State Pollution Control Commission v Sydney Harbour Tunnel Company Limited

[1989] NSWLEC 197

Land and Environment Court

of New South Wales

CITATION:	State Pollution Control Commission v Sydney Harbour Tunnel Company Limited [1989] NSWLEC 197
PARTIES:	APPLICANT State Pollution Control Commission RESPONDENT Sydney Harbour Tunnel Company Limited
FILE NUMBER(S):	50063; 50064; 50065 of 1989
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Clean Air Act Land and Environment Court Act Noise Control Act State Pollution Control Commission Act
CASES CITED:	R. v. Bellman (1988); Australian Oil Refining Pty. Ltd. v.Copper (1987 64 LGRA 322); J. & A. Brown and Abermain Collieries v. Robertson, ((1980) 1 NSWLR 622),
DATES OF HEARING:
DATE OF JUDGMENT:	05/26/1989
LEGAL REPRESENTATIVES:	APPLICANT Mr. Street RESPONDENT Mr. Bennett

JUDGMENT:

HIS HONOUR: There are two Notices of Motion before the Court in matters Nos. 50063 and 50065 of 1989 being prosecutions under the State Pollution Control Commission Act (section 17D(9)). The first Notice of Motion seeks that the summons be struck out on the basis that each of the summonses are mutually inconsistent, or indeed mutually destructive, (a phrase referred to in some of the authorities), unless there is an election by the Prosecutor upon which summons to proceed.

At the request of the parties I have also agreed to hear two other matters that are relevant to the set of prosecutions brought by the State Pollution Control Commission against the Sydney Harbour Tunnel Company Limited. There is a third summons, issued pursuant to an Order of the Court, (No. 50064 of 1989), under the Noise Control Act alleging a breach of section 26(2) of that Act. It is common ground that each of the three summonses allege an offence arising out of the same set of facts and circumstances on 27 October 1988 at Bradfield Park, Sydney.

The submissions that I am asked to deal with to-day in relation to the Noise Control Act prosecution are firstly, whether or not the Noise Control Act prosecution places the defendant company in double jeopardy because it is also charged with offences arising out of the same incident under the State Pollution Control Commission Act. And secondly, whether or not the summons under the Noise Control Act is bad for duplicity because of the words in the charge "cause or" - and I underline the word, 'or' - "increase" the emission of noise.

It is the submission of Mr. Street of Counsel on behalf of the Prosecutor that while he concedes that charges are mutually inconsistent in relation to the SPCC Act summonses, and there is a need for the Prosecutor to elect upon which to proceed, that election does not need to be made until the close of the prosecution case. In support of this submission he cites an English Court of Appeal decision of R. v. Bellman (1988) 86 Cr App R 40 at 46.

This submission is contested by Mr. Bennett, Counsel for the defendant, who submits that an election needs to be made at an earlier point of time before the hearing commences, otherwise, in his submission, there is an unfairness or injustice visited upon the defendant who does not know which particular case he is to meet when the charges on their face appear to be mutually inconsistent.

I have to observe that at this point of time there has been no order of the Court that the two cases are to be heard together, see s.51(1) of the Land and Environment Court Act. Sometimes that occurs because it is convenient and there is no objection from the defendant. Mr. Street has submitted in the alternative, (although he still presses his primary argument that the election is not required to be made until the close of the prosecution case), that the matters can proceed to hearing separately and that this will overcome any possible unfairness or prejudice to the defendant (which unfairness he does not admit).

It seems to me that in the circumstances it is unnecessary for the Court to determine at what point of time the election needs to be made by the Prosecutor. In the circumstances of this case I favour, although not deciding Mr. Street's submission, that the election would not need to be made until the close of the prosecution case.

However, in my opinion if there is any hint of unfairness, injustice or prejudice to the defendant, the proper course for the Court to adopt is to order that the two summonses be heard and proceed separately. I therefore order that summons No. 50063 of 1989 be heard separately from No. 50065 of 1989, and of course at the conclusion of the hearing of 50063 the defendant, depending upon the result, will no doubt take a certain course in relation to the other summons, 50065. In my opinion the following of this procedure will overcome any possibility of there being perceived to be any unfairness or prejudice to the defendant company.

The second Motion concerns the Noise Control Act charge No. 50064 of 1989. The submission, very briefly put, is that because the ultimate fact in issue, namely the noise emission, is the same in both the State Pollution Control Commission Act charges and the Noise Control Act summons, this places the defendant in a position of double jeopardy.

It seems to me that the offence charged under the Noise Control Act and the offence or offences charged under the State Pollution Control Commission Act are clearly separate and distinct offences. The fact that they arise out of the same facts, or set of facts or circumstances, that they may both involve a question of fact relating to the event of noise emission, does not in my opinion constitute the placing of the defendant in a position of double jeopardy. In this respect I note the decision of the Court of Criminal Appeal in Australian Oil Refining Pty. Ltd. v. Cooper ((1987) 64 LGRA 322). In a somewhat similar factual situation the Court of Criminal Appeal came to the conclusion that charges brought under the Clean Waters Act, 1970 and the Prevention of Oil Pollution in Navigable Waters Act, 1960 did not contravene the common law concept of double jeopardy.

I decline to take any action upon the summons No. 50064 of 1989 in relation to the defendant's submission of double jeopardy. The last matter concerning the same charge is directed towards the allegation in the summons that the defendant "caused or increased" the emission of noise. Reliance is placed upon the disjunctive, the submission being that the summons is bad for duplicity.

Without going to the authorities on duplicity, many of which have been cited this morning, I hold that the words in the statute, the Noise Control Act, and summons No. 50064 of 1989, "cause or increase", do not amount to a duplex situation. Again, I prefer to follow the decision of the Court of Criminal Appeal in J. & A. Brown and Abermain Collieries v. Robertson, ((1980) 1 NSWLR 622), where the Court was examining the very same words in a different statute, the Clean Air Act, 1961. The Court of Criminal Appeal (Reynolds, Hutley and Samuels JJA) concluded that section 16(1) of the Clean Air Act did not create separate and distinct offences and was not bad for duplicity. Upon a proper construction of the provision the word 'cause' and the word 'increase' did not occupy mutually exclusive categories. 'Increase' was merely one application of the notion of cause.

I have examined the subject provision of the Noise Control Act and I can see no reason why I should not similarly construe the provision and the words in the same way as the Court of Criminal Appeal did the words of the Clean Air Act in Brown v. Robertson. I find that the summons is not duplex and therefore decline to take any step upon the summons. The result is that the Notices of Motion are dismissed.