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Court of Criminal Appeal 6 May 2011

Queanbeyan City Council v Environment Protection Authority

[2011] NSWCCA 108

Other
CRIMINAL LAW APPEAL AGAINST INTERLOCUTORY DECISION REFUSAL TO GRANT STAY FAILURE OF SEWERAGE PUMPING STATION PROCEDURAL UNFAIRNESS PUBLIC INTEREST IN PROSECUTION.

Citation: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2011
Judge(s): Whealy JA; Hall J; McCallum J

Background

The appellant, a local council, operated a sewerage reticulation and pumping system in Queanbeyan, NSW. The main treatment plant was located across the border in the ACT and held an ACT licence. The NSW pumping infrastructure held no NSW environment protection licence, and the EPA had taken the position that the legislation did not permit it to issue one.

In response to earlier overflow incidents, the EPA had issued statutory prevention notices directing the council to construct an underground sewage retention system. The council complied, installing the Wanniassa Street Overflow Outlet, which was designed to hold untreated sewage temporarily before, at capacity, discharging into the Queanbeyan River.

In November 2007, a pump and alarm failure at the Morissett Street Pumping Station led to the discharge of approximately 1.5 million litres of untreated sewage into the Queanbeyan River. The council was charged under section 120(1) of the Protection of the Environment Operations Act 1997 (the Act) with the strict liability offence of polluting waters. It applied for a permanent stay of the prosecution, arguing abuse of process. Pepper J refused the stay in December 2010, and the council sought leave to appeal that interlocutory decision.

  • Whether the EPA's conduct in not issuing an environment protection licence, and in directing construction of the overflow structure, deprived the council of a statutory defence under section 122 of the Act, rendering the prosecution an abuse of process.
  • Whether the primary judge applied the correct legal test for granting a permanent stay.
  • Whether the primary judge made errors of statutory construction, procedural fairness, or factual findings unsupported by evidence.
  • Whether a costs order made in the absence of power should be set aside.

Decision

The Court of Criminal Appeal refused leave to appeal on all substantive grounds, finding no sufficient doubt as to the correctness of Pepper J's decision to refuse the stay. The court confirmed that a permanent stay is a remedy of last resort, granted only in exceptional circumstances where no other means can remedy the unfairness caused to the defendant or the harm to the justice system.

On the abuse of process argument, the court accepted the primary judge's reasoning that the EPA's position that no licence was required, or would be issued, could not reasonably be construed as a representation that pollution caused by a major sewage surcharge would be regarded as permissible. The EPA had made it clear that no licence permitting an overflow of untreated sewage would ever be issued. The council's own representative had acknowledged this.

On the question of the overflow structure itself, the court accepted that the construction of the retention system and the overflow outlet, though directed by the EPA, had no factual connection to the cause of the November 2007 pollution. The pollution arose from the failure of the pump and the council's delayed response, not from the installation of the overflow works. This critical distinction undermined the abuse of process argument.

The court agreed that the costs order made by Pepper J had been made in the absence of power, following a concession by senior counsel for the EPA. That order was set aside. All other grounds of appeal were dismissed.

Orders Made

  • The decision below was varied to the extent necessary to vacate the costs order made by Pepper J.
  • Otherwise, leave to appeal was refused.

Key Takeaways

  • A permanent stay of criminal proceedings is a remedy of last resort, available only where the continuation of the prosecution would amount to an abuse of process that cannot be remedied by any other means, and where the public interest in prosecution does not outweigh the unfairness.
  • Refusing to issue, or indicating that a licence would not be issued, did not constitute a representation by the EPA that pollution events would be treated as permissible or that prosecution would not follow.
  • Where pollution arises from a distinct operational failure (here, pump and alarm malfunction and delayed response) rather than from works directed by the regulator, there is no necessary causal connection capable of grounding an abuse of process argument.
  • Under section 120 of the Protection of the Environment Operations Act 1997, a council operating sewerage infrastructure faces a strict liability offence for polluting waters; the absence of an environment protection licence removes the only statutory defence under section 122, but that absence does not by itself make a prosecution an abuse of process.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that factual findings made on a stay application for the purpose of assessing prosecutorial discretion are not findings of fact for the purposes of the trial itself, and cannot be treated as such.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Protection of the Environment Operations Act 1997 (NSW), ss 96, 120, 122

Cases:
- R v Van Phu Ho (Unreported, NSW Court of Criminal Appeal, 18 July 1994)
- House v The King (1936) 55 CLR 499
- R v Steffan (1993) 30 NSWLR 633
- R v Matovski (1989) 15 NSWLR 720
- R v Dinh [2000] NSWCCA 536
- R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
- R v Ulman-Narumiec (2003) 143 A Crim R 531
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Dupas v R (2010) 241 CLR 237
- R v Glennon (1992) 173 CLR 592