Island Maritime Ltd v Filipowski; Kulkarni v Filipowski

[2006] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S449 of 2005

B e t w e e n -
ISLAND MARITIME LIMITED
Appellant
and
BARBARA FILIPOWSKI
Respondent

Office of the Registry
Sydney No S450 of 2005

B e t w e e n -
SACHIN KULKARNI
Appellant
and
BARBARA FILIPOWSKI
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 MARCH 2006, AT 10.18 AM

__________________

MR P. BYRNE, SC: May it please the Court, in each matter I appear for the appellant with my learned friends, MR C.J. GROGIN and MR C.P. CARTER. (instructed by Ebsworth & Ebsworth)

MR A.J. MEAGHER, SC: May it please the Court, in each matter I appear with MR A.L. HILL and MR A.J. PAYNE for the respondent. (instructed by Dibbs Abbott Stillman)

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, these appeals raise two issues. The first is the formulation of the test to be applied in determining the availability of the plea of autrefois acquit. In our submission, the answer to that question has been authoritatively determined by the unanimous decision of this Court, as recently as 1998, in Pearce v The Queen.

Your Honours, the second issue raised by these appeals, and this matter would only, of course, arise if the first question is decided adversely to the appellants is whether, where the plea of autrefois is not available to the appellants, should the prosecutions in their cases be stayed on the ground that they constitute an abuse of process.

Your Honours, if I can return to the first question raised by the appeals. In our submission, Pearce is a decision which is itself consistent with the earlier authority of this Court referred to in the separate judgments in Pearce, judgments, in particular, of Chief Justice Griffith in Li Wan Quai and Chia Gee, two different cases, and is also consistent, in our submission, with the approach taken by the Supreme Court of the United States in the so‑called Fifth Amendment cases.

KIRBY J: There has been, over the years, a bit of slippery verbalisation. I am not saying that is so in Pearce, but as to what you do where it is not exactly the same statutory provision and then you get language by the judges about “substantially” to describe the overlap.

MR BYRNE: Yes. I accept, your Honour, that there have been different ways in which the appropriate test has been expressed but those different approaches were, in our submission, reviewed and considered in the decisions in Pearce and this Court formulated unanimously, in our submission, a test to be applied which, if it had been properly applied to the circumstances of the appellant’s cases, would have resulted in a finding that the plea was available to each of them.

KIRBY J: As a matter of practicality it is unlikely if it were exactly and precisely and completely the same elements that you would get a problem because prosecutors would not – unless it was a federal and State offence – normally prosecute separately for exactly and precisely the same thing. So that the nature of the problem suggests that it arises where it is not of that order of identity but is something a little bit different, and hence the attempt to either use an adjective or adverb such as “substantially” or to use a descriptive phrase such as “included within” – the elements included within the other offence, but both of those allow a little flexibility because of the very nature of the problem.

MR BYRNE: Certainly, your Honour. Your Honour is, with respect, correct in saying that it is very rarely encountered that there will be successive prosecutions of charges which contain exactly and precisely the same elements. I cannot think offhand of a case in fact where that situation has been encountered. It is where there are ‑ ‑ ‑

KIRBY J: I mentioned in Pearce the possibility of a federal/State overlap and one could conceive that you could have a federal offence under an international convention and a State offence under the general law where there were identical offences. Of course, the federal offence would take priority because of the Constitution, so you would not then have an overlap. You would simply have the federal offence if it is exactly the same.

MR BYRNE: Yes, your Honours. Your Honours, the precise terms in which the offences which are the subject of these appeals were charged is perhaps unusually similar in cases of this kind. It is illustrated by an examination of the actual summonses that were issued in each case. Can I take your Honours to, for the purpose of illustrating that point, page 1 of the appeal book where the summons in relation to the corporation is reproduced and it is expressed in terms:

that the Defendant Island Maritime Limited, appear before the court to answer a charge that on 14 November, 1999 it was the Owner of a ship namely the vessel “Pacific Onyx” from which a discharge of oil occurred into State waters namely the waters of Botany Bay in contravention of Section 27(1) of the Marine Pollution Act, 1987.

The summons against the master of the ship is in identical terms, but the summons that was then issued in relation to the subsequent prosecution is set out at page 101 of the appeal book in the case of the corporation.

It is in fact in precisely identical terms, apart from the particular section of the Act which is alleged to have been contravened. The terms of the summons at 101 exactly mirror the terms of the summons at appeal book 1, save for the reference in the latter prosecution to section 8 of the Marine Pollution Act as distinct from section 27 of the Marine Pollution Act. So there is a very close relationship between the nature of the charges, apart from the particular section under which the prosecution was brought.

KIRBY J: How do you express the contention that you succeeded on before Justice Talbot that section 27 did not apply but section 8 did? How do you express that?

MR BYRNE: In what sense, your Honour?

KIRBY J: What is the misapplication of 27 that is cured by 8? How do you express it?

MR BYRNE: Well, the prosecutor’s contention would be that the section 27 prosecution was, in effect, misconceived, that in the circumstances that existed there could not have been a charge proved alleging a breach of section 27 because the circumstances of the alleged offence were covered by the provisions of section 8, and there was in section 26(d) of the Marine Pollution Act an express exclusion from section 27 of cases that could be prosecuted under section 8.

KIRBY J: That was because, was it, in the course of transferring petroleum, is that the element that was present in section 8 that required that the matter be prosecuted under that section?

MR BYRNE: No, your Honour. The allegation under section 27 was that the discharge of oil into the sea occurred in connection with a transfer operation. Although that is not set out precisely in the summons that I have just taken the Court to, that was the essence of the charge under section 27 which the prosecutor originally brought.

CRENNAN J: Was that not the problem with the original charge, that it did not contain the element that the discharge had occurred in connection with a transfer operation? That was the defect in the charge, was it not?

MR BYRNE: No. That was one contention, your Honour, that was made on behalf of the appellants in the primary court but the contention that was successful in achieving the discharge of the appellants in the primary court was that because these were proceedings to which section 8 of the Marine Pollution Act applied then section 27 had no application.

KIRBY J: You keep saying that but what is the element that is missing from 27 that is in 8 that requires it to be prosecuted under 8?

MR BYRNE: There is no element missing, your Honour. The very fact that the elements are present is the reason that the prosecution cannot be brought under section 27.

KIRBY J: So the mistake was including “in contravention of Section 27(1)” although all the elements were otherwise exactly the same?

MR BYRNE: The elements of section 27 were, in our contention, five in number and they are set out in the judgment of the Court of Criminal Appeal.

KIRBY J: So you give it (a), (b), (c), (d) and (e)?

MR BYRNE: Yes.

KIRBY J: And (e) you say was not present?

MR BYRNE: That was a contention put on behalf of the appellants in the proceedings before the original judge, that the discharge was not in connection with a transfer operation; it was something that occurred at the same time as a transfer operation but it was not in connection with it. Now, that point that was taken by the appellants in the original prosecution was never ultimately decided because the judge determining the original “no case to answer” submission in the original prosecution found that the section 27 charge was not available to the prosecution because – and I should perhaps take your Honours to the provisions of the legislation to explain it, the Marine Pollution Act 1987.

KIRBY J: Is Reprint No 1 the correct reprint for our purposes?

MR BYRNE: It is, your Honours. This was the legislation that was in force at the time of the relevant events. Section 27 is found at page 33 of this particular reprint but the circumstances in which section 27 applies are set out in section 26, which commences at page 32. It provides that:

This Part –

and this is Part 4 of the Act ‑

applies to a discharge of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance into State waters:
(a)from a ship or place on land in or in connection with a transfer operation –

and that was the allegation made in the original ‑ ‑ ‑

GUMMOW J: The definition of “State waters” is important, is it not? It is the definition of “State waters” in section 3.

MR BYRNE: Yes, that is certainly, in our submission, your Honour, an element of this offence.

KIRBY J: But this is not a case where the discharge occurred in international waters.

MR BYRNE: No.

KIRBY J: It is common ground to both offences that it has to be in State waters.

MR BYRNE: Yes, certainly, your Honour.

KIRBY J: That is not the discrimen.

MR BYRNE: No, it is not.

GUMMOW J: The reason why it is, of course, it is federal legislation, is it not?

MR BYRNE: Your Honour, there is federal legislation which relates to the discharge of oil from ships but, as we understand it, that federal legislation is subject to any State legislation covering the same subject matter and intended to deal with discharges that occur in circumstances such as these, that is where the ship in question was moored at a berth in the waters of Botany Bay in, as your Honours observe, State waters. There is no conflict, in our submission.

KIRBY J: Although notice has been given under section 78B, as I understand the respondents’ submissions, they say that ultimately there is no conflict. Is that your understanding?

GUMMOW J: I am not suggesting there is, I am just trying to understand the structure. You have a Convention to which Australia is a party and you have some State legislation that ties it to State waters which I can perfectly well understand. Is there any federal legislation dealing with waters that are within the reach of Australia, but which are not State waters, to which the Convention would apply?

MR BYRNE: There is federal legislation.]

GUMMOW J: We had better know about it.

MR BYRNE: Certainly, your Honours.

KIRBY J: That is referred to in Mr Meagher’s submissions, Protection of the Sea (Prevention of Pollution from Ships) Act, 1983 (Cth).

MR BYRNE: The relevant federal legislation, as your Honour Justice Kirby has just observed, is styled the Protection of the Sea (Prevention of Pollution from Ships) Act, 1983 but, in our submission, that legislation does not have any application to the circumstances of this incident to which these successive prosecutions related and, in our respectful submission, does not affect in any way the outcome of ‑ ‑ ‑

GUMMOW J: What is the impact of the Convention upon Part 2, but not Part 4? What is the scheme of it? Why does Part 2 pick up the Convention but Part 4 does not seem to? Am I right about that?

MR BYRNE: Your Honour, what appears to have happened is that this State Act was intended to implement the Convention by reference to Part 2 and Part 3 of the legislation. This was a Convention which was known as the MARPOL Convention which occurred in 1973 and Australia was a signatory to that. As your Honours have just heard, the federal legislation was enacted in 1983, the State Act enacted in 1987 but the State Act only sought to implement the terms of the Convention as to Parts 2 and 3.

Part 4, which is the part within which section 27 of the Act appears, is legislation which seems to be carried over from earlier legislation which existed in New South Wales. We have in our supplementary materials ‑ ‑ ‑

GUMMOW J: This is an attempt to marry the two with cross‑references?

MR BYRNE: Yes, precisely, your Honour. What appears to have been done by the legislature in enacting this Act is to, as far as Part 2 and Part 3 are concerned to implement the Convention of 1973, the MARPOL Convention, but as far as Part 4 is concerned to preserve some existing offences which were created by legislation first enacted in 1927 in New South Wales, and those provisions in turn reflected the provisions of an English Act which was enacted in 1922, both of those styled as the Oil In Navigable Waters Act. The 1927 legislation in New South Wales was repealed by 1960 legislation which was ‑ ‑ ‑

GUMMOW J: We have these in your supplementary materials?

MR BYRNE: Yes, your Honours, that is the purpose of putting those. It simply illustrates, if I can take your Honours to - those supplementary materials, if I can perhaps just point out the three provisions which precede section 27 as it appears in the 1987 Act. In the supplementary materials at page 2 the English legislation of 1922, the Oil in Navigable Waters Act is reproduced. Section 1 creates an offence relating to the discharge of oil into navigable waters and a part of that provision relates to its application to:

any vessel or from any place on land or from any apparatus used for the purpose of transferring oil –

The terms of the section are, in our submission, closely resembling the terms of section 27. That English provision ‑ ‑ ‑

GUMMOW J: This is section 2?

MR BYRNE: I am sorry, your Honour?

GUMMOW J: Which section of the 1922 British Act?

MR BYRNE: Section 1, your Honour, which is on page 2. That was followed by the 1927 legislation in New South Wales, the relevant part of which is reproduced at page 12 of these supplementary materials.

GUMMOW J: Yes, I see, section 3.

MR BYRNE: Section 3 is, as your Honour says, the relevant section again. It is legislation creating an offence in very similar terms to the provisions of the current section 27, and relating to discharges into water from vessels in the course of transferring oil from ships.

KIRBY J: Which section is the progenitor in the New South Wales Act of 1927?

MR BYRNE: Section 3, your Honour.

KIRBY J: Thank you.

MR BYRNE: That legislation was repealed by the Prevention of Oil Pollution of Navigable Waters Act 1960 (NSW) which is reproduced at page 15 behind tab 3 of the supplementary materials. I should add for the sake of historical context that the 1960 legislation was intended to implement the terms of an international convention which was conducted in 1954 which was known as the OILPOL Convention. Section 6 of the 1960 Act, which is at page 18 of the supplementary materials, preserves that offence which was contained in the 1927 legislation and is contained as well in the 1987 legislation in almost identical terms relating to discharges from oil into water from ships.

HAYNE J: But the waters concerned were waters within the jurisdiction. The jurisdiction was identified at the top of page 18 in section 4(1).

MR BYRNE: Yes, your Honour.

HAYNE J: In a way that was overtaken by subsequent events.

CRENNAN J: Then to complete the picture one looks, does not one, to the respondent’s supplementary materials, explanatory memorandum in relation to the 1987 legislation and page 3 of that, in particular, describes Part 4 and the earlier part of that explanatory memorandum explained the role of the Convention in respect of the earlier parts.

MR BYRNE: Yes, your Honour, that does complete the background.

HAYNE J: But the interrelationship between the present federal Act and the present form of the State Act is to be understood in the light of section 5 of the federal Act, that is, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 concerned with the saving of other laws, in particular, section 5(2), that the Act, other than certain sections of which one is section 9 is to:

be read and construed as being in addition to, and not in derogation of or in substitution for, any law of a State –

Then section 9, in particular section 9(1A):

Subsection (1) does not apply in relation to the sea near a State –

an expression which is amplified in section 3(1A) in the manner there identified. Now, at what point were these alphabetical subsections introduced into the federal legislation? They are obviously later amendments. Which legislation brought them in?

MR BYRNE: They were introduced by an amendment in 1986 which was the Protection of the Sea (Prevention of Pollution from Ships) Amendment Act 1986 which was ‑ ‑ ‑

GUMMOW J: It appears at 223 of the print of the federal Act. There is a note.

KIRBY J: It does not have in the last column the application, saving or transitional provisions. We can take it that section 3(1A) and section 9(1A) were both introduced by the 1983 Amendment Act, were they?

MR BYRNE: 1986, I think it was, your Honour, and the1986 amendments commenced operation in September 1988, according to my learned friend’s submissions.

KIRBY J: When? What month?

MR BYRNE: September 1988.

HEYDON J: The 23rd.

KIRBY J: What date was the alleged offence?

MR BYRNE: The alleged offence was 14 November 1999. For completeness, your Honours ‑ ‑ ‑

GUMMOW J: The point is, is it not, am I right, that the State Act and the amended federal Act commenced at the same time?

MR BYRNE: No, your Honour. I think the amended federal Act commenced in September 1988. The State Act commenced in May 1990.

GUMMOW J: I see. So there was a gap.

MR BYRNE: But as of the events the subject of these cases it was – and I think it is common ground that the State Act applied and not the federal Act.

KIRBY J: All of this was part of your answer to demonstrating what was the missing or offensive element in the section 27 charge that was relieved by the charge under section 8.

MR BYRNE: Thank you, your Honour. If I can take your Honours back to section 26 of the State Act, the Marine Pollution Act 1987, that section, in our submission, prescribes the elements of an offence under section 27, but at the same time defines certain circumstances in which an offence under section 27 can not be brought. The definition of the elements of an offence under section 27 are contained in section 26(a) and 26(b). The circumstances in which a prosecution under section 27 can not be brought are – and we would submit that makes this part of section 26 essentially a procedural provision – provided in subsection (c), which is not presently relevant, and subsection (d).

What subsection (d) provides is that if conduct alleged against the master and the owner of a ship is conduct which constitutes an offence under Part 2 or Part 3 – and that includes in Part 2 the offence under section 8 of the Marine Pollution Act – then section 27 cannot be applied to those circumstances.

KIRBY J: What is the policy behind that exclusion?

MR BYRNE: It is not entirely clear on the materials in ‑ ‑ ‑

KIRBY J: That is what I found difficult to understand.

MR BYRNE: Yes. I accept that, and it is not clear. That was ‑ ‑ ‑

HAYNE J: Is part of the answer to be found in section 7 in Part 2 which in an interpretation provision picks up and applies for the purposes of Part 2 relevant Convention definitions, a provision that I think I am right in saying is not found in Part 4 ‑ ‑ ‑

MR BYRNE: Yes, your Honour, is ‑ ‑ ‑

HAYNE J: ‑ ‑ ‑ and that Part 2 is therefore cast in terms that are intended to – it may be the wrong word to use – but are intended to engage section 9(1A) of the federal Act and to ensure that the State Act is of a kind spoken of in section 9(1A) of the federal Act.

MR BYRNE: Yes.

GUMMOW J: But at least Part 2 of the State Act is.

HAYNE J: Just so.

GUMMOW J: How does Part 4 of the State Act square with section 9(1A) of the federal Act?

MR BYRNE: It does not appear to have anything to do with it, in my submission. The provisions of Part 4 seem to be independent of Part 2 and Part 3.

GUMMOW J: How do they then stand with section 5(2) of the federal Act?

MR BYRNE: I am sorry, your Honour, section 5 ‑ ‑ ‑

GUMMOW J: Section 5(2) is a consumer credit tribunal type provision. It is an expression of the federal will that 109 is not to stamp out Part 4 of the State Act, as I see it.

MR BYRNE: Yes.

GUMMOW J: That is how it all fits together. The frame of the State Act is very much driven by the frame of the federal Act.

MR BYRNE: Except, in our submission, insofar as Part 4 of the State Act seems to preserve those old offences that were established years before.

GUMMOW J: Yes, but by the grace of section 5(2) of the federal Act.

MR BYRNE: Yes, I accept what your Honour says.

KIRBY J: But where you have an international convention for the spillage of oil and where you have a federal law to give effect to that convention, why does that not bump out the State law holus bolus? Why is it not a matter of covering the field and dealing with a matter of international concern, including in domestic waters of the State?

MR BYRNE: Our understanding, your Honour, is that section 9(1A) preserves the State law for these purposes. Where there is State law covering the relevant conduct, which is sought to be addressed by the Convention, then the State law prevails according to section 9(1A) of the Commonwealth legislation.

KIRBY J: Only in respect of the territorial sea or sea landward to the territorial sea which, presumably, Botany Bay is. Is there any other expression? There is no reference to internal waters or State waters? Anyway, that is the scheme of it, the federal Act is going to cover the territorial sea adjacent to Australia’s territory and leave it to the States to cover the sea on the landward side.

MR BYRNE: That is as we understand it.

HAYNE J: Part, at least, of the work which is left for Part 4 is to provide for offences by occupiers or owners of land-based apparatus.

