Morrison v Peacock

[2000] NSWCCA 452

Reported Decision: 50 NSWLR 178

New South Wales

Court of Criminal Appeal

CITATION:	MORRISON v PEACOCK & ROSLYNDALE SHIPPING CO PTY LIMITED [2000] NSWCCA 452
FILE NUMBER(S):	CCA 60106/00
HEARING DATE(S):	4 October 2000
JUDGMENT DATE:	30 October 2000
PARTIES :	Anthony Morrison (Appellant) Harold Anthony Peacock (First Respondent) Roslyndale Shipping Co Pty Limited (Second Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 92; Barr J at 93

LOWER COURT JURISDICTION:	Land and Environment Court
LOWER COURT FILE NUMBER(S) :	50006/98 50007/98
LOWER COURT JUDICIAL OFFICER :	Pearlman J

COUNSEL :	R Ellicott QC; A L Hill (Appellant) C Gee QC; B Larkin (Respondents)
SOLICITORS:	Abbott Tout (Appellant) Norton White (Respondents)
CATCHWORDS:	CRIMINAL LAW - statutory requirement of "recklessly" - subjective test applicable - CRIMINAL LAW - statutory interpretation - Marine Pollution Act 1987 (NSW), ss8(2) and 8(3) - "damage" - "recklessly".
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Marine Pollution Act 1987 (NSW) Prevention of Oil Pollution of Navigable Waters Act 1960 (NSW) Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic) Pollution of Waters by Oil and Noxious Substances Act 1987 (SA) Pollution of Waters by Oil and Noxious Substances Act 1987 (Tas) Pollution of Waters by Oil and Noxious Substances Act 1987 (WA) Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) Transport Operations (Marine Pollution) Act 1995 (Qld)
CASES CITED:	Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 Attorney General (NSW) v X [2000] NSWCA 199 Billericay Rural District Council v Guardians of the Poor of the Popular Poor Law Union [1911] 2 KB 801 Brennan v Comcare (1994) 50 FCR 555 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) (1981) 147 CLR 297 Goldman v Thai Airways International Ltd [1983] 1 WLR 1186 Gurtner v Beaton [1993] 2 Lloyd’s Rep 369 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Metropolitan Police Commissioner v Caldwell [1982] AC 341 Morrison v ANL, Leighton and Turner (1996) 88 A Crim R 122 Morrison v Dilmun Navigation Co Pty Ltd (1995) 78 A Crim R 576 Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318 Nugent v Michael Goss Aviation Ltd (Court of Appeal Civil Division, 14 April 2000, unreported) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Lawrence [1982] AC 510 R v Reid [1992] 1 WLR 793 R v Tolmie (1995) 37 NSWLR 660 R v Wilson; Ex parte Kisch (1934) 52 CLR 234 R v Young (1999) 46 NSWLR 681 Rodriguez v United States 480 US 522 (1987) SS Pharmaceutical Co Ltd v Qantas Airways Ltd (1988) 22 NSWLR 734 SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288
DECISION:	Questions answered as follows: Question (i)(a) Yes; Question (i)(b) Decline to answer; Question (ii)(a) In order to determine whether a person acted "recklessly" for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen; Question (ii)(b) Yes.

IN THE COURT OF
CRIMINAL APPEAL

60106/00




SPIGELMAN CJ
WOOD CJ at CL
BARR J

Monday 30 October 2000


Anthony MORRISON v Harold Anthony PEACOCK & ROSLYNDALE SHIPPING CO PTY LIMITED

The Marine Pollution Act 1987 (NSW) (“the Act”) is part of the co-operative scheme by which Australia implemented its obligations under the International Convention for the Prevention of Pollution from Ships, 1973 (“the Convention”). Section 8(2) of the Act implements Regulation 11 of Annex I of the Convention. By application of s7, the words used in s8(2) of the Act must be given the meaning they have in Regulation 11.

The first Respondent was the master and the second Respondent the owner of a ship. While cargo was being unloaded from the ship using a crane, a hydraulic hose fitted to the crane ruptured causing oil to discharge, some of which escaped into the water. The Respondents were prosecuted for contravening s8(1) of the Act. The Respondents relied on the defence under s8(2)(b). In the Land and Environment Court, Pearlman J dismissed the charges. Following an application by the Appellant, Pearlman J submitted four questions to the Court of Criminal Appeal pursuant to s5AE of the Criminal Appeal Act 1912.

Held
(per Spigelman CJ, Wood CJ at CL and Barr J agreeing)
.Question (i)(a) As a matter of law can the wear and tear in consequence of which oil escapes come within the word ‘damage’ under s8 of the Marine Pollution Act 1987?
1 Nothing in the text to be construed suggests that the word “damage” in Regulation 11 should be read down by reference to the different causes of a physical effect that can be described as “damage”. Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318; Billericay Rural District Council v Guardians of the Poor of the Popular Poor Law Union [1911] 2 KB 801, Morrison v Dilmun Navigation Co Pty Ltd (1995) 78 A Crim R 576 and Morrison v ANL, Leighton and Turner (1996) 88 A Crim R 122 discussed.

2 An objective to eliminate or to minimise some consequence does not permit a general word like “damage” to be given a narrow interpretation where no relevant restriction was intended. Rodriguez v United States 480 US 522 (1987) and Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 approved.

Question (i)(b) Can the particular wear and tear in the circumstances of this case come within the word ‘damage’ in s8 of the said Act?
3 No question of law arises under this question and therefore, it is not appropriate to answer it.

