The Corporation of the City of Adelaide v Circelli
[2015] SASC 21
•20 February 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal)
THE CORPORATION OF THE CITY OF ADELAIDE v CIRCELLI
[2015] SASC 21
Ruling of The Honourable Justice Bampton
20 February 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - SUMMARY OFFENCES JURISDICTION
Applicant seeks permission to appeal against a decision of a Judge refusing to order a stay of a prosecution commenced in the summary jurisdiction of the Environment, Resources and Development Court – applicant charged with four counts of failing to comply with s 45(5) of the Environment Protection Act 1993 (SA) – whether special reasons to grant permission to appeal exist.
Held: Application dismissed.
Environment Protection Act 1993 (SA) Part 6, s 45(5); Summary Procedure Act 1921 (SA) s 22A, s 181; Criminal Law Consolidation Act 1935 (SA) s 348, s 352; Environment, Resources and Development Court Act 1993 (SA) s 7, s 30(4); Magistrates Court Act 1991 (SA) s 42(1a); Magistrates Court Rules 1992 (SA) r 51, referred to.
R v H, GJ [2014] SASCFC 34; White v The State of South Australia (2007) 96 SASR 581; van Reesema v Police [2009] SASC 8; Sedmak v Police [2008] SASC 307; Jago v The District Court of New South Wales (1989) 168 CLR 23; Moevao v Department of Labour [1980] 1 NZLR 464; R v Ulman-Naruniec (2003) 143 A Crim R 531; Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459; Yuen v Police [2012] SASC 149; Kryiakopoulos v Police (SA) [2006] SASC 71; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; Acre Development Pty Ltd v National Companies and Securities Commission (1987) 46 SASR 238, considered.
THE CORPORATION OF THE CITY OF ADELAIDE v CIRCELLI
[2015] SASC 21Civil: Permission to Appeal
BAMPTON J: This is an application by the Corporation of the City of Adelaide (the applicant) for permission to appeal against a decision of a Judge of the Environment, Resources and Development Court of South Australia (the ERD Court) refusing to order a permanent stay of proceedings.
Background
The Environment Protection Authority (the respondent) commenced a prosecution against the applicant in the summary jurisdiction of the ERD Court alleging breaches of a five year licence (the licence). The licence was issued pursuant to the licensing system that regulates activities of environmental significance under Part 6 of the Environment Protection Act 1993 (SA). The licence was an environmental authorisation that permitted the applicant to operate a waste and recycling depot at Wingfield Road, Dry Creek (the dump).
The applicant remained subject to the licence following closure of the dump and in particular the capping requirement included in the licence.
The capping requirement required the applicant to cover the surface of the closed landfill with an engineered barrier, layer, or cap as an environmental protection measure. The licence imposed an obligation on the applicant to implement a capping design referred to in condition 6 of the licence, “unless acting in accordance with conditions of this licence”.
Condition 7 sets out the stages for the construction of the cap stipulated in condition 6. In particular, condition 7.2.4 provided that the applicant “must ensure that as a minimum, at least 20% of the capping is completed each year commencing from the date of this licence”.
Condition 8 provided for the applicant to develop an alternative capping design to the satisfaction of the respondent if the applicant “does not wish to implement the capping design” referred to in condition 6. Condition 8 stated the applicant “must” comply with conditions 8.1 to 8.6. The wording of condition 8.6 mirrors the wording in condition 7.2.4 mandating the applicant to “ensure that as a minimum, at least 20% of the capping is completed each year commencing from the date of this licence”. The licence commenced on 1 November 2007.
The complaint
The applicant is charged by way of complaint and summons issued pursuant to the Summary Procedure Act 1921 (SA) (the SPA) with four counts of failing to comply with s 45(5) of the Environment Protection Act. Each count alleges a failure “to comply with a condition of the authorisation requiring the completion of a minimum percentage of capping works at the premises”.
Under the heading “particulars” in respect of each count it is alleged that the condition of the licence that has not been complied with is condition 7.2.4. That is a failure to comply with the minimum 20 per cent capping of the site required by conditions 6 and 7 of the licence by 31 October 2008 (count 1); 31 October 2009 (count 2); 31 October 2010 (count 3); and 31 October 2011 (count 4).
