Land and Environment Court New South Wales Medium Neutral Citation: Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Thompson [2020] NSWLEC 186 Hearing dates: 17 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Class 5 Before: Moore J Decision: Notice of Motion dismissed Catchwords: INTERLOCUTORY APPLICATION - Prosecutor seeks to have proposed questions of law submitted to the Court of Criminal Appeal - no trial judge appointed for hearing of the charge (and four related charges) - whether application premature - meaning of words "the judge hearing the proceedings" in s 5AE(1) of the Criminal Appeal Act 1912 - application premature - Notice of Motion dismissed Legislation Cited: Criminal Appeal Act 1912, s 5AE(1) Water Management Act 2000 Cases Cited: Director General, the Department of Land and Water Conservation v Jackson [2003] NSWLEC 199 Director-General, Department of Natural Resources v Gleeson; Director-General, Department of Natural Resources v Epacris Pty Ltd [2007] NSWLEC 749 Morrison v Peacock [2000] NSWLEC 32 Orr v Cobar Management [2020] NSWCCA 220, Category: Procedural rulings Parties: Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (Prosecutor) Tony James Thompson (Defendant) Representation: Counsel: Ms S Dowling SC (Prosecutor) Mr C Ireland, barrister (Defendant) Solicitors: Crown Solicitors Office (Prosecutor) Webb & Boland Lawyers (Defendant) File Number(s): 391281 of 2019 Publication restriction: No EXTEMPORE JUDGMENT 1. HIS HONOUR: On 2 December 2020, a Notice of Motion was filed on behalf of Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (the Prosecutor) in a prosecution of Mr Tony Thompson (the Defendant) for a breach of the Water Management Act 2000. 2. For the purposes of what I am now determining, I note that, although the Defendant raises issues of whether or not the Prosecutor is the Crown for the purposes of the application, it is unnecessary for me to determine that, as I do not need to proceed sufficiently far down the path for that issue to arise. 3. The Notice of Motion seeks that I submit six questions (that are said to be questions of law) to the Court of Criminal Appeal pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (the Criminal Appeal Act). My addressing this also does not require me to consider whether the language of the questions are questions that are appropriate to be submitted to the Court of Criminal Appeal. That, too, is a step further in the proceedings. 4. The preliminary questions upon which I have had Ms Dowling of Senior Counsel for the Prosecutor and Mr Ireland of counsel for the Defendant address first is whether or not this simple Notice of Motion filed, at this time in these proceedings when, although a plea of "not guilty" has been entered by the Defendant to this single charge (being, I note, one of five charges laid by the Prosecutor against the Defendant), provides a sufficient basis for me to be satisfied that s 5AE(1) of the Criminal Appeal Act applies and that I ought, on the assumption that the Prosecutor is the Crown, submit the questions to the Court of Criminal Appeal on a mandated basis arising from that provision. 5. The provision provides that a "judge hearing the proceedings" must, if requested by the Crown, submit any question of law arising out of or in reference to the proceedings to the Court of Criminal Appeal for determination. 6. There is as yet no trial judge appointed for this proceeding (and the other four charges against Mr Thompson). There have not been pleas entered in the other four proceedings. There has been no trial judge allocated for all those proceedings. 7. Ms Dowling has taken me to decisions of, initially at first instance, the former Chief Judge of the Court, Pearlman J, in Morrison v Peacock [2000] NSWLEC 32, where her Honour did refer questions to the Court of Criminal Appeal for determination. Although her Honour was addressing the question of whether or not the Prosecutor in that case was the Crown, I do not need to consider that matter. It is sufficient that I note that her Honour records, at least in [2] and [30] of that decision, that her Honour had made earlier substantive determinations relevant to the ongoing nature of those proceedings. 8. The second decision to which I have been taken is the decision of Bignold J in a number of prosecutions in the case of Director General, the Department of Land and Water Conservation v Jackson [2003] NSWLEC 199. That decision also makes it clear, in [1], that his Honour had earlier determined substantive matters of questions of law which had been sent to him for determination prior to the trial of the charges that had been laid against the defendants in those proceedings. 9. In this instance there are no such preliminary determinations which have been made. 10. Ms Dowling also took me to the decision of the Court of Criminal Appeal in Orr v Cobar Management [2020] NSWCCA 220, a recent decision where the joint judgment of the Chief Justice and the President of the Court of Appeal addressed, relevantly for my present consideration, at [46] and [47], matters as to the circumstances where, and the point at which, matters might be referred to the Court of Criminal Appeal. I am satisfied that a proper reading of those two paragraphs together means that it is necessary for there to have been some involvement of a trial judge hearing the matter before that provision is capable of being triggered in the circumstances with which their Honours were dealing. 11. Mr Ireland has taken me to a decision of Jagot J (at a time when her Honour was a judge of this Court) in Director-General, Department of Natural Resources v Gleeson; Director-General, Department of Natural Resources v Epacris Pty Ltd [2007] NSWLEC 749, in which case her Honour dismissed that application for reference of matters at what might be regarded as an analogously early course in the proceedings. Although, in that case, the Prosecutor had endeavoured to establish a proper basis for invoking the jurisdiction on that Notice of Motion by asking that a judge be allocated to hear the proceedings before moving to have a matter referred to the Court of Criminal Appeal, her Honour made it clear, at [21(5)], that such an application for the appointment of a judge was a contrivance merely attempted in order to endeavour to invoke the jurisdiction to have a matter referred pursuant to s 5AE of the Criminal Appeal Act. 12. However, her Honour did continue to say that the effect would be, of granting orders such as those sought, to bypass the trial judge altogether. That would here be the effect of me referring the matters that are requested in this Notice of Motion. 13. Her Honour also dealt with the fact that the questions in those proceedings might not become determinative of the outcome of the proceedings. That here arises - as the question of whether or not there is duplicity in this charge laid against Mr Thompson is a matter, which, if pressed on behalf of Mr Thompson, awaits subsequent determination. 14. Ms Dowling has taken me to other provisions in the legislation as providing a basis upon which I should be satisfied that the nature of the words "the judge hearing the proceedings" is not as constrained as is submitted on behalf of the Defendant and as I had indicated to her was a matter of concern to me. 15. The various elements of language to which she has taken me in the Criminal Appeal Act do not, in my view, provide the necessary assistance to provide a proper foundation to enable this application to be acceded to at this time. 16. Indeed, on one construction (of the words "the judge hearing the proceedings") these would have no work to do - in the sense that, properly understood, I consider they have to do - then there is no way or necessity for s 5AE(1) to need to be invoked because it would not be providing any linking between the trial of the charge laid against the Defendant and the statement of a case to the Court of Criminal Appeal. 17. It may well be that, at some future time after necessary preliminary matters arising (such as challenges on the basis of duplicity and the like) are dealt with, there will become a judge who is allocated to hear the matter and who is hearing the proceedings, whether in some completely substantive fashion or in some appropriate pre-trial fashion, that would cause that judge to become part-heard in the proceedings. 18. However, I am not that judge, and this is not now the time for that to occur. 19. The only appropriate resolution to this Notice of Motion is that it is to be dismissed and I dismiss it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 January 2021