> Pending Appeal : Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Goulburn Wool Scour Pty Limited (No 2) [2003] NSWLEC 231 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Goulburn Wool Scour Pty Limited FILE NUMBER(S) : 50003 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- application to state a case after announcement of verdict LEGISLATION CITED: Criminal Appeal Act 1912 s 5AE, s 5A(2), s 5A(3) Protection of the Environment Operations Act 1997 s 122 Bropho v Western Australia (1990) 171 CLR 1; Morrison v Peacock and Roslyn Shipping Company Pty Ltd (2000) 108 LGERA 77 Morrison v Peacock and Another (2000) NSWLR 178; R v Cheng (1999) 48 NSWLR 616; CASES CITED: R v Essex Justices; Ex Parte Final [1963] 2 QB 816; R v Thomas Anthony Vincent [2002] NSWCCA 110, unreported; Reg v Lazarevic (1967) 85 WN (Pt 1) (NSW) 189; Ward v Williams (1955) 92 CLR 496 DATES OF HEARING: 09/09/2003, 23/09/2003, 03/10/2003 DATE OF JUDGMENT: 10/10/2003 PROSECUTOR Mr T G Howard (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr C J Leggat (Barrister) with Mr J A Crisp (Barrister) SOLICITORS Phillips Fox JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50003 of 2003 Talbot J 10 October 2003 Environment Protection Authority Prosecutor v Goulburn Wool Scour Pty Limited Defendant Judgment Introduction 1 At 9:30am on 9 September 2003 this matter was listed for judgment. After the matter was formally called I announced that the discharge of pollution from the defendant's property occurred within the terms of its licence and that accordingly the first defence had succeeded under s 122 of the Protection of the Environment Operations Act 1997 that provides for pollution to occur within the terms of the licence. I stated further that I was also satisfied that, alternatively, the defendant is entitled to rely upon the defence of honest and reasonable mistake. 2 The solicitor for the prosecutor, Mr Anderson, interrupted and requested that I stand the matter over for 14 days to enable the Environment Protection Authority ("the EPA") to consider whether it would request me to state a case to the Court of Criminal Appeal. The defendant's barrister, Mr Leggat, raised no issue at that point. Written reasons had been prepared by me. Notwithstanding the request by the EPA these were handed down and published with a minor amendment to change a reference to "formal orders" to "the proposed formal orders". The proposed orders were announced in open Court before the matter was adjourned for 14 days to 23 September 2003. On 23 September 2003 senior counsel for the EPA informed the Court that advice had been given although no instructions were forthcoming from the prosecutor at that time. The matter was further adjourned. 3 On the second adjourned date Mr Howard of counsel sought, on behalf of the EPA, to hand up a draft form of stated case. The solicitor for the defendant, Mr Shaw, objected to this course on the basis that the EPA had in the circumstances lost the right to request a stated case because either:- (a) the proceedings are complete; or (b) the Court is no longer hearing the proceedings, and, accordingly, there was no jurisdiction to submit a question of law. 4 The issue was fully argued on 3 October 2003. 5 Section 5AE of the Criminal Appeal Act 1912 ("the Criminal Appeal Act") provides as follows:- 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 6 Relevant parts of s 5A are as follows:- (2)(a) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) either before or after the commencement of the Criminal Appeal (Amendment) Act 1977 the Attorney-General or Director of Public Prosecutions may at any time after the conclusion of the trial submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial. (b) The Attorney-General or Director of Public Prosecutions shall submit with the question to be determined a statement of the circumstances out of which the question arose and thereafter shall furnish such further statement as the Court of Criminal Appeal may require. (c) The Court of Criminal Appeal shall hear and determine any question submitted to it under this subsection. (d) The determination by the Court of Criminal Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial. (3) Subsection (2) applies in respect of a person tried in the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction in proceedings to which the Crown was a party in the same way as it applies in respect of a person tried on indictment. 7 The EPA relies on s 5AE. 8 Mr Leggat submits that the words of s 5AE, applied to the circumstances of this case, fall far short of the unequivocally clear language required to displace a fundamental tenet of the law, namely that the Crown has no right of appeal against an acquittal. Spigelman CJ referred to the principle in R v Cheng (1999) 48 NSWLR 616 at 622 as follows:- It constitutes a fundamental principle of such significance that only clear and unambiguous language would lead to the conclusion that an appeal by the Crown lies against such a direction. 