Bell & Anor v Unimin Australia Pty Ltd (No 3) [2012] QMC 16

i MAGISTRATES COURTS OF QUEENSLAND CITATION: Bell & Anor v Unimin Australia Pty Ltd (No3) [2012] QMC 16 PARTIES: GRAHAM BELL (complainant/ respondent) WILLIAM GORDON (complainant/ respondent) v UNIMIN AUSTRALIA LIMITED (defendant/ applicant) FILE NO/S: MAG245636/09(1), MAG245626/09(6), MAG113031/10(7) DIVISION: Magistrates Courts PROCEEDING: Complaint – Application to strike out or permanently stay proceeding ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 12 July 2012 DELIVERED AT: Warwick HEARING DATE: 7 December 2011, 8 December 2011, 9 December 2011, 19 December 2011, 20 December 2011, 20 February 2012 MAGISTRATE: Lee G ORDER: The application to strike out or permanently stay two complaints charging the applicant with an offence under the Integrated Planning Act 1997 and an offence under the Environmental Protection Act 1994 is refused. The application to strike out or permanently stay a complaint charging the applicant with an offence under the Forestry Act 1959 is granted. CATCHWORDS: ENVIRONMENTAL LAW – PRACTICE AND PROCEDURE - complaints made under the Justices Act 1886 – application by applicant before trial to strike out or permanently stay the complaints for abuse of process – what constitutes ―made‖ - issuing of summons upon complaint made under Justices Act 1886 – discretion to issue summons -- 1 of 87 -- ii to be exercised judicially by Justice of the Peace – what required - limitation period – when offence came to knowledge of complainant – when time starts to run for continuing offences - whether complaint made outside limitation period – information and complaint – form and sufficiency – duplicity and uncertainty - whether latent duplicity Acts Interpretation Act 1954 (Qld), s 36, s 38 Environmental Protection Act 1994 (Qld), s 427(1), s 490(6), s 497 Forestry Act 1959 (Qld), s 53, s 88(3), s 88(4), s 95(g) Integrated Planning Act 1997(Qld), s 4.3.1, s 4.4.2, s 4.4.10 Justices Act 1886 (Qld), s 4, s 42(1), s 43, s 51, s 53, s 54, s 83A Justices of the Peace and Commissioners for Declarations Act 1991 (Qld), s 29 Mineral Resources Act 1989 (Qld), s 6 Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) NSWLR 540 Bell & Anor v Unimin Australia Limited [2010] QMC 1 Bell & Anor v Unimin Australia Limited (No 2) [2011] QMC 24 Cohen v Macefield Pty Ltd [2010] QCA 95 Cross Country Realty v Peebles [2006] QCA 501 Electronic Rentals Pty Limited et al v Anderson et al (1970- 1971) 124 CLR 27; [1971] HCA 13 Ellis v Ellis [1896] P. 251 Environment Protection Authority v CSR t/as Woodpanels [2001] 114 LGERA 217 Ex parte Electronic Rentals Pty Ltd (1970) 92 WN (NSW) 672 Furnell v Betts (1978) 20 SASR 300 Galaxy International Pty Ltd v Bates [1988] V.R. 948 -- 2 of 87 -- iii Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Metaxas v Ferguson (1991)4 WAR 272 Moti v R [2011] HCA 50 Mount Isa Mines et al v Commissioner for Mine Safety and Health [2011] QMC 38 Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 Police v Korber [2003] SASC 69 Postermobile plc v Brent London Borough Council The Times Law Reports, 8 December 1997 627; 1997 WL 1103943 Power v Heyward [2007] 2 Qd R 69; [2007] QSC 26; Regina v Brentford Justices, Ex parte Wong [1981] 1 QB 445 R v Industrial Appeals Court Ex Parte Barelli’s Bakeries Pty Ltd [1965] V.R. 615 R v Peacock ex parte Whelan [1971] Qd R 471 Rogers v R [1994] HCA 42; (1994) 181 CLR 251 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Smith v Baldwin [1979] Qd R 380 Stanton v Federal Commissioner of Taxation [1955] HCA 56; (1955) 92 CLR 630 The State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455 Unimin Australia Ltd v State of Queensland [2009] QSC 384 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 167 COUNSEL: R Devlin SC, R Byrnes and M Le Grand for applicant A Glynn SC and K Mellifont SC for respondents SOLICITORS: Sparke Helmore Lawyers for applicant Department of Environment and Resource Management for respondents -- 3 of 87 -- iv Table of Contents Introduction ......................................................................................................................... 1 Abuse of Process ................................................................................................................. 4 Flawed IPA and EPA Complaints of 1 December 2009 ................................................. 377 Making of the FA Complaint ............................................................................................ 52 Complaints otherwise fundamentally flawed and must inevitably fail ............................. 64 Latent Duplicity of Further Particulars Provided .............................................................. 