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Court of Criminal Appeal 27 November 2006

Mick Bechara Hakim v Waterways Authority of New South Wales

[2006] NSWCCA 376

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE POWERS AND DUTIES OF PROSECUTION CRIMINAL LAW PRACTICE AND PROCEDURE INFORMATION, INDICTMENT OR PRESENTMENT

Citation: Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376
Court: Court of Criminal Appeal, New South Wales
Date: 27 November 2006
Judge(s): Spigelman CJ, Grove J, Bell J

Background

The appellant owned land on the Parramatta River, part of which fell within 40 metres of the top of the river bank and was therefore classified as "protected land" under the Rivers and Foreshores Improvement Act 1948. A new house was under construction on the property, requiring excavation that extended into the protected area. Although the appellant was informed that a permit from the Waterways Authority was required before any excavation could proceed on the protected land, work began in October 2003 without that permit.

The Waterways Authority became aware of the excavation in early February 2004 and issued a stop work order on 3 February 2004, which the appellant received on 5 February. That same day, part of the cliff face collapsed into the Parramatta River, depositing rocks onto a Sydney Water sewage pipe. On 6 February 2004, further excavation took place, including removal of cliff face material. The appellant argued this was carried out at the request of Sydney Water employees to clear the rocks from the sewage pipe.

The appellant was convicted in the Land and Environment Court of two offences: excavating on protected land without a permit (contrary to s 22B(2) of the Act), and failing to comply with the stop work order (contrary to s 22D(5)). He appealed both convictions to the Court of Criminal Appeal.

  • Whether the prosecution failed to discharge its duty by not obtaining statements from certain witnesses, and whether any such failure caused a miscarriage of justice.
  • Whether the summons was bad for latent duplicity, given that the prosecution characterised excavation occurring over several months as a single offence.
  • Whether there was a miscarriage of justice in relation to the s 22B(2) conviction, including whether the trial judge's finding that the appellant retained control of the site was open on the evidence.
  • Whether the stop work order was valid, given that it directed the cessation of "all works" rather than being limited to the specific activity of excavation.

Decision

On the first conviction (excavating without a permit under s 22B(2)), the Court dismissed the appeal on all grounds. The Court held that the prosecution's duty extends to calling relevant witnesses but does not extend to obtaining statements from those witnesses. Neither the failure to obtain statements nor the decision not to call particular witnesses resulted in a miscarriage of justice.

On the duplicity argument, the Court found that the law of duplicity serves multiple purposes, of which fair trial is only one. The prosecution's characterisation of the excavation as a single continuing enterprise did not render the charge unclear or occasion unfairness to the appellant. There was no latent duplicity. The Court also found that the trial judge's conclusion that the appellant retained control of the site was open on the evidence, and no miscarriage of justice arose.

On the second conviction (failing to comply with the stop work order under s 22D(5)), the Court upheld the appeal. The critical issue was whether the stop work order itself was valid. Section 22D authorises an order requiring a person to cease "that activity", meaning the specific activity that constitutes an actual or prospective contravention of s 22B. The relevant activity here was excavation. However, the order as issued directed the cessation of "all works", not merely excavation.

The Court held that this was a fundamental defect. There was no statutory basis for an order extending beyond the specific kinds of conduct addressed by s 22B, and no basis to treat every aspect of the construction works as amounting to excavation or removal of material. Because the order failed to identify the relevant activity at all, it fell outside the scope of s 22D and was therefore invalid. A conviction for failing to comply with an invalid order could not stand.

Orders Made

  • Appeal from the conviction of an offence against s 22B(2) of the Rivers and Foreshores Improvement Act 1948 dismissed.
  • Appeal from the conviction of an offence against s 22D(5) of the Rivers and Foreshores Improvement Act 1948 allowed.
  • Orders 2 and 3 of Cowdroy J made on 8 July 2005 set aside.
  • The question of what costs order should be made in respect of the Land and Environment Court proceedings remitted for further determination.
  • No order as to costs in the Court of Criminal Appeal.

Key Takeaways

  • A stop work order issued under s 22D of the Rivers and Foreshores Improvement Act 1948 must be limited to the specific activity that constitutes or threatens a contravention of s 22B. An order requiring the cessation of "all works" goes beyond the statute and is invalid.
  • The Court of Criminal Appeal confirmed that an invalid stop work order cannot ground a criminal conviction for non-compliance under s 22D(5), regardless of whether work did in fact continue after the order was received.
  • A prosecutor's duty to act fairly includes an obligation to call all relevant witnesses, but does not extend to a positive obligation to obtain statements from those witnesses prior to trial.
  • Where the prosecution characterises a series of acts as a single continuing enterprise, that approach does not necessarily give rise to latent duplicity. The charge must be assessed for whether it was unclear or caused actual unfairness to the accused.
  • Under s 5AA of the Criminal Appeal Act 1912, the Court of Criminal Appeal has power to confirm or vacate a determination made by the Land and Environment Court exercising summary criminal jurisdiction.

Legislation and Cases Referenced

Legislation:
- Rivers and Foreshores Improvement Act 1948 (NSW), ss 22B(2), 22D(1), 22D(5)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5ABN, 6(1)
- Land and Environment Act 1979 (NSW), ss 21(i), 26

Cases:
- Alphacell Limited v Woodward [1972] AC 824
- Caruso v Boucher (1975) 10 SASR 71
- Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
- Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1
- Gilmour v Environment Protection Authority (2002) 55 NSWLR 593
- Minister Administering the Ports Corporation & Waterways Management Act 1995 v Hakim [2005] NSWLEC 92
- Minister Administering the Ports Corporatisation & Waterways Management Act 1995 v Hakim [No 2] [2005] NSWLEC 326
- Nudd v The Queen (2005) 80 ALJR 61
- Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137
- R v Hamzy (1994) 74 A Crim R 341
- R v Moussad [1999] NSWCCA 337
- S v The Queen (1989) 169 CLR 266
- The Queen v Apostilides (1984) 154 CLR 563