Citation: [2003] NSWCCA 356
Court: Court of Criminal Appeal (NSW)
Date: 3 December 2003
Judge(s): Spigelman CJ; Studdert J; Hulme J
Background
On 1 December 1996, the vessel Sitka II discharged 15 litres of oil while moored at Lord Howe Island, with five litres entering the lagoon. The respondent shipping company, which owned the vessel, pleaded guilty to an offence under the Marine Pollution Act 1987 after lengthy preliminary proceedings had established it could not rely on a statutory defence based on equipment "damage." Those preliminary proceedings had reached the High Court before the guilty plea was entered.
Sitting in the Land and Environment Court's summary jurisdiction, Pearlman J directed that the charge be dismissed without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999. Her Honour found the offence minor and concluded neither the company nor the ship's captain could have foreseen or averted the equipment failure. She also declined to make any costs order.
The Director of Public Prosecutions appealed, arguing that a conviction and fine should have been recorded and that a costs order in the prosecution's favour should have been made. The respondent challenged the Court's jurisdiction to hear the costs ground of appeal.
Legal Issues
- Whether Pearlman J's exercise of discretion to dismiss the charge without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 was within the permissible range for a strict liability offence.
- Whether the Court of Criminal Appeal had jurisdiction, under s 2(h) of the Criminal Appeal Act 1912, to hear an appeal from a refusal by the Land and Environment Court to make a costs order in a criminal matter dealt with in its summary jurisdiction.
- What the word "order" means in the statutory phrase "any order for the payment of costs," and whether it extends to a refusal to make such an order.
Decision
Dismissal without conviction: The Court of Criminal Appeal upheld Pearlman J's sentencing decision. Although a s 10 dismissal will rarely be appropriate for a strict liability offence of this kind, the Court found it was open to her Honour on the facts. In particular, there was no visible warning sufficient to put the respondent on notice that an equipment failure was likely, which distinguished the matter from the ordinary case where strict liability demands accountability.
Jurisdiction over the costs appeal: Spigelman CJ (with Studdert and Hulme JJ agreeing on the outcome) held that the Court had no jurisdiction to entertain the DPP's appeal on costs. Section 2(h) of the Criminal Appeal Act 1912 permits an appeal from "any order for the payment of" costs. A refusal to make a costs order is not, in its natural and ordinary meaning, an "order," and the surrounding statutory text reinforced that reading. The phrase "order for the payment" and the related concept of an order being "made against" a person in s 5AA(1) both pointed away from treating a refusal as an appealable "order."
Statutory construction of "order": The Court acknowledged that the word "order" can carry a wider meaning in particular statutory contexts. However, the interrelated provisions of the Criminal Appeal Act provided no basis for expanding the term here. The Court declined to read the statutory formulation as equivalent to "an order in relation to costs," which would have been the broader reading required to confer jurisdiction.
Hulme J agreed with the result but expressed a reservation about one aspect of Spigelman CJ's reasoning at paragraph 54, specifically that he saw no reason in the statutory provisions why a person could not simultaneously have been convicted and have had a costs order made against them. He also considered that the definition of "sentence" in the Act should not be read as including a costs order, given the presence of the separate word "order" elsewhere in the provision and general principles of statutory interpretation.
Orders Made
- Appeal dismissed with costs.
Key Takeaways
- A direction dismissing a charge without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 can, in rare circumstances, be a permissible sentencing outcome for a strict liability offence, where the offending party had no practicable means of anticipating the relevant failure.
- The Court of Criminal Appeal confirmed it lacks jurisdiction under s 2(h) of the Criminal Appeal Act 1912 to hear an appeal against a refusal by the Land and Environment Court to award costs in a criminal matter dealt with summarily.
- Statutory use of the word "order" does not, in its natural and ordinary meaning, extend to a refusal to make an order; context may expand that meaning, but no such contextual indication existed in the relevant provisions here.
- Under s 5AA(1) of the Criminal Appeal Act, the interplay between the phrase "order to pay any costs is made" and the s 2(h) reference to "any order for the payment of" costs reinforces the conclusion that both provisions contemplate a positive order, not an absence of one.
- In dismissing the appeal, the Court drew a clear distinction between the present circumstances and the decision in Palmer v Haddad [2000] NSWSC 545, which was distinguished rather than departed from.
Legislation and Cases Referenced
Legislation:
- Marine Pollution Act 1987 (NSW), s 8
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Appeal Act 1912 (NSW), ss 2, 5AA, 5AB, 5AC, 5AE, 5D
- Land and Environment Court Act 1979 (NSW), s 52
- Justices Act 1902 (NSW), s 104
- Supreme Court (Summary Jurisdiction) Act 1967, s 14
- Coal Mines Regulation Act 1982, s 153
Cases:
- Morrison v Peacock (2002) 210 CLR 274
- Morrison v Peacock (2000) 50 NSWLR 178
- Morrison v Peacock and Roslyndale Shipping Co Pty Ltd [1999] NSWLEC 182
- Thorneloe v Filipowski (2001) 52 NSWLR 60
- Palmer v Haddad [2000] NSWSC 545
- Boulter v Kent Justices [1897] AC 556
- R v Blakeley; Ex parte The Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54
- R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109
- Latoudis v Casey (1990) 170 CLR 534
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Gammon (Hong Kong) Limited v Attorney General of Hong Kong [1985] AC 1
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355