MR BYRNE: Yes, they are not necessarily covered by the Convention.

HAYNE J: Not, I suspect.

MR BYRNE: As your Honour has observed on a previous occasion, the ambit of an offence under section 27 extends beyond the master and the owner of a ship to people who are the owners of apparatus which might be based on land and, indeed, occupiers of land which are connected with the transfer operation or the use of the apparatus, as the question may be, so that there is an extension in Part 4 to people other than the master and owner of the vessel in question. But the interpretation that was given to the terms of section 26 ‑ ‑ ‑

GUMMOW J: None of this was explored below, was it?

MR BYRNE: It was, your Honour, yes.

GUMMOW J: None of these matters of structure, the significance of the Convention, the significance of the federal Act?

MR BYRNE: I am sorry, your Honour, none of it was but, in our submission ‑ ‑ ‑

GUMMOW J: That is what rather struck us on the special leave application.

MR BYRNE: In our submission, your Honours, those considerations, relevant to the Convention and the impact of the federal legislation, would not have any effect on the outcome of this particular case. This was a case which concerned an incident which occurred squarely within State waters and the only relevant legislation, in our submission, was the State Act.

GUMMOW J: I understand that. You have to construe the State Act. You do not construe it in a room with the blinds drawn and the light off.

MR BYRNE: Certainly, your Honour. The manner in which the matter was argued in the courts below was strictly limited to an interpretation of the terms of the State Act and most particularly to the way in which section 27 and section 8 related to each other and even perhaps a matter of further particularity, the extent to which a charge under section 27 was prohibited where a charge under section 8 would be available.

That was the basis on which the “no case” submission in the original proceedings was in part put, as the Court has already observed. There was two aspects to that “no case” submission. The first was that there was no evidence to establish that the alleged conduct occurred in connection with the transfer operation. That was never dealt with because the second aspect of the “no case” submission was successful, namely that the section 27 charge did not apply because in the circumstances the prosecutor had available to it the charge under section 8 and, according to the terms of section 26(d), if section 8 applied, then section 27 could not. Now, that was the submission that was upheld by the original trial judge and, as a result, he dismissed the charges against each of the appellants.

KIRBY J: That was not appealed, was it?

MR BYRNE: No, it was not.

KIRBY J: It is not in contention before us. So that is, in a sense, a starting point to the matter that then went back before Justice Bignold?

MR BYRNE: Yes. The matter came before Justice Bignold as a further prosecution. We would emphasise the word “further” rather than a fresh prosecution based on the same facts.

KIRBY J: Can I just ask you, you mention in your submissions (a), (b), (c), (d) and (e). Is there any element which is absent or added to section 8 which was not part of the offence in section 27, as elaborated by section 26?

MR BYRNE: Section 27 contains an additional element to those contained in section 8, namely that the discharge occurred in connection with a transfer operation. That is an additional element of section 27, over and above the elements of section 8, in our submission.

KIRBY J: So your contention is that the section 8 offence is the same except that it is a larger offence, in the sense that it does not have any narrowing element of transfer – it is at large – and that therefore, quite apart from the verbal overlap, in this case this is stepping up the ante because it is prosecuting under an offence in more general terms than the section 27 offence?

MR BYRNE: It is certainly in more general terms but whether the expression, with respect, “stepping up” is appropriate might be open to doubt, because the way that kind of language is used in this context, when the expression “stepping up” is used, it is usually used to refer to charging an aggravated offence or an offence in a more aggravated form.

GLEESON CJ: As in Elrington?

MR BYRNE: Certainly.

GLEESON CJ: Charging assault occasioning grievous bodily harm against a person who has already been dealt with for common assault. That is Elrington.

MR BYRNE: That is, yes, your Honour.

GLEESON CJ: That is to say Elrington decided you have plea in bar in a situation where the elements of the second offence are more extensive than the elements of the first offence. That is what was actually decided in Elrington. It was a case in which a plea in bar to a charge of assault occasioning grievous bodily harm succeeded on behalf of a person who had been dealt with for common assault.

MR BYRNE: Yes, there were in fact three charges in Elrington. The person had been originally acquitted on a charge of common assault. They were then two brothers, I think, charged with common assault, assault inflicting, I think, actual bodily harm and also assault ‑ ‑ ‑

GLEESON CJ: Well, the headnote to Elrington reads:

Where . . . a complaint of assault or battery has been made to two justices of the peace, who dismiss the complaint and give the party a certificate accordingly, the certificate may be pleaded in bar to an indictment, founded on the same facts, charging assault and battery, accompanied by malicious cutting and wounding so as to cause grievous or actual bodily harm.

Now, that is generally regarded as a common or garden example of the operation of a plea of bar, charging somebody with assault occasioning actual bodily harm where they have already been dealt with for common assault.

MR BYRNE: Yes, I accept that.

GLEESON CJ: Is that a case where the elements of the second offence are included in the elements of the first offence?

MR BYRNE: No, your Honour, the elements of the second offence in that case are not included in the first offence.

GLEESON CJ: One element of it is not included, that is to say occasioning actual bodily harm?

MR BYRNE: That is right.

GLEESON CJ: That is the classic example of a case for a plea in bar.

MR BYRNE: Well, your Honour, in our submission, it is one of them. What happened in Elrington was that the accused brothers were, in fact, acquitted originally of a charge of common assault. They were then charged subsequently in a successive prosecution with three charges: the common assault – precisely the same charge; the assault occasioning actual bodily harm; and the assault occasioning grievous bodily harm. In fact, the Crown pleaded no contest to the contention that the first count was barred by the application of the principles of autrefois acquit, but the second and third offences charging additional elements in each case were contested by the Crown and ultimately determined in favour of the alleged offenders. But all that Elrington held was that it was not permissible for the prosecution to charge a person who had been acquitted of a given offence to charge that offence in a more aggravated form.

GLEESON CJ: Yes. Now, charging an offence in a more aggravated form is by hypothesis a case in which the elements of the second charge go beyond the elements of the first charge.

MR BYRNE: Yes, they will be greater and additional to the elements of the first charge. But there is nothing in Elrington, in our submission, which expressly says that it is permissible to charge a person who has been acquitted of an aggravated offence of the same offence in a less aggravated form. Elrington just does not deal with that issue.

GLEESON CJ: I am not suggesting it does.

MR BYRNE: No, I appreciate that. But Elrington is, in our submission, a case which is limited in significant ways to its particular facts. It is authority for the general proposition, as your Honour the Chief Justice has said, that it is impermissible to charge an acquitted person in a more aggravated form, but it does not necessarily say anything about whether or not a charge which, to use perhaps a crude expression, is stepping down or what is sometimes described as a descending charge rather than one ‑ ‑ ‑

GLEESON CJ: No, I am not suggesting it does, but in the passage in Pearce that is the one that is regarded as definitive Elrington is actually referred to in a footnote in relation to:

offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal.

MR BYRNE: That is paragraph 18, your Honour?

GLEESON CJ: Yes.

MR BYRNE: Yes.

GLEESON CJ: But Elrington is in fact dealing with a situation where the elements of the second offence go beyond the elements of the offence for which the accused has been tried.

MR BYRNE: Precisely, your Honour.

KIRBY J: What I was trying to ascertain was your submission on a suggestion that in this case it is true that the second offence does not say “polluted and caused damage to property”. It does not add an aggravating element such as grievous bodily harm, but it subtracts a qualifying requirement that was present under section 8; namely, that it needs to be in the transfer of the petroleum.

MR BYRNE: That is section 27, with respect, your Honour. That is not a section 8 requirement.

KIRBY J: I see, yes, exactly. I am getting a little confused.

CRENNAN J: But I think what his Honour was suggesting was that the section 27 offence is a narrower offence; that is to say, the prior offence is narrower than the section 8 offence. The section 8 offence is a more general offence.

MR BYRNE: Yes, I accept that, your Honour. That is, with respect ‑ ‑ ‑

CRENNAN J: So that distinguishes it from both Elrington’s facts and Pearce’s facts.

MR BYRNE: It certainly distinguishes it with respect from Elrington, in our submission, and it is clearly, with respect, a different type of case from Pearce, but if one looks at the principles that were established in Pearce, the more general principles that were established in Pearce by reference to the specific facts of Pearce’s Case, the circumstances of these appellants’ cases comes within the principles that were established in Pearce and, in our submission, come squarely within the principles established in Pearce. If I can perhaps take your Honours to the relevant parts of Pearce, because it is ‑ ‑ ‑

CRENNAN J: I was going to ask you in relation to paragraph 18 in the first part of the test in Pearce, where there is a reference to the “elements of which are the same”, is it your argument that the elements of the section 27 offence are the same as the elements of ‑ ‑ ‑

MR BYRNE: No, your Honour.

CRENNAN J: So therefore you are relying, are you, on the next part, “or are included in”?

MR BYRNE: Yes. We do not contend that the elements of an offence under section 8 and section 27 are the same in the sense that they are identical. We do concede that the elements of the respective offences are different and clearly section 27 contains an additional element that section 8 does not contain, but the crucial distinguishing feature is that section 8 does not contain an additional element that section 27 does not contain, and that brings the section 8 prosecution within the prohibitions established, we would say, in Pearce.

Can I just say in relation to Elrington, incidentally, because it is a matter that my learned friend relies heavily on in his argument – in their arguments – Elrington has been considered of course by the House of Lords at some length in Connelly’s Case in 1964 and it was considered by your Honour the Chief Justice in your Honour’s decision in Dodd in New South Wales in 1993, if I remember correctly, but it is interesting – and I would be proposing to take the Court, if I may, to the American authorities – that the American authorities seem to reject Elrington as a proposition or as something which stands for the proposition that it is permissible to charge a lesser offence where somebody has been convicted of a greater offence.

GLEESON CJ: Yes, what Elrington actually decided was – and I think this is the proposition for which it is usually cited as authority – you cannot charge a person for what is a more aggravated form of an offence for which that person has already been dealt with.

MR BYRNE: Yes, that is precisely right, with respect.

KIRBY J: But is that based on your first argument autrefois acquit or is it based on more general principles of fairness that are reflected in the stay power for abuse of process? It seems to be the second rather than the first.

MR BYRNE: No, with respect.

GLEESON CJ: The decision in Elrington was that there was a plea in bar. There was nothing discretionary about it.

MR BYRNE: Yes. That is right.

KIRBY J: But if is not exactly the same why is there a plea in bar?

MR BYRNE: Because it is included in ‑ ‑ ‑

KIRBY J: If the elements are not the same.

MR BYRNE: It is precisely the situation in these important words in Pearce; it does not have to be exactly the same. It is sufficient if it is included in and that is what is described in the American ‑ ‑ ‑

KIRBY J: I have asked – can it be put this way, that if you are acquitted of common assault, logic necessarily dictates that you are acquitted of assault with grievous bodily harm, but if they cannot get up on common assault and battery then they could not get up on grievous bodily harm and therefore the larger is included in the smaller.

MR BYRNE: The larger is excluded by the acquittal on the former. I think that is the way it works. But to answer your Honour’s question about the categorisation, if you like, of Elrington, I think it has to be said and I do no think my learned friends would disagree, that Elrington is a purely autrefois case and in fact it is one of the relatively rare cases that actually deal with autrefois acquit. Most of the cases are cases that deal with autrefois convict and there are general statements of principle emerging from them but Elrington is one which is, in our submission, purely an autrefois case. It is not an abuse of process case.

HAYNE J: Can I take you back to a premise which underpins much of your argument and just understand that premise and whether it is valid?

MR BYRNE: Yes, your Honour.

HAYNE J: Elrington, Pearce, the like, are cases of conviction and acquittal. As it happens the order made here, see page 99, was simply “Summons dismissed” but the foundation for that order appears to have been, correct me if I am wrong, that the facts alleged by the prosecutor of the first summons if proved would not establish the offence charged, namely an offence under section 27, and they would not establish that offence because section 27 was not engaged – to attempt to use that neutrally – because this was a case to which Part 2 applied.

Is the relevant premise the one which I have identified as apparently underpinning your argument, or is the relevant field for debate what would happen in a criminal case if there had been a demurrer to the indictment, “Allowed; indictment quashed” and a fresh indictment charging a different offence arising out of the same incident and in aid of which the same facts would be proved by the same witnesses were presented?

MR BYRNE: Your Honour, the question of whether the appellants were, to use the language of this area, in jeopardy on the first prosecution is one that is, with respect, alive but we would submit that where there has been a prosecution run, as it were, to completion by the prosecutor, in the sense that the prosecution presented the whole of its evidence and at the conclusion of that evidence it was held to be an insufficient body of material to require the defendants to answer it ‑ ‑ ‑

HAYNE J: There is the point at which I want to focus your attention. Is that in truth the hinge about which the first decision turned or is it in truth a hinge which is identified as the facts alleged, if proved, would not establish the offence charged?

MR BYRNE: Your Honour, it was not a case where there was a demurrer. It was not a case where there was any challenge at the outset, as it were, to the terms of the information or indictment. It was a case where, from start to finish, the prosecution contended, through its evidence, that it had evidence to prove the offence charged and to that extent the appellants were relevantly in jeopardy, in our submission.

HAYNE J: But autrefois acquit, autrefois convict, are underpinned, at least in part, by the notion that prosecutors confronted with a set of facts who choose to charge in a particular way cannot come back and say, “Look, those facts would have established another charge equally open which could have been charged but was not”. Here the comparison is between, on the one hand, a charge found not to be open because section 27, so it is held and not challenged, could not be engaged and compared with that is a charge said to be open because the facts would, if proved, establish section 8.

MR BYRNE: I would, with respect, categorise it in this way, your Honour, that the finding of the original judge was that on the material, section 27 was not engaged, not that it could not ‑ ‑ ‑

GUMMOW J: Can we actually see that?

HAYNE J: Page 99, paragraph 39 is at least the summary of it, is it not? Am I at the right point in the appeal book?

MR BYRNE: That is certainly the conclusion but perhaps what went before it, if I can take your Honour to that, at page 98 of the appeal book, paragraph 36:

The Court upholds the submission of no case to answer on the basis that the prosecutor has not proved that Part 4 applies to the discharge from the vessel on 14 November 1999.

That is something that is related to the evidence which the prosecutor presented.

HEYDON J: That is a quite misleading, with respect to his Honour, thing to say, is it not? He has been dealing in the previous paragraphs with this, what he calls a “textual argument” - is it Part 2 or is it Part 4? He has put on one side the problems of evidence and said they must be determined at the end of the day not in the middle of it. When he says, “The prosecutor has not proved that Part 4 applies”, he is not talking about witnesses or documents, he is talking about the construction of Part 2 in relation to Part 4.

MR BYRNE: Yes, there may be some room for criticism of that kind, your Honour, but it is a situation where the original judge approached it on the basis that it was necessary for him to, in effect, find that an offence under section 8 had been committed in that none of the exemptions that might have applied to section 8 – and there were many of those provided for in the Act – he took the approach of seeing whether in effect a section 8 offence had been established. Once he was satisfied that a section 8 offence had been established, then he reached the conclusion that for that reason ‑ ‑ ‑

HEYDON J: There would be no section 26 offence?

MR BYRNE: That is right.

KIRBY J: There is a description of the events that are alleged to give rise to the offence in paragraph 13 and following and there is an outline of the facts at paragraph 21 and following, so that it is not as if his Honour just took an isolated question of law and dealt with it as a pure preliminary point on agreed facts. There was apparently some cross‑examination that is referred to in paragraph 25.

MR BYRNE: Yes.

KIRBY J: As I understand it, your solicitors suggested this problem to the prosecution and instead of the matter being dealt with the way you suggested and that recharge attempted to bring the matter to trial on the correct section, the prosecution barged on, they presented their evidence, they took their chances and they lost. You say they should not be allowed to have a second go, either on the first or the second principle. Was the fact that your solicitors suggested this in evidence before Justice Talbot or ‑ ‑ ‑

MR BYRNE: Yes, it was a matter of some importance in arguing particularly the abuse of process aspect.

KIRBY J: Yes, it is more relevant to that.

MR BYRNE: It did not, with respect, have a great deal of bearing on the autrefois argument which was purely a question of law for his Honour to determine, but the letter that was sent ‑ ‑ ‑

KIRBY J: You say it did not have much effect, but we are trying to work out what happens if there is a pure demurrer and there is not, in a sense, a full trial. Does that give rise to autrefois?

MR BYRNE: It probably does not because part of the formula which has been developed to define the application of autrefois principles, whether autrefois acquit or autrefois convict, is that there has been an acquittal or conviction, as the case may be, after a hearing on the merits. That is, we recognise and acknowledge, a constituent of the circumstances where such a plea can apply. If there has not been a hearing on the merits, then autrefois does not apply. I think that is ‑ ‑ ‑

HEYDON J: Even if there had been a hearing on the merits and Justice Talbot had convicted, that would not have been a valid conviction. It could not have withstood an appeal. In that sense, the defendants were never in jeopardy before Justice Talbot, and it does not matter technically, does it, whether there had been a demurrer or the trial had proceeded to the end, Justice Talbot had made a mistake he did not make, and an appeal succeeded? Either way, the defendants were never truly in jeopardy. It was tedious and unfortunate from their point of view but they were not technically in jeopardy.

MR BYRNE: That is the case as it is recognised to be now by my learned friend’s submissions. They now concede that the prosecution under section 27 was misconceived and that there was never any prospect of conviction, but that is a concession that has been made for the first time in this ‑ ‑ ‑

HEYDON J: Yes, and all these delays and changes of mind might have something to do with general abuse of process.

MR BYRNE: Certainly.

HEYDON J: But what is your answer to the application of Justice Dixon’s reasoning in Broome v Chenoweth that autrefois acquit cannot apply where you were never truly in jeopardy on the first charge?

MR BYRNE: I have to confess that I have not read beyond the citation of that case in the Court of Criminal Appeal judgment.

GUMMOW J: We had better have the citation.

MR BYRNE: It is referred to in the ‑ ‑ ‑

HEYDON J: Broome v Chenoweth (1946) 73 CLR 583 at 599 to 600.

KIRBY J: It must have felt awfully like jeopardy.

MR BYRNE: I am sure it did. I was not in it at that stage, but the contention by the prosecutor throughout was that the charge was properly brought and whether an appeal would have been successful – we know that now perhaps. If the approach now taken was taken then, then an appeal would have been successful, but that does not necessarily mean that in the manner in which the prosecution was run and if the prosecution had consistently approached its task on an appeal to the Court of Criminal Appeal, then there would have been a successful appeal. That cannot be taken as something that is presumed, in our submission.

HEYDON J: That is not, is it, the correct approach? The respondents rely on Broome v Chenoweth in their written submissions. Is Justice Dixon correct or not correct?

MR BYRNE: Would your Honour just excuse me one second?

HEYDON J: Their argument is put in paragraph 35 of their written submissions.

