Reported Decision : 106 LGERA 78 Land and Environment Court of New South Wales CITATION: Environment Protection Authority V Shell Co of Australia Ltd (No 3) [1999] NSWLEC 288 PARTIES PROSECUTOR Environment Protection Authority DEFENDANT Shell Co of Australia Ltd NUMBER: 50071 of 1997 CORAM: Bignold J KEY ISSUES: Environmental Offences :- Environmental offences- whether proceedings commenced within statutory limitation period - statutory presumption - who has onus to establish to the contrary? LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 12(3) DATES OF HEARING: 11/05/1999; 11/08/1999; 11/09/1999; 11/10/1999 DATE OF JUDGMENT DELIVERY: 11/15/1999 PROSECUTOR Mr D Buchanan SC with Mr D Jordan, Barrister SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr N Hemmings QC with Mr I Hemmings Barrister SOLICITORS Coudert Bros JUDGMENT: IN THE LAND AND Matter No . 50071 of 1997 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 15 November 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v THE SHELL COMPANY OF AUSTRALIA LTD Defendant JUDGMENT ON STRIKE OUT NOTICE OF MOTION (No 3) Bignold J: 1. By Notice of Motion filed 4 November 1999, the Defendant seeks an order for the summary dismissal of the proceedings, alleging an offence against the Environmental Offences and Penalties Act 1989 s 6(1) (the EOP Act) on the ground that the proceedings were commenced beyond the three year period for the commencement of such proceedings prescribed by the Act s 12. 2. In the present case, the summons alleging the offence against the Defendant was filed in Court on 10 July 1997. 3. Both the originating summons and the application for an order pursuant to s 41 of the LEC Act were evidenced with particulars to the effect that the date on which evidence of the offence first came to the attention of any relevant authorised officer was 15 July 1994. Such endorsement was conformable to the Act s 12(3) which relevantly provides: If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence of the offence first came to the attention of any relevant authorised officer is the date specified in the information or application, unless the contrary is established. 4. The effect of such endorsement in the present case is that the statutory three year limitation period commences to run from the endorsed date. So understood, the summons, having been filed on 10 July 1997 relevantly commenced the proceedings a few days within the three year limitation period which expired on 15 (or possibly 16) July 1997 . 5. In support of the Notice of Motion, the Defendant relied upon what was said to be admissions made by the Environment Protection Authority (EPA) in various letters and memoranda that it wrote during 1995 and 1996 to the effect that the EPA first became aware of the offence in mid June 1994. A bundle of such documents, all of which were produced pursuant to the Defendant's Notice to Produce (which was opposed by the Prosecutor but was upheld by the Court on the first hearing day appointed for the trial of the charge against the Defendant) was received in evidence as Exhibit B. 6. It is at once to be noted that if the relevant date upon which the EPA first became aware of the offence was "mid June 1994", the present proceedings would have been commenced beyond the three year statutory period. 7. As such, they would be incompetent proceedings and should be struck out or summarily dismissed as claimed in the Defendant's Notice of Motion. 8. The Prosecutor resists the Defendant's Notice of Motion, taking its stand in reliance upon the provisions of s 12(3) of the EOP Act, which it contends establishes the date endorsed in the summons (ie 15 July 1994) as the date upon which evidence of the offence first came to the attention of an authorised officer of the EPA unless the Defendant establishes to the contrary, it bearing the onus of proof in that behalf. Moreover, the Prosecutor submits that having regard to the totality of the evidence, (which includes Mr Bell's evidence to the effect that the references in the documents in Exhibit B to "mid June 1994" as the date when the EPA first became aware of the commission of the offence were mistakes that he originally made and later perpetuated) the Court would find that the Defendant had not established on the balance of probabilities that evidence of the offence had first come to the attention of any authorised officer of the EPA before 15 July 1994, being the relevant date endorsed upon the summons pursuant to s 12(3) of the Act, being the date upon which Mr Knight, a former authorised officer of the EPA, gave unchallenged evidence that he had been notified by telephone by Ms Shana Ogden on behalf of the Defendant. 9. Finally, the Prosecutor submitted that even if (which was denied) there was a shifting onus upon the Prosecutor arising from the evidence adduced by the Defendant in the documents (Exhibit B), the Court would be satisfied on the totality of the evidence that the Prosecutor had established that 15 July 1994 was the date upon which evidence of the offence first came to the attention of an authorised officer of the EPA. 10. In this respect, the Prosecutor submitted that the relevant standard of proof was on the balance of probabilities, consonant with the decision of the High Court in Thompson v The Queen (1989) 169 CLR 1 in respect of the issue whether an alleged crime had been committed within the jurisdiction of the State which prosecutes the offence. 11. Finally, the Prosecutor submitted that if (contrary to its submission based upon Thompson v The Queen) the Prosecutor bore the onus of proving to the criminal standard of proof, the date upon which evidence of the offence first came to the attention of the EPA, the Court would be so satisfied on the totality of the evidence. 