Question (ii)(a) As a matter of law, in order to determine whether a person acted ‘recklessly’ for the purposes of s8(3)(b) of the Marine Pollution Act, is it appropriate to apply a subjective or objective test?
4 The express qualification of “recklessly” by “knowledge that damage would probably result” points to the conclusion that actual advertence to the risk of damage by the owner or master involved in the incident is required. It is not material to inquire what a prudent person would consider might happen. Goldman v Thai Airways International Ltd [1983] 1 WLR 1186, SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288 and Nugent v Michael Goss Aviation Ltd (Court of Appeal Civil Division, 14 April 2000, unreported) approved; Metropolitan Police Commissioner v Caldwell [1982] AC 341 and R v Lawrence [1982] AC 510 discussed.

Question (ii)(b) Whether on the evidence, it can properly have been found that the defendant did not act ‘recklessly’.”
5 Pearlman J expressly referred to facts and matters which her Honour was entitled to take into account and which constituted evidence from which her Honour could infer that the Respondents were not acting “recklessly”. It cannot be said that as a matter of law, only one finding was open on the facts.

Discussion
6 A treaty must be interpreted in accordance with the ordinary meaning of its words and in the light of its object and purpose, not so as to achieve its object or purpose. Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 applied.

Answers
Question (i)(a): Yes.

Question (i)(b): Decline to answer.

Question (ii)(a): In order to determine whether a person acted “recklessly” for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen.

Question (ii)(b): Yes.

IN THE COURT OF
CRIMINAL APPEAL

60106/00




SPIGELMAN CJ
WOOD CJ at CL
BARR J

Monday 30 October 2000



Anthony MORRISON v Harold Anthony PEACOCK & ROSLYNDALE SHIPPING CO PTY LIMITED

JUDGMENT

1    SPIGELMAN CJ: On 1 December 1996 the vessel Sitka II was tied up to the jetty at Lord Howe Island unloading a cargo by means of a crane on the ship. A hydraulic hose fitted to the crane ruptured causing hydraulic oil to discharge under pressure. Fifteen litres of oil escaped, of which some five litres was discharged into the water. The first named Respondent, Harold Anthony Peacock, was the master of the ship and the second named Respondent was the owner of the ship. Both were prosecuted for a contravention of s8(1) of the Marine Pollution Act 1987. The Respondents relied on a statutory defence pursuant to s8(2)(b) of the Act.

2 On 6 August 1999 her Honour Pearlman J found that the Respondents had made out each of the elements of the statutory defence and accordingly dismissed the charges against them. On 2 March 2000 her Honour acceded to an application by the Prosecutor to submit questions to this Court pursuant to s5AE of the Criminal Appeal Act 1912. Those questions were as follows:

“(i) Wear and Tear
(a) As a matter of law can the wear and tear in consequence of which oil escapes come within the word ‘ damage ’ under s8 of the Marine Pollution Act 1997?
(b) Can the particular wear and tear in the circumstances of this case come within the word ‘ damage ’ in s8 of the said Act?
(ii) Findings Relevant to the Question of ‘Recklessly’ Under Section 8
(a) As a matter of law, in order to determine whether a person acted ‘ recklessly ’ for the purposes of s8(3)(b) of the Marine Pollution Act , is it appropriate to apply a subjective or objective test?
(b) Whether on the evidence, it can properly have been found that the defendant did not act ‘ recklessly ’.”

The Statutory Scheme

3 Section 8 of the Marine Pollution Act 1987 (“the Act”) relevantly provides:

“8(1) Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship, and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine not exceeding:
(a) if the offender is a natural person -
2 000 penalty units, or
(b) if the offender is a body corporate -
10 000 penalty units.
(2) Subsection (1) does not apply to the discharge of oil or of an oily mixture from a ship:
(a) for the purpose of securing the safety of a ship or saving life at sea,
(b) if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of oil or oily mixture, as the case may be,
(c) in the case of an oily mixture, if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by a prescribed officer, or
(d) if the discharge was authorised by the Minister for training purposes.
(3) For the purposes of subsection (2), damage to a ship or to its equipment shall be taken to be intentional damage if, and only if, the damage arose in circumstances in which the master or owner of the ship:
(a) acted with intent to cause the damage, or
(b) acted recklessly and with knowledge that damage would probably result.
…
(6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (4), subsection (1) does not apply in relation to the discharge.”

4    This section is part of a co-operative scheme between the Commonwealth and the States by which identical legislation, save in one immaterial respect, was passed by all States (other than s26 of the Queensland Act) and by the Commonwealth. By reason of a specific case in New South Wales under predecessor legislation, the New South Wales Act extends the obligation beyond a master or owner to “any other person whose act causes the discharge”. (See Hansard Parliament of New South Wales Legislative Assembly 29 October 1987 at 15471). The Commonwealth Act is the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). The other State acts are: Transport Operations (Marine Pollution) Act 1995 (Qld), Pollution of Waters by Oil and Noxious Substances Act 1987 (SA), Pollution of Waters by Oil and Noxious Substances Act 1987 (Tas), Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic) and Pollution of Waters by Oil and Noxious Substances Act 1987 (WA). This co-operative scheme was the means by which Australia implemented its obligations under the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter “the 1973 Convention”). Apart from certain specific immaterial Annexes, the 1973 Convention is annexed as Schedule 1 to the Marine Pollution Act 1987 (NSW).

