Wyong Shire Council v Hughes (No.2)

[2000] NSWLEC 109

Land and Environment Court

of New South Wales

CITATION:

Wyong Shire Council v Hughes (No.2) [2000] NSWLEC 109

PARTIES:

PROSECUTOR:
Wyong Shire Council

DEFENDANT:
Thomas Paul Hughes

FILE NUMBER(S):

50057 & 50058 of 1999

CORAM:

Lloyd J

KEY ISSUES:

Practice & Procedure :- parties-criminal liability-double jeopardy-person charged with offence cannot be charged with the same offence in capacity of director of a corporation

LEGISLATION CITED:

Environmental Offences and Penalties Act 1999 s 5, s 10
Land and Environment Court Act 1979 s 55

CASES CITED:

Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 508;
Giorgianni v The Queen (1985) 156 CLR 473;
Pearce v The Queen (1998) 72 ALJR 1416, 156 ALR 684

DATES OF HEARING:

22/03/2000

DATE OF JUDGMENT:

06/13/2000

LEGAL REPRESENTATIVES:

PROSECUTOR:
W R Davison SC
SOLICITORS:
Abbott Tout

DEFENDANT:
P C Tomasetti (barrister) with J Johnson (barrister)
SOLICITORS:
Stephen Marks

JUDGMENT:

Wyong Shire Council
Prosecutor
v
Thomas Paul Hughes
Defendant

REASONS FOR JUDGMENT (2)

1. The Prosecutor (Wyong Shire Council) has brought four summonses against three defendants, as follows:

50056 of 1999 : against Thomas Hughes Homes Pty Limited “ to answer the charge that between 1 August 1997 and 1 September 1997 the Defendant committed an offence against section 5 of the Environmental Offences and Penalties Act, 1989, whereby the Defendant did without lawful authority negligently dispose of waste in a manner which is likely to harm the environment, at Lot 100, DP771114, generally known as 80 Collies Lane, Mardi in the State of New South Wales”.

50057 of 1999 : against Thomas Paul Hughes “ to answer the charge that between 1 August 1997 and 1 September 1997 the Defendant committed an offence against section 5 of the Environmental Offences and Penalties Act, 1989, whereby the Defendant did without lawful authority negligently dispose of waste in a manner which is likely to harm the environment, at Lot 100, DP771114, generally known as 80 Collies Lane, Mardi in the State of New South Wales”.

50058 of 1999 : against Thomas Paul Hughes “ to answer the charge that as a director of Thomas Hughes Homes Pty Limited ACN 001 658 144, between 1 August 1997 and 1 September 1997 the Defendant committed an offence against section 5 of the Environmental Offences and Penalties Act 1989, whereby the Defendant did without lawful authority negligently dispose of waste in a manner which is likely to harm the environment, at Lot 100, DP771114, generally known as 80 Collies Lane, Mardi in the State of New South Wales.”

50010 of 1999 : against Darrell Sutherland “ to answer the charge that between 1 January 1997 and 1 September 1997 the Defendant committed an offence against section 5 of the Environmental Offences and Penalties Act 1989, whereby the Defendant did without lawful authority negligently dispose of waste in a manner which is likely to harm the environment, at Lot 100, DP771114, generally known as 80 Collies Lane, Mardi in the State of New South Wales.”
(Mr D Sutherland is said to be an employee of Thomas Hughes Homes Pty Ltd.)

2. The charges in each of the four summonses are particularised. The particulars are identical in each summons.

3. There is at present a Notice of Motion brought by the defendant in summons 50057 of 1999 and further Notice of Motion brought by the defendant in summons 50058 of 1999 for orders that “ the Prosecutor elect within seven (7) days which of the charges 50057 of 1999 and 50058 of 1999 it wishes to proceed upon”.

4. Section 5 of the Environmental Offences and Penalties Act 1999 (“the EOP Act”) states:

(1). If a person, without lawful authority, wilfully or negligently disposes of waste in a manner which harms or is likely to harm the environment:

(a) the person; and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.

(2) In this section, a reference to the owner of the waste includes, in relation to waste that has been disposed of, a reference to the person who was the owner of the waste immediately before the waste was disposed of.

5. Section 10 of the EOP Act states:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act, each person who is a director of the corporation or who is concerned in the management of the corporation is to be taken to have contravened the same provision unless the person satisfies the court that:

(a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person; or
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the position in relation to its contravention of the provision; or
(c) the person, if in such position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act.

(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention at that time.

