TT Line Company Pty Ltd v Burrows

[2021] HCATrans 206

[2021] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H5 of 2021

B e t w e e n -

TT LINE COMPANY PTY LTD

Applicant

and

RAE BURROWS

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY AND MELBOURNE

ON FRIDAY, 3 DECEMBER 2021, AT 10.26 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.J. NEAL, SC appears with MR M.D. STANTON and MS K.E. GRINBERG for the applicant.  (instructed by
HFW Australia)

MR D.G. COATES, SC appears with MR S.A. NICHOLSON for the respondent.  (instructed by Director of Public Prosecutions Tasmania)

GAGELER J:    Yes, Mr Neal.

MR NEAL:   Thank you, your Honour.  Your Honour, this application concerns the application of the law of duplicity to general duty offences and the general principle for which we contend is as follows:  that the construction of general duty offences should adhere to the important criminal law principles that, one, the defendant is entitled to be told with precision the act or omission alleged to contravene the duty, and, two, only one such act or omission may be charged unless a statute provides to the contrary or it falls under one of the limited exceptions.

The further particulars in this charge, which may be found on page 39 of the application book in the judgment of his Honour Acting Justice Martin, read as follows:

FURTHER PARTICULARS

(a)      The method of management used by the defendant was:

(i)in receiving the horses for transport, not permitting the inspection of the horses during the voyage by passenger(s) accompanying the animals; and

(ii)the defendant, either prior to or during the voyage or both, not adequately inspecting the transport and trailer unit, or the horses contained therein; and

(iii)the defendant, either prior to or during the voyage or both, not ensuring that the horses were transported or packed in a manner, position or circumstance that complied with the requirements of the Animal Welfare (Land Transport of Livestock) Regulations 2013 and –

this is the point we particularly emphasise –

as a result, either individually or in combination thereof, that method of management was reasonably likely to have resulted in unreasonable and unjustifiable pain or suffering to the animal or animals in the group as particularised above.”

During the hearing of the matter, your Honours, in answer to questions from the court, counsel for the respondent confirmed that although the particulars of count 1 referred to the respondent having charge of 30 horses, and used a method of management, namely the transport, in respect of 30 horses, the charge in count 1 relates to only 18 horses in the trailer unit number that is concerned in this case.  So, there was an initial amendment to reduce the ambit of the charge to the trucks contained in that one trailer.

GAGELER J:   We are not concerned with that now, are we?

MR NEAL:   So that splits away.  We do not need to concern ourselves.  We do need to concern ourselves with the remaining particulars, and in particular the assertion both in the further particulars and in the further and better particulars, that the matters alleged in those particulars, and each of them, was capable of satisfying the contravention, either by itself or in combination.

Now, the further particulars I have read to your Honours at paragraph 39, are then expanded in further and better particulars, which are set out in the judgment of his Honour Justice of Appeal Martin at paragraphs 28, 31, and 35.  But essentially, they add to the three particulars already articulated in the further particulars, and essentially, they come down to a number, but the central ones are these, and they relate to regulation 34 of the animal transport regulations.  That is, there is a prohibition against double stalling horses in transit over Bass Strait.  And regulation 15, a different regulation regarding ventilation within the transport itself.  There is no allegation that the ventilation in the whole of the ship was defective.

GAGELER J:   Now, we are getting into the weeds here a bit.  Paragraph 46 of the principal judgment of Justice Martin seems to respond to the substance of your complaint.  That is just one example.  I am not sure if there is any particular difference between the members of the court.  What is wrong with that?

MR NEAL:   We say that the problem with it is this.  The paragraph in the particulars that we have referred your Honours to, whether those particulars are characterised, as the court does, as a method of management being the transport of horses, or, by contrast, as the particulars do – well, the particulars claim that the methods of management are transporting the horses without the inspection or without the inspections, and without checking both, one, the way in which horses are packed, and, two, the ventilation.