5    The recitals to the 1973 Convention include the following:

“ THE PARTIES TO THE CONVENTION,
BEING CONSCIOUS of the need to preserve the human environment in general and the marine environment in particular,
RECOGNIZING that deliberate, negligent or accidental release of oil and other harmful substances from ships constitutes a serious source of pollution,
…
DESIRING to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances,
…”

6 Section 7 of the Act, which appears in the same Part of the Act as s8, provides:

“Except in so far as the contrary intention appears, an expression that is used in this Part or in Part 6 and in Annex I to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Part and in Part 6, the same meaning as in that Annex.”

7    Annex I of the 1973 Convention is entitled “Regulations for the Prevention of Pollution by Oil”. Regulation 1 of that Annex contains a number of definitions none of which are material for the present proceedings.

8    Regulation 9 of Annex I provides inter alia:

“(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 …”

The Regulation goes on to provide for detailed exceptions which are not material for present purposes. Regulation 10 is not material.

9    Regulation 11 is headed “Exceptions” and provides:

“Regulations 9 and 10 of this Annex shall not apply to:
(a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or
(b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:
(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and
(ii) except if the owner or the Master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or
(c) the discharge into the sea of substances containing oil, approved by the Administration, when being used for the purpose of combating specific pollution incidents in order to minimize the damage from pollution. Any such discharge shall be subject to the approval of any Government in whose jurisdiction it is contemplated the discharge will occur.”

10    By Article 1 of the 1973 Convention:

“(1) The Parties to the Convention undertake to give effect to the provisions of the present Convention and those Annexes thereto by which they are bound, in order to prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the present Convention.
(2) Unless expressly provided otherwise, a reference to the present Convention constitutes at the same time a reference to its Protocols and to the Annexes.”

11 Pursuant to the international obligation assumed by Australia under Article 1, Regulation 9(1) is given effect by s8(1) of the Act and equivalent sections of the parallel Commonwealth and State acts, and the defence in Regulation 11 is implemented by s8(2) of the Act and equivalent sections of the parallel acts. By force of s7 of the Act, words used in the Act - relevantly “damage” and “recklessly and with knowledge that damage would probably result” - must be given the meaning they have in Regulation 11 - no contrary intention being discernible or, indeed, having been suggested.

12    An international treaty is to be interpreted in Australia in accordance with the requirements of the Vienna Convention on the Law of Treaties, 1969. Article 31 of that Convention, under the heading “General rule of interpretation”, provides in its first two paragraphs:

“(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
(2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.”

13    The application of Article 31 was considered by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225. At 252-253, McHugh J said (references omitted):

“The first paragraph of the article contains three separate but related principles. First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanda. Second, the ordinary meaning of the words of the treaty are presumed to be an authentic representation of the parties’ intentions. This principle has been described as the ‘very essence’ of the textual approach to treaty interpretation. Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose.”

14    His Honour went on, at 253, to identify a difference of opinion that had been expressed “as to whether Art 31 requires or merely allows recourse to the context, object and purpose of a treaty in interpreting one of its terms”. One of the views that had been expressed was that resort to context, object and purpose was only permissible if the natural and ordinary meaning did not give a clear result. McHugh J agreed with the opinion that a “single combined operation” had to be given to Article 31, which his Honour described at 254 as “an ordered yet holistic approach”. McHugh J explained this approach at 254:

“Primacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered.”

15    His Honour went on, at 255, to describe the process as giving “the text primacy in interpretation” and referred to “the mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text”. His Honour concluded, at 256:

“… in my opinion, Art 31 of the Vienna Convention requires the courts of this country when faced with a question of treaty interpretation to examine both the ‘ordinary meaning’ and the ‘context … object and purpose’ of a treaty.”

16    Similarly, the Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after “ambiguity” is identified: See R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) (1981) 147 CLR 297 at 304, 319-320; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315, 321; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381.

17    To similar effect is the reasoning of Brennan CJ in Applicant A at 231:

“In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretive rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.”

18    Dawson J referred to Article 31 and said, at 240:

“Under that rule, the starting point must be the text of the treaty. Of course, the text of a treaty is often couched in fairly general terms due to differences in language and legal conceptions among those to whom it is to be addressed and as part of an attempt to reach agreement among diverse nations. Accordingly, technical principles of common law construction are to be disregarded in construing the text. As Lord Wilberforce said in Buchanan & Co v Babco Ltd [[1978] AC 141 at 152]:
‘I think that the correct approach is to interpret the English text … in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.’
Article 31(1) also allows, indeed requires, recourse to the context, object and purpose of a treaty. Article 31(2) states that the context includes, inter alia, the text of the treaty including its preamble and annexures. Article 31 plainly precludes the adoption of a literal construction which would defeat the object or purpose of a treaty and be inconsistent with the context in which the words being construed appear. To say as much is, perhaps, to state no more than the accepted canon of construction that an instrument is to be construed as a whole and that words are not to be divorced from their context or construed in a manner that would defeat the character of the instrument.”

19    Gummow J said, at 277:

“It is necessary to begin with the construction of the definition as it appears in the Convention and Protocol. Regard primarily is to be had to the ordinary meaning of the terms used therein, albeit in their context and in the light of the object and purpose of the Convention. Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results. However, as McHugh J demonstrates by the analysis of the subject in his reasons for judgment, with which I agree, it is important to appreciate the primacy to be given to the text of the treaty.”

See also per Kirby J at 294.