6. Section 55 of the Land and Environment Court Act 1979 (“The Court Act”) states:

A person who aids, abets, counsels or procures the commission by another person of an offence punishable in the summary jurisdiction of the Court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender. The Defendant’s submissions

7. Mr P C Tomasetti, who appears for the defendant, made the following submissions:

(a) Section 10 of the EOP Act extends the common law doctrine of liability of secondary participants so as to catch directors of corporations. Section 10 is a statutory extension of the doctrine of secondary participation so as to make directors of corporations liable as a principal offender;

(b) Similarly, section 55 of the Court Act does not create an additional, or a separate, or a different offence: a secondary participant is liable as a principal offender;

(c) In summons 50056 of 1999 the corporation of which Mr Hughes is a director has also been charged with the same offence under section 5 of the EPO Act (as a principal offender);

(d) Although the prosecutor has charged Mr Hughes (in summons 50058 of 1999) in his capacity as a director, Mr Hughes has (in summons 50057 of 1999) also been charged with the same offence, namely an offence against section 5 of the EOP Act, arising out of the same facts and circumstances;

(e) The expression “double jeopardy” is an expression of wide meaning that is used to encompass the principle that no one should be punished again for the same offence;

(f) The question of whether a person is charged with the same or different offences requires an identification of the elements of the offence under section 5 of the EOP Act. Those elements are (i) the defendant, (ii) without lawful authority, (iii) lawfully or negligently, (iv) disposed of waste, (v) in a manner which harms or is likely to harm the environment. In the present case the elements in summons 50057 of 1999 and in summons 50058 of 1999 are identical;

(g) Whether the defendant has in his own right caused the disposal of waste in breach of section 5 of the EOP Act or whether he has done so in his capacity as a director makes no difference to the fact that in each case it is the same offence with which he has been charged.

The Prosecutor’s submissions

8. Mr W R Davison SC, who appears for the prosecutor, made the following submissions:

(a) The liability of the defendant in his capacity as a director pursuant to section 10 of the EOP Act depends upon the company being convicted of the same provision, so that liability as a director can flow only from a finding of a contravention by the company;

(b) It is possible that the prosecution against Mr Hughes as an individual may not succeed, but the prosecution against the company would succeed; and only in that event would there be a conviction against Mr Hughes (as a director of the company);

(c) The prosecutor proposes to proceed in order firstly against Mr Hughes as an individual, secondly against the company, and thirdly , if successful against the company, against Mr Hughes as a director. If the first charge is successful, then a prosecutor would not proceed with the third . The principal of double jeopardy is one which arises at the point of conviction. Once there is a conviction against Mr Hughes in another capacity then at that point the argument arises as to double jeopardy;

9. Both parties supported their submissions by reference to a number of decided cases to which I refer below.

Conclusions

10. It is immediately apparent, as Mr Tomasetti submitted in reply, that the conviction of a director of a corporation is not necessarily dependant upon the corporation being convicted of the offence. Subsection 10(2) of the EOP Act, noted in paragraph 5 above, provides that a person may be proceeded against and convicted of the provision of the Act whether or not the corporation has been proceeded against or has been convicted under the same provision. For this reason I do not accept Mr Davison’s first submission.

11. Neither do I accept Mr Davison’s third submission that the principal of double jeopardy is one which arises at the point of conviction. In the present case, since all the offences arise from precisely the same facts and circumstances, it is likely that all three summonses will be heard together and judgment would be delivered at the same time. As noted by McHugh, Hayne and Callinan JJ in Pearce v the Queen (1998) 72 ALJR 1416 at 1418, 156 ALR 684 (at 686):

...double jeopardy is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

12. The Court is thus entitled to look at the question of whether or not double jeopardy principle is infringed at the prosecution stage and is not restricted to examining the question only at the stages of conviction and punishment.

13. I do not find the cases cited by Mr Tomasetti which relate to the operation of section 55 of Court Act and its equivalent as being of assistance. Under section 55 of the Court Act it is necessary for a prosecutor to show that the defendant either aided, abetted, counselled or procured the commission by another person of an offence. (The reference to “another person” includes a reference to a corporation: section 21 Interpretation Act 1987). Moreover, no one may be convicted by aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender ( Giorgianni v the Queen (1985) 156 CLR 473). Under section 10(1) of the EOP, however, the mere fact that a defendant is a director of a corporation is, without more, sufficient if the corporation is to be taken to have contravened the relevant provision. Moreover, those cases do not concern the question of double jeopardy which is raised in the present proceedings.

14. The case of Pearce v The Queen , to which I have referred, however, does offer some guidance as to the scope of the principle of double jeopardy. In that case the appellant was charged with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm in contravention of section 33 of the Crimes Act 1900 and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him in contravention of section 110 of the Crimes Act 1900. The two charges arouse out of a single episode. The appellant broke into the victim’s house and beat him. The appellant applied to the primary judge for an order staying one or other of the two proceedings. It was submitted that the appellant was placed in double jeopardy by the preferring of the two counts. The primary judge refused the application. The then appellant pleaded guilty to eight counts including the two disputed counts and was sentenced. An appeal to the Court of the Criminal Appeal was dismissed.

