Australian Petroleum Pty Ltd v Environment Protection Authority S162/1995 [1996] HCATrans 166 (16 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S162 of 1995

B e t w e e n -

AUSTRALIAN PETROLEUM PTY LIMITED (previously known as AMPOL LTD)

Applicant

and

ENVIRONMENT PROTECTION AUTHORITY

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 APRIL 1996, AT 9.32 AM

Copyright in the High Court of Australia

MR R.V. GYLES, QC: If your Honours please, I appear with MR R.J. CHENEY for the applicant. (instructed by Blake Dawson Waldron)

MR K. MASON, QC, Solicitor-General for the State of New South Wales: I appear with my learned friend, MS H.G. MURRELL, SC, for the respondent. (instructed by Ms Dorelle Pinch, Environment Protection Authority)

BRENNAN CJ: Mr Gyles.

MR GYLES: If your Honours please, the kernel of the issue for appeal if there were one is to be found at page 42 of the book in the judgment of the Court of Criminal Appeal, line 24, where their Honours say:

The risks and possibility of offence were foreseeable as that concept is properly applied. There were practicable means of obviating them namely bunding, increasing the separator tank capacity, installing alarm or shut-off valves. Such were within the scope of pollution control works for which AMPOL retained responsibility. It did not do so. It therefore contributed to the circumstances giving rise to the offence. Its failure to take these steps to obviate the foreseeable risk and consequent offence were omissions which a reasonably prudent owner would not make. Such negligence was neither trivial nor inconsiderable and merited penal sanction.

That, your Honours, would be read in conjunction with what was said by their Honours at page 39 line 30 to 40 line 5 and 40 line 35 to the end of that page.

As your Honours will appreciate, it is our submission that what the Court of Criminal Appeal did not do was to ask themselves the question, in reviewing what happened below, "Can it be said that the failure to take the precautions was something which, in effect, all reasonable people confronted with that situation would take?", because absent such a finding, where we are dealing with criminal negligence by omission, you cannot satisfy the test of beyond reasonable doubt.

In other words, your Honours, what is set out by the Court of Criminal Appeal in that passage which reproduces what they had earlier said is to in fact apply a civil standard: foreseeable risk, practicable precautions, therefore breach of standard. Now, if your Honours please, we submit that, in the criminal context - assume foreseeability, assume practicable precautions, the next question is can it be said that all persons, all reasonable persons in the position of the defendant, would have taken those precautions. Once there is any area of judgment involved it, in our respectful submission, eliminates the possibility of there being guilt beyond reasonable doubt.

TOOHEY J: But introducing foreseeability may operate unduly to your advantage, would it not?

MR GYLES: Your Honour, I would submit not in the circumstances of this case, because the judge below did not find foreseeability. She said, in effect, you have a duty. So it does not work adversely to us in this case, your Honour.

TOOHEY J: No, I was not suggesting it did.

MR GYLES: And it does not work in our favour, either, because there was no finding of foreseeability.

TOOHEY J: Why should foreseeability play a part in this?

MR GYLES: Your Honour, I am not submitting that it should.

TOOHEY J: The question is rhetorical.

MR GYLES: Yes. The question, your Honour, is breach of standard; that is the question under the statute.

BRENNAN CJ: What is the proposition? Is it that before there can be a conviction, the negligence must be so gross as to amount to a crime against the State and conduct deserving of punishment?

MR GYLES: No, your Honour. That is not the formulation or the proposition which I contend. It is that before you can say that an omission leads to guilt beyond reasonable doubt, you must be able to find that all persons confronted with the standard would have supplied the omitted precautions.

BRENNAN CJ: All reasonable persons?

MR GYLES: All reasonable persons in the position of the accused, let me concede.

BRENNAN CJ: How do you then deal with the finding at page 42, line 39, "which a reasonably prudent owner would not make"?

MR GYLES: "A reasonably prudent owner", and that is the point, your Honour. The court below did not address the question, "Can we say that all persons in that position would have done that same thing?" The answer, of course, would be almost rhetorical, because what the applicant did was to comply with the known standards.

BRENNAN CJ: But do you say that if that had read "which all reasonably prudent owners would not make", that would have answered the question.

MR GYLES: Indeed, your Honour, indeed.

BRENNAN CJ: But it is because it is "a reasonably prudent owner" that it fails to live up to the necessary standard.

MR GYLES: Yes, your Honour. But if the correct test had been posed, attending to the facts, the court would have been confronted with a situation where the evidence was - in the court below, it was said, "Well we will accept for the purposes of argument that all reasonable precautions were taken and you complied within industry practice". That, however, is not to the point. Now we respectfully submit that if the right question had been asked, the answer would have been given. Of course, given this body of material, there was a choice, or a question of judgment, and that is not a criminal standard of proof.

Now, your Honours, the matter may have been complicated by the stated case decision in this very matter where in 81 LGERA 433, their Honours sent back the stated case. However, Mr Justice Mahoney did analyse to some extent the question of negligence in a criminal setting, starting at 437. And at 439, point 5, said this:

The omission of the precautionary act or omission would on those assumptions ordinarily be negligent under the civil law -

referring to Shirt's Case.

It would be negligent under the criminal law only if the court, on an assessment of all the facts, concluded that failure to take the relevant precaution warrants criminal punishment. I do not think that the matter can be formalised beyond that.

BRENNAN CJ: That is the test which I put to you, which you abjured.

MR GYLES: Yes, your Honour, but it is, for this reason. What his Honour Justice Mahoney says is, what I would submit, an additional element. It assumes - and this is what may have misled the court below - that there has already been a finding, relevantly, that the criminal standard has been breached. But it may be that there is something which is so obvious that all persons would have done it but is so minor as not to warrant criminal sanction. In other words, his Honour is there drawing an extra element, which we would embrace, but what his Honour is saying is not, we respectfully submit, to the contrary of our submission.

Your Honours, since we prepared our outline of argument, it has come to our attention that an article has been published - if I may hand it to your Honours - dealing generally with protecting the environment through criminal sanctions, with particular reference to this Act, and at pages 19 and 20 the authors deal with the question of negligence. We have taken the liberty, because of the time constraints, your Honours, of highlighting two paragraphs - and for my learned friend's benefit, it is the second last paragraph in the right-hand column of page 19, and the right-hand column on page 20. I do not, of course, wish to mask the rest of it from your Honours, but this article makes rather neatly the point that we have sought to make in our outline of submissions. What had gone before left a considerable element of doubt about the question of negligence in a setting such as this, criminal negligence, and the authors say it has been complicated "by the decision of the Court of Criminal Appeal in EPA v Ampol. That, your Honours is the decision of Mr Justice Mahoney to which your Honours have just been taken and your Honours will see, in the left-hand column of page 20, that is analysed.

DAWSON J: The problem with that, Mr Gyles, is that, really, the offence is not being negligent. It is merely descriptive of the offence which is, of course, causing or contributing to the conditions.

MR GYLES: Quite, but doing so negligently.

DAWSON J: It is difficult to see that the word "negligently" there means anything more than carelessly; that is, carelessly as opposed to wilfully.

MR GYLES: Yes, your Honour, but - - -

DAWSON J: And all those cases which deal with negligence, as it were, as a crime in itself, really do not bear on the subject.

MR GYLES: Your Honour, that, with respect, may or may not be so but that is not my point. My point is that the statute does require proof of the element of negligence. Whether it be called "carelessness" as opposed to "wilfulness" which is, I think, what your Honour is putting to me, I accept that.

DAWSON J: What I am putting to you is there are not standards of carelessness in that context; either it is careless or not. Careless is what is opposed to wilfulness.

MR GYLES: Yes, your Honour, I am accepting that for the moment subject to the qualification that Mr Justice Mahoney adds in this decision. What I do put to your Honours is that if there be a criminal standard to be satisfied of negligence, call it "carelessness" - I am not arguing for different standards of carelessness - I am simply saying a court must find as a fact that all persons, reasonable persons, confronted with that situation would have supplied the omissions. It is not a question of whether they would have done something else. It is a question whether they would have supplied the omissions with which we were charged and convicted.

DAWSON J: That is setting a standard of negligence.

MR GYLES: No, it is simply applying the criminal standard, your Honour, that is, proof beyond reasonable doubt.

DAWSON J: That is where you have a crime of negligence and you have to determine what the content of it is. But the crime here is contributing to a situation.

MR GYLES: Yes, your Honour, negligently.

DAWSON J: Negligently as opposed to wilfully. You do not really have any particular standard there.

MR GYLES: If your Honour's proposition were correct, it would mean that one could take out of the statute "negligently".

DAWSON J: No, no.

MR GYLES: With respect, it would be simply saying "contributing to by whatever means". That would be a crime of strict liability which this is not. "Negligently" requires there to be a normative judgment by the tribunal hearing the case.

BRENNAN CJ: That is quite right, and once one has the facts proved beyond reasonable doubt, there is nothing left but a normative judgment to be made in order to determine yea or nay the issue of negligence. Now, in this case there is no doubt about the facts.