20    Article 31 of the Vienna Convention does not state that a treaty should be interpreted “so as to achieve its object or purpose”. It must be interpreted “in accordance with the ordinary meaning” and “in the light of its object and purpose”. The distinction between the two emphasised phrases accords with what McHugh J referred to in Applicant A as giving “primacy” to the text.

Question (i)(a): Is Wear and Tear ‘Damage’?

21 The defence under s8(2)(b) of the Act requires that the oil escape “in consequence of damage, other than intentional damage, to the ship or its equipment”. The Appellant submitted, unsuccessfully, before Pearlman J that the proper construction of the word “damage” in this context did not extend to “wear and tear”.

22    The central finding of fact by Pearlman J was expressed by her Honour in the following way:

“…the relevant damage was the rupture of the hose because that is the damage which caused the discharge of oil. But for the purpose of considering the defence under s8(2)(b), it is relevant to consider the cause of that damage, that is, what caused the rupture of the hose.”

23    Pearlman J went on to refer to expert evidence adduced in the proceedings before her Honour, evidence which she accepted, to the following effect:

“… the hose failed because of abrasion and chafing at the base of the steel sleeve in the crane column near the point where the crane sat at the top of the plinth.”

24    The column of hoses, one of which ruptured, was able to turn in excess of 400 degrees at the base of the sleeve, in accordance with the movement of the crane. It was this sawing motion that resulted in the abrasion and chafing and, eventually, the rupture of a hose. It was this abrasion and chafing which the Appellant sought to characterise as “wear and tear”, arising from the normal operation of the crane.

25 The proper construction of s8(2)(b) has led to a difference of view in the Land and Environment Court.

26    In Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318, Bannon J expressed the opinion that the word “damage” did not extend to “fair wear and tear” (at 320). His Honour adopted the observations of Fletcher Moulton LJ in Billericay Rural District Council v Guardians of the Poor of the Poplar Poor Law Union [1911] 2 KB 801 at 813. In that case his Lordship had concluded that in the section then before the Court, the word “damage” did not mean “fair wear and tear”. However, that case involved the construction of a statutory provision in which damage to a road had been caused “by excessive weight passing along the same, or extraordinary traffic thereon”. It was understandable why, in such a context, his Lordship should find that ordinary traffic on a road did not cause “damage” within meaning of the statute. Section 8(2)(b) is far removed from the statutory context in Billericay.

27    In Morrison v Dilmun Navigation Co Pty Ltd (1995) 78 ACrimR 576, an earlier judgment to which it appears Bannon J was not referred, Bignold J had come to a different conclusion and refused to read down the phrase “damage to the ship or its equipment” by reason of the references in the Second Reading Speech to the statutory offence extending to discharge “caused by accidental damage to a ship” (at 581). Bignold J repeated his approach to the construction of the section in Morrison v ANL, Leighton and Turner (1996) 91 LGERA 437. His Honour there rejected a submission that the word “damage” did not extend to damage in the nature of wear and tear (at 447) and declined to follow the reasoning of Bannon J in Morrison v Spliethoffs (at 448-449). In the present proceedings Pearlman J followed Bignold J.

28 Applying Article 31 of the Vienna Convention, the word “damage” must be given its ordinary meaning in its context. The Appellant submitted in this Court that the word “damage” in Regulation 11 and, therefore, s8(2)(b), requires an external factor which has impacted upon the ship or its equipment. There is no such external factor, it was submitted, where the physical effect on the ship or equipment - which physical effect may in another context fall within the word “damage” - has been occasioned by the causal mechanism of wear and tear.

29    General words are sometimes read down so that a statutory formulation does not extend to the full scope of its dictionary meaning. (See eg R v Young (1999) 46 NSWLR 681 at [25]). However, nothing in the text to be construed suggests that the word “damage” in Regulation 11 should be read down by reference to the different causes of a physical effect that can be described as “damage”. On the contrary, Regulation 11(b)(ii) excepts from the scope of the word “damage” a specific causal mechanism, namely intent or recklessness, reflected in s8(2)(b) of the Act in the exception of “intentional damage” as defined in s8(3) in the very terms of Regulation 11. The parties to the Convention did not, in my opinion, intend to exclude any other causal mechanism.

30    Mr Ellicott QC, for the Appellant, submitted that the purpose of the Convention was the prevention of pollution of waters and that this purpose would be best served by giving the defence a narrower rather than a broader meaning. However, the object of the Convention is not expressed in this way. The relevant recital, fully quoted above, states:

“ DESIRING to achieve the complete elimination of intentional pollution … and the minimization of accidental discharge …”

31 It is not clear whether the drafter of the treaty equated “recklessness” with “intent” - as did the drafters of s8(2)(b) and s8(3). However, nothing turns on that consideration.

32    An objective to “eliminate” or to “minimize” some consequence, does not permit a general word like “damage” to be given a narrow interpretation where nothing suggests any relevant restriction was intended. It is the intention of the drafters of the Convention which must be ascertained. The intention is not necessarily ascertained by asking what interpretation will best, or better, attain a desirable objective.

33    As the Supreme Court of the United States said in Rodriguez v United States 480 US 522 (1987) at 525-526:

“[N]o legislature pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” (Emphasis in original)

(Quoted with approval by Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 574. See also Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 459 per McHugh and Gummow JJ).

34    In Applicant A, Dawson J also referred with approval to Rodriguez in the context of construing the word “refugee” in the Convention Relating to the Status of Refugees. His Honour said, at 248:

“… the Convention, like many international and municipal instruments, does not necessarily pursue its primary purpose at all costs. The purpose of an instrument may instead by pursued in a limited way, reflecting the accommodation of differing viewpoints, the desire for limited achievement of objectives, or the constraints imposed by limited resources.”