67 Choice of Complainants an abuse of process ................................................................... 75 Summary ........................................................................................................................... 83 -- 4 of 87 -- 1 Introduction [1] This is an application by Unimin Australia Limited (Unimin) to strike out or permanently stay three complaints made pursuant to the Justices Act 1886 (the JA) charging it with offences under the Integrated Planning Act 1997 (IPA), the Environmental Protection Act 1994 (EPA) and the Forestry Act 1959 (FA) respectively. In response to the charges, Unimin appears under protest. [2] The application is based on two grounds. As to the first ground, that the charges under IPA and EPA were insufficient in law to found the jurisdiction of this court because they failed to plead essential factual ingredients, by judgment delivered 23 December 20101 I concluded that those two complaints were not incurably defective so as to deny jurisdiction in this court. The applicant had not pressed this ground in respect of the FA complaint. I refer to that judgment for the history of this application and an analysis of the legislative provisions. [3] The second ground of the application, which was adjourned pending the outcome of the first ground, is that all three complaints be struck out or permanently stayed as an abuse of process2. Before the substantive hearing of this limb of the application a dispute arose between the parties as to how the application should be conducted. Unimin sought orders that the complainants call a number of departmental witnesses to be available for cross examination. The complainants opposed such a course. In reasons for judgment delivered 9 September 2011 I declined to make the orders sought by Unimin3. I refer to the two previous judgements for the context of this application. [4] As a result, Unimin called a number of those witnesses in the substantive hearing. [5] I set out the substance of the three complaints again as follows: 1 Bell & Anor v Unimin Australia Limited [2010] QMC 1 (23 December 2010); 2 Paragraph 5 Unimin‘s first submissions; 3 Bell & Anor v Unimin Australia Limited (No 2) [2011] QMC 024 (9 September 2011); -- 5 of 87 -- 2 Complaint 1 On dates unknown on or between 4 October 2005 and 18 December 2008 at North Stradbroke Island …Unimin…did, in contravention of section 4.3.1. Integrated Planning Act 1997, carry out assessable development without an effective Development Permit for the development PARTICULARS 1. Assessable development: Making a material change of use of premises for an environmentally relevant activity, namely extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year And the offence came to the complainant‘s knowledge on the 1st day of December 20094. Complaint 2 On dates unknown on or between 3 December 2003 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 427(1) of the Environmental Protection Act 1994, carry out a level 1 chapter 4 activity, not being a registered operator for the activity and not acting under a Registration Certificate for the activity PARTICULARS 1. Level 1 chapter 4 activity: extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year And the offence came to the complainant‘s knowledge on the 1st day of December 20095. Complaint 3 On dates unknown on or between 1 October 2005 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 53 of the Forestry Act 1959, get quarry material on lands, the property of the Crown, that were included in a lease or other entitlement granted under the Mineral Resources Act 1989 otherwise than in accordance with a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959, the Mineral Resources Act 1989 or another Act. 4 Section 4.4.10 IPA provided ―In a complaint starting a proceeding a statement that the matter of the complaint came to the complainant‘s knowledge on a stated day is evidence of the matter‖. 