MR BYRNE: Yes, your Honour. I was just looking at the citation in the judgment of Justice Dunford. Your Honour, the passage that is cited in the decision of the Court of Criminal Appeal is that if the defendant could have taken the fatal objection to the earlier indictment or information his discharge or acquittal thereon could not afford a bar. That clearly applies in the situation where there is a demurrer to an indictment or a jurisdictional objection or a basis for, in effect, challenging the proceedings at their very inception.

HEYDON J: Is that not so here? Could have.

GUMMOW J: Well, there is a problem, is there not? The second sentence of paragraph 31 at page 97 indicates the necessity of some finding of fact.

MR BYRNE: I am sorry, your Honour, I am not sure what your Honour is referring to.

GUMMOW J: It says, “The evidence clearly establishes the fact”, at paragraph 31 on 97.

MR BYRNE: I am sorry, thank you. Yes.

HAYNE J: But if particulars had been sought of the summons and given amply, the contention would have been open to your side that the facts as thus particularised reveal no offence of contravention of section 27 because section 26(d) was engaged.

MR BYRNE: If particulars had been supplied – and, indeed, that was in effect the response that is embodied in that letter that was sent to the prosecutors, suggesting that ‑ ‑ ‑

GUMMOW J: Where do we see that?

MR BYRNE: That is at appeal book 116, your Honours. The letter was sent to the prosecutors suggesting that the purpose of the plea of not guilty was that the facts and circumstances of the incident do not fall within section 27.

GUMMOW J: That is later.

MR BYRNE: It is after the informations were provided in February 2002 but prior to the hearing before Justice Talbot in February 2003.

GUMMOW J: Yes, thank you.

MR BYRNE: This letter was sent in April 2002. It was not a situation, in our submission, that could have been addressed by way of a demurrer to the indictment. It was something that depended on the evidence which the prosecutor intended to call and that could only, of course, be determined once it had been affirmatively established what that evidence was.

It was not a case as if the written statements that had been provided in advance of the hearing constituted the whole of the prosecutor’s case. The prosecutor called additional material from the witnesses who gave oral evidence, and it was at the conclusion of that hearing that the submission was made. There was, of course, in addition for the defendants, as they were in the original proceedings, the other matter that was raised regarding the sufficiency of the evidence to prove in any event a charge under section 27 on the ground that the evidence did not establish that this incident occurred in the course of a transfer operation. Your Honours, I was ‑ ‑ ‑

KIRBY J: You were not very forthcoming in your letter at page 116, were you? You just said it did not apply. I suppose you can say they are representing a public authority and you did, as it were, alert them that there was a problem, and it is their duty to look at it carefully. Why do you say that there is no demurrer? What are the procedures of the Land and Environment Court in these matters?

MR BYRNE: I am sorry, I did not mean to suggest that that procedure was not available in the Land and Environment Court. The Land and Environment Court has effectively the same procedural approach in criminal matters as that which applies in the Supreme Court, but it was not a case, in our submission, appropriate for a demurrer at the outset of the proceedings.

KIRBY J: Why? Because on the face of the summons the legal flaw was not demonstrated on its face, is that what you say?

MR BYRNE: It depended, in our submission ‑ ‑ ‑

GUMMOW J: It was, was it not?

MR BYRNE: ‑ ‑ ‑ on the evidence.

GUMMOW J: No, just look at page 1.

CRENNAN J: There is a missing element in the summons, is there not? It is clearly not a summons that could be proceeded upon in relation to section 27 because there is an element missing. That is connected with Justice Heydon’s point that you could never have a valid conviction in respect of this summons in relation to a section 27 offence. That is to say, the points – what is wrong with it are all anterior to anything related to the evidence.

MR BYRNE: The point was not taken in the proceedings that the terms of the summons, in effect, failed to disclose the particulars of an offence under section 27 because it was accepted that the reference to there having been a contravention of section 27 was sufficient to identify the particulars. There was no point taken, as it were, on the lack of particularity in the summons and the fact that the summons did not precisely allege that the conduct occurred in the course of or in connection with a transfer operation. That point was not taken but, in our submission, the terms of the summons were not so deficient that there could have been a demurrer, in effect, contending that the summons did not disclose an offence.

That would not have been available because it would have been open to the prosecutor to respond simply that the allegation that there was a contravention of section 27 of the Marine Pollution Act was sufficiently clear to identify the nature of the offence alleged. But it then depended on the evidence that was adduced in support of that prosecution to determine the question whether the facts and circumstances, which were proved in the evidence, were circumstances to which section 8 might apply and then the determination of the question of whether section 27 could apply.

KIRBY J: This brings us back to Justice Gummow’s question on the special leave, what is the ultimate rationale of the autrefois acquit principle, and that is discussed in the American cases and at least one of the explanations for it is that people should be free from being harassed by the organs of the State and put in constant anxiety and fear and cost and stress. That is, I think, what Justice Black says in one of the cases in the Supreme Court of the United States which I quoted in Pearce.

It may be said technically that you were never in jeopardy but you were placed in jeopardy by the persistence with the prosecution and they resisted your suggestion that the section did not apply. The question is, does that arise at the second stage or does it arise at the first. That takes us to the rationale of autrefois acquit and if it includes some element of, I suppose, estoppel-type principles or public elements of non-vexation, then that will be enough. The fact that a later court finds that if there was a fatal flaw is all very well but that did not help you when you had to answer the charge and secure your acquittal.

MR BYRNE: No, and it was not, in our submission, the role of an accused person or, in this case, an accused person and an accused corporation to, in effect, do the prosecution’s work for them. Indeed, I have to say that even the sending of that letter was a generous response on the part of the defendants in assisting the prosecution with the task confronting them.

KIRBY J: Do not get too enthusiastic about it, it was rather enigmatic.

HEYDON J: Mr Byrne, I am sorry to be tedious about this, but on page 185, Justice Bignold quotes from Spencer Bower, Turner and Handley on the doctrine of res judicata and they say:

However, it is essential that the defendant has been in jeopardy on the charge. If summary dismissal occurs because the charge is defective, or because as a matter of law the evidence available to the prosecution cannot support a conviction -

Now, the defence had affidavits in its possession, did it not, that the prosecution had supplied?

MR BYRNE: Yes, your Honour.

HEYDON J: The authors seem to suggest that summary dismissal could have occurred because on looking at those affidavits you could see that the events had occurred in 27(d) circumstances and therefore Part 4 did not operate and Part 2 did. No doubt the defence does not have to do the prosecution’s work but it was open, was it not, to secure a summary dismissal in that way and, indeed, that is what actually happened halfway through the case?

MR BYRNE: It was a summary dismissal of sorts. It was not a dismissal based on a pure question of law regarding the legitimacy of the information. It was based on the provisions of the Act by reference to the evidence which the prosecution had adduced in the proceedings originally conducted before Justice Talbot. It was not, in my submission, open ‑ ‑ ‑

KIRBY J: There must have been some evidence about the circumstances of the spill because they are described.

HEYDON J: All those affidavits were read and such deponents as anyone wanted to cross‑examine were cross‑examined.

MR BYRNE: Yes.

HEYDON J: That evidence revealed that the prosecution could not possibly win under a Part 4 prosecution. As a matter of law, the evidence available could not support a conviction under Part 4.

MR BYRNE: There is against that, in our submission, the argument that in the “no case” submission, when the prosecutor was heard on the “no case” submission, the prosecutor contended that the charge was available and was properly brought. I am reminded that whilst that letter that is reproduced at page 116 of the appeal book was sent to the prosecution indicating some reservations about the correctness of the charge, there was never any response from the prosecution which inquired as to why there was any suggested deficiency in the charge under section 27. The circumstances that occurred were that there was a prosecution in which the State, through its proper agencies, had contended, after a hearing where all its evidence had been called, that the charge was a legitimate one and was one which should be acted upon to convict each of the appellants.

HAYNE J: If attention is confined to the face of the summons appearing at page 1, regardless of evidence, regardless of any further particulars that might be supplied, is it not apparent that the facts alleged in claim 1 bring the case within section 8(1) thus engaging section 26(d)? The facts alleged are: one, “Owner of a ship”; two, “discharge of oil”; three, “occurred into State waters”, which happened to be particularised. What more or what different would be necessary to establish 8(1)? Nothing. If that is so, it is apparent on the face of the process that the offence charged does not lie.

MR BYRNE: There is scope for the application of a section 27 offence in the limited circumstances that are not met by section 26(c) of the Marine Pollution Act which provides that the terms of section 27 will not apply where the discharge occurs in those precisely defined circumstances, namely, what is described as “the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline”.

Now, the precise way in which this discharge occurred might have raised issues about that. It depended on the evidence, and I accept what Justice Heydon observed, that the appellants were provided with statements of the evidence prior to the hearing, but it was still necessary, in my submission, for that material to be, as it were, considered by the Court rather than a submission simply put at the outset, “Well, this is a case where, because section 8 clearly applies, section 27 does not”.

Ultimately that was the submission that was made and that was resisted by the prosecution, but that submission was based on the evidence that was called in the case after the case had been called on for hearing and after the prosecution case had been concluded. So that is, in my submission, a very different circumstance from one in which it can be said that the accused person was essentially never in jeopardy at any stage.

GUMMOW J: But 26(b) you have been referring to I think, is that right?

MR BYRNE: Section 26(b), your Honour, yes.

GUMMOW J: Yes, “from any apparatus”, is that right?

MR BYRNE: Yes.

GUMMOW J: But the summons said it was from a ship.

MR BYRNE: Yes.

KIRBY J: Well, that is (a), which is alternative to (b).

MR BYRNE: Yes. Apparatus, of course, could be connected with the ship and it would still be a discharge from the ship. It will depend on the factual circumstances.

GUMMOW J: That is not what was being charged.

MR BYRNE: No, except that they allege from the ship in the information.

KIRBY J: That would be sufficient, would it not, if they bring themselves within paragraph (a), because it is stated in the alternative to (b)?

MR BYRNE: Yes.

KIRBY J: Can I ask when at the trial or at the hearing before Justice Talbot the true impact of your argument bringing up section 26(d) sunk in, was there a reaction, “Oh my goodness, we’ve made a mistake. This is a terrible thing. We’ll go and prosecute you under the other section”?

MR BYRNE: No, your Honour.

KIRBY J: Or was there some attempt to bring the case and, if so, what, within 27?

MR BYRNE: It was precisely the opposite reaction, in our respectful submission. What happened is recorded in the appeal book at pages 78 and 79. Towards the bottom of page 78 a question was asked by his Honour just below line 40:

What type of discharge into State waters in connection with a transfer operation from a ship would not fall within part 2 or 3?
HILL: None. You could take it in and prosecute under part 2 or 3, there’s no doubt about that. But that’s not what this scheme is.

HIS HONOUR: This defendant could have been prosecuted under part 2 or 3.
HILL: Yes, and there is no doubt would have had those defences that are applicable to parts 2 and 3.
HIS HONOUR: If this defendant could have been charged on these facts under part 2, let’s say s 8, how do you avoid the effect of D?

That is a reference, of course, to section 26(d), and then a little further on at page 79 alongside line 30, the proposition was put:

What you have to do to bring it here is have a transfer operation and it is no more than that.

So the contention was being made that, if the offence alleged occurred in connection with the transfer operation, then the appropriate charge was one under section 27 and that perhaps is illustrated by the last line on pages 79 and following:

The reason it is not brought under part 2 s 8 is for the simple reason that this occurred during a transfer operation, and the Act says that if it occurs during a transfer operation you can bring it under s 26 . . . So because of the factual circumstances there is a choice . . . In other words, the prosecution because of the factual situation has the right to bring a prosecution under s 27 or under s 8 because of these factual circumstances.

That was a stage of the proceedings, in our submission, where it was well open, if the prosecution realised the difficulties with which they were confronted, for them to at least make an application to amend the terms of the summons on which it was proceeding and to amend the summons so as to provide that it was prosecution under section 8. That course was clearly open but what was almost an invitation to take that course was not accepted and the contention was continued that the prosecution under section 27 was validly brought and not, in any sense, prohibited by the terms of section 26(d).

KIRBY J: Can you tell me – there is a suggestion there that there were some advantages to the prosecution of bringing the matter under section 27 because of defences that are available to section 8. Could you just clarify that?

MR BYRNE: Yes, your Honour. Section 27, as we have discussed earlier, preserves those old offences and the circumstances of exemption, for want of a better word, are particularly limited for an offence under section 27 when compared with the exceptions available under section 8. To put that another way, the liability under section 27 is much stricter than for an offence under section 8.

HEYDON J: It is harder to, as it were, get yourself in the opening part of 27, but once you are there there are fewer defences. It is very easy to fall within the opening part of section 8, but then there are quite ample defences and those defences have to be proved by the defence presumably, not excluded by the prosecution.

MR BYRNE: Yes, matters of excuse.

HEYDON J: That is section 8(6), is it?

MR BYRNE: Yes, certainly.

HEYDON J: This difference does not – it is no part of your argument on this appeal, is it, that anything turns on the difference between the defences? You concentrate on the elements of the offence which the prosecutor must establish?

MR BYRNE: Yes, we do, although there is – if one is looking to explanations as to why the prosecution was brought under section 27, there seemed to be, in what the representative of the prosecutor was saying at that passage at page 78, an issue about the defences applicable to Part 2. It simply emerges from that, your Honour.

HEYDON J: Yes, that explains why it was done.

MR BYRNE: Perhaps.

HEYDON J: But it is not part of your argument that the defences come into it?

MR BYRNE: No, it is not, no. I accept what your Honour says.

KIRBY J: It may be relevant, at least in my thinking, in the second stage.

MR BYRNE: Exactly. It has no bearing on the autrefois ‑ ‑ ‑

HEYDON J: I meant your argument on the autrefois acquit part as distinct from the ‑ ‑ ‑

MR BYRNE: It has no bearing on that, that is right, but it is a matter that perhaps is of significance in ‑ ‑ ‑

KIRBY J: The only significance of the autrefois is, if you accept that a pure demurrer does not mean that you are put to trial on the merits, then if you are put to trial on the merits in a more rigorous prosecution which you did not have to face, losing defences which you did in law have and the matter goes to evidence and the judge decides the matter, then at least on Justice Black’s explanation of the reasons for autrefois acquit, one of the reasons is fulfilled. I mean, I am trying to get the distinction between a pure demurrer which you accept does not put you in peril and this case where you were put in peril.

MR BYRNE: No, I think the case has established that.

KIRBY J: There was an abbreviated trial, but there was a trial with evidence and the prosecution persisted to the end with its erroneous assumptions and they ran the gauntlet and they lost.

GUMMOW J: What are we to make of this order at page 100, thinking of the doctrine, the technical doctrine which is all bound up with courts of record and what goes on the role of a court and so on? It just says the summons is dismissed. No word of acquittal.

MR BYRNE: No, it is the nature of the proceedings in the Land and Environment Court being commenced by way of summons rather than by way of information or indictment as ‑ ‑ ‑

GUMMOW J: It is like a summary procedure.

MR BYRNE: Well, it is a summary jurisdiction in the sense that there is no jury ever in the Land and Environment Court and all matters are dealt with summarily and that is in that sense of the word, but ‑ ‑ ‑

KIRBY J: The court itself is a superior court of record I think we have seen in earlier cases.

MR BYRNE: Yes. As I put earlier, the nature of the proceedings ‑ ‑ ‑

GUMMOW J: Where is the acquit?

MR BYRNE: Yes.

GUMMOW J: So are we not in the realm of some sort of analogy with the principles of autrefois?

MR BYRNE: The application of the principles of autrefois ‑ ‑ ‑

GUMMOW J: It is very technical.

MR BYRNE: Yes, I accept that, your Honour.

GUMMOW J: And there is not the technicality here.

MR BYRNE: The cases have held that the principles – and I have not ‑ ‑ ‑

GUMMOW J: One is Flatman v Light [1946] KB 414 at 419, Lord Goddard’s decision, referred to in Pearce at the top of 628, but somehow there is some analogy and there is some looser recourse to double jeopardy ideas.

HEYDON J: Is this not a possibility, that it is wrong for a person in respect of whom a trier of fact has found a reasonable doubt on element (a), say, of an offence, to be put to trial on a second charge that also involves element (a) where the prosecution then invites a second trier of fact to disagree with the first trier of fact? That is not only against the policy of the law but it is against the law. Whether autrefois acquit strictly applies where summonses are dismissed, if Justice Talbot had not taken the point he did take and you had been convicted and then prosecuted again, you would have been able to say, “Well, a verdict has been arrived at” – either the summons was dismissed or the relief was granted – “It cannot happen again.”

MR BYRNE: Yes.

KIRBY J: “And as to the technicality, look at the summons, look at the order, you can’t prosecute me again for that offence in the summons because the summons was dismissed.”

MR BYRNE: Yes. But the cases have generally held – and I have not referred to them – that the principles of autrefois are applicable in summary proceedings. Whether they are precisely applicable because there is not in fact an order of acquittal or a finding of ‑ ‑ ‑

GUMMOW J: Yes, but it goes in this case to the circumstance that the case went off on this particular point about the construction of the Act, which various members of the Court have been agitating with you.

MR BYRNE: I am sorry, your Honour?

GUMMOW J: That point that it went off in that way is something that has been debated this morning.

MR BYRNE: Yes.

KIRBY J: I may be wrong, but I did not take the respondents to be saying that the issue of autrefois acquit did not apply for a technical reason, that the order made does not amount to an acquittal. Am I wrong in that?

MR BYRNE: They have not taken that point.

KIRBY J: Has that ever been raised?

MR BYRNE: In fact they have put the opposite.

GUMMOW J: They do rely on what Justice Dixon said.

MR BYRNE: Yes, but at paragraph 30 of the submissions for the respondent they say:

The plea of autrefois acquit is a plea in bar to an indictment and a defence “in the nature of” such a plea is available to a summary offence.

GUMMOW J: Yes, the question is, as in all analogies in the law, what do you mean by “in the nature of”? Anyhow, I will not pursue it any more.

MR BYRNE: May it please your Honour. Your Honours, I was going to take the Court to the precise terms of Pearce. The passages in the joint reasons which, in our submission, establish the test to be applied have been set out in our written submissions, but if I can simply refer to those again. The important passages in Pearce 194 CLR 610 are at paragraph 18 ‑ ‑ ‑

GLEESON CJ: Before you go past paragraph 18, having regard to the reference to Elrington in footnote (14), in the first sentence in paragraph 18 do the words “are included in” mean “include”? Elrington was not a case where all the elements of the second charge were included in the first charge. Elrington was the opposite case. It was a case where the elements of the second charge included the elements of the first charge. The second charge was assault occasioning grievous bodily harm and the first charge was common assault.

MR BYRNE: Yes.