15. The High Court held that the primary judge was right in concluding that the proceedings should not be stayed. This was because each of the two offences contained an element that the other does not: a specific intent to do grievous bodily harm in section 33 which is absent from section 110 and a breaking and entering in section 110 which is absent from section 33. Neither offence was wholly included in the other. There was no abuse of process in charging the appellant with both counts because the offences are different (and different in important respects).

16. The judgments in the High Court nevertheless contain a useful discussion of the nature of the double jeopardy. The judgments contain references to the reflection of the rule against double jeopardy in constitutional guarantees such as the Fifth Amendment to the United States Constitution:

[N]or shall any person be subject for the same offence or to be twice put in jeopardy of life or limb .

17. In the joint judgment of McHugh, Hayne and Callinan JJ their Honours accept (at 1421) United States authorities in which the test for determining whether the Fifth Amendment is infringed is to look to the elements of the offences concerned.

18. The principle behind the concept of double jeopardy was explained in Pearce by Gummow J ( at 1424) as follows:

The maxim, nemo debet bis vexari pro una et eadem causa (it is the rule of law that a man shall not be twice vexed for one and the same cause), appears in Sparry’s Case ((1589) 5 Co Rep 61a[77 ER 148]). The maxim applies not only to res judicata doctrines but also to vexatious litigation and abuse of process. In its application to criminal proceedings, it ‘has become known as the rule against double jeopardy’

19. To this maxim, I would add nemo debet bis puniri pro uno delicto (no one should be punished twice for one fault).

20. Gummow J went on (at 1427) to say, however, that double jeopardy is a “concept” rather than “a definitive legal principal according to its own terms” (Citing David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378 and Hill v Van Erp (1997) 188 CLR 159 at 239).

21. The case of Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 508 in the Court of Criminal Appeal provides an illustration of the operation of the double jeopardy rule (or concept). The defendant had been charged with an offence of polluting waters contrary to section 16 of the Clean Waters Act 1979 and an offence of breaching the condition of a license, granted under section 17D(9) of the State Pollution Control Commission Act 1970. The later permitted the pollution of waters subject to certain terms and conditions, which conditions the defendant has breached. Gleeson CJ (with whom Carruthers and Smart JJ agreed) noted (at 505) that is was clear enough that the conduct of the defendant which was the immediate occasion for the charges was the same. It consisted of discharging polluting substances into a named creek. Gleeson CJ said (at 509) that the nature of the offences against 16(1) and 17D alleged by the prosecutor to have been committed by defendant is, when examined in the light of the particulars of charges, such that the defendant cannot be convicted of and punished for both; and further (at 510) the offence against section 16(1) is in substance the same as offence against section 17D. Gleeson CJ held (at 510) that the rule against double jeopardy, in its ordinary application, applies in relation to two or more statutory offences.

22. The question in the present cases is the whether double jeopardy rule applies to the two summonses against Mr Hughes. In applying the principles described in Pearce and in Environment Protection Authority v Australian Iron and Steel Pty Ltd , it is necessary to look to the elements of the offences concerned. They are, as noted in paragraph 2 above, the same. The deeming provision in section 10 of the EOP Act does not change either the substance or the nature of the offence under section 5. Moreover, this is not a case where the defendant has been charged with two different statutory offences arising out of the same facts, as was the case in Environment Protection Authority v Australian Ironand Steel Pty Ltd . Mr Hughes has been charged twice with the same offence, namely an offence against the same section of the same Act, namely section 5 of the EOP Act. The particulars furnished by the prosecutor in support of the charge in each case are precisely the same. As Mr Tomasetti pointed out, the elements of the offence in each case are the same. It is self evident that this must be so when a person is charged with the same offence. If the rule against double jeopardy applies in relation to two or more different statutory offences, then it applies with even more force to two or more charges for precisely the same statutory offence.

23. In my opinion, the prosecutor bringing of the two summonses infringes the rule against double jeopardy. The prosecutor must make an election as to which of the two summonses against Mr Hughes are to be prosecuted. If it does not do so, one of the two summonses must be permanently stayed.

24. The formal orders are:

1. The prosecutor must make an election within seven days as to whether it will prosecute summons 50057 of 1999 or summons 50058 of 1999. 2. If the prosecutor fails to so elect then the defendant may re list the matter before me for the purpose of making an order permanently staying the prosecution of one of the said summonses. 3. The question of costs is reserved.