5 Section 490(6) EPA provides ―In a complaint starting a proceeding, a statement that the matter of the complaint came to the complainant‘s knowledge on a stated day is evidence of the matter‖. -- 6 of 87 -- 3 And the offence came to the knowledge of the complainant on 3 December 2009. PARTICULARS 1. Get: dig, gather, remove, convert, or obtain 2. Quarry material: sand that is not a mineral within the meaning of the Mineral Resources Act 1989 3. Lands, the property of the Crown, included in a lease or other entitlement granted under the Mineral Resources Act 1989: Mining Leases 1108, 1124, 1132 and 7064 4. Without authority: there did not exist any permit, lease, licence, agreement or contract to get the quarry material. [6] For convenience, oral evidence was given in the ―abuse of process‖ application on 7 September 2010 by former Mines and Energy Minsters The Hon Tony Mc Grady and The Hon Tom Gilmore as well as Bob Harris who was at material times the Mines Administrator for Unimin. These witnesses were primarily called for the purposes of tendering documents (exhibits 1 to 14) including correspondence between Unimin‘s predecessor (Australian Consolidated Industries Limited [ACI]) and the Department of Mines and Energy from 1996, departmental memoranda to the minister, mining leases, and quarterly ―Mineral Royalty Returns‖ lodged by Unimin (or ACI) with the Department of Mines and Energy covering the period 1 January 2001 to 31 March 2010. [7] In addition Unimin called the following witnesses:  Ms Laurene Huddlestone – Holmes (Justice of the Peace for the IPA and EPA complaints)6  Mr Graham Bell7 (the complainant in the IPA and EPA complaints)  Mr Andrew Kwan8 (legal officer of DERM)  Mr Matthew Peate9 (legal officer of DERM) 6 Transcript 1-9 to 1-27; 7 Transcript 1-28 to 1-93; 8 Transcript 1-94 to 1-108; 2-5 to 2-29; 9 Transcript 2-31 to 2-44; 2-47 to 2-57; -- 7 of 87 -- 4  Mr Dave Johnson10 (Departmental Manager of Royalty and Rent) [8] The complainants called the following witnesses:  Mr William Gordon11 (the complainant in the FA complaint)  Mr David Trezise12 (chief scientific advisor to former Environmental Protection Agency (EPA) at relevant times)  Ms Lousie Jordan13 (manager EPA Redlands Unit)  Ms Deanne Caruso14 (DERM investigator)  Mr Parma Nand15 (principal environmental officer DERM at relevant times)  Mr James Belford16 (principal environmental officer DERM at relevant times)  Ms Kate Fyfe17 (principal environmental officer DERM at relevant times) [9] During the hearing of this limb of the application and after hearing lengthy submissions, the issues have expanded beyond ―abuse of process‖. Other more technical challenges have also been made. I shall deal with each issue as set out in Unimin‘s written submissions extending over 166 pages plus numerous additional appendices. Abuse of Process18 [10] The application seeks all three complaints be permanently stayed as an abuse of process. The grounds relied on are broad ranging and are summarised at paragraph [1.2] of Unimin‘s submissions all of which are said to amount to oppressive and unfair conduct by the prosecution: a) Conflicting judicial determinations – the proceedings litigate anew propositions which have already been disposed of by Applegarth J in 10 Transcript 2-58 to 2-76; 11 Transcript 3-11 to 3-54; 12 Transcript 3-54 to 3-75; 13 Transcript 3-75 to 3-90; 14 Transcript 4-12 to 4-85; 5-44 to 5-47; 6-2 to 6- 33; 15 Transcript 5-3 to 5-18; 16 Transcript 5-19 to 5-27; 17 Transcript 5-54 to 5-62; 18 Pages 1 to 36, 45 to 49 and Appendices A & G submissions for Unimin; -- 8 of 87 -- 5 Unimin Australia Ltd v State of Queensland [2009] QSC 384 delivered 30 November 2009 in which Unimin sought declaratory relief in the Supreme Court exercising civil jurisdiction. b) A subsisting arms length commercial arrangement of 18 years whereby royalties were paid by Unimin to extract and on sell B Grade silica sand by-product. c) The attempt to invoke retrospective criminal liability. d) The selective reading of the judgement of Applegarth J (cited above). e) Actions based on official advice. f) The improper institution of the EPA and IPA proceedings because the complaints were made before approval by the Director General had been granted and by the failure to provide the requisite information to Ms Huddlestone-Holmes, the Justice of the Peace who issued the summonses. g) The laying of the FA complaint after the expiration of the limitation period. h) The duplicitous nature of the IPA and EPA charges. i) Serious errors in the investigation undertaken by officers for the Department of Environment and Resource management (DERM). j) The initiation of three prosecutions which are doomed to fail. [11] This was put another way later in Unimin‘s submissions, namely, that the following matters amount to an abuse of process19: a) The State entered into a commercial agreement with Unimin to categorise B Grade sand as a mineral; b) ACI, Unimin‘s predecessor in title, accepted that determination and that it could be lawfully dealt with under the existing mining leases; c) The State required royalty payments for B Grade sand and that the term ―royalty‖ indicated ―the right to take the substance‖; d) The prosecution knew about these issues but still brought the IPA & EPA complaints; e) If the State had not sought royalty, Unimin would have sought licences which are claimed to be required. 