The ERD Court decision
The applicant applied to the ERD Court for a permanent stay of the prosecution as an abuse of process arguing that:
1. The prosecution was “foredoomed to failure”
The applicant argued that because, conditions 6 and 7 do not impose any positive obligation upon it but merely provide an option. The applicant contended that the failure by it to complete that option could not be the subject of a prosecution. The applicant said that once it “decided to pursue” condition 8 it no longer had any obligation to comply with condition 7. The Judge rejected this assertion saying that it was arguable that, on a proper construction of the conditions of the licence, the applicant remained subject to the obligations prescribed by conditions 6 and 7 at least until all of the requirements of condition 8 were fulfilled, including, for example, condition 8.5, which says that the licensee must:
complete the capping in accordance with the design that has been approved by the Authority no later than 31 October 2012.
The Judge considered that this construction was arguable regardless of other transactions that the respondent had entered into in relation to the dump. The Judge stated that there “is no evidence that all of the requirements of condition 8, including 8.5, have been fulfilled. The evidence before me to date suggests that they have not”.
2. It would bring the administration of justice into disrepute
The applicant argued that the respondent by means of its conduct in dealing with alternative proposals for caps “induced” it “to believe that the capping had been settled and that no further action would be taken by the EPA”. The Judge rejected this ground saying it relied upon contested assertions of fact and opinion, which, in some instances, were directly contested in the affidavit material before her. The Judge said that on the case before her there was no basis for asserting that the inferences relied upon were intentionally conveyed on behalf of the respondent, or even reasonably drawn by officers of the applicant.
3. The delay in bringing the prosecution 18 months after the last alleged failure to comply with the capping requirement was prejudicial
The Judge dismissed the application on grounds that the applicant had failed to show that the prosecution was doomed to failure, or that continuation of it would bring the administration of justice into disrepute.
The application for permission
Both the application for permission and the substance of the appeal were argued before me.
The criminal jurisdiction of the ERD Court is conferred by s 7 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act). Section 7(3a) requires the Court to deal with summary offences in the same way that the Magistrates Court deals with such a charge and in accordance with the SPA.
Section 30(4) of the ERD Court Act provides:
A party to any criminal proceedings before the Court may appeal against any judgment given in those proceedings in the same way, and to the same extent, as an appeal may be instituted against a judgment given in a criminal action under the Magistrates Court Act 1991.
As the Judge’s refusal to grant the stay is an interlocutory decision, an appeal against it can only proceed by way of the grant of permission.
Section 42(1a) of the Magistrates Court Act 1991 (SA) (the MCA) permits appeals from interlocutory judgments in limited circumstances. Section 42(1a)(c) of the MCA provides that an appeal lies only if I am satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined at this stage, the trial not having begun.
In this respect s 42(1a)(c) of the MCA is analogous to s 352 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) which provides at s 352(1)(c):
(c)if a court makes a decision on an issue antecedent to trial that is adverse to the defendant—
(i) the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);
(Emphasis added)
An issue antecedent to trial is defined in s 348 of the CLCA to mean a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the Court.
It is the usual course that, the Court having refused to order a stay, the trial of the criminal prosecution would proceed. As stated by the Court in R v H, GJ,[1] the principle that the criminal trial process should not be fragmented weighs heavily against an appeal court considering an issue antecedent to trial.
[1] [2014] SASCFC 34.
Do special reasons exist?
The term “special reasons” is not defined in the MCA. It is an expression that “must always be interpreted in light of its context”.[2]
[2] White v The State of South Australia (2007) 96 SASR 581 at 592 (Doyle CJ).
Justice Bleby in van Reesema v Police,[3] said that for there to be “special reasons” to grant permission to appeal “there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal”.
[3] van Reesema v Police [2009] SASC 8 at [23].
The applicant argues that the Judge’s approach to the construction and operation of the licence was fundamentally flawed. It asserts that a trial will involve very considerable expense to it and a significant cost in terms of judicial and public resources. It says that it is unfair and unjust to put it to that expense and to waste those resources in circumstances where, if the applicant’s approach to the construction and operation of the licence is correct, the case can ultimately be found in its favour on a very short point.
The applicant further complains that the situation is exacerbated because if the Judge’s decision stands with regard to condition 8 then it will have to prepare and adduce evidence which not only addresses the particulars charged, but also the facts and circumstances relating to condition 8 compliance as well. It is asserted that this will significantly increase the time, scope, and cost of the trial and require the obtaining of additional expert evidence and lay evidence from witnesses who would otherwise have had no involvement in the case.