GLEESON CJ: Elrington is the kind of case being referred to by Sir Samuel Griffith in the passage quoted in paragraph 20, is it not? Elrington was a case where:

the evidence necessary to support the second [charge or prosecution] –

that is, assault occasioning grievous bodily harm –

would have been sufficient to procure a legal conviction upon the first”.

That is, assault.

MR BYRNE: Yes, it is a case of that type, I accept that.

GLEESON CJ: I do not understand Sir Samuel Griffith’s test to be disapproved in Pearce.

MR BYRNE: No, it is, rather, in our submission, accommodated in what is established in Pearce.

GLEESON CJ: Well, then let us take two common cases. If you are charged with common assault and either acquitted or convicted, can you later be charged with assault occasioning grievous bodily harm? Elrington says no.

MR BYRNE: Yes.

GLEESON CJ: Now let me take the opposite case. If you are charged with assault occasioning grievous bodily harm and the Crown cannot prove the grievous bodily harm, can you later be charged with common assault?

MR BYRNE: It depends, in our submission, your Honour. The answer to that question depends on the course which the proceedings have taken. What often happens in practice in matters of this kind, and particularly in more recent times, is that the authorities, usually the police but sometimes prosecuting authorities apart from the police, will charge a person or corporation at the one time with all of the offences which might have been committed by the alleged offender, what is sometimes known as charging more serious charges together with what is sometimes described as backup charges, which are less serious charges included in the more serious charges. That is one situation.

GLEESON CJ: The first sentence in paragraph 18 appears to be directed to the second example that I gave, whereas Elrington and Sir Samuel Griffith’s comment appear to be directed to the first example I gave.

MR BYRNE: Yes, I accept that, your Honour. The situation of a person who is charged with a more serious offence, for example, in your Honour the Chief Justice’s example, a person charged with assault inflicting grievous bodily harm, if that person were tried in relation to that matter and acquitted, then a subsequent and successive prosecution brought on a charge of assault based on the same facts of course, then, in my submission, that charge would be barred by the plea of autrefois convict or acquit, as the case may be.

GLEESON CJ: What do the Americans say about that?

MR BYRNE: The Americans say that that prosecution would be barred, clearly, without question. In my submission, that is the effective finding of the cases that have been referred to in Pearce itself.

GLEESON CJ: And the first sentence in Pearce says that prosecution would be barred.

MR BYRNE: Yes.

GLEESON CJ: But what does the first sentence in Pearce say about Elrington’s Case?

MR BYRNE: What a strict reading of what is said in the first sentence of Pearce is that the subsequent prosecution in Elrington would not be barred but, in our submission, it is necessary to read what is said in paragraph 18 of Pearce together with what is said, in particular, in paragraph 24 of Pearce where the terms of the second sentence seek to define the availability of the plea in bar and they define it in a manner which is, in our submission, precisely equivalent to the definition that now prevails in the United States cases dealing with the double jeopardy clause in the Fifth Amendment.

But that second sentence that “the availability of a plea in bar [is confined] to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other” would accommodate the Elrington principle that it is impermissible to charge an offence which has been the subject of an acquittal in a more aggravated form.

GLEESON CJ: So should the first sentence in 18 be read as “are included in” or “includes”?

MR BYRNE: Yes, in order to complete that.

KIRBY J: The principle in Elrington referred to shall not be charged again on the same facts in a more aggravated form whereas in Pearce the concern was with the elements of the offence, ie, the legal elements of the offence.

MR BYRNE: Yes.

GUMMOW J: What is the distinction here between facts and elements?

MR BYRNE: I have to say that those expressions or those words, facts and elements are somewhat loosely used to mean the same thing. Sometimes in the American authorities sometimes the word “incident” is used ‑ ‑ ‑

GLEESON CJ: It means facts in issue, does it not, as distinct from particulars or evidence?

MR BYRNE: Yes, the one thing it does not mean is the evidence, because I think the cases clearly establish now that it is not a test of looking to the evidence which is sought to support the respective charges – the former and the latter charge – and that was in one sense the way in which it had been expressed by Sir Samuel Griffith in those two cases that are dealt with in Pearce. The precise words that the Chief Justice used were where the evidence in the latter charge ‑ ‑ ‑

GLEESON CJ: Is this Elrington?

MR BYRNE: No, I am sorry, this is in those judgments of Sir Samuel Griffith which are both reported in volume 3 of the Commonwealth Law Reports ‑ ‑ ‑

GLEESON CJ: As Pearce pointed out, Sir Samuel Griffith is using the word “facts” in the sense of facts in issue.

MR BYRNE: Yes.

GLEESON CJ: That is, factual elements of the charge.

MR BYRNE: Yes, I accept that.

GLEESON CJ: It is obvious that Chief Justice Cockburn in Elrington was doing the same thing. He said, in stating the principle, it is a:

well established principle of our criminal law 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.

MR BYRNE: Yes.

GLEESON CJ: That is surely treating the facts at the level of abstraction relevant to a statement of the issue for determination.

MR BYRNE: I accept that, your Honour, certainly. The same language is used, if I can take your Honours to page – and this is immediately following the analysis in the joint reasons of the American decisions, to paragraph 28 in Pearce which is at page 620 where, after dealing with the American authorities, it is said – and this is the last few lines of paragraph 28:

there is no reason to depart from the use of the test which looks to the elements of the offences concerned.

Then dealing with the instant case:

Each of the offences with which the appellant was charged required proof of a fact which the other did not.

Now, in that context, the word “fact” is used effectively to mean “element”.

GLEESON CJ: That is consistent with what this Court fairly recently held in a Western Australian case about “mistake of fact”. I forget the name of the case for the moment but it was the man who went crayfishing and got lost. Is it your proposition that Pearce is authority for the proposition, if you read paragraph 18 together with paragraph 24 and perhaps notionally include one or two extra words. You cannot go either up or down.

MR BYRNE: Yes. The test is – perhaps it is putting it crudely, but it is described this way in the American authorities, it is an elements‑based test and you look to the elements to see whether there is something different about the two successive charges by reference to their respective elements, and if the elements of one are wholly contained in another ‑ ‑ ‑

GLEESON CJ: No matter which is first.

MR BYRNE: Exactly. There is a case – and I apologise, your Honours – an important decision of the Supreme Court in the United States on this subject. It is titled Brown v Ohio 432 US 161, but it is a case which was dealt with in 1977. I think the decision of the court was given by Justice Powell and he ‑ ‑ ‑

KIRBY J: What do you read this case for? What principle?

MR BYRNE: It is in answer to that issue that the Chief Justice just raised about whether there was any relevance in the sequence, whether the notion of charging higher or lower depended on the sequence. This is dealt with in the decision of Justice Powell who gave the opinion of the court. The particular passage is at 168. He refers there to an ancient decision of Nielsen decided in 1989 some time after Elrington. It is actually interesting to note in all of the American cases that have been referred to in Pearce that Elrington is not, in fact, expressly referred to.

KIRBY J: Americans never refer to anything outside the United States.

MR BYRNE: No, there are quite a lot of English decisions referred to.

GUMMOW J: They did in the 19^th century.

MR BYRNE: Yes, but that is perhaps just a matter of history. But the important part, after the quote from Nielsen, which is before Blockburger, of course, in 1932:

“where . . . a person has been tried and convicted for a crime which has various incidents included in it –

and that means facts, or elements or facts in the sense of facts in issue –

he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.”

KIRBY J: You just have to be a bit careful here because they have their Bill of Rights provision and that is founded in principles of natural law and human rights and human dignity and so on, whereas our law has developed along a different line and, at least arguably, the autrefois acquit principles have been developed in accordance with pleading ideas, that if it is merged in a judgment, then it is final because a court has finally determined the matter in a judgment and therefore you cannot go back and have the matter reopened because that would attack the fundamental principle of the role of the courts and finality of judgments. So you have to be a little careful in picking up the American, but, of course, the provision – it is the Fifth Amendment, is it not?

MR BYRNE: It is, one clause of it.

KIRBY J: The Fifth Amendment was itself expressing a position that English law had arrived at by 1790.

MR BYRNE: Well, a number of the authorities, in fact, almost all of them, in analysing the meaning of the Fifth Amendment refer back to earlier English authority.

GLEESON CJ: It is, however, of enormous practical importance because you might fairly easily accept the Elrington notion that if a person is acquitted of a certain offence, the prosecution cannot later charge the same offence in a more aggravated form. That is easy to explain.

MR BYRNE: Yes.

GLEESON CJ: But going in the other direction, there must be many cases where a person is charged with an offence that has, say, five elements and for some reason the prosecution cannot prove one of those five elements and to say, therefore, the person cannot be charged with an offence containing four of those elements is perhaps not quite so easy to explain.

MR BYRNE: There are some qualifications on that, your Honour. In most cases the prosecution’s inability to prove the more serious charge will be apparent to it during the trial proceedings or, if it is a matter where a jury is left to determine the availability or the sufficiency of the proof on the contentious element, there will often be an alternative verdict available to the jury in those very proceedings, for example.

GLEESON CJ: There may or may not be. That seems to be the solution Sir Samuel Griffith ultimately hit on. I was just checking with the Criminal Code (Qld) and, as I understand the way it operates up there, you ask whether the accused could have been convicted of the second offence on the same indictment.

MR BYRNE: Yes.

GLEESON CJ: Which seems to make a great deal turn upon whatever their rules are about alternative verdicts.

MR BYRNE: Yes, and that is one of Lord Morris’ principles in Connelly.

KIRBY J: Why is that not a good principle, that is to say because it is rooted really in what I take to be the notion that you have merger in judgment that if it is going up, if you have been acquitted of the lesser offence, then inherent in the judgment is the fact that you cannot take it up because you have been acquitted of the lesser. But to take it down really does not – it is not inherent in the judgment and therefore you have to appeal to stay and abuse of process ideas rather than looking on the face of the judgment.

GLEESON CJ: But that does not cover Elrington, does it? In Elrington surely they could not on the indictment for common assault have got an alternative verdict of assault occasioning actual bodily harm?

MR BYRNE: No, clearly not.

KIRBY J: But is that not the point of Elrington, because they got the acquittal – the first acquittal was of common assault and battery, and then they added the other, and the actual bodily harm and grievous bodily harm which, if on the face of the judgment you are acquitted of common assault, then you are not going to be guilty of occasioning actual bodily harm, on the face of the judgment.

GLEESON CJ: That is what Elrington decided, and that would not be covered by Sir Samuel Griffith’s solution in the Criminal Code (Qld) because if it all depends on whether the second charge was covered by an alternative verdict in the indictment, that would not cover Elrington.

MR BYRNE: No, it would not.

HAYNE J: Which leads to this further consideration. First, you have intruding into the area the capacity of the prosecutor to charge in the alternative and the joinder of counts question. That is one particular realm of discourse which is itself quite complex.

MR BYRNE: Yes.

HAYNE J: Secondly, you have the alternative verdicts provided for by statute, most noticeably and earliest perhaps the attempt alternatives which were provide in 19^th century legislation, which rather suggests that the problem has to be addressed at the deeper level identified by Justice Heydon, that the root difficulty lies in the prosecution seeking to have different assessments of issues of fact in separate trials by separate juries. It is the separateness of the trial which represents the difficulty, a difficulty surmounted, if needs be, by the joinder of alternative counts.

MR BYRNE: Yes.

HAYNE J: With a single jury determining those disputed questions of fact.

MR BYRNE: Yes. All of these cases generally are dealing with successive prosecutions and that is the situation where the real difficulties lie. In practical terms, most prosecutions will not involve successive prosecutions. Where, for example, you have a person charged with a motoring offence involving an offence of dangerous driving causing death where there is alcohol involved or something of that kind, or speed or negligent driving, all of those charges are charged at the same time.

HAYNE J: But the most difficult cases, noticeably the theft and the sexual offending cases, have been the subject of very specific legislative treatment permitting the return of alternative verdicts by a jury on a charge usually of relatively serious kind permitting return of a verdict of a lesser offence.

MR BYRNE: Yes.

KIRBY J: Just be a little careful. There was a knife in that napkin, because Justice Heydon’s suggested principle is to look to the separate determination, and would that be applicable here? Because there has been, as it were, no assessment (as in the old days, or in some cases by juries) of the merits of the case. There has been no assessment. It has not really required the decision‑maker, Justice Talbot, to weigh up, “Do I believe this person? Do I believe that?” which raises very acutely the reasons for not permitting a second go.

If that is the test, then it may be that you do not meet that test because these were just facts and, really, they could never get it up. They could never get it up because section 26(d) meant that it just did not apply, and that brings you back to Justice Dixon. So the separate evaluative test which is at the heart of your acceptance of the demurrer and the need to put – the peril of trial on its merits is a danger for you because there was not any such evaluation of facts and circumstances of the case that really put you in peril for the second trial before Justice Bignold in the way Justice Talbot decided the first trial.

MR BYRNE: Your Honour, in our submission, the nature of the hearing conducted by Justice Talbot should be categorised as a hearing on the merits. I have to concede that if there was not a hearing on the merits that the strict autrefois principles do not apply but I am ‑ ‑ ‑

KIRBY J: Then you are into the second limb of your argument.

MR BYRNE: Of course, your Honour.

KIRBY J: Which you will no doubt reach before lunchtime.

HAYNE J: Just before you do, the problem of the kind identified for you by the Chief Justice’s question was resolved in a sense opposite to that which you say is established by Pearce. In R v Barron [1914] 2 KB 570, a decision of the Court of Criminal Appeal, where a man had been charged with sodomy and acquitted and then presented on indictment for committing an act of gross indecency and it was held that the plea of autrefois acquit did not avail.

MR BYRNE: I have to confess I have not read Barron but I have seen reference to it in the other cases.

GLEESON CJ: You might need to have a look at it over the luncheon adjournment and let us know in reply what you have to say about it.

MR BYRNE: Yes, your Honour, certainly. If I can just refer your Honours briefly to some of the decisions in the United States relating to the Fifth Amendment, the decision of the court in United States v Dixon 509 US 688 ‑ ‑ ‑

GUMMOW J: Just before you do that, it is worth looking at Nielsen 131 US 176. It got to the Supreme Court of the United States because it came from the Territory of Utah. As I read Nielsen and the authorities referred to, they are talking about the common law – they are not talking about the Constitution – which is consistent with the view that they have regarded the double jeopardy clause as just putting in the federal Constitution what the common law of England had provided as their birthright.

MR BYRNE: Yes.

KIRBY J: Was that before the Fourteenth Amendment made the federal provision applicable to the States?

GUMMOW J: It was a federal territory so the Fourteenth Amendment would not apply. It is like a territory appeal here. It is the common law they are talking about. There is discussion of a treatise on criminal law by Wharton which I think is a fairly famous 19th century American criminal law treatise. It is all about the common law. That is the root of it and that is the root on which the Supreme Court then later built, of course, in that judgment of Justice Powell’s, but it comes from the common law. They may be right or wrong, but it comes from the common law,

MR BYRNE: Nielsen was a case where the strict elements test, as it is sometimes described or perhaps now currently described, was not applied and what the court did in Nielsen was look to what it described as, in effect, the substance of the offence rather than the strict elements. There was an expression used in Nielsen which looked to what was described as the principal ingredient in the offence – that was a case involving an allegation of cohabitation ‑ ‑ ‑

GUMMOW J: That is right, with an unmarried woman in a condition of much lewdness it was said.

MR BYRNE: Yes. Followed an allegation of adultery, and then the circumstances examining whether there was in fact a breach of the principle against double jeopardy and whilst the elements were not precisely the same and the elements or one were not included in the other, the court there dealt with what it described as the principal ingredient in the separate offences and found that those principal ingredients were effectively the same and then held that the subsequent prosecution was barred.

GLEESON CJ: This case of Dixon returned to the Nielsen test, did it not?

MR BYRNE: Yes, in part, particularly in the judgment of Justice Souter.

GLEESON CJ: Giving Justice Souter in Grady a terrible ‑ ‑ ‑

MR BYRNE: They seem to criticise almost everything that Justice Souter said apart from one part of his judgment where he effectively – if I can take your Honours to that – held that the principles were such that what Elrington is contended to stand for here, namely, that you can prosecute for a lesser offence following the conviction of a greater offence, that seems to be dismissed by ‑ ‑ ‑

GLEESON CJ: I do not think anyone could suggest that Elrington stands for that. It just does not deal with that question, does it?

MR BYRNE: It does not deal with that question.

GLEESON CJ: It is just not what Elrington was about.

MR BYRNE: No, that is right, but in Dixon the observation is made by Justice Souter, and not criticised by any other member of the court, that – if I can perhaps cite his Honour’s words at page 748 in the final paragraph, he says:

If a person committed a robbery in a dwelling with a firearm and was prosecuted for simple robbery, all agree he could not be prosecuted subsequently for either of the greater offenses of robbery with a firearm or robbery in a dwelling.

And that is, in effect, Elrington.

Under the lens of Blockburger, however, if that same person were prosecuted first for robbery with a firearm, he could be prosecuted subsequently for robbery in a dwelling, even though he could not subsequently be prosecuted on the basis of that same robbery for simple robbery.

And reference is made to Brown v Ohio in the footnote. But that part of Justice Souter’s judgment would seem to support the proposition that where a person is acquitted of the greater offence, the offence with the larger number of elements, that person cannot then be prosecuted for the lesser offence or an offence with fewer elements.

GLEESON CJ: Where do we find in Dixon the statement of the current principle? Just leave aside the criticism of Grady.

MR BYRNE: The gist of Dixon, and in particular the judgment of Justice Scalia, was to in fact overrule the decision that had earlier been made, only three years earlier, in the decision of Grady v Corbin and to re‑emphasise what is shortly described as the Blockburger test.

GLEESON CJ: Where do we find a statement of the Blockburger test?

MR BYRNE: I am grateful to my learned friend – at page 696. His Honour says in the third paragraph:

In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same‑elements” test, the double jeopardy bar applies . . . The same‑elements test, sometimes referred to as the “Blockburger” test, inquiries whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.

GLEESON CJ: All right. Well, that is the same as paragraph 24 of Pearce, is it not?

MR BYRNE: It is, your Honour, precisely.

GLEESON CJ: Although perhaps not the same as paragraph 18.

MR BYRNE: Paragraph 18 is expressed in different terms. Paragraph 18 looks to the former and the latter offence expressly, whereas paragraph 24 is a more general statement comparing the elements of the two.

GLEESON CJ: But that general statement at paragraph 24 seems consistent with the current American law, does it not?

MR BYRNE: Entirely, in our submission, your Honour.

KIRBY J: But do we have to be a bit careful? I repeat the question earlier. The double jeopardy bar that they talk of and the expression of the Fifth Amendment at least possibly is concerned with what we would look at as the double exposure, the unfairness, the intervention to prevent injustice and oppression by the State as distinct from merged in judgment, in the pleadings as autrefois acquit has been conceived. Now, do we have to be a bit careful that we pick up American jurisprudence for the first step when it is really dealing with what we deal with on the second step? I do not know. I think we have to be a little cautious.

