Citation: McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367
Court: Court of Criminal Appeal, New South Wales
Date: 13 September 2000
Judge(s): Spigelman CJ, Grove J, Kirby J
Background
The Environment Protection Authority (the prosecutor) commenced Class 5 criminal proceedings in the Land and Environment Court against McConnell Dowell Constructors (Aust) Pty Ltd (the defendant), a large construction company, alleging contraventions of environmental legislation including the Clean Waters Act 1970. The defendant sought to have the prosecution summons struck out as an abuse of process.
Pearlman J of the Land and Environment Court delivered a judgment on several interlocutory issues and then stated seven questions of law for determination by the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912. Six questions came from the defendant and one from the prosecutor.
The questions addressed whether the summons properly disclosed the elements of the offence, whether the proceedings were validly commenced, whether procedural rules had been satisfied, and whether a judge making an order under s 41(1) of the Land and Environment Court Act 1979 must first be satisfied that a prima facie case exists against the defendant.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to answer each stated question as a "question of law" under s 5AE of the Criminal Appeal Act 1912
- Whether the summons properly disclosed the essential ingredients of the offence under the Environmental Offences and Penalties Act 1989 and s 16(1) of the Clean Waters Act 1970
- Whether the proceedings were validly commenced on 24 February 1999
- Whether particular affidavits relied upon before Talbot J were properly before the court
- Whether a prima facie case was established by those affidavits
- Whether non-compliance with Part 75 rules 8 and 9 of the Supreme Court Rules 1970 was cured by s 68(2) of the Land and Environment Court Act 1979
- Whether a judge making an order under s 41(1) of the Land and Environment Court Act 1979 must be satisfied that a prima facie case exists against the defendant
Decision
The Court declined to answer several of the stated questions, finding them to be either hypothetical, unsupported by submissions, or not genuine questions of law within s 5AE. This disposition reflects the Court's caution about exercising its stated case jurisdiction beyond its proper scope.
On the critical procedural question (question 3(ii)), the Court held that the summons did not properly disclose the essential ingredients of the offence. Specifically, it failed to identify an act of polluting, which is an essential factual ingredient of the offence under s 16(1) of the Clean Waters Act 1970. The Court also confirmed that vicarious liability is not an ingredient of that offence.
On the question of procedural non-compliance (question 3(vi)), the Court found no error in Pearlman J's conclusion that non-compliance with Part 75 rule 9 of the Supreme Court Rules was cured by s 68(2)(a) of the Land and Environment Court Act 1979. No submissions had been advanced to explain why s 68(2)(a) should be read down, and the provision operated of its own force.
On the most constitutionally significant question (question 4(i)), the Court held that Pearlman J had erred in finding that a judge must be satisfied of a prima facie case before making an order under s 41(1) of the Land and Environment Court Act 1979. Part 6 rule 2(2) of the Land and Environment Court Rules 1996 imposes no such requirement. The Court reasoned that, in the absence of clear legislative intent, courts should not interpret legislation or rules in a way that gives a judge the appearance of performing a function closely associated with the prosecution process.
Orders Made
The Court answered the stated questions as follows:
- Question 3(i): Decline to answer
- Question 3(ii): Yes (Pearlman J erred in finding the summons properly disclosed essential ingredients of the offence)
- Question 3(iii): Decline to answer
- Question 3(iv): Decline to answer
- Question 3(v): Decline to answer
- Question 3(vi): No, with respect to Part 75 rule 9; otherwise, decline to answer
- Question 4(i): Yes (Pearlman J erred in finding a prima facie case must be established before an order under s 41(1) can be made)
Key Takeaways
- A prosecution summons under s 16(1) of the Clean Waters Act 1970 must identify a specific act of polluting as an essential factual ingredient of the offence; a summons that omits this element is defective.
- Vicarious liability is not an ingredient of an offence under s 16(1) of the Clean Waters Act 1970, according to this Court.
- Under Part 6 rule 2(2) of the Land and Environment Court Rules 1996, a judge is not required to be satisfied of a prima facie case against a defendant before making a coercive order under s 41(1) of the Land and Environment Court Act 1979.
- Absent clear legislative intent, courts will resist constructions of legislation or rules that would draw a judge into performing functions that appear to be part of the prosecution process.
- The Court of Criminal Appeal's jurisdiction under s 5AE of the Criminal Appeal Act 1912 is limited to genuine questions of law; questions that are hypothetical, lack submissions, or are framed as conclusory assertions will not be answered.
Legislation and Cases Referenced
Legislation:
- Clean Waters Act 1970
- Criminal Appeal Act 1912
- Environmental Offences and Penalties Act 1989
- Land and Environment Court Act 1979
- Land and Environment Court Rules 1996
- Pesticides Act 1978
- Supreme Court Rules 1970
Cases:
- Stanton v Abernathy (1990) 19 NSWLR 656
- Taylor v Environment Protection Authority [2000] NSWCCA 71
- Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
- Director of Public Prosecutions v Humphrys [1977] AC 1
- Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566
- Maxwell v The Queen (1996) 184 CLR 501
- Barton v The Queen (1980) 147 CLR 75
- Baker v Macleod (Land and Environment Court, 1 August 1986, unreported)