35    Whether or not “damage” has caused discharge of oil is a matter capable of ready ascertainment. No inquiry into the cause of such damage is called for, save in the one category for which Regulation 11 makes explicit provision - intent or recklessness. It would be the experience of all legal systems in which the Convention was intended to operate, that inquiry into blameworthiness is often problematic and always capable of invoking a wide variety of standards. Nothing in the text, context or purpose suggests that a test of “external” cause is more appropriate or adapted to achieve the object or purpose, than a variety of other possible expressions of causal mechanisms that may be understood by some to reflect blameworthiness.

36    The drafters identified a particular causal mechanism of damage - intent or recklessness - which would exclude damage of that character from the defence. There is no warrant for excluding any other causal mechanism by restricting the ordinary meaning of the word “damage”.

37    The Appellant’s submissions drew on a contrast with the predecessor International Convention for the Prevention of Pollution of the Sea by Oil, 1954 (hereinafter “the 1954 Convention”). Mr Ellicott submitted that the provision equivalent to Regulation 11 of the 1973 Convention, was Article IV of the 1954 Convention, which provided an exception from liability in the case of:

“… the escape of oil or of oily mixture resulting from damage to a ship or unavoidable leakage …”

38    The change between the 1954 Convention and the 1973 Convention was that the words “damage to” which had hitherto qualified the word ship were extended to qualify “equipment” and the exception for “unavoidable leakage”, which would have applied both to equipment and the ship, was deleted. It was submitted that wear and tear was a foreseeable phenomenon and accordingly would not have been excluded on the basis that it was “unavoidable”.

39    The 1954 Convention was implemented in New South Wales by the Prevention of Oil Pollution of Navigable Waters Act 1960. Subsection 7(1) provided for a defence in the following circumstances:

“7(1)(b) that the oil or mixture containing oil escaped -
(i) in consequence of damage to the ship …; or
(ii) in consequence of leakage which could not have been avoided, foreseen or anticipated …”

40    Mr Ellicott submitted that it was not the intention of the nations developing the 1973 Convention, nor of the legislatures of Australia in adopting it, to broaden the scope of protection. Accordingly, the scope of the word “damage” should be read down so as not to encompass matters internal to the ship or equipment. This submission was made by way of assertion. No information of any character concerning the process by which the 1973 Convention was developed was presented to the Court.

41    I accept that the historical development of a treaty by which one form of words replaces another may be of assistance in interpreting the later provision. I do not find any such assistance from the change identified here.

42    It is by no means clear that the crane fixed to the ship, as this crane was, would not have been regarded as part of the “ship” and accordingly, within the words “damage to a ship”, within Article IV of the 1954 Convention. On that basis there is no change by reason of the omission of the words “unavoidable leakage”.

43    It appears that the omission of those words did, on any view, narrow the scope of protection by removing the protection in the case of discharge which was unavoidable, but not occasioned by damage. If, as part of that process, protection was extended to leakage caused by damage to equipment which may hitherto have been regarded as “avoidable”, that may well have been part of the process of adjustment between conflicting considerations designed, perhaps, to eliminate one level of potential disputation. In the absence of any materials which assist in determining the reasons for the change, I am not prepared to speculate that they must all be interpreted to operate in only one direction.

44    In my opinion, question (i)(a) should be answered “Yes”.

Question (i)(b): The Particular Wear and Tear

45 The jurisdiction conferred on this Court by s5AE of the Criminal Appeal Act 1912 is restricted in its terms to the power in the first instance court to: “submit any question of law arising at or in reference to the proceedings”.

46 Although there is some ambiguity by reason of the use of the word “can” as the introductory word of this purported question of law, nothing in the submissions made suggested that, in fact, a question of law arose under question (i)(b). Specifically there was no submission of the nature that the rupture to the hoses, caused by wear and tear, was not, as a matter of law, capable of answering the description of “damage” in s8(1) of the Act. It is not appropriate to answer this question.

Question (ii)(a): Is the Test of Recklessness Objective or Subjective?

47 As set out above, the defence in s8(2)(b) does not extend to a discharge of oil in consequence of damage to a ship or equipment, if the damage is “intentional damage”. That term is defined in s8(3), also set out above, to encompass circumstances in which the master or owner of the ship “acted recklessly”. The Appellant contended before her Honour and in this Court that the test of recklessness was an objective one.

48 As noted above, by force of s7 of the Act, the word “recklessly” has the same meaning as it has in Regulation 11(b)(ii) of Annex I to the 1973 Convention.

49    The actual question asked in (2)(a) is concerned with whether a subjective or objective test applies in the particular circumstances identified in the question: “in order to determine whether a person acted ‘recklessly’ for the purposes of s8(3)(b) of the Marine Pollution Act”. However, the word “recklessly” does not appear on its own. It appears as part of the phrase “recklessly and with knowledge that damage would probably result”.

50    As formulated, the question is concerned with only one part of a two-fold condition, both parts of which have to exist before a defence of “escape in consequence of damage” is unavailable. Accordingly, irrespective of whether the conduct of the owner and/or master was “reckless”, the defence would still be made out if the master and/or owner established that he or she and/or it did not act “with knowledge that damage would probably result”. Nevertheless, for whatever practical significance it may have, the question posed focuses only on the word “recklessly”.