MR BYRNE: Well, the formulation of the test which has to be applied to determine whether the plea of autrefois is available, in my submission, can be assisted by reference to the United States authorities.

KIRBY J: But because it is in their Constitution, they have to apply that one presumably first. It is sort of mandatory. It is overarching. It is the venue to which the advocate will normally go and the judge will deal. We approach things in a somewhat different order.

MR BYRNE: I appreciate the differences because of the constitutional guarantee that exists in the United States, but the principles, with respect, are, in our submission, effectively the same. They have developed from the same source and, as this Court’s decision in Pearce referred to them as a relevant source of guidance in formulating the appropriate principle, they should, in my submission, be taken into account.

GLEESON CJ: I am sorry to nag about this, Mr Byrne, but I do and have for some time found this a pretty tricky area. Can I take you back to Dixon, the Blockburger test. You inquire whether each offence contains an element not contained in the other. Where does that inquiry lead you in Elrington?

MR BYRNE: If you compare the original prosecution in Elrington with the later prosecution, the original prosecution ‑ ‑ ‑

GLEESON CJ: Did not contain an element that was not contained in the second?

MR BYRNE: That is right.

GLEESON CJ: How would that satisfy the Blockburger test?

MR BYRNE: That in Elrington the prosecution was barred and the same result would be obtained by the application of the Blockburger test.

GLEESON CJ: So the way you work the Blockburger test is to say the prosecution can proceed with the second charge only in a case where each of the first and second offences contains an element not in the other?

MR BYRNE: Yes, your Honour. There has to be a different element in each one.

GLEESON CJ: So Blockburger would bar Elrington?

MR BYRNE: No – I am sorry, when you say “would bar”, I thought you meant ‑ ‑ ‑

GLEESON CJ: Blockburger reaches the same result as Elrington?

MR BYRNE: Yes, exactly. I thought you meant, when you said it would bar it, it would override it.

GLEESON CJ: But Blockburger also goes in the opposite direction from Elrington?

MR BYRNE: Yes, exactly.

GLEESON CJ: Up and down?

MR BYRNE: Yes, exactly. It is precisely the formulation in Pearce, particularly in paragraph 24. You look to the elements of each offence and if there is not an element in one which is not contained in the other, then the prosecutions are valid. The way in which Justice Scalia expressed it, if I can suggest, with respect, in his Honour’s judgment in Grady v Corbin 495 US 508, if I can just take the Court very briefly to that. If I can take your Honours to 529 of his Honour’s ‑ ‑ ‑

GUMMOW J: Is there any collection and discussion of the shifts in the United States position in any leading treatise? I have grown to be suspicious of looking at United States cases one by one.

KIRBY J: Yes, Justice Douglas’ view prevailed for a short time and then was overruled. Did Blockburger overrule Grady?

MR BYRNE: No, your Honour, Blockburger was in 1932, then Grady came in 1990 and Grady did not really overrule Blockburger but placed a modification on Blockburger.

KIRBY J: Where does Dixon come into it?

MR BYRNE: Dixon overruled Grady vCorbin.

KIRBY J: Yes, that is right. So why are we ploughing through these American authorities which have taken a meandering course?

MR BYRNE: They have, but an instructive course, in my submission, and they are an important part of the judgment of this Court in Pearce because the decisions there relied on in Pearce ultimately came to the same conclusion as now prevails in America, which is, in my submission, the approach that should have been taken in the appellants’ case.

If I can just refer very briefly to page 528 in the judgment of Justice Scalia – this was a dissenting judgment, of course, as your Honours are aware, but only for a fairly short time did it represent a minority view. His Honour emphasises in the last paragraph of 528:

I would adhere to the Blockburger rule that successive prosecutions under two different statutes do not constitute double jeopardy if each statutory crime contains an element that the other does not, regardless of the overlap between the proof required for each prosecution in the particular case.

Then, at the end of that paragraph his Honour posed a test which, in my submission, perhaps illustrates the nature of the test to be applied in what is often described as a very difficult area in a helpfully simple way. In the final sentence his Honour says:

Of course, this is not to say that two criminal provisions create “distinct” offenses simply by appearing under separate statutory headings; but if each contains an element the other does not, i.e., if it is possible to violate each one without violating the other, then they cannot constitute the “same offence.”

In my submission, the general statement of principle which is reached by this Court in Pearce, and in particular in that passage at paragraph 24 of the joint reasons which were expressly endorsed by your Honour Justice Gummow and by your Honour Justice Kirby in separate judgments, should have been applied to the circumstances of this case. What the Court of Criminal Appeal did in seeking to apply Pearce is disclosed in the judgment of Justice Dunford, if I can take your Honours very briefly to that. It is at page 201 of the appeal book. His Honour there at paragraph 12 refers to the principle stated in paragraph 18 of the joint reasons:

“It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which the accused has been tried to conviction or acquittal.”

So it is a general statement applying to both autrefois convict and acquit. Then there is reference to that paragraph in ‑ ‑ ‑

GLEESON CJ: That treats that as the sole test in that paragraph.

MR BYRNE: Yes.

GLEESON CJ: You cannot treat that as the sole test, bearing in mind the reference in that sentence in Pearce to Elrington.

MR BYRNE: No, I accept that, your Honour. Yes. He then goes on to refer to the passage in paragraph 24 that I have mentioned but then at paragraph 14 at the bottom of the page his Honour says:

It is not sufficient that the elements of one charge are all included in the other; in the case of autrefois acquit it must be shown that all the elements of the charge of which the defendant has been acquitted are included in the elements of the second charge.

GLEESON CJ: How can that be reconciled with Elrington?

MR BYRNE: It cannot. It is not, in my submission, something which derives from Elrington. It is also inconsistent with Pearce itself and it is also inconsistent with the American approach.

GLEESON CJ: That will give you an opportunity over lunch to tell us what you say about that case in [1914] 2 KB.

MR BYRNE: Thank you, your Honours.

GLEESON CJ: We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Thank you, your Honours. Your Honours, just dealing with that case of R v Barron (1914) 2 KB 570, it was a case where the original prosecution on a charge of sodomy was quashed on appeal and there was a subsequent prosecution on a charge of committing an act of gross indecency with a male person said to be, according to the summary of the facts on the opening page of the report at 570 about point 8:

The facts to be proved and the evidence to be adduced in support of this indictment were admittedly the same as at the previous trial upon the indictment for sodomy -

In those two prosecutions, in our submission, your Honours, the elements of the two offences were in fact different, and that was the conclusion that was effectively reached. If I can refer the Court to ‑ ‑ ‑

KIRBY J: On the face of things, it is contrary to the view that you cannot prosecute down?

MR BYRNE: It is not essential that the elements of the offence of sodomy are the same as or they are certainly not included in an offence of committing an act of gross indecency and, with respect, vice versa. The elements of the offence of gross indecency are not all included in the offence of ‑ ‑ ‑

KIRBY J: Would not every sodomy be an act of gross indecency, but not every gross indecency is an act of sodomy?

MR BYRNE: That may be the case, but that is looking at it from the point of view of comparing the physical conduct involved. It does not look towards the elements ‑ ‑ ‑

KIRBY J: Sodomy was very much related to the particular physical conduct in those unenlightened times.

MR BYRNE: Certainly, but it does not on a strict analysis of the elements – there are clearly and quite obviously elements involved in an offence of sodomy which are not involved in an offence of gross indecency, that is plain, but the elements of an offence of gross indecency are not contained in an offence of sodomy. The facts might be but the elements are not.

GLEESON CJ: This problem arises most acutely, I imagine, in those areas of the Crimes Acts where you have a kind of ascending scale of offences?

MR BYRNE: Yes.

GLEESON CJ: Assault occasioning bodily harm, assault occasioning grievous bodily harm, et cetera, using knives or employing weapons and so forth. As I mentioned earlier, you can understand the principle that says if offence 2 is only an aggravated form of offence 1, acquittal of offence 1 means you cannot charge with offence 2?

MR BYRNE: Yes.

GLEESON CJ: But if you have a hearing of the merits on offence 2, which has elements X and Y, you would never know whether the acquittal was because there was a doubt about the element X or the element Y.

MR BYRNE: No.

GLEESON CJ: The question then arises, why should not you be exposed to conviction at a different trial for an offence consisting only of element X?

MR BYRNE: Because the successive trial, the subsequent trial, would be the trial of a charge which contains all of the elements of the previous trial – I am sorry, the trial of the subsequent charge would be for an offence, the elements of which were included in the previous trial. Now, that is the standard or the formula which has been endorsed in the United States and which is contained in the judgment of this Court in Pearce.

KIRBY J: Is the foundation for that that it is oppressive of the State to proceed or that it is oppressive of the State to proceed when it could have had alternative charges and had the matter dealt with in the one case, or is it because on the face of the judgment, if you look at the judgment, it encompasses the other crime and therefore the other crime has passed into judgment? I mean, I am sorry to keep repeating this, but I want to get the concept right.

MR BYRNE: It is said in the authorities that the basis for the plea of autrefois acquit is a form of estoppel. On the other hand, the rationale for the plea of autrefois convict is as a form of merger, and to that extent they are different in the foundations of the different pleas. But the reason why the rule is formulated the way it is is because the courts, in order to prohibit successive prosecutions where it is seen that they are for the same offence, have necessarily had to develop a formula to determine how to define whether two offences are the same. The conclusion reached is that that can only be done by a comparison between the elements of the respective offences and it is necessary, in order for the offences to be different, that one include an element that the other does not and the other include an element that the other does not.

KIRBY J: I notice that at page 576, Lord Chief Justice Reading said the graver charge of sodomy involves gross indecency and something else so that it does seem to be that all sodomies will involve gross indecency in the law at that time but that not all gross indecencies will be sodomy. Anyway, we ought not to tarry too long on a case 100 years ago. We have to get the principles right. This is just an English case. We do not slavishly follow them now. We have to get the principles right for Australia.

GLEESON CJ: Historically, was there some qualification to these principles about homicide?

MR BYRNE: Only to be found in the general availability of a verdict of manslaughter wherever a person was tried for murder. It was said that because any trial for murder would necessarily put a person in peril of conviction for manslaughter that a subsequent trial for manslaughter would be prohibited. But is your Honour asking whether there was then the ability to charge, for example, an assault in circumstances where there had been a conviction?

GLEESON CJ: No, I just read some comments that seemed to suggest that there was some qualification in relation to murder and I was not sure what the bounds of the qualification were.

MR BYRNE: I am not aware of any other qualification in relation to murder other than that, where there has been an acquittal or conviction on a charge of murder, it will always preclude a subsequent charge of manslaughter.

KIRBY J: Was that because of the former state of the law, at least former in New South Wales, that it was always open to the jury to return the verdict of manslaughter?

MR BYRNE: Precisely, and that goes back to that formulation that your Honour the Chief Justice referred earlier, the manner in which it has been formulated in the Code States that the plea is available where a person could have been convicted of that charge on the trial which he or she previously faced.

GLEESON CJ: The theory, I thought, was that there was just unlawful homicide and that murder and manslaughter were different forms of unlawful homicide. I think this was discussed by us not long ago.

KIRBY J: You were in the case. You should remember that.

MR BYRNE: Yes, I remember that.

KIRBY J: What was the name of that case?

MR BYRNE: Lavender, your Honours.

HAYNE J: But it was, I think, clear that acquittal upon indictment for wounding with intent to kill did not prevent subsequent indictment for murder upon the death of the person assaulted: see De Salvi (1857) referred to in Morris (1867) LR1CCR 90 at 93.

MR BYRNE: That circumstance, where a further element occurs after the first trial, of course, necessarily means that the elements on which the subsequent proceedings rely will be different from the first.

GLEESON CJ: Did Connelly deal with this question of going down as well as up?

MR BYRNE: Connelly was a case where the accused person was originally tried with murder and acquitted again following a decision of the Court of Appeal quashing conviction. Connelly was then subsequently charged with armed robbery which was the circumstance in which the murder was committed. That prosecution was held in Connelly to be an appropriate prosecution not barred by the rules relating to autrefois acquit. The same situation would not seem to apply in the United States where there is a specific case on what is known there, as well as here, as the felony murder rule, where it was held in the United States in a case called Harris v Oklahoma, which is in turn referred to in the other decisions that have been put on the list of authorities.

In that case it was held in a very short judgment of the court that it was not open to charge an armed robbery after a person had been convicted of felony/murder based on the same facts, so that that decision and that approach would appear to be different from the approach that was taken by the House of Lords in Connelly.

GLEESON CJ: Is there recent English legislation about double jeopardy?

MR BYRNE: There was intended to be at some stage and it created at the time some considerable controversy. I know that there is English legislation which permits prosecutions to be brought again in circumstances where it is alleged that there has been, for example, fraud in the nature of conduct which is perverting the course of justice; jury tampering and matters of that kind.

There is a specific provision now in England which permits a prosecution to be brought again even though there may have been a previous acquittal. But I have to confess, I do not know the answer to your Honour’s question about the more general topic of double jeopardy, although there were certainly proposals intended to be introduced which would enable prosecutions to be launched on new material that had been obtained. Particularly it was directed towards where DNA evidence had been obtained subsequent to an earlier acquittal, but I apologise that I do not know the answer to that question. I know that it was mooted but as far as I am aware it was not actually introduced. I will check the answer to your Honour’s question.

Your Honours, just one other reference, if I may, in relation to the question regarding the issue whether the appellants were in peril in the proceedings before Justice Talbot. Reference has been made to the work which has been authored most recently by Justice Handley - Spencer Bower, Turner and Handley – The doctrine of Res Judicata, and reference has been made in the judgment of the primary judge and in the judgment of the Court of Criminal Appeal to paragraph 59 of that work. There is a further passage that I would ask your Honours to have regard to which is in chapter 13 of that work, and in particular at paragraph 321 which is at page 172. This material was put on our list of authorities. Under the heading on page 172, paragraph 321, “The nature of the acquittal”, it was said there that the plea of autrefois acquit:

will not apply unless the first proceeding was a prosecution on a criminal charge which terminated in favour of the accused. However, not every termination will support the plea. Thus the discharge of a jury before verdict is not an acquittal nor is the withdrawal of a summons. There must in substance have been an acquittal on the merits. It is essential that the defendant was in jeopardy on the prior charge. Thus the hearing of the earlier proceedings must have commenced either by a plea in summary proceedings or by the accused being put in charge of the jury in a trial on indictment. If thereafter a charge or count is dismissed, albeit without a hearing on the merits, the prosecution may not institute fresh proceedings on the same or an essentially similar charge or count.

There is authority cited in support of that proposition, Williams v DPP [1991] 1 WLR 1160.

In that case, your Honours, just referring, if I may very briefly, to the headnote at page 1161 about four lines down – this was one of those driving cases where there was some technical difficulties relating to certificates disclosing blood alcohol levels – the observation is made:

At the hearing of the information but before the defendant had entered a plea his solicitor submitted that a conviction was not possible. The prosecution’s application for an adjournment was refused and the summons dismissed by the justices.

There followed a fresh summons in relation to another charge.

Can I refer your Honours to that passage which is cited by the authors of Spencer Bower, Turner and Handley at page 1170, and this is in the judgment of Rougier J. There is reference there, second paragraph just below B:

As to the temporal situation, I have reached the conclusion that Mr. Hughes is correct in his submission that the point of time at which the defendant becomes in peril has to be some formal stage at or after the start of the proceedings.

Reference is made to the case of Tonner, which involved indictment, and to a decision of a juvenile court. His Honour went on:

It seems to me that in proceedings before justices, this is the logical moment whereat a defendant begins to be in peril of a conviction. Although it could be said that when a preliminary point is taken before plea, battle has been joined, as it were, yet all that is due to happen at that stage is that the point is decided either for or against the defendant; he is not in peril of conviction of the charge he is called upon to answer as a result of that decision.

Now, I should say that the following paragraphs where the passage commencing “Turning to the qualitative” ‑ ‑ ‑

GLEESON CJ: The following paragraph has perhaps some relationship to the present case, does it not?

MR BYRNE: It does, and it is not something that supports our position, but it is particularly relevant to those matters that your Honour Justice Heydon raised earlier.

Your Honours, can I move briefly to the question of the abuse of process point shortly described. The written submissions that have been filed on behalf of the appellants have addressed this issue. The general proposition for the appellants is that the successive prosecutions that have been brought against them are oppressive and should be stayed as an abuse of process. It is contended that both the primary judge and the Court of Criminal Appeal erred in denying the remedy of a permanent stay to the appellants because both the primary judge and the Court of Criminal Appeal held that there was no actual prejudice that had been established by each of the appellants.

In our submission, your Honours, it is not necessary that there be actual prejudice in the sense of some identifiable shortcoming in the trial proceeding such as to render them unfair and we rely in part on the reference that has been made to your Honour the Chief Justice’s judgment in Gill v Walton (1991) 25 NSWLR 190 where your Honour examined the availability of a stay in circumstances where it could not be said that there was no prospect of conducting a fair trial.

There may have been a prospect of conducting a fair trial of this second prosecution because there was no actual prejudice demonstrated by the appellants, but it was still in the circumstances an oppressive prosecution and those circumstances included not only the significant delay that had occurred in the prosecution but also the fact that the appellants had been, as it were, forced to endure the ordeal of a trial that as is now conceded they should never have been subjected to.

GLEESON CJ: Just who were these appellants?

MR BYRNE: One was the master of the ship, your Honour.

GLEESON CJ: What was the nationality of the ship?

MR BYRNE: It was Singaporean, I think – I am sorry, the company is based in Singapore, the ship was registered in Panama and the master is from India.

GLEESON CJ: So she came into Sydney Harbour with her flag of convenience fluttering in the breeze and dumped. It may not be a case about endurance.

KIRBY J: I do not think they are the merits that we have to be concentrating on when we are addressing whether there was a trial on the merits.

MR BYRNE: No, certainly, your Honours.

HEYDON J: Your point rests on the position of the master, the human being?

MR BYRNE: In terms of the personal ordeal through which he has been put, certainly, but even in the case of a corporation, of course, the officers of the corporation who were seen to be responsible, and that is primarily the master, of course, are people who have to put up with the stress and the strain of a criminal prosecution.

Your Honours, the question of whether or not there should have been a permanent stay, in our submission, is a matter that is now open for this Court to determine if the primary ground on which these appeals are based is decided adversely to the appellants, and we would submit that in the circumstances, it is an appropriate case in which a permanent stay of proceedings should be ordered.

KIRBY J: They are pretty rare in Australia, are they not? They are exceptional because of the delineation. Maybe it goes back to our constitutional notions that the prosecution is the business of the Executive Government and the courts will only rarely intervene.