12. The competing submissions of the Defendant were as follows: (i.) The Prosecutor bore the onus of establishing beyond reasonable doubt that the proceedings had been instituted within the three year statutory period; (ii.) By relying upon the EOP Act s 12(3), the Prosecutor did not have to prove the date endorsed upon the summons (that date being deemed to be the date upon which evidence of the offence first came to the attention of the EPA) unless there was evidence to the contrary, in which event, the deeming effect of s 12(3) was displaced by the obligation of the Prosecution to prove beyond reasonable doubt that the proceedings had been instituted within the statutory three year period. (iii.) The obligation cast by the Act s 12(3) upon a defendant was "not to prove to the contrary" but to introduce evidence to the contrary. To adopt the words of the judgment of the Court of Criminal Appeal in EPA v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282 at 285, s 12(3) cast upon the "defendant an evidentiary burden, not an onus of proof". (iv.) The Defendant, having discharged its evidentiary burden by adducing evidence (the documents in Exhibit B) which indicate a contrary date to the date of 15 July 1994, averred by the Prosecution as the date upon which evidence of the offence first came to its attention, it was incumbent upon the Prosecution to prove the averred date beyond reasonable doubt. (v.) Upon the totality of the evidence, the Court would not be satisfied that the Prosecution had established beyond reasonable doubt that the proceedings were relevantly commenced within the statutory three year period. 13. Consideration of the foregoing competing submissions indicates that the fundamental issue in dispute concerns the legal effect of the final sentence of the EOP Act s 12(3) which states: The date on which evidence of the offence first came to the attention of any relevant authorised officer is the date specified in the information or application, unless the contrary is established 14. Defence Counsel has submitted that it is a deeming provision which is rebuttable or defeasible if evidence to the contrary of the deeming effect is introduced. 15. On the other hand, the Prosecutor submits that it is a provision which has the effect of conclusively establishing that the relevant date is that which is endorsed upon the summons unless the Defendant establishes or proves to the contrary, it having the legal onus for so doing, on the balance of probabilities. 16. As a matter of statutory language, the section appears to give effect to a conclusive presumption unless the contrary is proved. 17. As such, it is similar in form and effect to a statutory presumption accommodated by the wide spectrum of such presumptions provided in multitudinous statutes where the spectrum ranges from (i) prima facie proof; through (ii) rebuttable presumptions; to (iii) conclusive presumptions. 18. Sometimes the precise language of the statutory presumption is held not to reflect its true meaning — see for example the decision of the Full Court of the NSW Supreme Court in Ex Parte Healy (1903) 3 SR 14 where the Court interpreted the expression "in the absence of proof to the contrary" in a rebuttable statutory presumption as meaning "in the absence of evidence to the contrary". 19. But I pass from the well recognised forms of language in which statutory presumptions are familiarly framed to consider the more difficult question of the legal effect of the last sentence of s 12(3). 20. Firstly, it is to be noted that the provision was introduced into the Act (by way of repeal and re-enactment of s 12) by the Environmental Legislation Amendment (Enforcement) Act 1996 (Act No 101). 21. The re-enactment of s 12 followed the decision of the Court of Criminal Appeal in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 where the Court rejected arguments advanced on behalf of the EPA that the expression in s 12 "the date alleged to be the date on which the offence was committed" (being part of the statutory limitation provision) meant something different from the date on which the offence was committed, as this expression is used in s 56 of the Justices Act. 22. In EPA v CSR Limited (1998) 101 LGERA 109 the Court of Criminal Appeal, noted that the EOP Act s 12 subsection (2) and (3) was introduced as a result of the decision of the Court of Criminal Appeal in the Bathurst Council case and at p 112, the Court quoted from the second reading speech given in the Legislative Council on behalf of the Attorney General. 23. The parties in the present case have referred to the second reading speech in the Legislative Assembly of the then Minister for the Environment, Ms Pam Allan. 24. Before considering what light may be cast upon the subsection by the second reading speech in the Parliamentary debates, I should note the settled legal background against which the subsections are to be interpreted. 25. Firstly, it is established that the Prosecutor bears the onus of proving beyond reasonable doubt that the proceedings for an offence are commenced within the statutory period of limitation. 26. In the Bathurst Council case, Hunt CJ at Common Law noted at p 80 that the EPA had properly conceded that it bore the onus of establishing that fact. His Honour added the following observations at footnote 2: The concession was correctly made: Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 175. 179; R v Lewis (1979) 1 WLR 970 at 973; [1979] 2 All ER 665 at 667. Although the limitation period does not constitute an element of the offence, once the issue is raised (and however it may be raised), the prosecution bears the onus of establishing beyond reasonable doubt that the offence was committed within the relevant time before the proceedings had been commenced; R v Lewis (at 973; 667); Rabezynski v Morrison [1988] WAR 71 at 73-74; R v Cooling [1990] 1 Qd R 376 at 378-379. 27. There is a line of Victorian authority which suggests that where proceedings for an offence must be commenced within the prescribed statutory period, the date of the offence is an essential part of the offence: see Hackwell v Kay (1960) VR 632. That authority is supported by par 926 of Halsbury's Laws of England 4th ed Volume 11(2) . 