The applicant contends it also risks a decision at trial on grounds that have nothing to do with the particulars charged and therefore there is a risk of a miscarriage of justice if the Judge’s reasons are not corrected now. Further, it is argued that this is not an ordinary case where an appeal at this point would inevitably delay and fragment the proceedings. It is submitted that the most likely outcome of a successful appeal will be to bring the prosecution to an end.
Certain of the applicant’s complaints about the Judge’s decision are based on the premise that a finding or determination was made. The only conclusion the Judge came to was that the applicant had failed to show that the continuation of the prosecution would bring the administration of justice into disrepute. The Judge did not make any findings or determinations regarding the construction and operation of the licence. The Judge, in considering whether there were exceptional circumstances justifying the ordering of a stay, made comments regarding the evidence before her and noted that a counter argument to the applicant’s contended construction was arguable.
The issue I need to consider in determining whether special reasons exist is whether there is some fact or circumstance of the case which takes it out of the ordinary and distinguishes it from the usual cases, noting that an arguable case will generally be insufficient.[4] Consideration of this issue requires an assessment of the stay application.
[4] van Reesema v Police [2009] SASC 8.
The power to stay proceedings
The duty of the Court is to exercise its jurisdiction and decide a case when that jurisdiction is properly invoked. For this reason, the power to stay proceedings as an abuse of process will be exercised only in exceptional circumstances.[5]
[5] Jago v The District Court of New South Wales (1989) 168 CLR 23.
In Jago v The District Court of New South Wales, Mason CJ said the Court’s inherent discretionary power to stay proceedings to avoid an abuse of its processes will be enlivened where the continuation of proceedings “will culminate in an unfair trial” and “will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial”.[6] Put another way, is “the continuation of the proceedings inconsistent with the recognised purposes of the administration of justice and so constitutes an abuse of process”?[7]
[6] Jago v The District Court of New South Wales (1989) 168 CLR 23 at 30-31.
[7] Moevao v Department of Labour [1980] 1 NZLR 464 at 482.
For the Court to exercise its inherent discretionary power to stay proceedings “there must be a fundamental defect which goes to the root of the trial” such that there is nothing the trial Judge can do to alleviate or prevent the unfairness and prejudice caused by the defect.[8]
[8] Jago v The District Court of New South Wales (1989) 168 CLR 23 at 34.
In R v Ulman-Naruniec, Sulan J stated that before the power to stay is exercised it is necessary to establish:[9]
1.That there is prejudice caused by the abuse of process.
2.That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the applicant not receiving a fair trial.
3.That there is no remedy available which will alleviate the prejudice.
4.That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.
[9] (2003) 143 A Crim R 531 at [205] (Sulan J).
The applicant, who carries the onus of establishing that a stay of proceedings should be granted, must demonstrate that there has been an abuse of process and that the abuse causes prejudice or unfairness which cannot be alleviated.
In R v H, GJ, the Court said:[10]
The exercise of that exceptional power must take into account the availability of an appeal in which the trial procedures and resulting orders can be reviewed and remedied if there has been a miscarriage of justice. It is very important to bear in mind before exercising the discretion to stay criminal proceedings that an accused, if convicted, has a right of appeal in accordance with s 353 of the Act. If the apprehended unfairness on which an application for a stay is founded comes to pass, there will have been a miscarriage of justice within the meaning of that term in s 353(1) of the Act. It will often be the case that it is not possible to confidently say whether the trial of an accused will be unfair until the conclusion of the trial. A stay of proceedings for an abuse of process is necessarily an exceptional order because it entails a conclusion that the resulting trial will be unfair irrespective of how the evidence unfolds, no matter what evidence the trial judge might ultimately exclude, and despite any directions which might be given to the jury.
[10] [2014] SASCFC 34 at [21].
The Court’s power to stay must include a consideration of the applicant’s interests and the public interest in the offending conduct being brought to trial and determined.[11] It is for these reasons that the concept of unfairness that will then enliven the power to stay the proceedings “is a relatively narrow one”.[12]
[11] Jago v The District Court of New South Wales (1989) 168 CLR 23 at 50 (Brennan J).
[12] Sedmak v Police [2008] SASC 307 (Doyle CJ).