MR BYRNE: All of those issues are at large and, your Honour, with respect, is correct that they tend to be rarer certainly than they are in England. There seems to be at least in certain types of cases a greater willingness in other jurisdictions – New Zealand in particular as well as England – to grant permanent stays in cases of significant delay, but this case is not so much about delay as oppressive prosecution, in our submission, and it is not necessary to establish separately that there is some prejudice independent of the inevitable prejudice caused by being a defendant in a criminal proceeding. May it please the Court.

GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Meagher.

MR MEAGHER: Thank you, your Honours. Could I address first the issue as to whether a plea of autrefois acquit or some plea of that kind is available. In our submission, that question is to be answered by reference to an analysis of the elements of the relevant offence – Pearce establishes that – and those being the elements of the offence which must be proved by the prosecution.

I will take your Honours to the specific provisions in sections 8 and 27 of the State Act which provide that there are matters of defence in relation to which the onus is on the defendant but that otherwise the elements are clearly stated and in relation to a section 8 offence the elements are discharge of oil from a ship into State waters and I will come later to take your Honours to the provisions.

It is clear, because of section 26(d) that if a discharge is one to which section 8 applies then section 27 does not apply so that this is a case in which the elements of the offences are mutually exclusive. It is a case, to use the words of Justice Scalia in Grady v Corbin 495 US 508 at 529, it is possible to violate one without the other and if that is the position then the offences cannot constitute the same offence and that is the position here. There are no common elements and the section 27 offence includes the requirement that the discharge occur in a transfer operation.

Before taking your Honours to the State Act, could I remind your Honours that in our written submissions in paragraphs 19 and following ‑ ‑ ‑

GUMMOW J: Going back to section 27, an element of the offence, as is apparent from the opening words of 27(1) is that 26(d) does not operate.

MR MEAGHER: That is so. The definition of the relevant elements of an offence against section 27 is a discharge to which this part applies and section 26 tells you what that is. As I was saying, your Honours, in paragraphs 19 and following of our written submissions we have explained the context in which the State and Commonwealth legislation came to be enacted. Could I just add one further matter by way of explanation. Before the legislation which gives effect to the MARPOL Convention there was, as my friend has indicated, Commonwealth and State legislation which sought to give effect to the 1954 Convention. The relevant Commonwealth Act - and I will not take your Honours to these - but the relevant Commonwealth Act was the Pollution of the Sea by Oil Act and the relevant State Act was ‑ ‑ ‑

GUMMOW J: What year for the Commonwealth Act?

MR MEAGHER: 1960 the Act was first passed but it then was amended from time to time and became known as the Act 1960 to 1973. The State Act was the Prevention of Oil Pollution of Navigable Waters Act 1960. The point I wish to make is that in relation to that State and Commonwealth legislation the Commonwealth legislation did not purport to operate in the territorial waters of Australia. It operated outside the territorial waters and the State legislation purported to act ‑ ‑ ‑

KIRBY J: Was this before the Seas and Submerged Lands Act Case?

MR MEAGHER: Yes, it is, and that is the point, your Honour. At that point of time the States were believed to have jurisdiction to pass legislation in respect of the marine league or three nautical miles, so that under the 1960 legislation the legislation covered different areas and the Commonwealth legislation only purported to prohibit discharges from Australian ships outside the area of the territorial sea.

When the 1983 Commonwealth Act was passed, as we refer in paragraph 21 of our written submissions – and it did not come into operation until 1988, but the Act when first enacted only applied to Australian ships outside the territorial sea and it left to the States the role of passing legislation which contained prohibitions in relation to the territorial sea. That was in respect of all ships, both Australian ships and foreign ships. What happened was that the States did not pass that legislation and as a result in 1986 the Commonwealth Act was amended to extend its operation to discharges in the territorial sea and in the sea on the landward side of that sea, which would include Port Botany. As I have indicated, that was because of a delay in the State legislation.

GLEESON CJ: Was this vessel heading for the container terminal?

MR MEAGHER: I am not sure, your Honour. It was at the Caltex Wharf, I think, in Port Botany. Can I take your Honours to tab 3 of our supplementary material. The point I am ‑ ‑ ‑

GLEESON CJ: She was discharging into the oil refinery, is that right?

MR MEAGHER: I think so, yes, your Honour. Tab 3, the second reading speech of the 1986 Amendment Bill, page 870, right‑hand column, the last paragraph:

its sole object is to enable the early Australian implementation of the MARPOL Convention . . . This action has become necessary because of the significant and continuing delay which has occurred in the enactment of the complementary State and Territory legislation which is at present needed to enable the implementation of this Convention.

That legislation was, in part, a consequence of the Offshore Constitutional Settlement between the Commonwealth and the States. When one goes then to the Commonwealth Act – and I take your Honours to that before I take your Honours to the State Act. It is the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. If your Honours go first to section 9, after the 1986 amendments it contains, subject to subsections (1A), (1B), (2) and (4), a prohibition of “any discharge of oil or of an oily mixture . . . from a ship into the sea”. If one goes then to subsection (1A), it provides that:

Subsection (1) does not apply in relation to the sea near a State . . . to the extent that a law of that State or Territory makes provision giving effect to Regulations 9 and 11 of Annex 1 to the Convention –

If I could just take your Honours to annex 1, which is at page 53 of the reprint, your Honours will see in regulation 9, which is on page 57, that:

(1) Subject to the provisions of Regulations 10 and 11 of this Annex and paragraph (2) of this Regulation, any discharge into the sea of oil or oily mixtures from ships to which this Annex applies shall be prohibited except when all of the following conditions are satisfied:

So there are exceptions in regulation 9(1). Then if your Honours go over to regulation 11 on page 60, your Honours will see that there are further exceptions to the application of the general prohibition in regulation 9. So, if one goes back to section 9(1A), the effect of that subsection is that the general prohibition in subsection (1) does not apply in relation to the sea near a State to the extent that the law of the State makes provision giving effect to the general prohibition and the exceptions and defences provided for in the Convention.

Subsection (1B) makes it clear that the general prohibition does not apply to discharges of oil from a foreign ship unless it occurs essentially in the territorial sea or on the landward side of the territorial sea. So that, taking the provisions together, there is a general prohibition outside the territorial sea in respect of foreign ships and a general prohibition in respect of foreign ships – I withdraw what I said. The general prohibition outside the territorial sea in respect of Australian ships and a prohibition inside the territorial sea in respect of Australian and foreign ships, to the extent that there is not State or Territory legislation which otherwise operates, in which case this legislation does not apply, with the consequence that there is no inconsistency between the Commonwealth and State legislation.

Now, just taking your Honours forward to Part III to indicate that Part III on page 12 of the Commonwealth Act deals with the prevention and pollution by noxious substances and contains a similar prohibition in section 21 in respect of the discharge of noxious substances which are substances carried in bulk, or as cargo in bulk, and there is a similar set of provisions which contain limitations in the event that there is State or Territory legislation.

Then could I take your Honours to the State Act, and your Honours have Reprint No 1. Again, there are no relevant amendments since September 1997. Your Honours will see that Part II deals with pollution by oil and ‑ ‑ ‑

GUMMOW J: Do we have to look at section 15B of the Interpretation Act?

MR MEAGHER: Have we?

GUMMOW J: Yes.

MR MEAGHER: Of the State Act, your Honour?

GUMMOW J: No, the federal Interpretation Act.

MR MEAGHER: I have looked at it, your Honour. I do not think it has anything to say in relation to the construction of the Commonwealth Act.

GUMMOW J: There is no definition anywhere of this expression “territorial sea”, is there?

MR MEAGHER: No, there is not.

GUMMOW J: It is left as a constitutional expression, is it not?

MR MEAGHER: Yes. Can I say, your Honour, there is a nice question which does not arise in this case as to whether the use of the expression “territorial sea” in the State Act has some sort of ambulatory operation because at the time the Act was passed the territorial sea was regarded as being three nautical miles and then in 1990, following the Seas and Submerged Land Act, there was a proclamation which extended it to 12 nautical miles. That question does not arise in this case because the discharge happened in Port Botany.

GLEESON CJ: What happened in this case procedurally was, was it not, that the charge was laid under section 27, it gets before Justice Talbot and there is an argument by Mr Gee that there was no case to answer for the reason that the charge is laid under the wrong provisions. Justice Talbot said, “Yes, the charge is laid under the wrong provision. Section 27 has no application to this case. Charge dismissed.” The charge is then laid under what, according to Mr Gee’s argument, was the right provision, or the applicable provision, and Mr Gee or his successor says, “Autrefois acquit”.

MR MEAGHER: That is so. In a sense, the basis on which the appellant succeeded before Justice Talbot was that the elements of this offence were within section 8 and therefore not within section 27 because of section 26(d).

KIRBY J: But you were put on notice that there was a flaw. You are a public authority. You represent the State. You are well resourced. You put the plaintiff to the peril of conviction. You pressed for it. You refused to accept that there was a flaw. You argued against it and the matter proceeded to judgment.

MR MEAGHER: Well, as your Honour observed in the earlier debate, we received a letter which was quite unclear as to what the point was ‑ ‑ ‑

KIRBY J: It is more than they had to do. We have an accusatorial system of justice in criminal matters.

MR MEAGHER: We accept that the prosecutor took a wrong view of the law. The prosecutor was disabused of that view following a judgment of Justice Talbot and then made a decision to commence proceedings under the correct section.

GLEESON CJ: But Mr Byrne accepts, as I understand it, that autrefois acquit only applies where there has been a hearing on the merits.

MR MEAGHER: I accept that, your Honour.

GLEESON CJ: What was the hearing on the merits here?

MR MEAGHER: In our submission, there was not and whether one looks at it by reference to an analysis of the elements and accepts the test which is put as being stated in Pearce, that is, that they are the same offence unless each contains an element that the other does not, even if one accepts that that is the Pearce test, that test is satisfied here.

GLEESON CJ: At what stage did Mr Gee put his “no case” submission, at the end?

MR MEAGHER: At the end of the prosecutor’s evidence.

GLEESON CJ: Was the prosecutor’s evidence in affidavit form?

MR MEAGHER: It was in affidavit form, and then there was cross‑examination of some of the experts, not all of the witnesses.

GLEESON CJ: That was evidence about the circumstances of the oil leak, I suppose?

MR MEAGHER: Yes, and as to the fact that it was oil and quantity and things like that.

GLEESON CJ: Justice Talbot never made any findings, did he, about the oil leak or responsibility for the oil leak?

MR MEAGHER: No, he did not have to.

KIRBY J: He described what happened.

MR MEAGHER: He described what happened for the purpose of setting the context to his deciding what was described as the textual argument and resolved that ‑ ‑ ‑

KIRBY J: Yes, but hang on, you were proceeding to a trial. There was a trial going on.

MR MEAGHER: For the reasons which have become clear, in my submission, in the argument, having regard to what Justice Dixon says in Chenoweth the appellants were never in jeopardy because, to use his words ‑ ‑ ‑

KIRBY J: That is not the view you took at the trial.

MR MEAGHER: It certainly was not the view we took at the trial, but the way he expresses it in Broome v Chenoweth at 600 is:

if the defendant could have taken a fatal objection . . . his discharge or acquittal thereon could not afford a bar.

That, in our submission, is the law. So that whether one looks at it in terms of elements and accepts the broad Pearce test, or one looks at it in terms of the question whether the appellants were in jeopardy, in our submission, the answer is the same.

CRENNAN J: Was there any reason why the summons might have been regarded as curable insofar as it did not refer to, what I will call, the section 27 extra element?

MR MEAGHER: I am not sure, your Honour, if that question was ever ‑ ‑ ‑

CRENNAN J: Under the old Justices Acts, the Jervis Acts, you did not have to include every element and sometimes a reference to a section alone might have been sufficient, and I am just wondering whether this summons was fatally defective or defective in a sense which was possibly curable?

MR MEAGHER: If one is looking at the charge under section 27 and ignoring the effect of section 26(d), putting that aside, if one did have a case where the elements of section 27 included the section 8 elements plus an additional element, then the summons does not record the additional element, but in my submission, that would be curable and would not be fatal. The problem here is that all of the matters that are recited as elements are in fact not elements because of section 26(d).

CRENNAN J: Yes, I understand that.

MR MEAGHER: I was going to take your Honours to ‑ ‑ ‑

HEYDON J: To the State Act.

MR MEAGHER: To the State Act and before doing so, could I just take your Honours back to our supplementary material again to make a final point about section 26(d) behind tab 2. This is the second reading speech in the legislative council and the first full paragraph at page ‑ ‑ ‑

KIRBY J: Which tab is this?

MR MEAGHER: This is tab 2, page 17,142 - the paragraph commencing “The Commonwealth legislation”.

The legislation before this House . . . will give effect to the convention within the State’s waters. It will also repeal the provisions of the Prevention of Oil Pollution of Navigable Waters Act 1960 and incorporate all existing provisions which are not inconsistent with the MARPOL convention -

That, in our submission, is in effect a reference to the work which section 26(d) is intended to do. If one goes to the State Act and goes to section 26, it is clear that it seeks to take out of the elements of an offence under section 27, “a discharge to which Part 2 or 3 applies” and, as I have indicated, Part 2 of the State Act implements the relevant provisions of Annex I to the Convention in relation to pollution by oil and Part 3 implements the provisions of Annex II to the Convention in relation to the pollution by noxious substances.

For those reasons, we submit, as I have already put, that this is not a case where a plea of autrefois is available, even if one accepts that Pearce states this broad test which is equivalent to the rule in Blockburger and I will take your Honours to that later in the argument.

GLEESON CJ: Mr Meagher, my memory might be playing tricks with me, but I had an impression that – this is a question that keeps arising all the time in these environmental issues, there are different forms of charge that can be laid in relation to pollution. Has not this point arisen in the New South Wales Court of Appeal or Court of Criminal Appeal earlier?

MR MEAGHER: There are two cases, I think. Your Honour delivered judgment in one of them involving the Environmental Protection Act. I cannot now remember the names of them but I have looked at both of them, your Honours, and they do not address this particular point.

GLEESON CJ: I see.

KIRBY J: Could you just give a note on that or give us the citation of that?

MR MEAGHER: Yes, one of them is Environment Protection Authority v Australian Iron and Steel 28 NSWLR 502. Could I deal, perhaps more briefly, with the formulation of the autrefois, a quick test in Pearce. We say that, strictly speaking, this question does not arise in the sense that we satisfy even the broader test but, again, in our written submissions we have submitted that the test as stated in paragraph 18 of the joint judgment is not consistent with the authorities and text which is cited to support it and that it would be consistent with those authorities if it stated that the plea in bar goes to offences, the elements of which are the same as or include the elements of the offence for which the accused is being tried to conviction or acquittal.

Could I just make this point about Pearce. Pearce was not a case of successive prosecutions. It was not a case where there had been a prior acquittal or conviction. The argument which was put in Pearce was that the prosecutor should not be permitted to bring simultaneously two charges which contain some common elements.

The way in which the matter is approached in the joint judgment is to ask whether the defendant would have had a plea available to one offence without identifying which of the offences that might necessarily be. So that it would follow that if each offence contained an element that the other did not, then there could be no plea available, whichever way the offences were dealt with, in whatever order, because one could say that the elements of neither was a subset of the elements of the other or that neither was a lesser included offence of the other. This, in our submission, explains why the statement in Pearce at paragraph 28 is correct in the context of the discussion which precedes it.

HEYDON J: Do you mean 24?

MR MEAGHER: I mean first – well, 24, but I was going first to 28. The last sentence:

Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld -

that is, in whatever order the two offences were dealt with. The formulation – going back to paragraph 24 – does not identify, because it does not have to perhaps, which of the relevant offences is the first offence and which is the second and it can be explained, that is the statement in paragraph 24, as consistent with what we submit is the correct statement of the principle, that is that the plea in bar goes to an offence which includes all of the elements of an earlier offence of which the accused has been convicted or acquitted. In other words, the offence of which the accused has been acquitted or convicted is a subset of the later offence to which the plea in bar goes.

GLEESON CJ: So in your submission the plea prevents you going upwards. It does not prevent you going downwards?

MR MEAGHER: Subject to this matter, your Honour. Subject to this matter and it is apparent on a reading of Barron’s Case and it is apparent on a reading of some of the earlier authorities that if the second offence is one of which you could have been convicted at the first trial – could have been convicted but were not – then in law there is regarded as being an implied acquittal.

GLEESON CJ: That is the alternative verdict approach.

MR MEAGHER: That is so. At the first trial there are common law alternatives to the offence charged or statutory alternatives. If there is an acquittal then in law it is treated as an acquittal of the alternative offences and subject to that qualification you can charge down.

GLEESON CJ: Does that mean your proposition is that autrefois acquit prevents charging for offence 2 where the elements of offence 2 are identical with the elements of offence 1, plus charging for offence 2 where offence 2 is an aggravated form of offence 1, plus charging for offence 2 where offence 2 is an offence of which you could have been convicted on the indictment when you were charged with offence 1.

MR MEAGHER: Yes. The answer is yes, your Honour. I will give your Honours reference to an article which deals with the position in the United States, but in the United States there developed this doctrine of lesser included offences and the doctrine of lesser included offences provided that if you were charged with an offence which included lesser included offences and you were acquitted of the offence, you were taken to be acquitted of all of the lesser included offences. That doctrine informs the rule which developed and which ultimately was stated to be the only rule in United States vDixon.

I will take your Honours to the decision In re Nielsen where, as your Honour Justice Gummow observed, the Court does look at the position under the common law and in doing so they do recognise this notion of implied acquittals. Perhaps I can do it this way. We have made available to the Court a couple of earlier decisions which are authority for the proposition that you can charge down except where there might be an implied acquittal. The first is a case called the R v Douglass (1865) 4 SCR 157, they are the New South Wales reports. This, as the sidenote indicates, was a case where there was:

An acquittal on a charge of feloniously assaulting and wounding with intent to murder, is not a bar to an information for a common assault and battery -

which was charging down.

GLEESON CJ: That is a decision of Sir Alfred Stephen.

MR MEAGHER: Yes, and the relevant passage – I will not read it to your Honours, but it starts at the top of page 159 in the judgment of Sir Alfred Stephen and he says:

Undersuch circumstances, it seems to me clear that he could not have been convicted on the first information, on the same evidence which would have sustained a conviction upon the second –

Then he goes on to refer to some legislation which had apparently been repealed which might have provided for an alternative charge. He says:

But as the law now is, I am of opinion that on the information for the felony the prisoner could not have been found guilty of the misdemeanour.

Therefore there was no implied acquittal, therefore no bar. Now, this decision is cited with approval in the case of R v Bingham (1881) 2 NSWR 90 and we have given the Court that. This was not a case which, in a sense, involved charging up or down. Ultimately it was held that the two offences each contained an element that the other did not. One was setting fire to the grain and the other was setting fire to the shed which contained the grain. But the point of taking the Court to it is, first of all, at page 92, one gets a discussion of the decision in Vandercomb, which is the first case that we can find which states the test which ultimately is restated by Sir Samuel Griffith, that is:

The true test is, whether the evidence necessary to support the second indictment would have been sufficient to procure a conviction on the first.