9 The Chief Justice set out the relevant principle expressed by the High Court in Bropho v Western Australia (1990) 171 CLR 1 at 17 – 18 as follows:- 13. One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights … which would operate retrospectively … which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction … or which would take away property without compensation …The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" ( Potter v. Minahan … (at 304)." (References other than the last, omitted). 10 Irrespective of the words used, or the lack of them when judgment was being announced on 9 September 2003, it is uncontrovertible that what happened was the announcement of a finding of not guilty. The Court formally announced that the defences had been successful and published reasons to reflect this finding. As the Chief Justice found in Cheng it is not appropriate to submit the words (in this case, "completion of proceedings") to a dictionary definition of each of the words. Heydon JA appears to have taken a like approach in R v Thomas Anthony Vincent [2002] NSWCCA 110, unreported. 11 The subsequent adjournments have not, in my view, extended the proceedings in a relevant way that preserves the opportunity for the EPA to request the Court to submit a question of law. 12 In not entirely dissimilar circumstances, the judge at first instance was regarded as functus officio in R v Essex Justices; Ex Parte Final [1963] 2 QB 816 and Reg v Lazarevic (1967) 85 WN (Pt 1) (NSW) 189. In Ward v Williams (1955) 92 CLR 496 (referred to in Lazarevic) the High Court regarded the statement of the case in that instance after dismissal of the appeal relied upon an artificial construction of what had happened at Quarter Sessions but nevertheless proceeded to deal with the matter. 13 The exact circumstances here are that the Court made a final determination of the issues and upheld the defence. Only the formal orders were delayed initially to enable the prosecutor to consider its position. On the adjourned date no firm intention to state a case was forthcoming. The defendant disputed the power to state a case on the third occasion. In the meantime, of course, the written reasons and proposed final orders had been published. 14 The purpose of s 5AE is to allow the prosecutor to obtain a ruling on a question of law by the Court of Criminal Appeal during the course of the proceedings. It is not intended that the Crown can sit back until the final verdict is made and then seek to use the section as a general right of appeal on a question of law. Any decision that involves an error of law that occurs as a consequence of an acquittal nevertheless can be reviewed by appeal under s 5A(2) of the Criminal Appeal Act without interfering with the acquittal. The alternative procedure protects an accused from double jeopardy. 15 Furthermore, it is akin to an abuse of process for the prosecutor to wait until the announcement of the Court's findings are sufficiently complete, to indicate a decision for acquittal of the defendant, before electing to seek a stated case. The position is further exacerbated by the initial failure to prevent a draft case or even intimate the nature of it. The judgment has been published in full. 16 All of the issues raised by way of allegation or defence that are resolved in the published reasons for judgment were fully canvassed at the trial. The decision of the Court was encompassed by the short oral summary made prior to the handing down of the written judgment. 17 The earlier decisions in this Court and in the Court of Criminal Appeal of Morrison v Peacock and Roslyn Shipping Company Pty Ltd (2000) 108 LGERA 77 and Morrison v Peacock and Another (2000) NSWLR 178, to which I have been referred, are not authorities, which support the prosecutor's submission. It is apparent from the judgments that the issue was not raised or argued either at first instance or on appeal. 18 As I said earlier, the Court is not appraised of the question of law the prosecutor seeks to have determined by the Court of Criminal Appeal. Nevertheless, the upholding of the alternative defences made out by the defendant are by and large questions of fact. This is almost certainly the case in respect of the primary defence. The prosecutor has no right of appeal in respect of a question of fact. 19 The Court is satisfied that the words of s 5AE, when applied to the circumstances of this case, are not in terms that are sufficiently clear to set aside the fundamental right of the defendant to have the summons dismissed. 20 The request to state a case is refused. 21 The orders in [119] of the judgment delivered on 9 September 2003 are confirmed. 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.