Court of New South Wales in which the respondent called all of its evidence. Talbot J, who was hearing the case summarily, dismissed the summons on 7 March 2003[131].[131]Filipowski v Island Maritime Ltd (2003) 124 LGERA 331. A further eight months elapsed, again inexplicably, before the appellants were charged on summons with a contravention of s 8 of the Act. As the judgment of Gummow and Hayne JJ holds, the appellants' plea of autrefois acquit was rightly rejected because the appellants were not, in the strict legal sense, "in jeopardy". This is so because the authorities to which other members of the Court have referred, state a rather narrow definition of "jeopardy". The defence requires, according to Dixon J in Broome v Chenoweth[132] exposure to a "risk of a valid conviction" for the same, or perhaps substantially the same, offence. I say that the definition is a narrow one for the reason that defendants such as the appellants, having been charged effectively by a state authority, forced to prepare for a trial, and having been obliged to submit to proceedings in which all of the respondent's evidence was presented against them, would understandably be inclined to think that they had been in jeopardy. I will return to this matter when I deal with the appellants' argument that the second set of proceedings were an abuse of process.[132](1946) 73 CLR 583 at 599 (emphasis added). As to the principles applicable to a plea of autrefois acquit or convict, it is sufficient for me to say that I agree with the analysis of Gummow and Hayne JJ of the joint judgment in Pearce v The Queen[133], with their Honours' conclusions with respect to it, and its application to these appeals.[133](1998) 194 CLR 610 at 612-624 [1]-[50] per McHugh, Hayne and Callinan JJ.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HEYDON AND CRENNAN JJ, GUMMOW AND HAYNE JJ, KIRBY J, CALLINAN J

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