51    In Metropolitan Police Commissioner v Caldwell [1982] AC 341, the authority primarily relied on by the Appellant, Lord Diplock described the classification of a test for “recklessness” in a statutory formulation in terms of “subjective” or “objective”, as an “obsessive question” (352G), as a “current vogue for classifying all tests of legal liability” (353E) and as a manifestation of “current legal jargon” (354F). His Lordship noted judicial statements that tests of legal liability “are not easily assignable to one of those categories rather than the other” (353F) and concluded at 354: “Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective”. In the other authority relied upon, R v Lawrence [1982] AC 510 at 526E, Lord Diplock described the distinction as “simplistic”.

52    To similar effect is the comment by Gleeson CJ and Handley JA in SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288 at 290. Their Honours referred to a distinction between an “objective” and “subjective” test for knowledge in Article 25 of the Warsaw Convention and added “whatever exactly that might mean”.

53    The submissions in this Court adapted some of the terminology of Lord Diplock in Caldwell supra at 354. The Appellant submitted that “recklessness” in s8(3)(b) should be determined by asking “what a prudent person would consider might happen”. In view of the imprecision of the words “subjective” and “objective”, that is the question which ought be answered in the present case.

54    As indicated above, in submissions before her Honour, and in this Court, the Appellant relied on some observations of Lord Diplock in Caldwell supra esp at 352-354 and Lawrence supra esp at 526-527 and by Lord Hailsham of St Marylebone LC in the latter at 520-521. Lord Diplock adopted an objective test with respect to the use of the word “reckless” in the context of the two statutory provisions under consideration in the respective cases, by giving consideration to the mind of an “ordinary prudent individual” (eg Caldwell at 354B-C and Lawrence at 526F, see also Lord Hailsham at 520H-521A).

55    This approach of Lord Diplock has been the subject of considerable criticism and has not generally been adopted in Australia (c/f R v Tolmie (1995) 37 NSWLR 660 at 670-672 per Kirby P). More recent English authorities have refused to apply the approach to other statutory provisions invoking a test of recklessness. (A range of materials is collected in Clarkson and Keating Criminal Law: Texts and Materials (4th ed 1998) at 154-184; see also R v Reid [1992] 1 WLR 793 at 805H, 817H).

56    The Lord Chancellor has recently traced the divergence and subsequent realignment of Australian and English jurisprudence on the issue of intention and recklessness in “The Mental Element in Crime: A Comparative Analysis of Australian and English Law” a speech by the Lord Chancellor of the United Kingdom, Lord Irvine of Lairg, delivered at the University of Sydney’s Faculty of Law on 6 September 2000.

57    On the subject of Caldwell his Lordship described the decision in the following way at p6:

“The ruling was a radical departure from the traditional understanding of recklessness.”

58    His Lordship went on to note, at 7:

“At the time, Caldwell was criticised quite forcefully by Australian academic lawyers, whereas the Australian courts seem to have regarded it as going only to the interpretation of a specific statute, and so of no general significance.
The High Court has ignored Caldwell almost entirely. Exceptionally McHugh J’s judgment in Royall v R [(1991) 172 CLR 378 at 455] mentions Caldwell when considering the mens rea element of “reckless indifference to death” contained in s18 of the Crimes Act 1900 (NSW). However, like the rest of the High Court, he went on to reject an objective interpretation, ruling that the section requires foresight of the probability or likelihood of death.”

59    His Lordship went on to identify cases in which the word “reckless” may have been used in an objective sense but concluded at p7:

“Despite these divergent authorities, however, it is right to say that by the time of Caldwell the subjective meaning of recklessness was predominant in Australia. It had already been endorsed in a series of cases at State level and blessed by the High Court in such cases as Vallance v R [(1961) 108 CLR 56 at 64] and Pemble v R [(1971) 124 CLR 107 at 119]. Caldwell elicited no change in this position.”

60    His Lordship concluded at p8:

“If Caldwell failed to take hold within the Commonwealth, its roots have proved shallow even in England. Although the decision exercised considerable influence during the 1980s, its importance has diminished. For example, it no longer governs the English law of manslaughter, rape, or assault. In effect, its application is now restricted to the offence in Caldwell itself (criminal damage), and to a few other statutory offences. Professor Ashworth has observed rightly, that ‘the Caldwell definition is now of little practical significance’. Subjective recklessness of the variety found in Cunningham and Royall now predominates and, once more, English law is aligned with Australian.”

61    The fate of Lord Diplock’s reasoning, as summarised by the Lord Chancellor in these passages, indicates that the Appellant’s reliance upon it, as such, was not auspicious. In the normal course, an Australian court will approach the construction of terminology of “recklessness” in a criminal statute on the basis that Parliament intended a subjective test to be applied. (See eg the authorities collected in Fisse “Howard’s Criminal Law” (5th ed) 1990 pp486-487 esp at ; Gillies Criminal Law (4th ed) 1997 at 59, 63-65, 66-67). Nevertheless each statutory formulation must be construed in its own context, having regard to the purpose of the particular legislative scheme. No different considerations arise in the process of construing a treaty.

62    In the present case, the relevant intention of Parliament is to implement Australia’s treaty obligations. The word “reckless” is found in Regulation 11 of Annex I of the Convention and its meaning in that Convention is what the Parliament of New South Wales intended to adopt. As noted above, pursuant to Article 31 of the Vienna Convention, the word “recklessly” in Regulation 11(b)(ii) must be given its ordinary meaning in its context and in the light of its object and purpose.