19 Paragraph 14.2 at p 42 submissions for Unimin; -- 9 of 87 -- 6 [12] All of these issues, it is submitted, collectively amount to ―vexation, oppression and unfairness‖ in launching and maintaining the prosecution and this is an abuse of process because they are of such character and degree that it ―will bring the administration of justice into disrepute‖20. [13] I shall now consider each matter in paragraph [10]. Laying of FA Complaint after limitation period (para (g)) [14] In respect of paragraph (g), for reasons that follow under the heading ―Making of the FA Complaint‖, I found that it was ―made‖ out of time and, for that reason, it should be permanently stayed. Duplicitous Nature of IPA & EPA Charges (para (h)) [15] As to paragraph (h) above, for reasons that follow under the heading ―Latent Duplicity of Further Particulars Provided‖, I concluded that the IPA and EPA complaints were not duplicitous. Whether or not the charges are continuous in nature should be determined after a trial. Prosecutions doomed to fail (para (j)) [16] Likewise, for paragraph (j) above, for reasons that follow under the heading ―Complaints otherwise fundamentally flawed and must inevitably fail‖, I found that, at this stage, it could not be concluded that the prosecution was doomed to fail and that the matter needed to proceed to trial to determine the facts. Failure to provide requisite information to Justice of the Peace (para f)) [17] Returning to paragraph (f), there are two propositions. The second one, namely that there was a failure to provide the Justice of the Peace, Ms Huddlstone- Holmes, with the requisite information, has been addressed below under the heading ―Flawed IPA and EPA Complaints of 1 December 2009‖. I concluded 20 Paragraphs 19.1 & 19.2 at p 45 submissions for Unimin; -- 10 of 87 -- 7 that those complaints were properly ―made‖ to her and that she had properly issued the summonses on 1 December 2009. Complaints made prior to approval by Director General (para (f)) [18] Regarding the first proposition in paragraph (f), that the IPA and EPA complaints were made before approval, I would conclude, for reasons to follow, that if it be the case that prior approval of the Director General was not obtained before the IPA and EPA complaints were made, that prior approval was not necessary and that a decision had been made to prosecute prior to when the IPA and EPA complaints were made. [19] The history of these matters is the subject of some dispute. In my opinion it is unnecessary to resolve that in this application. Included in this context is a complaint by the Stradbroke Island Management Organisation (SIMO) to the Criminal Misconduct Commission (CMC) in about June 2008 alleging that DERM had failed to investigate Unimin as to its activities21. [20] The legal officer for DERM Mr Kwan commenced drafting the IPA and EPA complaints 30 November 2009 after being tasked by his immediate supervisor Mr Peate to consider the brief of evidence from mid November 2009. He was instructed by Assistant Director General Mr Dean Ellwood to arrange the making of the IPA and EPA complaints but not to lodge them with the court as the Director General was not available at that point. Mr Kwan said he had not been instructed like this beforehand but has since22. It was submitted for Unimin that the briefing note to the Director General was not in final form until 3 or 4 December 2009. On 4 December 2009 the Director General approved it. [21] Mr Kwan was questioned at length about internal processes leading up to commencement of prosecution proceedings within DERM23 from delivery of a 21 For example see exhibit 28 – a letter from SIMO to the Premier dated 1 December 2009; see also exhibit 48 – a ministerial briefing note dated 15 April 2009; 22 Transcript 1-99 lines 33 to 38; 23 Transcript 1-102 lines 3 to 60; -- 11 of 87 -- 8 brief of evidence from the investigations team to the litigation unit. A briefing note is prepared based on legal advice and the Director of Litigation sends it to the Assistant Director General (Mr Ellwood) who in turn forwards it to the Associate Director General (Mr T Wall). Normally the Associate Director General would make a policy decision to commence a prosecution. However, as he was unavailable at this time, it was thought the matters required the attention of the Director General. [22] The complaints were made by Mr Bell on 1 December 2009 and the Director General approved the Ministerial briefing note on 4 December 200924. Consistent with Mr Kwan‘s evidence25, the date stamps on the original IPA and EPA complaints indicate they were filed in the court on 4 December 2009 