Then one finds the statement to the same effect in the judgment of Justice Manning and then in the judgment of Justice ‑ ‑ ‑

KIRBY J: That refers to the evidence.

MR MEAGHER: It does refer to the evidence, but that must be understood as referring to the elements of the offence. The decision of this Court in Pearce accepts that proposition. Then in the judgment of Justice Windeyer ‑ ‑ ‑

GLEESON CJ: Consistently again with whatever was that case in Western Australia about mistake of facts. I think Justice Kirby and I in a joint judgment emphasised that where Sir Samuel Griffith in another case or another context was talking about this sort of thing, he meant to be understood by reference to the elements of the offence.

MR MEAGHER: In Pearce at paragraph 20 in the joint judgment it is said:

Closer examination reveals that the inquiry suggested is different; it is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences.

GLEESON CJ: Yes. What must be proved in the sense of what are the facts in issue, not particulars?

MR MEAGHER: No, what are the facts which ultimately have to be proved beyond reasonable doubt by the prosecution as elements of the offence.

GLEESON CJ: Because the only facts that the prosecution ever has to prove beyond reasonable doubt are not the primary facts; they are the facts that are the elements of the charge.

MR MEAGHER: Yes. Now, just going back to Bingham, in the judgment of Justice Windeyer he says in the second‑last sentence of his judgment:

The rule applicable to the pleas of autrefois acquit was stated in R. v. Douglass when the whole of the cases were gone into.

Now, the reason I took your Honours to Bingham is that in the first of the three judgments of Sir Samuel Griffith, that is, Ex parte Spencer 2 CLR 250, he cites among other cases Bingham as authority for the proposition that the relevant test was: would the evidence that was necessary to support the second have been sufficient to procure a legal conviction on the first?

Now, staying with the subject of charging down, could I also ask your Honours to look at O’Loughlin’s Case [1971] 1 SASR 219. I only wish to take your Honours to a passage in the judgment of Chief Justice Bray, but if I could take your Honours to page 221. It is a useful analysis because in paragraph 2 it identifies the four possible situations in respect of successive prosecutions, that is:

(i)       a previous acquittal of the lesser offence . . .
(ii)      a previous conviction for the lesser offence . . .
(iii)     a previous acquittal of the greater offence . . .
(iv)     a previous conviction of the greater offence –

If I could stop for a moment, the cases like Elrington and the three decisions of Sir Samuel Griffith really only address the first two of those four possible situations, and the debate we have been having concerns the third of the four but ultimately one will see that the fourth is addressed in the same way. Now, staying with the third of the four, that is, “a previous acquittal of the greater offence and a subsequent charge of the lesser”, could I take your Honours to page 222 and to the paragraph at point 6. It says:

If the accused is acquitted on a charge of a greater offence . . . there is no logical reason . . . why he should not be tried for a lesser offence wholly comprised within the greater offence, provided it was not possible for him to have been convicted of the lesser offence on the first trial, and provided further that he can call in aid no principle of issue estoppel.

Well, the latter part of that is probably no longer good law after the decisions of this Court in Rogers and the earlier decision in Storey where it was held that the doctrine of issue estoppel as a doctrine had no application to the criminal law. Then he goes on to say:

This explains cases like R. v. Barron.

I will not take your Honours to what is said in Connelly [1964] AC, but could I give your Honours a reference. The report starts at page 1254. It was an autrefois acquit case and the detailed analysis and summary of the relevant principles is stated in the speech of Lord Morris at page 1305. The second principle which he states is the one that we are presently concerned with. He states the first:

that a man cannot be tried for a crime in respect of which he has been previously been acquitted or convicted; (2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted.

That is the only qualification or the principal qualification to the rule that you can otherwise charge offences which contain some of the elements of an offence of which you have been previously acquitted.

HAYNE J: You say his Lordship states principles not to be adopted when he amplifies it by a further two propositions. You say the whole amplitude of autrefois acquit is to be found in propositions 1 and 2, full stop.

MR MEAGHER: No, I do not say that at all, your Honour. Indeed, we do not suggest that the principles stated in Elrington or in the passages cited in Pearce from Sir Samuel Griffith purport to be a statement of all of the circumstances in which the plea of autrefois acquit or convict is available. It is a very complex area and there are a number of principles which interact. Some of the authorities are not always consistent and Lord Morris has sought to set out a number of principles which he says govern the position. The principle I was taking the Court to was the one which specifically governs what might be described as charging down. Finally, in our written submissions in paragraph 49 we point out – and I will hand up copies for the Court.

GLEESON CJ: Thank you.

MR MEAGHER: There are nine copies. We point out that there are provisions in the Criminal Procedure Act (NSW) which were included by amendments made in 1990 which expressly provide or contemplate successive prosecutions of lesser offences, the elements of which are included in an offence of which the accused has been acquitted. Now, they provide for the notification of what are described as backup offences, and they provide for the transfer of those offences to the District or Supreme Court which is here in an indictable offence to which the other offence is a backup offence. So they contemplate that the offences will be dealt with together, but the contemplation that they be dealt with together is subject to a proviso that it is in the interests of justice that that occur and if it does not occur, then there would be a subsequent trial of the backup offence.

GLEESON CJ: That is what I wanted to ask you about. In a lot of these areas where there is a hierarchy, if you would like to use that word, of offences, some of the offences at the top of the hierarchy are indictable offences and some of the offences at the bottom of it are summary offences dealt with in different courts by different procedures. You come across this problem in relation to drug offences a good deal where you might have an offence of possession, possession for personal use and then possession of a quantity which is deemed supply and so forth. Some might be summary, some might be indictable offences. How do you handle that?

MR MEAGHER: This legislation is designed to permit the court hearing the indictable offence to also deal with the backup offence, which might be a summary offence, after the trial in relation to the indictable offence or if there has been a plea at the time of sentencing. So it is a procedural provision which permits the summary backup offence to be dealt with after the indictable offence has been dealt with, whether by way of acquittal or conviction, and it provides for it to be dealt with by the trial judge if necessary by taking additional evidence. Now, in the case we refer to in paragraph ‑ ‑ ‑

HAYNE J: The consequence is that the risks of the complexity of the criminal law and the increasing creation of hierarchies of offences are risks that are cast on the accused in the form of successive prosecutions arising out of the single transaction.

MR MEAGHER: Yes. Subject - and we have to come to this – but subject, of course, to the powers of the courts to deal with something which would constitute an abuse and there are many authorities of this Court which deal with that subject. But could I just stay with what your Honours said to remind your Honour that in Pearce in the joint judgment the Court rejected the proposition that there was any rule which required all charges arising out of the same conduct to be brought at the same time. I refer your Honours to paragraphs 25 and 26 in the joint judgment in Pearce.

That is not to say that the laws relating to abuse of process do not then become available but we would submit that Pearce stands for the proposition that there is no rule that requires prosecuting authorities to bring at one time all the charges that they seek to lay as a result of a single episode of offending. That is a rule in the sense that it gives rise to an automatic right to a defence or something in the nature of a plea in bar.

HEYDON J: Does paragraph 26 reject any proposition or merely point out the extreme difficulties in it in an argumentative kind of way?

MR MEAGHER: In our submission, it in effect rejects it, your Honour, because it points out ‑ ‑ ‑

HEYDON J: Because it calls on conclusions in paragraph 27.

MR MEAGHER: It runs contrary to the rule upon which the pleas are based which prohibits prosecution twice for a single offence and says that if you move away, in effect, from an elements test to a test which looks at the conduct or the more general evidence led in relation to the conduct, you are in truth moving to a rule that requires all charges to be brought at the one time.

HEYDON J: This New South Wales legislation, are you saying it is inconsistent with Pearce or merely reveals an assumption as to the common law?

MR MEAGHER: It is reveals an assumption as to the common law which would be inconsistent with the test formulated in paragraph 18 of Pearce. Indeed, in the decision that we have cited in paragraph 49 of our written submissions, that is, DPP v Sinton, in that case the prosecutor did not notify the superior court of the backup offence and subsequently sought to move in relation to the backup offence. The magistrate stayed that proceeding, Justice O’Keefe upheld the decision of the magistrate, and the Court of Appeal reversed his decision holding that, in the circumstances, there was no abuse in prosecuting the second charge. If the rule as stated in paragraph 18 of Pearce is correctly stated, then that second charge would not have been available and there would have been a good plea of autrefois acquit available to the defendant.

I have not, and it is not necessary here to deal with the position in relation to the charging of what might be described as a lesser offence after a conviction of a greater offence where doctrines of merger might indicate that there should be a plea in bar. Can I just indicate to the Court that again there are different principles which apply. The matter is dealt with in O’Loughlin at page 222. There are statements of this Court in Saraswati (1991) 172 CLR 1 at 5 in the judgment of Justice Deane. Those passages are referred to by the Chief Justice in Dodd’s Case. Your Honour the Chief Justice will remember in Dodd’s Case it was, in fact, a case of a backup offence, where there was a charge of possessing and a charge of supplying heroin, and the magistrate committed on the greater offence and, instead of leaving the backup offence to be dealt with subsequently, convicted on the backup offence. In those circumstances, the court held that there was a plea available consistent with the decisions in Elrington and the decisions of Sir Samuel Griffith.

GLEESON CJ: What happened in Dodd was that the police raided some premises and they found the accused in possession of a certain quantity of heroin and they then charged him with a series of offences, increasing in order of importance or seriousness – some of them were indictable offences and some of them were summary offences – and at the committal proceedings the defendant did not turn up and the magistrate convicted him of the summary offences and committed him for trial on the indictable offences, and when he got for trial on the indictable offences he turned up and said, “Autrefois acquit”. That was upheld on the basis that he had been convicted of possession and the indictable offence, although expressed as an offence of supply, really on the application of the legislation, involved charging him with possessing it with a certain intent and Elrington was applied.

MR MEAGHER: Yes. Now, your Honour, if one applies the strict test in Pearce as stated in paragraph 18, there would be no autrefois convict defence available or plea available in the circumstances of Dodd.

GLEESON CJ: Or Elrington.

MR MEAGHER: Or Elrington. The last thing I want to say about Pearce is that if one looks at paragraph 18, it is quite clear that in the majority judgment what their Honours were seeking to do was to state the test and to state the test by reference to the first and second offence, if you like, and the cases cited, that is, Elrington, is only authority for a test which is to be read as saying “include” rather than “included in”, and the subsequent references to the earlier High Court decisions without disapproval is only consistent with, in our submission, there being an oversight in the formulation of the test.

Now, could I then turn shortly to the position in the United States to make these points. The rule in Blockburger’s Case, as has been observed, is a rule for the construction of the expression “same offence” in the Fifth Amendment. It is important to note that the double jeopardy provision protects against both multiple punishment for a single offence and successive prosecution, so that the notion of same offence has to deal with both of those concepts.

Now, in the Australian common law, the notion of multiple punishment involves a rule against duplication of penalty for what is substantially the same act, so that if one looks at the test in Hoare’s Case, the multiple punishment question addresses the same act, whereas if one is looking at the availability of the pleas in bar, that involves a rule against repeated prosecution for a single offence. So it looks to the offence, which in turn takes you to the elements.

So, in our submission, there is a difference immediately in the way the Australian common law deals with double punishment and successive prosecution, whereas the double jeopardy provision has to deal with both. As I have said earlier, the double jeopardy provision is informed by the doctrine of lesser included offences. We have provided to the Court an article by Professor Hoffheimer, “The Rise and Fall of Lesser Included Offences”, 36 Rutgers Law Journal 351. Can I take your Honours briefly to page 3, the last paragraph:

This article traces the shift in state law to changes in the doctrine of lesser included offenses. All American jurisdictions recognize lesser included offenses as a device that permits a jury to acquit a defendant of a charged offense and instead to convict of a less serious crime –

I will not take the Court through the whole of the article, but could I take the Court to page 9:

A historical survey reveals three key episodes in the history of lesser included offenses. First, lesser included offenses originated in the common law practice by which juries were permitted to return convictions of manslaughter against defendants who were indicted for murder. Second, judicial decisions extended this practice to other felonies as restrictions on joinder of criminal charges diminished. From these decisions treatise writers and courts extrapolated principles of general applicability that provided the basis for a universal doctrine of lesser included offenses. Third, American jurisdictions embraced this universal doctrine during the formative period in the evolution of their criminal law.

At page 11, in the second-last paragraph there is a reference to Bishop’s treatise and he goes on:

Although Bishop insisted that an indictment for the greater offense must describe and charge the lesser offense, American courts applied the theory of lesser included offenses to offenses that were not properly charged in the indictment.

Then he refers to the Supreme Court decision in Dynes v Hoover in 1857 where effect was given to that doctrine. Now, in our submission, that doctrine explains in part the rule in Blockburger’s Case and why the rule prevents charging down and up and explains the distinction between the common law here which only permits the bar to be pleaded when charging down if there is an implied acquittal.

GLEESON CJ: Can you just say that again? The reason for the Blockburger rule preventing charging down as well as charging up is to be found in American practice in relation to framing indictments, is it?

MR MEAGHER: The lesser included offence doctrine, in effect, implies – if there is an acquittal of a greater offence, it implies an acquittal of all lesser included offences.

GLEESON CJ: Do you mean that that brings it within the third of circumstances in which you say the plea applies because always in America the lesser offence is an offence of which you could have been convicted when you were charged with the more serious offence?

MR MEAGHER: That is so. That is the position under the Blockburger rule and it seems to give effect to that doctrine.

GUMMOW J: How does that square with Chief Justice Bray in O’Loughlin at page 222?

MR MEAGHER: I am sorry, I just have to find it, your Honour.

GUMMOW J: The reasoning in that last sentence about 10 lines from the bottom of the page:

An acquittal is only an acquittal of the whole offence and it may have been –

What is the synergy or lack of synergy between that sort of reasoning and the sort of reasoning that you are pointing to in what happened in the United States?

MR MEAGHER: If your Honour looks at the earlier part of that passage from Chief Justice Bray, he says it is the proviso:

provided it was not possible for him to have been convicted of the lesser offence on the first trial –

and the doctrine of lesser included offences in the United States holds that it is always possible to be convicted of the lesser offence on the first trial. The last sentence of that passage is addressing, on one view, the question ‑ ‑ ‑

GUMMOW J: I am just trying to get to some substance, that is all, of a doctrinal difference. There has to be some substance underlying it all.

MR MEAGHER: The Blockburger rule does not always give effect to the notion of res judicata or estoppel in the sense that, as the Chief Justice has observed earlier, if one is acquitted of an offence with four elements, the doctrine of estoppel ought not prevent a charge of three of the elements because the acquittal of four does not necessarily hold that one of those three elements is not present or able to be proved. That is what Chief Justice Bray is referring to in the last sentence. Hoffheimer’s article makes it clear that the rule in Blockburger does not always give effect to the doctrine of res judicata or estoppel with respect to charging down.

GLEESON CJ: If a judgment was spelt out in terms, a judgment that said, “You are not guilty of assault occasioning grievous bodily harm”, it is not inconsistent with that judgment to charge you tomorrow with assault, but if the judgment said, “You are not guilty of assault occasioning grievous bodily harm or of the lesser offence of assault”, charging you tomorrow with assault is inconsistent with that judgment.

MR MEAGHER: Yes.

GLEESON CJ: I have no idea whether you are right or wrong, but if you are right, the way the American system operates, it is that the judgment will always say the second thing.

MR MEAGHER: The American doctrine approaches it at a different level in the sense that it treats you – the plea in bar is available to an offence which is the same as an offence of which you have been expressly acquitted. The American doctrine treats that principle as applying to offences of which you are impliedly acquitted.

GLEESON CJ: But if you say, “It has already been held in my favour that I am not guilty of assault occasioning grievous bodily harm”, and the prosecutor then says, “Yes, but it hasn’t been held in your favour that you are not guilty of assault”. On the other hand, if you were first charged with assault and acquitted and then charged with assault occasioning grievous bodily harm, you can say, “It has already been held in my favour that I am not guilty of assault, therefore, it has been held that I cannot be guilty of assault occasioning grievous bodily harm”.

MR MEAGHER: Yes, each is consistent with the notion of estoppel in its broad application and there would be an inconsistency in the second example your Honour gives, an inconsistency between what was the second prosecution and the first conviction, and no inconsistency ‑ ‑ ‑

GLEESON CJ: That is why I said this morning, at least in our system, whether you express it in terms of estoppel or merger, it is a little easier to understand why it works on the way up than it is to understand why it works on the way down.

MR MEAGHER: Yes.

KIRBY J: On one view of these very interesting and subtle problems which Justice Scalia rather rudely said had led to ridiculous outcomes and differences do not have to be resolved in this case, do they? On one view this is not a case of moving up or moving down; it is a case of moving sideways ‑ ‑ ‑

MR MEAGHER: That is so, your Honour, and that is what I ‑ ‑ ‑

KIRBY J: ‑ ‑ ‑ because the elements by the accident of that curious provision – is it in 9(d) – are really relevantly exactly the same in this case. Now, you have struck a few blows on the first point, that is to say, whether there has been a trial on the merits that gives rise to this doctrine anyway, but assume that the appellants can get over that, why is there not exact identity because it is just by the accident of the drafting that you have to go to 8 instead of to 26 or 27.

MR MEAGHER: Could I address the second issue which is ‑ ‑ ‑

GUMMOW J: No. Before you do that, what is the foundation of the American implication theory? That is what I am trying to find out.

MR MEAGHER: What is the foundation?

GUMMOW J: Yes, other than assertion.

MR MEAGHER: I can take your Honour to ‑ ‑ ‑

GUMMOW J: You took us to page 11 before of this article.

MR MEAGHER: Can I take your Honour to In re Nielsen which ‑ ‑ ‑

HAYNE J: In the article, you would need to go to page 17 to find that it has a statutory basis, would you not, page 17 under the heading “V. The Triumph of the Elements Test”, and dealing with Federal Courts you have reference to “The first federal statute, modelled on New York’s draft code”. Do you have it yet, page 17, Mr Meagher?

MR MEAGHER: Yes, your Honour.

HAYNE J: Which generated rule 31 of the Federal Rules of Criminal Procedure:

a defendant may be found guilty of “any offense necessarily included in the offense charged.”

MR MEAGHER: Yes, the federal statute developed out of what was the American development of the common law doctrine.

GUMMOW J: What is the foundation of the common law doctrine?

MR MEAGHER: If I could take your Honours to Nielsen, which is the case referred to earlier – I have lost the reference.

GUMMOW J: It is 131 US.