63    The most important textual indicator with respect to the proper construction of the word “recklessly” is that it is combined with an express qualification that it be accompanied by “knowledge that damage would probably result”, the “damage” here referred to being to the ship or its equipment, not the damage caused by any discharge of oil. This aspect of the context points, in my opinion, to the conclusion that actual advertence to the risk of damage by the owner or master involved in the incident is required. It is not material to inquire what a prudent person would consider might happen.

64    Assistance can be obtained from the case law on Article 25 of the Warsaw Convention concerning International Carriage by Air, as amended by the Hague Protocol of 1955. This Article provides:

“The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result …”

65    As can be seen, the clause employs the same terminology as Regulation 11 of the 1973 Convention with which these proceedings are concerned, and may very well have been the source of the terminology for the drafters of the 1973 Convention.

66    At a time when Lord Diplock’s approach to the construction of the word “recklessly” in criminal statutes was more generally accepted in England, the Court of Appeal had to determine the proper meaning of the composite phrase in Article 25 of the Warsaw-Hague text in Goldman v Thai Airways International Ltd [1983] 1 WLR 1186. Eveleigh LJ referred to the observations of Lord Diplock in Caldwell and Lawrence (and to the supporting observations of Lord Hailsham of St Marylebone LC in Lawrence at 520), and said at 1194:

“One cannot therefore decide whether or not an act or omission is done recklessly without considering the nature of the risk involved. In the present case the omission relied upon was the failure to order seat belts to be fastened. The risk with which we are concerned, therefore, is the risk of injury to the passenger whose belt should have been fastened. If the article had stopped at the word ‘recklessly’, I would have been prepared to say that, on the judge’s findings, the plaintiff had proved his case. … However, the doing of the act or omission is not only qualified by the adverb ‘recklessly,’ but also by the adverbial phrase, ‘with knowledge that damage would probably result.’ If the pilot did not know that damage would probably result from his omission, I cannot see that we are entitled to attribute to him knowledge which another pilot might have possessed or which he himself should have possessed.”

67    It is not clear that his Lordship was intending to attribute a subjective meaning to the element “recklessly” alone ie in isolation from the subsequent reference to knowledge. However, that is suggested at 1196 when his Lordship said:

“For the pilot’s omission to amount to recklessness, it is in my opinion necessary to show that he knew that prudent flying required him to illuminate the seat belt sign …”

68    Furthermore at p1199, his Lordship said:

“As I understand article 25, it is not sufficient to show that he deliberately broke a regulation, even one which is designed for safety, unless it is also shown that he had knowledge that injury would probably result. While it is not necessary for my decision in this case, I would go further and say that it is in relation to that knowledge (and not to regulations themselves) that his conduct is to be judged in order to determine whether or not it was reckless.”

69    Purchas LJ said at 1202:

“I agree that the true interpretation of article 25 when it is read as a whole involves the proof of actual knowledge in the mind of the pilot at the moment at which the omission occurs, that the omission is taking place and that it does not involve probable damage of the sort contemplated in the article.”

70    Although not adopting the terminology of “subjective” and “objective” tests with respect to recklessness, terminology which had at that stage been criticised in the House of Lords, the reasoning and conclusion of the court in Goldman v Thai Airways supports a subjective test for the combined clause “recklessly and with knowledge that damage would probably result”.

71    This was how the decision was interpreted by Rogers CJ Comm D in SS Pharmaceutical Co Ltd v Qantas Airways Ltd (1988) 22 NSWLR 734 at 749-750. Rogers CJ Comm D noted that a divergence of approach had appeared with respect to this provision of the Warsaw Convention. His Honour referred to decisions of the French courts which applied an objective test, contrasting them with the subjective test applied in Belgium and Switzerland. Such divergence continues to exist (see Shawcross & Beaumont: Air Law (4th ed 1977-) Vol 1 at par 447).

72    In the appeal to this Court (SS Pharmaceutical Pty Ltd v Qantas Airways Limited [1991] 1 Lloyd’s Rep 288), both the majority, Gleeson CJ and Handley JA, and the dissentient on the facts, Kirby P, adopted the reasoning in Goldman v Thai Airways. Gleeson CJ and Handley JA at 291 referred with approval to the passage from the judgment of Purchas LJ I have quoted above. The issue now before the Court - whether the test is objective or subjective - was raised in SS Pharmaceutical but not pressed at the hearing. (See 290 and 302).

73    In SS Pharmaceutical, Gleeson CJ and Handley JA referred to the submissions on Article 25 of the Warsaw Convention that were pressed and said, at 291:

“The submission was, in essence that what the respondent had to prove in the present case was both recklessness and actual subjective knowledge of the kind referred to in art. 25. That is, without doubt, a stringent requirement. It was described in argument as ‘a standard of highly reprehensible conduct’. We would not disagree with that, provided the more colourful description is not permitted to replace the language of the article as the test to be applied. Reference was also made to the juxtaposition in art. 25 of the concept of intent to cause damage and the concept which is of present relevance, the latter being said to take some of its colour from its relationship with the former. Again, so much may be accepted, provided the argument is not pressed beyond its proper limits. Plainly the second concept is different from the first, otherwise its presence would add nothing to the content of the article. Nevertheless it helps to reinforce the valid points that the state of mind involved goes beyond mere carelessness and that actual, as distinct from merely imputed, knowledge must be shown.”