in compliance with section 54(2) Justices Act 1886 (JA)26. Summonses for the IPA and EPA matters issued 1 December 2009 required Unimin‘s appearance at the Cleveland Magistrates Court 22 January 2010. Oaths of service could not be located on the court files. However, there is a letter from Unimin‘s solicitors Sparke Helmore dated 21 January 2010 on the court file consenting to a two month adjournment. Therefore, it follows that Unimin must have been served with both summonses sometime before 21 January 201027. I also note from DERM‘s Investigation Running Sheet (exhibit 16) that DERM had received a letter from Sparke Helmore on or around 8 December 2009 indicating they were acting for Unimin in these matters. The matters were subsequently transferred to Brisbane. [23] The evidence is that Mr Bell was an authorised person to make complaints under the JA charging Unimin with an IPA and EPA offence28. Unlike in other legislation, there is no provision in the IPA or EPA restricting who can commence 24 Transcript 1-100 lines 20 to 25; 2-21 lines 46 to 54; (Mr Kwan‘s evidence); 25 Transcript 2-21 lines 55 to 60; 26 Section 54(2) provides that a summons together with the complaint must be filed within 3 days of the summons being issued; 27 Section 56 Justices Act 1886 governs service; it is not known whether Unimin was served by post or personally; if it was by post, it had to be posted at least 21 days before 22 January 2010; Sparke Helmore‘s letter of 21 January 2010 does not take issue with service; 28 Section 490(2)(a) & (b) EPA provides that appointment and authority of an authorised person is presumed unless a party, upon giving reasonable notice, requires proof thereof; there appears to be no like provision in the IPA for an authorised person; there is a similar provision in s 95(a) & (b) FA; -- 12 of 87 -- 9 proceedings by way of making a complaint. Such an example can be found in section 234(5) of the Mining and Quarrying Safety and Health Act 1999 where only the Commissioner for Mine Safety and Health can make a complaint under the JA. [24] Further, there is no provision in the IPA or EPA requiring prior approval (whether oral or written) of a particular person before a complaint is made: see for example Thorpe v Priestnall [1896] 1 QB 159 where legislation provided that prior written consent of the Chief Constable was necessary before the institution of proceedings. Another example of a statutory condition precedent before institution of proceedings is Walsh v Doherty (1907) 5 CLR 196, an appeal from the Full Court of Queensland. Under the liquor laws at the time a notice of intention to prosecute had to be given to the person to be prosecuted before the prosecution was instituted. There, the information was laid and summons issued five minutes before the notice was served. The summons was served after the notice was served. It was held that the statutory requirement of giving a notice of intention to prosecute before the information was laid had not been satisfied. The information was dismissed. There are no such restrictions here. [25] Therefore, I come to the view that there was no statutory requirement to secure approval by the Director General before Mr Bell made the IPA and EPA complaints on 1 December 2009. Mr Bell was an authorised person to make the complaints on behalf of DERM and there was no statutory restriction in doing so. [26] If there is a suggestion that by not seeking formal approval of the Director General before making the complaints is an abuse of process, I would disagree in the circumstances of this case which is to be contrasted to the position in, for example, Regina v Brentford Justices, Ex parte Wong [1981] 1 QB 445. In that case, an information was laid before a decision had been made to prosecute. The offence occurred 30 January 1978. The information was laid and summons issued 28 July 1978 just within the 6 month limitation period. By letter dated 25 October 1978 the prosecutor decided to prosecute. The summons was served 7 December -- 13 of 87 -- 10 1978. There was no dispute that a decision had not been made to prosecute by 28 July 1978 and that there was a deliberate attempt to gain further time in which to reach that decision by laying the information within the limitation period and then delaying the service of the summons29. It was held that this was an abuse of process even though the prosecutor thought he could legitimately do this. Donaldson L.J. said at 450: The process of laying an information is, I think, assumed by Parliament to be the first stage in a continuous process of bringing a prosecution…… That purpose is wholly frustrated if it is possible for a prosecutor to