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Court of Criminal Appeal 3 December 2003

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ROSLYNDALE SHIPPING PTY LTD

[2003] NSWCCA 356

Also reported as (2003) 59 NSWLR 210
Other
ENVIRONMENTAL LAW SENTENCE STRICT LIABILITY OFFENCE WHERE GUILTY PLEA COSTS MEANING OF "ORDER".

Citation: Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd [2003] NSWCCA 356
Court: Court of Criminal Appeal, New South Wales
Date: 3 December 2003
Judge(s): Spigelman CJ; Studdert J; Hulme J

Background

In December 1996, a hydraulic hose fitted to a crane aboard the vessel Sitka II ruptured while the ship was berthed at Lord Howe Island, causing five litres of oil to flow into the lagoon. The respondent company, as owner of the vessel, pleaded guilty to an offence under the Marine Pollution Act 1987, a strict liability provision. The plea followed protracted earlier litigation, including a High Court appeal, over whether the rupture constituted "damage" to the ship's equipment that would have provided a statutory defence.

After the respondent pleaded guilty on remittal, the sentencing judge in the Land and Environment Court's summary jurisdiction directed that the charge be dismissed without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999. Her Honour also declined to make any order as to costs, finding the respondent had pursued an arguable, though ultimately unsuccessful, interpretation of the law that had initially persuaded both the trial court and the Court of Criminal Appeal.

The Director of Public Prosecutions appealed, contending that a conviction and fine should have been recorded and that a costs order should have been made in favour of the prosecution. The respondent challenged whether the Court of Criminal Appeal even had jurisdiction to hear an appeal against the refusal to award costs.

Legal Issues

  • Whether the sentencing judge's decision to dismiss the charge without recording a conviction, under s 10 of the Crimes (Sentencing Procedure) Act 1999, was within the permissible range of the sentencing discretion for a strict liability environmental offence.
  • Whether a refusal to make a costs order falls within the statutory definition of "sentence" in s 2(h) of the Criminal Appeal Act 1912, specifically whether a refusal to order costs constitutes "any order for the payment of costs" so as to confer appellate jurisdiction on the Court of Criminal Appeal.

Decision

Issue 1: Dismissal Without Conviction Under s 10

Spigelman CJ (with Studdert and Hulme JJ agreeing) found that the sentencing judge's exercise of the s 10 discretion was within the permissible range and disclosed no error warranting appellate intervention. While s 10 is rarely appropriate for strict liability offences of this character, it is not foreclosed. The sentencing judge had found, on the primary facts, that the respondent had engaged qualified experts to install and inspect the crane, had operated it for approximately 60 hours without incident, and that the point at which the hose ruptured was not readily visible or a foreseeable consequence of any visible warning sign.

Spigelman CJ acknowledged some concern about whether the visible abrasion and chafing at a different part of the hosing should have been treated as a trigger for further inquiry. However, his Honour concluded that the sentencing judge had not treated that factor as entirely irrelevant. Rather, she found it was not a warning of a character sufficient to put the owner on notice of the actual risk that eventuated. Applying the principle from Thorneloe v Filipowski (2001) 52 NSWLR 60, no public purpose is served by recording a conviction where, as a matter of practical reality, the offender could not have done anything to prevent the offence or its consequences. The appeal on this ground was dismissed.

Issue 2: Jurisdiction to Appeal a Refusal to Award Costs

The Court held that it lacked jurisdiction to hear the costs appeal. Section 2(h) of the Criminal Appeal Act 1912 defines "sentence" to include "any order for the payment of costs" made under specified provisions, including s 52 of the Land and Environment Court Act 1979. The question was whether a refusal to make a costs order could be characterised as such an "order."

Spigelman CJ applied the natural and ordinary meaning of "order," which does not encompass a refusal to make an order. The word "payment" in s 2(h), absent from the analogous provision considered in Palmer v Haddad [2000] NSWSC 545, reinforced this conclusion. Reading s 2(h) alongside s 5AA and s 5AB of the Criminal Appeal Act, which expressly confer an appeal right on persons "against whom an order to pay any costs is made," the statutory scheme consistently contemplated only positive costs orders as the subject of appellate review, not refusals to make such orders. Accordingly, the Court declined to exercise jurisdiction on the costs ground.

Orders Made

  • Appeal dismissed with costs.

Key Takeaways

  • A section 10 dismissal without conviction remains a legally available sentencing outcome for strict liability environmental offences, though the Court of Criminal Appeal confirmed it will be appropriate only rarely and requires findings that the offender could not, as a matter of practical reality, have averted the offending conduct or its consequences.

  • In applying the s 10 discretion to strict liability offences, a sentencing court may weigh the absence of any visible warning sufficient to put the offender on notice, together with factors such as the minor scale of environmental harm, immediate remediation, and the offender's prior engagement of qualified experts.

  • The Court of Criminal Appeal does not have jurisdiction under s 2(h) of the Criminal Appeal Act 1912 to hear an appeal against a refusal to award costs in criminal proceedings dealt with in the summary jurisdiction of the Land and Environment Court. The phrase "any order for the payment of costs" encompasses only positive costs orders, not a decision declining to make one.

  • Where a statute confers appellate rights only in respect of an "order," statutory context will determine whether that word extends to a refusal to act. The natural and ordinary meaning, supported here by the word "payment" and the structure of ss 5AA and 5AB, does not extend to a failure to make an order.

  • The reasoning in Palmer v Haddad [2000] NSWSC 545, which had interpreted a comparable costs appeal provision more broadly, was distinguished on the basis that the statutory language in s 2(h) of the Criminal Appeal Act is materially different, particularly through the inclusion of the word "payment."

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated