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Court of Criminal Appeal 10 August 2023

Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment

[2023] NSWCCA 195

Other
CRIME CALCULATION OF LIMITATION PERIODS

Citation: Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195
Court: Court of Criminal Appeal, NSW
Date: 10 August 2023
Judges: Adamson JA; Price J; Dhanji J

Background

The respondent, the Secretary of the Department of Planning and Environment, filed summonses on 14 June 2022 in the Land and Environment Court alleging 20 offences against the applicant company. The charges related to alleged picking of plants forming part of threatened ecological communities and damage to threatened species habitat, with the alleged offending spanning various periods between 2016 and 2020. Both the National Parks and Wildlife Act 1974 (NSW) (NPW Act) and the Biodiversity Conservation Act 2016 (NSW) (BC Act) prescribe a two-year limitation period for the commencement of such proceedings, running from the date on which evidence of the alleged offence first came to the attention of a relevant officer. It was agreed that this date was 11 June 2020.

The applicant filed a notice of motion in the Land and Environment Court arguing that the prosecutions were commenced out of time. The primary judge (Moore J) dismissed the motion. The applicant then sought leave to appeal that interlocutory decision to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the two-year limitation period expired on 10 June 2022 or 11 June 2022, given that evidence came to the attention of the relevant officer on 11 June 2020 (Ground 1).
  • Whether, if the period expired on 11 June 2022 (a Saturday, with Monday 13 June 2022 being a public holiday), s 36(2) of the Interpretation Act 1987 (NSW) operated to extend the period to the next available court day, Tuesday 14 June 2022 (Ground 2).
  • Whether the phrase "despite anything in the Criminal Procedure Act 1986 or any other Act" in the NPW Act and BC Act excluded the operation of the Interpretation Act 1987 (NSW).
  • What weight, if any, should be given to judicial remarks in earlier decisions on points that were neither in issue nor argued in those proceedings.

Decision

Ground 1: When did the limitation period expire?

Price J (with Adamson JA and Dhanji J agreeing) held that the date on which evidence came to the officer's attention, 11 June 2020, was not included in the calculation of the limitation period. The statutory language in both Acts referred to two years "after the date" of the relevant event, not two years after the event itself. This distinction matters: time begins to run after the date in question, so the two-year period commenced on 12 June 2020 and expired at the conclusion of 11 June 2022. The applicant's argument that the phrase "within, but not later than" displaced the ordinary corresponding date rule was rejected.

Dhanji J added reasons on this point, emphasising that the words "the date" in the expression "after the date" are significant. Because law does not deal in fractions of a day, the relevant date (11 June 2020) is treated as a whole unit, and time runs after that date rather than from the moment of the event itself.

The Court also addressed the weight to be given to certain remarks by an eminent appellate judge in an earlier decision. Price J held that because those remarks were far removed from the issues actually before the court in that case and were not the product of considered argument, they could not be treated as "seriously considered dicta" binding on the primary judge. The primary judge was entitled to decide the question of statutory construction independently.

Ground 2: Did the Interpretation Act extend the period to 14 June 2022?

The Court held that s 36(2) of the Interpretation Act 1987 (NSW) applied. That provision extends a statutory time limit to the next available day when the last day falls on a weekend or public holiday. Because 11 June 2022 was a Saturday and 13 June 2022 was a public holiday (Queen's Birthday), s 36(2) extended the period to Tuesday 14 June 2022, the day on which the summonses were filed.

The applicant argued that the phrase "despite anything in the Criminal Procedure Act 1986 or any other Act" in both the NPW Act and the BC Act excluded the Interpretation Act. The Court rejected this construction. The plain purpose of that phrase is to override the general six-month limitation period in the Criminal Procedure Act 1986 (NSW), and to displace shorter time limits in other legislation, so as to allow the two-year period in the environmental legislation to operate. It was not intended to exclude the Interpretation Act's general provisions about time computation.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Proceedings remitted to the Land and Environment Court of NSW for mention on 11 August 2023.

Key Takeaways

  • Under s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act, the two-year limitation period runs "after the date" on which evidence came to an officer's attention. The Court of Criminal Appeal confirmed that this date is excluded from the calculation, so the period expires at the conclusion of the corresponding date two years later, not the day before.

  • The phrase "within, but not later than" in the limitation provisions does not signal a departure from the ordinary corresponding date rule for calculating time periods.

  • Section 36(2) of the Interpretation Act 1987 (NSW) applies to extend limitation periods that would otherwise expire on a Saturday, Sunday, or public holiday. The Court confirmed this provision was not ousted by the "despite anything in the Criminal Procedure Act 1986 or any other Act" language in either the NPW Act or the BC Act.

  • Judicial remarks in earlier decisions that were far removed from the issues argued and decided in those proceedings do not constitute "seriously considered dicta" that lower courts are obliged to follow absent compelling reasons for departure.

  • In dismissing the appeal, the Court confirmed that summonses filed on the first available business day after a long weekend fell within time, where the limitation period would otherwise have expired on the preceding Saturday.

Legislation and Cases Referenced

Legislation:
- Biodiversity Conservation Act 2016 (NSW), ss 1.3, 2.2, 2.4, 13.4
- National Parks and Wildlife Act 1974 (NSW), ss 2A, 118A, 118D, 190
- Interpretation Act 1987 (NSW), ss 5(2), 36
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 179(1)
- Environmental Planning and Assessment Act 1979 (NSW), ss 127(5), 127(5A)
- Protection of the Environment Operations Act 1997 (NSW), s 64

Key Cases:
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Environment Protection Authority v Condon (2014) 86 NSWLR 499; [2014] NSWCA 149
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
- Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35
- Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37
- Akins v Abigroup Ltd (1998) 43 NSWLR 539
- Prowse v McIntyre (1961) 111 CLR 264; [1961] HCA 79
- Chief Executive of the Office of Environment and Heritage v Sommerville [2019] NSWLEC 155
- Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7