Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 29

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 29 Hearing dates: 8 March 2013 Decision date: 08 March 2013 Jurisdiction: Class 5 Before: Pain J Decision: The Prosecutor's Notice of Motion dated 1 March 2013 is dismissed. Catchwords: PROCEDURE - whether s 247E notice of prosecution case complete Legislation Cited: Criminal Procedure Act 1986 Ch 4 Pt 5 Div 2A, s 247D, s 247E, s 247F, s 247I, s 247J, s 247K, s 247L, s 247P Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor) Bulga Coal Management Pty Ltd (Defendant) Representation: Mr B Neild (Prosecutor) Mr T Howard (Defendant) Office of Environment and Heritage (Prosecutor) McCullough Robertson Lawyers (Defendant) File Number(s): 51032 of 2012, 51033 of 2012

EX TEMPORE Judgment 1Before the Court today is a Notice of Motion filed by the Prosecutor dated 1 March 2013 seeking certain orders in relation to the conduct of two prosecutions under Ch 4, Pt 5, Div 2A of the Criminal Procedure Act 1986 (the CP Act). The orders sought are: 1. An order pursuant to section 247X(2) of the Criminal Procedure Act 1986 that the notice of the prosecutor's case given on 4 February 2013 complies (save for the date of service of same) with Order 1 of Justice Pain made in proceedings 50132 of 2012 and 51033 of 2012 on 23 November 2012. 2. An order pursuant to section 247I(1)(a) Criminal Procedure Act 1986 that the prosecutor give to the defendant notice in accordance with section 247J of the Criminal Procedure Act 1986 within 2 weeks of the date on which this order is made. 3. An order pursuant to section 247I(1)(b) Criminal Procedure Act 1986 that the defendant give to the prosecutor notice in accordance with section 247K of the Criminal Procedure Act 1986 within 6 weeks of the date on which this order is made. 4. An order pursuant to section 247I(1)(a) Criminal Procedure Act 1986 that the prosecutor give to the defendant notice in accordance with section 247L of the Criminal Procedure Act 1986 within 12 weeks of the date on which this order is made. 5. An order that proceeding numbers 50132 of 2012 and 51033 of 2012 be listed for further mention on a date within 14 weeks of the date on which this order is made for plea. ... 2The Prosecutor did not ultimately press the first order but sought other orders for preliminary disclosure in prayers 2-5 under s 247 J, s 247K and s 247L as provided for in s 247I. The Defendant opposes these orders being made. 3An order was made on 23 November 2012 for the Prosecutor to file a s 247E notice of the prosecution case. At issue is whether the s 247E notice filed by the Prosecutor complies with the requirements of that section. As served on the Defendant the notice reserves the right of the Prosecutor to adduce further evidence specified in several bullet points. Informal discussions between the parties has narrowed the Defendant's concern to matters referred to in three bullet points. 4The Defendant says no orders for preliminary disclosure under s 247I, s 247J and s 247K should be made until the s 247E notice is complete. 5The Prosecutor says that to the extent additional evidence may be relied on by the Prosecutor that will be clarified in the course of matters being resolved under s 247J, s 247K and s 247L. For this matter at least the Prosecutor submits that s 247E and s 247I, s 247J, s 247K and s 247L can be seen to operate together to result in clarification of the prosecution case and evidence to be relied on. 6I essentially agree with the submissions of the Defendant's counsel that s 247E (and s 247F) are discrete obligations imposed on the Prosecutor (and Defendant) which are set apart from the later preliminary disclosure provisions in s 247I, s 247J, s 247K and s 247L if these arise. The obligation imposed on the Prosecutor under s 247E continues the long-standing obligation on a prosecutor in criminal proceedings to disclose its case to a defendant in order for a defendant to be aware of the case he or she must meet. Once the s 247E notice is complete then the preliminary disclosure procedures identified in s 247I, s 247J, s 247K and s 247L can operate. As the Defendant submitted these are not intended as a mechanism by which evidence which the Prosecutor has reserved its right to rely on it can be adduced if necessary. The importance of s 247E and s 247F in the legislative scheme is highlighted by s 247D which requires that at the first mention of proceedings the court is to give directions with respect to the future conduct of the proceedings including time by which a notice under s 247E and s 247F is to be given. Without a complete s 247E notice the defendant is unable to comply with s 247F. 7Section 247I(1)(a) provides for an order to be made that the prosecutor give the defendant notice under s 247J(a) of matters required to be included in the notice of the prosecution case under s 247E. This suggests that a complete s 247E notice is necessary before such an order is made. 8Further support for the primary role of the s 247E notice of the prosecution case is also demonstrated in that, once provided, a defendant should be in a position to determine whether to plead guilty or not guilty, if no plea has already been entered. As the Defendant's counsel submitted, the nature of preliminary disclosure, if any is ordered, will vary depending on whether there is a guilty plea entered. 9My finding means that I do not accept the Prosecutor's submission that "evidence the prosecutor proposes to adduce" as referred to in s 247E(c) can or should be qualified by what may emerge later in preliminary disclosure processes. I also do not agree this sets at naught the preliminary disclosure regime in Div 2A. The Division provides for an ordered approach to the distillation of issues leading up to a criminal trial in what is likely to be a contested hearing on a plea of not guilty. The regime does not purport to water down the prosecutor's up front obligation to identify the evidence on which it relies to establish a charge. 10Expenditure by the prosecutor in the preparation of evidence that is not ultimately required because of preliminary disclosure processes is not a material consideration to the interpretation of the obligation under s 247E. I note there is provision under s 247P for a court to waive requirements under this Division but no application has been made under that section by the Prosecutor at this stage. 11It follows that I should direct the Prosecutor to serve an unqualified s 247E notice. I note that since the first order requiring this to be done on 23 November 2012 the Defendant has pleaded guilty to one charge. It may be appropriate that different orders be made for the separate charges before the Court reflecting their different history.