Posted on June 2, 2022 by Anna Sinclair and Stuart Simington
Court of Criminal Appeal confirms when a prosecution can be summarily dismissed
A recent decision by the NSW Court of Criminal Appeal (CCA) confirms that the Land and Environment Court (LEC) has the power to summarily dismiss a summary prosecution prior to final hearing when an essential condition of criminality cannot be established, and the Prosecutor has no right of appeal against that order to the CCA.
The NSW Environment Protection Authority (EPA) issued a notice for information and/or records to the Eastern Creek Operations Pty Limited (Eastern Creek), an operator of an organic waste processing facility, after the EPA received a report that the waste output produced at the facility contained chemical contaminants which raised “significant concern” for the environment and human health.
The EPA brought criminal proceedings in the LEC against Eastern Creek charging it with two offences in connection with the Notice, namely that Eastern Creek failed to produce the required material and it knowingly produced misleading material.
Eastern Creek subsequently challenged the validity of the Notice in a preliminary hearing pursuant to the case management provisions under Ch 4 Pt 5 Div 2A of the Criminal Procedure Act 1986 (CP Act). This was the first time a defendant had sought to collaterally challenge the validity of a statutory notice and have the proceedings dismissed under these provisions. Generally, a defendant can only have a summons summarily dismissed in a very narrow range of circumstances, e.g. if there is an error on the face of the summons.
In the LEC, Pain J found that the Notice was invalid as it failed to indicate the matter within the responsibilities and functions of the EPA about which it required information. The EPA then sought leave to appeal against this finding to the CCA under s 5F of the Criminal Appeal Act 1912 (Appeal Act).
Determination by the CCA
One of the key questions before the CCA was whether the EPA was entitled to seek leave to appeal under s5F(3) of the Appeal Act, which provides that any party to proceedings to which the section applies may appeal to the CCA against an “interlocutory judgment or order” given or made in the proceedings.
The three judge bench split on the determination of this issue.
Justice Fullerton, with Lonergan agreeing, held that Pain J’s ruling on the invalidity of the Notice was not an “interlocutory judgment or order” as it was not a finding that determined “an identifiable or separate part of the proceedings”. Rather, it operated as a final order and would have resulted in the dismissal of the summonses. Although the decision was made at a preliminary stage and not in a final hearing, that was not a relevant consideration nor a determining factor.
On this basis, their Honours found that the application for leave to appeal was not competent. Even if that conclusion was incorrect, they would have refused leave. Following from this, their Honours found it unnecessary to consider the validity of the Notice.
In contrast, Mcfarlan JA held that Pain J’s ruling was an “interlocutory judgment or order”, because the question her Honour determined was presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing. Also, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour’s ruling was not translated into a formal order, whether by way of declaration or otherwise, was not of significance.
Mcfarlan JA also found the Notice to be valid and would have allowed the appeal.
This decision may have significant consequences for the prosecution of any offences involving a failure to comply with a statutory notice (e.g. a notice for information and/or records; a clean-up notice; a prevention notice, or a development control order), where the validity of the notice is an essential condition of criminality. Defendants may now be more likely to challenge the charges against them on the basis that the statutory notice is invalid and seek to have the charges summarily dismissed.
This case further serves as an important reminder for State Government agencies and local councils to carefully draft any statutory notices they issue to ensure that they are valid and are not susceptible to legal challenge. We have previously blogged on how to issue valid statutory notices here and here.
The CCA’s judgment can be read here: Environment Protection Authority v Eastern Creek Operations Pty Limited  NSWCCA 97
If you wish to discuss the issues raised in this post, please leave a comment below or contact Anna Sinclair on 02 8235 9713 or Stuart Simington on 8235 9704.