MR GYLES: No.

BRENNAN CJ: The question is how does one evaluate those facts? And in the evaluation, the court has said that a reasonably prudent owner would not have made this omission. Now, where is the error to be found in applying that standard?

MR GYLES: Because, your Honour, the court that found that did not address the question as to whether or not, in effect, everybody confronted with that situation, acting reasonably, knowing what they did know, would have supplied those omissions.

BRENNAN CJ: I do not understand that distinction that you are making having regard to the language which was used. If you mean that everybody would not have taken those steps and that some other persons are, after all, in some broad and general sense prudent or reasonable, that may be so but that is not the test of negligence.

MR GYLES: No, your Honour, I am not suggesting that is a test of negligence. What I am suggesting is that if it is suggested that a particular precaution is necessary - we are dealing with omissions - that before you can convict somebody of a criminal offence of not supplying that precaution, the court must conclude that that standard was not met beyond reasonable doubt. It is not simply a case of the facts being proved beyond reasonable doubt, as your Honour, with respect, would know, it is a question of whether or not the standard has been breached beyond reasonable doubt, bearing in mind the facts which have been proved.

BRENNAN CJ: Once you have the facts proved, the rest is surely a question of law.

MR GYLES: It is a question of law, your Honour, but nonetheless, the standard - - -

BRENNAN CJ: Then the question of law is whether or not, on those facts, one can say that it amounts to something that is negligent.

MR GYLES: Yes, your Honour. Your Honour, may I endeavour to put it this way: there is a distinction between civil and criminal negligence in this setting. It does not lie only in the degree of negligence. Before you get to the degree of negligence to make it culpable, you must find that there is a sufficient - the difference in standard of proof must have some impact and the only impact it has - - -

BRENNAN CJ: The standard of proof, are you saying?

MR GYLES: Yes, beyond reasonable doubt as against the civil onus. There is a difference, your Honours. That is the point. Now, where is that difference recognised in this judgment? It is not? The court below referred to Shirt's Case and Vozza v Tooth & Co, your Honours.

BRENNAN CJ: But you do not have a standard of proof of the question at law.

MR GYLES: Your Honour, with respect, there is a standard of - criminal negligence or the proof of criminal negligence is proof beyond reasonable doubt of negligence, is it not, with respect? If that proposition be right, it follows that this court below did not attend to that question.

BRENNAN CJ: That, perhaps, highlights the difficulty because when you put it that way negligence is a mixed question of fact and law. The onus of proof relates to the facts. The evaluation then is one which is to be made upon the facts as proved. In the classical situation, in all the negligence trials, of course, it is a matter for the jury to determine, having regard to the facts whether or not the negligence amounts to the criminal standard.

MR GYLES: Your Honour, properly instructed. Now, may I give your Honour an illustration of what would be a proper instruction? The House of Lords recently looked at the question of medical negligence in Adomako's Case [1994] UKHL 6; [1995] 1 AC 171, at page 188. The summing up - and, with respect, it is useful to think how a jury would be summed up to because that really isolates the point - in the middle of the page starting at D there is a particular part of the summing up. The last sentence of it was this, at E:

You should only convict a doctor of causing a death by negligence if you think he did something which no reasonably skilled doctor should have done.

Now, your Honours, that is precisely what was not found in this case by this court below. Their Lordships go on:

The criticism was particularly of the latter part of this quotation in that it was open to the meaning that if the defendant did what no reasonably skilled doctor should have done it was open to the jury to convict him of causing death by negligence. Strictly speaking this passage is concerned with the statement of a necessary condition for a conviction by preventing a conviction unless that condition is satisfied. It is incorrect to treat it as stating a sufficient condition for conviction.

And, your Honours, we respectfully submit that that principle applies here and that the formulation and the reasoning of the Court of Criminal Appeal is directly in the teeth of it.

BRENNAN CJ: But that principle is related to the line of cases of Andrews, Akerele. It has got nothing to do with the problem you are advancing, has it?

MR GYLES: Your Honour, I respectfully submit where one has, as an element of the offence, negligence and proof of it and it is a question of omission, then it applies, your Honour. There is no reason in principle why it should not and, your Honour, we submit it is timely for this Court to take on board this problem.

BRENNAN CJ: We need not trouble you, Mr Solicitor.

Despite the careful argument of counsel for the applicant in this matter, the decision is not attended with sufficient doubt to warrant the grant of special leave to appeal. Accordingly, special leave will be refused.

AT 9.52 AM THE MATTER WAS CONCLUDED