We say those are separate and distinct acts and that, whether you consider them as the method of management – as the prosecution has in its particulars – and although it relented on that when questioned by the Court of Appeal and went back to saying that they were aspects of the method of management – whichever way you analyse that concept, we fully accept because those are the words of the statute – that the method of management is critical, but equally critical is the manner in which it said that the duty is contravened - - -

GORDON J:   Mr Neal, can I just ask about that?  You have got a section which provides that:

A person who has the care or charge –

you do not dispute that aspect of it, as I understand it:

of an animal or group of animals must not use a method of management –

and each member of the court recognised, I think, that inevitably that means it has multiple aspects.  Do these particulars not identify and tell you what are the aspects, or features, of that method of management about which they complain?

MR NEAL:   Yes, your Honour, they do but the problem is - - -

GORDON J:   So, what is wrong with that in the context that I understood, under section 48, you can have a continuing offence, and here they have set out the continuum.

MR NEAL:   Yes, we say it is not a continuing offence, in exactly the same way as offences under laws relating to other negligent acts, e.g. by company directors, or a continuing situation such as occur in occupational health and safety legislation, where the working environment is a continuing state of affairs, or under environmental legislation such as considered by the Court of Appeal in Truegain, where again maintaining your ongoing activities with respect to not polluting, all of these are acts where general duties are involved over extensive periods of time and where the authorities, going back to Byrne v Baker, say in those situations the charge must fix on an identifiable act or omission which is said to contradict the duty that is owed.

In other words, the principles of precision in Johnson v Miller extend to, firstly, a precise allegation of the contravention alleged – in this instance, inspection before the voyage – and then two, not more than one of those per charge.  The vice that we aim at here is to say this, that the method of management really tells you nothing about what the actual contravention is.  What it does tell you about that is what the prosecution alleges was the defect.

A method of management considered simply as transporting horses across Bass Strait really is not the heart of the matter.  The heart of the criminal offence is what was the breach, and there may be one or more.  It may be that they did one thing wrong in that crossing when they failed to inspect, for example, for double stalling.  That would support a charge if it was then said that that resulted in – the likely result of that was injury to the horses.

It might be, though, that they committed two offences – that is, that they also were under obligation to check the ventilation characteristics of the truck so that it was ensured that there was a sufficient air circulation.  There is a further allegation that they should have had some process to monitor the truck.  All of those could be separate allegations, but ‑ ‑ ‑ 

GAGELER J:   Why can they not be seen as defects in a single method?

MR NEAL:   They actually are not put in that way, your Honour.  They are put in the way as separate acts:  one, act on arrival at the dock, there should have been an inspection.  That is in relation to the packing of the horses.  Secondly, during the voyage there should have been.  The reason why you are not allowed to do two of those, in answer to your Honour’s question, is because the rule against duplicity prohibits that.  In other words, the precision required to identify the particular act or omission said to constitute the offence, is done  ‑ ‑ ‑

GORDON J:   Sorry, Mr Neal, to interrupt, but is that not the critical question?  In Hannes, Justice Basten said that is the first question.  One looks to the statute and identifies what is the description of the offence?  And the description of the offence in section 7 is:

a method of management –

which everyone accepts has a number of aspects and these aspects are there set out in the particulars, are they not?

MR NEAL:   Yes, but not if you can have several – they are, that is our complaint.  There are multiple pathways to conviction here, where the rule against duplicity says you may only have one.  To say that, for instance, the method of management is the transport of the horses in a truck on a ferry tells you nothing about what is the specific contradiction of the duty in carrying out that transport.  It is unhelpful and is foreign to the principles we have set out in the cases from Johnson v Miller onwards, to say that you must identify the act or omission particularly, but you are not allowed, in one charge, to identify a series of acts as these particulars explicitly say in their particulars and repeat in their further and better particulars, you fail to do one, two and three, or more things, or them in combination, and that is why you are guilty of the offence.

GAGELER J:   So, Chief Justice Blow used the analogy of negligent driving in paragraph 36 of his judgment.  How do you respond to that analogy?

MR NEAL:   We respond to that in reliance on the case of Ex parte Graham; Re Dowling & Anor, your Honour, which is at (1968) 88 WN 270, which adopts the standard analysis to this and has been accepted in the New South Wales Court of Appeal and other courts as the proper way to analyse that situation where a driver was driving along a road, at one point he was driving on the wrong side of the road for an extended period and then, subsequently, later on, some 500 metres down the road, he overtakes on a narrow bridge contrary to a sign that said, “No Overpassing”. The court ruled that the charge which included both of those allegations was duplicitous, there had to be a separate charge for each of the two acts.