28. However, it does not appear to me to be necessary to determine, whether the date of the offence in circumstances where proceedings must be commenced within a prescribed period of limitation is an essential element of the offence or is an issue at the trial which once raised, must be established by the Prosecution beyond reasonable doubt. Perhaps the better view is that referred to in the joint judgment of Knox CJ and Dixon J in Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 175:- The Act may be considered to impose upon the offender a liability to punishment during the statutory limitation period. 29. That same notion was later expounded by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 in the following passage at 392: The effect of such a limitation when considered with the provisions creating the offences to which it applies is to impose upon a person offending a penal liability during the prescribed period. Throughout the time limited he is under a liability to punishment, afterwards that liability is gone. Upon a prosecution the question for the decision of the court or tribunal is whether within that period he has committed the offence charged. Their jurisdiction necessarily includes the determination of that entire question. 30. That being the established law relevant to the question under consideration, does s 12(3) operate as contended for by the Prosecutor so as to enable the Prosecution to discharge its onus of proving that the proceedings were commenced within the three year statutory period measured from the date endorsed on the summons, subject only to the question of the possibility of the contrary being established? 31. In other words, did the Legislature intend to create the statutory presumption that by virtue of the endorsement of the relevant date in the summons, the Prosecutor has proved, beyond reasonable doubt, that the proceedings had been commenced within the limitation period unless the contrary was established? If so, who has to establish the contrary? 32. After much anxious consideration, I have come to the conclusion that in enacting the final sentence of the EOP Act s 12(3), the Legislature did intend to create the aforesaid conclusive presumption subject to defeasance where the Defendant established to the contrary, meaning that the Defendant discharged its legal burden of proving on the balance of probabilities, that the date upon which evidence of the offence first came to the attention of the EPA was not the date endorsed on the summons but was some earlier date that fell outside the three year limitation period. 33. In so concluding, I have found the statutory language to be somewhat uncompromising. In particular, I do not think that it can be properly interpreted as imposing only an evidential burden upon the Defendant such as was held to be the effect of the statutory proscription considered in Leaghur Holdings. 34. In that case, it is to be noted that at 285, the Court noted that the provision referred to "evidence" to the contrary and not "proof" to the contrary. 35. A matter that has concerned me is how a defendant could reasonably be expected to "establish to the contrary" when it is the Prosecutor, EPA, which relies upon the statutory presumption, who is placed in the better position of establishing when evidence of the offence first came to its attention. 36. However, in Babcock and Wilcox the High Court was prepared to hold that the onus of proof lay upon the defendant to prove within the stipulated two year limitation period the fact of the discovery of the secret commission by the principal more than six months before the proceedings were commenced, such matter being held to be "a matter of defeasance" —see at p 155 per Knox CJ and Dixon J and at 179/180 per Isaacs J. 37. The point that I am making is that in Babcock and Wilcox, in order to defeat liability, the defendant had the onus of proving something that might more readily have been established by the prosecutor. Nonetheless, the High Court held the onus in respect of matter of defeasance lay upon the defendant. 38. My conclusion is, I think, consistent with the legislative intent of how the statutory presumption would operate. In particular, it is clear form the Minister's Second Reading Speech that it was for the defendant to establish to the contrary. 39. Such an understanding of the legislative intent also accords with the fundamental principle that generally speaking, it is for the person who asserts a fact, to prove that fact. 40. Having so concluded that s 12(3) creates a statutory presumption that the Prosecutor may rely upon in discharge of its obligation to prove beyond reasonable doubt that the proceedings have been commenced within the statutory limitation period, the remaining question is whether the Defendant has proved to the contrary, on the balance of probabilities. 41. In this respect, I am satisfied by the totality of the evidence that as a matter of probability, evidence of the offence first came to the attention of the EPA authorising officers on 15 July 1994 (being the date that is endorsed in the summons). 42. In so concluding, I have accepted the concession by the Prosecution that notice given on behalf of the Defendant to Mr Knight on 15 July 1994 relevantly constituted "evidence of the offence", noting that it may have been possible to take the view that evidence of the commission of the offence only materialised at a stage of later investigation by the EPA into the incident reported to it on 15 July 1994 cf the decision of the Queensland Full Court in Smith v Baldwin (1979) Qld R 380. 43. For all the foregoing reasons, the Defendant's Notice of Motion must be dismissed and I so order. 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. 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