Posted on October 26, 2023 by Liam Mulligan and Fayette Vermeer 2

Court of Criminal Appeal considers when an environmental prosecution is time barred

A recent decision by the NSW Court of Criminal Appeal (‘CCA‘) confirms the principles of statutory interpretation and construction that apply to time limitations when commencing prosecutions under the National Parks and Wildlife Act 1974 (‘NPW Act’) and the Biodiversity Conservation Act 2016 (‘BC Act’).

In Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195, the CCA confirmed that the date that the relevant offence came to the attention of an authorised officer is not to be included in calculating the limitation period under the NPW and BC Acts. The CCA also confirmed that s 36 of the Interpretation Act 1987 (‘Interpretation Act’) applies to the NPW and BC Acts where the last day to commence proceedings falls on a weekend or public holiday.

Background

In the proceedings at first instance in the Land and Environment Court of NSW (‘LEC’), the applicant sought orders that charges laid against it under the NPW and BC Acts were commenced out of time. It argued that the NPW and BC Acts respectively required the charges to be laid ‘within but not later than two years’ after the offending conduct became known to an authorised officer.

It was agreed that the charged offences first came to the attention of a relevant officer on 11 June 2020. The Summons commencing each charge had been filed on 14 June 2022.

The applicant’s primary position was that charges were out of time as the limitation period had expired on Friday, 10 June 2022, as the date on which the offences became known was included in the calculation of the two year period.

In the alternative, the applicant argued that the limitation period expired on 11 June 2022, with the effect that even if the date on which the offences became known was not included in the calculation of the two year period, the two year period had still expired.

11 June 2022 was a Saturday. 12 June 2022 was a Sunday, and 13 June 2022 was a public holiday in NSW. The Prosecutor accordingly relied on section 36(2) of the Interpretation Act, which it said operated to extend the limitation period to the next working day after the period would otherwise have expired.

The primary judge found firstly that the limitation period did not expire until midnight on 11 June 2022 and secondly, that the Interpretation Act did operate to extend the time period until the next working day. The next working day was 14 June 2022, with the effect that the charges were found to be validly commenced.

We blogged on the decision at first instance (Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4) – a link to that blog is here.

Determination by the CCA

There were two key questions to be determined by the CCA .

The first question was whether the date that the evidence first came to the attention of the authorised officer, being 11 June 2020, was to be included in the calculation of the limitation period of two years per sections 190(1)(b) of the NPW Act and 13.4(2) of the BC Act.

To determine how the limitation period should be calculated, the CCA referenced the ‘corresponding date rule’ – when calculating a limitation period in reference to an event or offence, the limitation period expires at midnight on the day corresponding to the amount of time that needs to have elapsed. In this instance, as the offence occurred on 11 June 2020 and there is a two-year limitation period, the corresponding rule meant that the limitation period expired at midnight of 11 June 2022.

The CCA held that this is a general rule and subject to exceptions, but there was no reason to conclude that this rule does not apply to the BC and NPW Acts. It therefore dismissed the first ground of appeal and found that the primary judge was correct in finding that the date the evidence first came to the authorised officer’s attention was not included in the calculation of the limitation period.

The second key question to be determined by the CCA was whether section 36(2) of the Interpretation Act is excluded by section 190(3) of the NPW Act and section 13.4(4) of the BC Act. These sections of the NPW and BC Acts state that the two year limitation period in those Acts ‘applies despite anything in the Criminal Procedure Act 1986 or any other Act‘. Those words, appear at least on their face to be words establishing the supremacy of those provisions over any other generally applicable statutes or rules. However, the CCA found that the words did not operate to displace the application of the Interpretation Act. Rather, the ‘plain intention’ of the expression was to authorise the commencement of proceedings which would otherwise be barred by reason of the 6-month time limitation in the Criminal Procedure Act, or by a time limit in other legislation.

Accordingly, the CCA upheld the primary judge’s decision that neither the NPW Act nor the BC Act excluded the operation of section 36(2) of the Interpretation Act.

The CCA also noted that as the Interpretation Act applies to the NPW and BC Act, section 36(1) of the Interpretation Act applies and supports the first issue in question. This means that the day the evidence came to the investigating officer’s attention is not included in calculating a limitation period.

Takeaways

The CCA dismissed the appeal and its reasoning confirms that:

1. The “corresponding date rule” applies to the NPW and BC Acts in determining when a prosecution is time barred; and
2. The Interpretation Act applies to the NPW and BC Acts, meaning the date that the offending conduct comes to the attention of an authorised officer is not calculated as part of the limitation period and it can extend the date to commence proceedings if it were to fall on a weekend, public holiday, or bank holiday.

A link to the judgment is here.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on (02) 8235 9715.