MR MEAGHER: At page 176. The relevant passage is at page 190 in the Opinion of the Court, perhaps the bottom of page 189:

It will be observed that all these instances are supposed cases of acquittal; and in order that an acquittal may be a bar to a subsequent indictment for the lesser crime, it would seem to be essential that a conviction of such crime might have been had under the indictment for the greater. If a conviction might have been had, and was not, there was an implied acquittal. But where a conviction for a less crime cannot be had under an indictment for a greater which includes it, there it is plain that while an acquittal would not or might not be a bar, a conviction of the greater crime would involve the lesser also, and would be a bar –

That statement is consistent with the common law, we would say, but the position moved on in the way in which the rule in Blockburger’s Case was developed.

GUMMOW J: It all has its root in the murder/manslaughter situation.

MR MEAGHER: Yes.

GLEESON CJ: That statement on page 190 of Nielsen is consistent with Barron, is it not?

MR MEAGHER: Yes, and it is consistent with what Chief Justice Bray says.

KIRBY J: Now will you come to my question which is not up, not down, but sideways.

MR MEAGHER: Your Honour, the appellants in their submissions, both written and oral, to this Court do not identify or seek to identify any error in the way in which the primary judge exercised his discretion against granting a stay.

HEYDON J: That is not the point of Justice Kirby’s question, I do not think. Justice Kirby is saying the offences are the same for each crime, if there is no greater or lesser, there is only lateral movement. Is that not so?

KIRBY J: Sections 27 and 8 are exactly the same, by accident, except that there is an additional element.

MR MEAGHER: An additional element in 27.

KIRBY J: But save for that, by this chance circumstance in this case you have virtually exact identity.

MR MEAGHER: The prosecutor wrongly, we accept, brought a charge under section 27. The bringing of the charge under section 8 as a subsequent prosecution does not involve any seeking to controvert the earlier acquittal. It is consistent with the earlier acquittal. There is no sense in which ‑ ‑ ‑

KIRBY J: I am assuming against you for the moment that your primary or first argument is not accepted and, therefore, I have moved on to whether or not there is identity between the two in this particular case.

HEYDON J: There is a difference though, is there not? There is this additional element. That means they are not the same integers.

MR MEAGHER: They are not the same in any event.

GLEESON CJ: Let me make a supposition contrary to what I think is probably the fact. Let me suppose that there is an offence under the Motor Traffic Act of negligently driving a car on a highway and let me suppose there is a different offence of negligently driving a car in the parking area of a shopping mall and you cannot contravene at the one time both provisions because which provision you are contravening depends upon whether you are in a car park in a shopping mall or on a public highway. Suppose somebody is charged with negligently driving on a public highway and he defends himself successfully by proving that at the time he was driving he was not on a highway, he was in a shopping mall. How would these principles apply then?

MR MEAGHER: Well, as a first proposition, there would be no plea in bar and the question would then be in relation to the successive prosecution. One would look at any questions of delay. One would look at whether there was, in any sense, likely to be a position where the defendant could not get a fair trial on the second prosecution. If those questions are answered in the negative, then one asks whether the conduct in seeking to prosecute the second in some way seeks to controvert the earlier acquittal, which is, in effect, the principle which was applied in Carroll’s Case and in the earlier decision in Rogers.

If there is nothing inconsistent with the prosecution for the second charge in the face of the earlier acquittal, then, in my submission, there is no abuse and no principles which attract – the principles which this Court has enunciated in Carroll applies. As I think Justice Bignold observed, when the matter was argued before Justice Talbot in February 2003, the appellants raised the argument ‑ ‑ ‑

KIRBY J: Where are you reading now?

MR MEAGHER: I am not reading anything in his judgment at the moment, but Justice Bignold, in addressing an argument that at that point in time the prosecutor could have amended, pointed out, that the prosecutor some five months later advised that it proposed to take the second proceedings and then in some six or seven months later commenced the second set of proceedings and he observed, in paragraph 79 at page 191 of the appeal book, that:

Although it would have been open to the Prosecutor, even when faced with the Defendants’ submission of no case to answer, to have sought to amend the charge, the laying of a separate charge of an offence against s 8 after the dismissal of the earlier charge against s 27 was in truth little different in legal and practical consequences, from seeking to amend.

Particularly in circumstances where the evidence which was relied upon in the sense of the affidavit evidence was in substance the same and the defendants had that evidence available to them from the time that they were first charged with the first offence. Your Honours, unless there is anything else, they are our submissions.

GLEESON CJ: Thank you, Mr Meagher. Yes, Mr Byrne.

MR BYRNE: Thank you, your Honours. Can I just address that question that your Honour the Chief Justice asked my learned friend in relation to the hypothetical situation of a person who may be charged with negligently driving a car on a highway and then negligently driving a car in a shopping mall. The relevant comparison or analogy in the circumstances of the appellants case is, in our submission, if there were a charge of negligently driving a car on a highway and that was successfully defended, then a further prosecution, successive prosecution brought subsequent to the acquittal on the charge of negligently driving a car on a highway - of negligently driving a motor vehicle in some unspecified place but in fact relying on the driving that occurred in the circumstances that were the circumstances of the first prosecution, then that would, in our submission, give to a rise to a plea in bar, because the elements of the offence with which the person now stands charged are all included in the offence of which he was notionally acquitted. In those circumstances, there would be a plea in bar and, if it was not available, there should be a permanent stay on the basis that those successive prosecutions were oppressive. Can I deal with the ‑ ‑ ‑

KIRBY J: Was it ever suggested that the element of a transfer operation was not involved, whether the prosecution was brought under section 26, 27 or under section 8?

MR BYRNE: Your Honour, there was no issue that there was a process of transfer of oil from the ship to the shore, but the question in issue in the proceedings as they were run was whether the discharge into the water occurred in connection with that transfer operation. It was conceded that there was a transfer operation on foot, but that the circumstances of the spill were not connected with the transfer operation.

KIRBY J: I am just having difficulty understanding any analogy with a shopping mall and a general highway. Have I missed something? Is there a factual element, an ingredient in the differential charges under section 8 and sections 26, 27 that explains that the prosecution secondly brought relates to a different ingredient and a significantly different ingredient in fact?

MR BYRNE: There is no significantly different ingredient ‑ ‑ ‑

GUMMOW J: Well, the problem is that the elements may not purely be factual. The relevant factum is the opening words of the section, which is a legal concept. It is an element; that is what is put against you.

MR BYRNE: When your Honour says the opening ‑ ‑ ‑

GUMMOW J: Hence, the unwisdom of fixing on facts rather than ultimate integers, as it were.

MR BYRNE: When your Honour says the ultimate determination of the facts or the elements, the reference in section 26(d) to the exclusion of circumstances to which Part 2 or Part 3, in particular section 8, applies, does not affect, in our submission, the description of the elements in section 27; it merely prescribes the circumstances in which such a prosecution can be brought.

If the proposition is right that all of the elements of section 8 are excluded from section 27, then there is effectively nothing left in 27 other than that some unspecified thing was in connection with a transfer operation. It does not affect realistically the elements.

GLEESON CJ: Section 26 tells you that section 27 applies when a certain kind of transaction is being undertaken and liability to conviction under section 27 depends upon the assumption that a certain kind of activity or transaction is being engaged in.

MR BYRNE: Yes.

GLEESON CJ: Mr Gee’s “no case to answer” submission, as I understand it, was based upon the proposition that whatever else might be said in criticism of your client’s conduct in this case, it was not conduct in the course of a transaction of the kind described in the legislation, or in the relevant part of the legislation.

MR BYRNE: Your Honour, not of the kind described or perhaps to which that particular section has application. It is conceivable that an offence under section 27 could be committed in relation to a ship in the course of, or in connection with a transfer operation if the discharge of the oil into the water occurred not from the ship, but from the apparatus which linked the ship to the shore and was, in effect, between the ship and what was described as the landward side of the first isolating valves. So that if hypothetically there was a pipe running from the ship to the land and there was an explosion in the pipe, the oil then would not have come from the ship but from the pipe, it would have been in the course of a transfer operation.

GLEESON CJ: But was not Mr Gee’s argument this oil leakage or spillage did not occur in the course of an activity to which section 27 applies?

MR BYRNE: Yes, that was certainly his case but there will be circumstances in which section 27 applies to discharges of oil into the sea not from ships but from apparatus which is connected to ships.

KIRBY J: That is the case for which section 26(b) applies.

MR BYRNE: Yes.

KIRBY J: Which is alternative to (a).

MR BYRNE: Yes. Your Honours, just briefly if I may, in relation to the application of section 165, that is the provisions of the Criminal Procedure Act (NSW) relating to backup offences, it is significant that those provisions provide - and this is in section 166(2) - the section does not prevent a person who is the subject of various charges “being charged with any offence after committal”, but what that section relates to and what it does not authorise is successive charges. What section 165 contemplates and what it authorises is charges based on the same facts charged at the same time as the more serious offences or as the section provides after committal but not after trial and that is a significant aspect of that legislation. It does not in any sense authorise what has been described as downward or descending charges.

Your Honours, there was one passage from that judgment in Williams which I handed to your Honours that I forgot to mention to your Honours - on page 1171. It is only a very brief reference but it is in the judgment of Lord Justice Taylor who was the other member of the court in the case. In his Lordship’s judgment just below point G and above point H, his Honour there said – talking about the application for the adjournment by the Crown:

When this was rejected and the charge was dismissed, the justices were, in effect, ruling that the defendant ought not to be put in peril on the charge as laid. Since he was never required to plead, he was never put in peril of conviction.

Now, in the circumstances of these appellants’ case they were required to plead and they were required to endure a criminal prosecution in which it was contended at all times by the prosecutor that they should be convicted.

GLEESON CJ: Was not the essence of Mr Gee’s successful argument that even if your client had committed an offence in the course of discharging oil, it was a different offence from the offence with which he was charged?

MR BYRNE: Yes, that was part of it.

GLEESON CJ: If that is right, how does a plea in bar come into question at all?

MR BYRNE: Because the different offence, of which they may have been prosecuted, was one the elements of which were fully included in the offence of which they were acquitted. That is where it comes in and, in our submission, there is indeed a degree of symmetry, in a sense, in relation to the application made by Mr Gee. What Mr Gee was saying was the elements of the offence under section 27 are not satisfied by the material that has been produced to prove those elements. Once that submission was upheld then we are relying on precisely the same submission, namely, that the elements of the offence are different from the section 27 offence but wholly included in them so that there is a symmetry. It is not one of those cases where the contention that is made in the subsequent prosecution is, as it were, contrary to the first. It is consistent with it.

GLEESON CJ: A possible way of looking at it might be to say that section 27 is a law that directs you not to pollute when you are engaged in a certain kind of activity and section 8 is a law that directs you not to pollute when you are engaged in a different kind of activity, and Mr Gee pointed out that this alleged polluting occurred in the course, not of an activity of the first kind, but of an activity of the second kind.

MR BYRNE: Your Honour, I do not think, with respect, that the submission was that the polluting took place in the course of an activity of the second kind. It was more a submission attacking the manner in which the prosecution had been brought and saying – not making any specific concessions but saying that that prosecution was misconceived, and that was a legitimate approach for ‑ ‑ ‑

GLEESON CJ: I never entertained the possibility that Mr Gee made any concessions, Mr Byrne.

CRENNAN J: Can I ask you this? Was it part of the submission that a conviction which followed the verbiage of the summons would not be a lawful conviction?

MR BYRNE: It would have been the appellants’ contention that that conviction would not have been lawful, but whether or not that contention would have been successful is another question altogether, in my submission.

KIRBY J: If you had been fined, you would have had to pay it, subject to exhausting all rights of appeal.

MR BYRNE: Yes. With respect, your Honour’s point is correct.

GUMMOW J: Mr Byrne, can you just go to Nielsen for a minute. Do you have a copy of Nielsen?

MR BYRNE: Yes, I have, your Honour.

GUMMOW J: Mr Meagher rightly points to that sentence beginning at the bottom of 189, “It will be observed”.

MR BYRNE: Yes.

GUMMOW J: And the implied acquittal referred to. It seems that from that the United States, in construing the constitutional provision at any rate, have looked more broadly at what one might call notions of unfairness.

MR BYRNE: Yes, and that concept is analysed in the judgment of Justice Souter in the later decision of Dixon.

GUMMOW J: Yes, and that seems to be the track taken in the joint judgment in Pearce.

MR BYRNE: Yes.

GUMMOW J: So the question then becomes whether the common law in Australia had moved or not moved and if it had not moved, whether it is locked in the notions of Nielsen. You say it has moved, I guess, and that is what Pearce did.

MR BYRNE: We say it has moved to the position in Pearce and we rely on Pearce. What is at issue in all of these analyses is really the application of the concept, how do you define whether the person is being prosecuted for the same offence? What is the test to determine whether they are the same offence?

HAYNE J: In the acquit cases what you can never know is the disposition of particular issues.

MR BYRNE: Yes.

HAYNE J: In consequence in the acquit cases the question is one of what is the estoppel that flows from the record of acquittal and how broadly, narrowly, whatever, that estoppel is to be drawn.

MR BYRNE: Yes.

HAYNE J: As Chief Justice Bray points out in O’Loughlin logic does not inform all aspects of the principles in this area. In particular, it does not inform Elrington. Elrington is not founded in logic but in mercy. Those are ways of putting the problem that are less fashionable today than once they were, but it comes back to the ambit of the estoppel that flows from the fact of conviction.

GUMMOW J: What Lord Cockburn, Sir Alexander Cockburn, actually said in Elrington 121 ER 873 was:

we must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred ‑ ‑ ‑

MR BYRNE: Yes.

GLEESON CJ: I think the explanation that was given of Elrington in Connelly in the various speeches was somewhat different.

MR BYRNE: Yes.

GLEESON CJ: Lord Devlin I thought, for example, gave an explanation of Elrington that was based on a broader principle?

MR BYRNE: Yes, certainly, but commencing from the fundamental proposition that successive prosecutions on the same facts ‑ ‑ ‑

GUMMOW J: That is what Chief Justice Bray seems to have had in mind at 223 of O’Loughlin, the case Mr Meagher took us to.

MR BYRNE: Yes. Your Honours, those are our submissions.

KIRBY J: Could I just ask you a question? You have placed most of your, virtually all of your argument on the first issue and there has been very little oral argument on either side addressed to the second issue. That may be because of the somewhat discouraging noises in the authorities about the principles applicable in the second issue and one day they may have to be reconsidered, but assume that you lose the first issue, why is it not relevant to take into account not only the general conventional reasons for restraint of courts coming into this, but the fact that it does appear, first that your letter was not terribly candid; second, that it does appear that what occurred was a slip which can happen in human affairs; third, that the statute is concerned with very important, including international principles of non‑pollution of the ocean and the wildlife and the biosphere and so on, and fourth, that it is not as if you did get a determination of the first issue on the basis that you were believed and they were not believed and that you did not really do it but it is in a sense a technical knockout.

Now, why would all of those not be considerations that would argue against a court saying if it is not stopped by the principles of law, then we are not going to stop it by the principles of discretion?

MR BYRNE: Your Honour, it is, importantly, in our submission, a case of successive prosecutions where there has been considerable delay in the initial prosecution in the section 27 proceedings. There was a delay of something in the order of two and a half years between the time of the events in question and the charges in fact being laid and then a further delay of a year before they were heard.

GLEESON CJ: Mr Byrne and Mr Meagher, I will ask you a question and you may need time to consider it or you may feel yourselves in a position to answer it right now. If you need time to consider it you can write us a letter within seven days. Justice Callinan, who was a party to the decision in Pearce, is not here today because of illness. I wonder whether the parties would be agreeable to his participating in the decision of this case on a reading of the papers.

MR BYRNE: Yes, of course your Honour, we have no objection to that.

GLEESON CJ: Thank you.

MR MEAGHER: We agree to it, too, your Honour.

GLEESON CJ: Thank you, Mr Meagher. That is good news for Justice Callinan.

KIRBY J: Yes, you were answering my question.

MR BYRNE: Yes, your Honour. The nature of the prosecution being a successive prosecution, and it was a situation where there were several, with respect, opportunities for the prosecutor to reconsider his position and those opportunities, firstly, when it was pointed out that the charge may not be appropriate, secondly, in the course of the proceedings themselves, but they were continued. There was then a further protracted delay after the dismissal of the proceedings. It was something in the order of eight or nine months before the next prosecution was brought. But it is a case where – and I did not refer orally to the Court’s decision in Carroll, but there are a number of passages in the decision in Carroll including, if I can just very briefly, in the joint reasons of your Honour the Chief Justice and Justice Hayne ‑ ‑ ‑

KIRBY J: I think you can take it we will have a look at Carroll.

MR BYRNE: Certainly.

KIRBY J: I am generally familiar, though I did not sit in Carroll, with what it says, but the circumstances are rather different from this case.

MR BYRNE: Completely different, I accept that. But all of these ‑ ‑ ‑

KIRBY J: I am just trying to get what is your essential argument against the public policy issue of the pollution of the environment which is provided by international law, by federal law and by State law and which is an important matter when weighed against what appears to have been a legal slip as to why a court would provide a stay, except, I suppose, that you alerted the matter and that this is the State with all of its resources and you are being harassed by multiple litigation.

MR BYRNE: Yes, your Honour, we do not put it on the basis that it is some form of punishment of the prosecutor, but it is simply a question of how much it is legitimate to expect an individual defendant to cope with. In the Court of Criminal Appeal it was said by the court that the conduct of the prosecutor was to be deplored, but still no remedy in the nature of a stay based on abuse.

GLEESON CJ: Are liabilities of this kind covered by protection in indemnity clubs?

MR BYRNE: Yes, your Honour. Your Honours, just if I can refer very briefly to paragraphs of Carroll, that I would ask your Honours to bear in mind in the joint reasons of your Honour the Chief Justice and Justice Hayne paragraphs 47 and 48, in the joint reasons of Justice Gaudron and Justice Gummow paragraphs 73, 84 and 86, and the judgment of Justice McHugh at paragraph 128.

Just in relation to that last matter, of course, the individual appellant, as he is in your Honours’ court, he is liable to a conviction for a charge of this kind which has a dramatic impact on his ability to work in the industry in which he has been trained. Where people move from place to place, as they obviously do in an industry of this kind, they are required to notify the authorities of every country where they enter of any convictions that they have and this man, of course, is exposed to the risk of a conviction of that kind, which is obviously a question of importance for him and a serious impediment to his ability to ‑ ‑ ‑

KIRBY J: No one doubts the importance for him, but presumably such a provision and such vigilance is for the very good reason of protecting the marine environment.

MR BYRNE: May it please the Court.

GLEESON CJ: Thank you, Mr Byrne. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 4.26 PM THE MATTERS WERE ADJOURNED

[2006] HCATrans 77

Key Legal Topics

Areas of Law

Civil Procedure

Commercial Law

Legal Concepts

Abuse of Process

Appeal

Jurisdiction

Res Judicata

Stay of Proceedings