Citation: Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 3 March 2021
Judge(s): Macfarlan JA (with Button J and Ierace J agreeing)
Background
The appellant, a company that operated a temporary mobile asphalt batching plant under a development consent, was charged by the respondent council with breaching two conditions of that consent: a daily production limit of 150 tonnes and a maximum of twelve truck movements per day. The charges related to operations carried out in early 2015 while the company supplied asphalt to Roads and Maritime Services for nearby roadworks.
Before the proceedings came to trial, the council obtained documents from RMS through several routes: a request under the Government Information (Public Access) Act 2009, a statutory notice issued under s 119J of the Environmental Planning and Assessment Act 1979, and a subpoena issued to RMS in December 2016. The company sought to have the subpoena set aside or to deny the council access to the documents produced under it.
The primary judge, Moore J of the Land and Environment Court, refused to set aside the subpoena. The company then sought leave to appeal that decision to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the subpoena issued to RMS was an abuse of process because the documents sought had already been produced under a s 119J statutory notice.
- Whether the subpoena was issued for a legitimate forensic purpose, given the council's contention that it served merely as an "insurance policy" in case the statutory notice was found to be invalid and the documents produced under it ruled inadmissible.
- Whether the subpoena was too broad in seeking documents relating to days beyond those the subject of the criminal charges, and whether that breadth constituted an abuse of process.
Decision
On the primary argument, the Court found no abuse of process in issuing a subpoena to obtain documents that had also been sought by statutory notice. The fact that the council may have already held the documents through the s 119J process did not deprive the subpoena of a legitimate forensic purpose. A prosecutor is entitled to seek to remedy the evidentiary inadequacies of documents already in its possession, particularly where the opposing party continues to assert that the statutory notice was invalid and the documents obtained under it may be inadmissible.
The Court also noted that the council's knowledge of the existence of the relevant documents came from sources entirely independent of the statutory notice, including information provided by the company's own plant manager and a voluntary email from the RMS Works Manager. That independent knowledge further supported the legitimacy of the subpoena as a forensic tool.
On the secondary argument concerning the scope of the subpoena, the Court held that documents relating to days beyond the two specifically charged days retained arguable relevance. Such material could be admissible as tendency or coincidence evidence, could serve to negate defences, and would be relevant to sentencing. In particular, whether the offences were part of planned or organised criminal activity, and the offender's intention and appreciation of the offence, are matters relevant to penalty in strictly liable offences of this kind.
The Court refused leave to appeal and added a pointed observation about the progress of the proceedings. More than four years had passed since charges were laid with no trial date fixed, and the Court noted its longstanding disapproval of criminal proceedings being interrupted by unnecessary interlocutory appellate applications. It described the leave application as having caused unjustified interference with the first instance proceedings.
Orders Made
• Leave to appeal is refused
Key Takeaways
- A prosecutor issuing a subpoena to obtain documents that have also been sought by statutory notice does not, without more, constitute an abuse of process. The two processes serve distinct evidentiary functions.
- Where a party consistently disputes the validity of a statutory notice, a subpoena directed at the same documents can constitute a legitimate forensic step, allowing the prosecutor to seek an independent and potentially admissible source of proof.
- Documents relating to conduct beyond the specific days charged may still fall within a valid subpoena where they are arguably relevant as tendency or coincidence evidence, or to sentencing considerations such as whether offences formed part of planned or organised activity.
- In dismissing the application, the Court of Criminal Appeal reiterated its longstanding position that unnecessary interlocutory appeals cause unjustified disruption to criminal proceedings and are to be discouraged.
- Under the Crimes (Sentencing Procedure) Act 1999 and the case law on strictly liable environmental offences, an offender's general conduct across a relevant period, including days not the subject of charges, can bear directly on sentencing.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(b), 119J, 125(1)
- Evidence Act 1995 (NSW)
- Government Information (Public Access) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
Cases:
- Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
- Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7; (2019) 239 LGERA 240
- Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337
- Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWCCA 312
- Alister v The Queen (1984) 154 CLR 404
- Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
- R v Rogerson (1990) 45 A Crim R 253
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- R v Steffan (1993) 30 NSWLR 633
- In re the Will of Gilbert (1946) 46 SR (NSW) 318
- National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372