GORDON J:   So, if you take that to its logical conclusion, that means that each of these particulars is a separate method of management?

MR NEAL:   We say that is the case.  We say that, as they are framed in the particulars, they are the separate methods of management, and there are ‑ ‑ ‑ 

GORDON J:   Not just the way they are particularised, Mr Neal.  You would say that each aspect of the method of management would have to be charged as a separate charge under section 7.

MR NEAL:   That is right, otherwise there would be multiple paths to conviction, which is again contrary to the authorities that we have been relying on.

GAGELER J:   Each charge, of course, giving rise to a separate penalty if made out.

MR NEAL:   It would.  And, your Honours, can we say that that is commonly the case, for example, in occupational health and safety prosecutions where one event ‑ and it is contemplated in the authorities, one event may well, on the same day – the decision of the New South Wales Court of Appeal, for instance, in Magill says, look, the fact that multiple breaches occurred on one day, it is proper to charge the company concerned with the failure to have protected this part of the machinery, or to have supervised that part of the operation, and the fact that both of these things occur on the same day is immaterial.  But they do form the part of single charges ‑ there are different defences available then, and so on.  But, yes, that is the answer.  And just as the driver in the case that we mentioned to you, the driving case, could and should have been charged with two separate offences ‑ ‑ ‑

GAGELER J:   Do you accept that a method of management can have more than one component? 

MR NEAL:   We would say the method or a system almost inevitably has multiple components, but that the obligation, most clearly set out recently by this Court in Kirk, requires specification and particularisation of the precise measure – and we note this term “measure” is used in section 6 of the Tasmanian Act as well – the precise measure which the prosecution relies on to constitute the offence.  Now, to be fair to our learned friends, the prosecutors in this case, they had specified different acts at different times which should have been done but which were not done.  We would accept that each of those alone – and that is what they say in their own particulars – could constitute the offence. 

What we complain of is to say that they can all be alleged in one offence, contrary to the rules of the legislation on which charging is based, and that it introduces confusion which has already intruded in this case, if you look at the paragraphs of Justice of Appeal Martin’s reasons and introduces further confusion when one particular act, that is, the stalling charge, needs to be assessed against the reasonable likelihood that it will result in pain and suffering to the animals versus the ventilation charge and how it interacts with, effectively, the fog element of this offence – reasonably likely to cause the injury – and interacts differently with any defences which the defence may wish to raise.  This is productive of confusion and that is why we say that the rule against duplicity is – it is one of the virtues of the rule against duplicity to avoid that sort of confusion so that precise allegations can be identified and dealt with, and with all the attendant consequences on that.

Your Honours, I notice my time has elapsed.  We draw particular attention to the division in the authorities in the various jurisdictions at the end of our submissions in the application.  There is now a division on these questions between the courts of New South Wales and Victoria, on the one hand, and decisions now of the Full Court in Tasmania but, also, decisions

of the South Australian Full Court and the Western Australian Full Court, over the correct approach and proper construction of statutes such as these which create general duties and the need for precision.  Those are the issues that give rise to the general significance of this point, in particular in circumstances where increasing numbers of regulatory statutes do impose ‑ ‑ ‑

GAGELER J:   Mr Neal, I think you have mentioned that your time has come to an end.

MR NEAL:   As I understand – I think I heard the beeps.

GAGELER J:   Yes.  We do understand your written submissions, thank you.  Was there some final point you wish to make?

MR NEAL:   No, I think when I got to the beeps, I got the final point across, your Honour.

GAGELER J:   Very well, thank you, Mr Neal.  We will adjourn for a moment to consider the course we will take.

AT 10:46 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.48 AM:

GAGELER J:   Mr Coates, we do not need to hear from you, thank you.

The judgment of the Full Court of the Supreme Court of Tasmania, in our opinion, involved an orthodox application of settled legal principle.  We see no reason to doubt the conclusion of the Full Court that the charge is not duplicitous.  The application is refused, with costs.

The Court will now adjourn.

AT 10.49 AM THE MATTER WAS CONCLUDED