74    The English Court of Appeal has subsequently affirmed the reasoning in Goldman v Thai Airways and SS Pharmaceutical, in Gurtner v Beaton [1993] 2 Lloyd’s Rep 369 at 386-387 and Nugent v Michael Goss Aviation Ltd (Court of Appeal Civil Division, 15 April 2000, unreported). In Gurtner at 386 Neill LJ referred to Goldman v Thai Airways as finding that the test was “subjective”. In Nugent at p4 Auld LJ also interpreted Goldman v Thai Airways as “holding that the test of recklessness was subjective” and, at pp4 and 10, approved the passage from Purchas LJ which I have quote above.

75    This line of authority suggests that there is usually no point in treating separately the two elements of the formulation, as is done in the question posed for this Court. As Auld LJ said in Nugent:

“As a matter of proof the two will often stand or fall together, as happened in Goldman; see in particular per Eveleigh LJ at 1199F and 1200E and in SS Pharmaceutical per Gleeson CJ and Handley JA at 293. As so often, practical considerations of what a tribunal is prepared to infer as to a defendant’s state of mind may be more determinative than fine matters of principle of what one legal concept adds to another.”

76    It may have been practical considerations of this character that Kirby P had in mind when he said in SS Pharmaceutical at 302 that the phrase “recklessly and with knowledge that damage would probably result” involved “one composite concept”. Pearlman J correctly proceeded to assess the facts of the case which went to awareness of risk and awareness of probability of damage together. Her Honour was correct to do so in circumstances, which will almost invariably be the case, where there is no practical differentiation between facts going to one and facts going to another.

77    This Court is asked to differentiate the issues. Although it is possible to do this as a matter of analysis, it is unlikely that any practical consequence will follow. Nevertheless, question (ii)(a) should be answered as follows:

“In order to determine whether a person acted ‘recklessly’ for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen.”

Question ii(b): Did the Respondents Act Recklessly?

78    The Appellant submitted that it was not open for the trial judge to find, even on a subjective test, that the Respondents did not act “recklessly”. The Appellant contended that a question of law did arise in this regard. It relied in this respect on the evidence of an expert called by the Respondents and submitted that on the basis of that evidence Pearlman J should, as a matter of law, have concluded that the Defendants were reckless. It was submitted that her Honour could have come to no other conclusion.

79 The Appellants submitted that, by force of s8(6), the Respondents bore the onus of establishing all of the facts and matters required by way of defence under s8(2), including the proof that they did not fall within the exception to the defence, namely, that the damage to the ship or equipment was not “intentional damage” as defined in s8(3). It is appropriate to approach these proceedings on the assumption that the submission as to onus is correct.

80    The Appellant submitted that there was no evidence of an acceptable character in this respect. Specifically there was no evidence from the chief engineer as to his state of knowledge with respect to the issue of whether or not damage would probably result to the crane by reason of some omission or another. It was submitted that the evidence relevant to this issue from the captain of the ship did not discharge the relevant onus. (It must, of course, do so in the proceedings against him personally.) Furthermore, it was submitted by the Appellant that the evidence adduced on behalf of the Respondents that third parties had inspected and certified the operations of the crane was irrelevant.

81    These issues involve factual findings. It is possible to identify a question of law based on the proposition that no other finding was open. (See for example Attorney General (NSW) v X [2000] NSWCA 199 esp [56]-[63] and [118]-[128]). The issue in my opinion is whether or not only one finding was open.

82    The Appellant placed considerable reliance on the fact that the Respondents’ expert evidence supported the Appellant’s case in certain respects. That is not a determinative consideration. Merely because her Honour determined the matter in favour of the Respondents does not mean that her Honour was under any obligation to accept the whole of the evidence adduced on behalf of the Respondents.

83    Her Honour made a finding of fact that the master and the owner both had reason to believe that the hydraulic hose would probably not rupture by reason of the use of the crane. Her Honour based that inference on a number of findings of primary fact.

84    The first, was the fact that the owner had, to the knowledge of the master, engaged experts to carry out work on the crane both to assemble it and to test its operation. Her Honour concluded:

“It was reasonable in those circumstances for both the defendants to believe that the crane and its components would operate without mishap.”

85    Her Honour also referred to the fact that the crane had been installed for only six months and during that period had operated without failure. It may be that the longer the operation of the crane the more likely some form of failure by reason of abrasion and chafing should have been understood to be likely to occur. Nevertheless her Honour was entitled, in my opinion, to find that a period of only six months was not such as to give rise to concern in this respect.

86    Finally, her Honour referred to the fact that although it was a physical possibility to inspect the hoses at the point where her Honour found the rupture to have occurred, such inspection may not have revealed the abrasion and chafing which led to the actual rupture.

87    In my opinion, these matters, to which her Honour expressly referred, were facts and matters which her Honour was entitled to take into account and which did constitute evidence on the basis of which she could infer that the Respondents were not acting “recklessly”. It does not assist the Appellant’s case on the question of law as postulated, to submit that there was evidence of a different character which could give rise to a contrary inference. The choice was a matter for her Honour. It cannot be said that only one finding was open. The question should be answered: “Yes”.

Answers

88    Question (i)(a): Yes.

89    Question (i)(b): Decline to answer.

90 Question (ii)(a): In order to determine whether a person acted “recklessly” for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen.

91    Question (ii)(b): Yes.

92    WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Spigelman CJ. I agree with his reasons and the orders he proposes.

93    BARR J: I agree with Spigelman CJ.

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