It is submitted that the applicant was given an option under the licence to opt out of condition 6 and to cap the land in accordance with condition 8. The applicant argues that by offering more than one way of satisfying the licence an ambiguity was created which makes prosecution for non compliance unfair and therefore incompetent.[13]
[13] Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459.
Further, the applicant contends that once it elected to cap pursuant to condition 8 with the knowledge and acquiescence of the respondent, the respondent cannot now allege failure to comply with conditions 6 and 7.
The applicant submits that the identification of the particular condition breached is an essential element of the charge and that the complaint charges it with contravening condition 7. The respondent argues that the essential element of each count is a failure to comply with a condition of the licence.
As noted above, conditions 7.2.4 and 8.6 are in identical terms. The respondent’s position is that the identical minimum percentage of capping works in either condition has not been achieved giving rise to a breach of s 45(5) of the Environment Protection Act.
There is nothing ambiguous or unfair on the face of the complaint as currently pleaded. It complies with s 22A of the SPA which prescribes how a complaint is to be pleaded. Section 22A(1) states the complaint “shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge”.
The statement of the offence complies with s 22A(2) by describing “the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.” In compliance with s 22A(3), “after the statement of the offence, necessary particulars of the offence” alleging a breach of condition 7.2.4 have been “set out in ordinary language”.
As noted by the respondent, it may apply at any time, subject to considerations of procedural fairness, to amend pursuant to s 181(2) of the SPA.
What is charged, what the respondent must establish, and what the applicant must meet with respect to each count is a failure “to comply with a condition of the authorisation requiring the completion of a minimum percentage of capping works at the premises”. In my view, the material averment that must be proved is the allegation that the land has not been capped.[14]
[14] Yuen v Police [2012] SASC 149 at [83]-[84]; Kyriakopoulos v Police (SA) [2006] SASC 71 at [10]‑[11]; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484.
The applicant may have to, in its defence, prepare and adduce evidence which not only addresses the particulars alleged, but also the facts and circumstances relating to condition 8. Alternatively, if condition 8.6 is particularised as opposed to condition 7.2.4 it is conceivable the respondent would have to go to similar expense and effort in defending the proceedings. There is nothing unique about this respondent contending with the vicissitudes of a prosecution.
In passing, I note the applicant accepts that if a breach of condition 8 is alleged; it could not and would not argue its case for a stay.
This is a dispute between the parties regarding the construction of the licence conditions and the nature of the “obligation” to comply with the capping requirement. How the licence is to be interpreted is a matter for trial. If the applicant’s approach to the construction and operation of the licence is correct and the prosecution does not succeed, the applicant may be entitled to costs pursuant to rule 51 of the Magistrates Court Rules 1992, thereby alleviating any unfairness.
The detailed submissions made by the parties and the affidavits filed exhibiting correspondence regarding the licence clearly demonstrate this is a matter for evidence including expert evidence at trial.
If after evidence is given it appears to the applicant there are grounds to agitate the stay application or to make a no case to answer submission it will be entitled to do so.
The prospect that the trial will involve significant cost in terms of judicial and public resources is, whilst undesirable, not extraordinary or unusual.
Conclusion
I am not satisfied there is any feature of this prosecution that is extraordinary, unusual or atypical justifying the Court treating the case as one out of the ordinary.[15] The applicant’s submissions may be arguable but that is not enough to establish special reasons justifying the grant of permission to appeal.
[15] Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238 at 243-245.
The applicant’s rights of appeal against the refusal to order the stay are not lost. The application can be renewed during the trial in the light of evidence given “if that evidence casts a different light on issues relevant to the grant of a stay”. Further, if the applicant is found guilty, the refusal of a stay could be a ground together with any other ground for an appeal against conviction.[16]
[16] Sedmak v Police [2008] SASC 307 at [21].
Whilst I am not satisfied there are special reasons justifying the grant of permission to appeal, I intimate that there is nothing before me to suggest a permanent stay of proceedings is warranted. There is no fundamental defect or abuse in these proceedings causing prejudice or unfairness that cannot be alleviated.
Finally, in the words of Doyle CJ in Sedmak v Police, “there is no particular benefit to the interests of justice in having me review the [Judge’s] ruling at this stage. If there is to be a challenge to the ruling; it is better that that challenge be made and decided on the basis of the evidence, rather than on the basis of submissions”.[17]
[17] Sedmak v Police [2008] SASC 307 at [22].
I dismiss the application as I am not satisfied there are special reasons justifying the grant of permission to appeal.
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