obtain summonses, and then, in his own good time and at his convenience, serve them. [27] Regina v Brentford Justices, Ex parte Wong was distinguished in Metaxas v Ferguson (1991) 4 WAR 27230 per White AJ. In that case the complainant formed a belief on 2 February 1990 that the defendant had committed an offence. He sought counsel‘s confirmation of that. On 27 February 1990 counsel confirmed that belief and also advised it was common practice to invite defendants to give an explanation. The complainant swore complaints on 28 February 1990. The limitation period expired 1 March 1990. No explanation was forthcoming from the defendant so he was served 26 days later on 26 March 1990. [28] In upholding an appeal by the complainant against the Magistrate‘s decision dismissing the complaints because a decision had not been made to prosecute before the complaints were sworn constituting an abuse of process, White AJ found that there had been a decision to prosecute by the time the complaints were sworn. This was so despite the complainant‘s evidence on appeal that even though there had been a firm decision to prosecute, ―that decision might have altered had the [defendant] offered some exculpatory evidence or argument supporting a defence‖31. He further found that it was not an abuse of process in delaying service by 26 days after the complaints were sworn ―to an extent which would warrant the dismissal of the complaints. No prejudice has been occasioned to the 29 [1981] 1 QB 445 at 450 per Donaldson L.J. with whom Mustill J agreed; 30 Referred to in Unimin‘s ―Book of Authorities‖ Volume 1; 31 (1991) 4 WAR 272 at 276 (point 9); -- 14 of 87 -- 11 [defendant] by that delay and the interests of justice …did not require that the complaints be dismissed‖32. [29] In the present case, in my opinion there was a decision to prosecute by the time the complaints were made before Ms Huddlestone-Holmes on 1 December 2009. There had been an investigation and legal officers of DERM had been involved beforehand33. The fact that Mr Bell was asked to make the complaints but not lodge them does not take the matter any further given the timelines in this case. That does not constitute an abuse of process sufficient to warrant dismissal of the complaints in the circumstances of this case. There is no statutory requirement to lodge a complaint immediately after it has been made although section 54(2) JA requires lodgement within 3 days of the summons issuing. That was complied with here. As an authorised person Mr Bell sufficiently apprised himself of the matters as outlined in his evidence cited later in these reasons34. [30] Secondly, after the complaints were made and summonses issued on 1 December 2009, they were served promptly for the first court appearance on 22 January 201035. Therefore, I do not consider that timeline to be an abuse of process. I note also the intervening Christmas period. Nor do I think it was an abuse of process merely because the Director General did not sign off on it until 4 December 2009. I find there was a decision to prosecute by the time the IPA and EPA complaints were made before Ms Huddlestone-Holmes on 1 December 2009. [31] The present case is more closely aligned with Metaxas although in my opinion the position is stronger for the prosecution in this case. Here there was a decision to prosecute by 1 December 2009. Mr Kwan fully expected the Director General to sign off on it but if for some reason he did not, the complaints and summonses 32 (1991) 4 WAR 272 at 277 (lines 35 to 40); 33 See for example transcript 2-25 lines 39 to 45 where Mr Kwan was tasked by his supervisor Mr Peate to review the brief of evidence between mid November [2009] and 20th or 21st; 34 Under the heading ―Flawed IPA and EPA Complaints of 1 December 2009‖; 35 See Sparke Helmore letter date 21 January 2010 consenting to an adjournment; I also note Sparke Helmore‘s letter dated 27 April 2010 at 12 (exhibit 21) says Unimin became aware of the prosecution prior to service of the summonses through a journalist; -- 15 of 87 -- 12 would have been destroyed36. This is not unlike Metaxas, where there was a decision to prosecute at the time of commencement of proceedings but that decision may have been reviewed to discontinue the prosecution depending on any response by the defendant. [32] Further, in this case the summonses were issued immediately after the complaints were made on 1 December 2009. It is not clear from the report in Metaxas when the summons issued. The focus seemed to be on service of the summons. In this case the period between the making of the complaints on 1 December 2009 and service of the summonses for a first appearance in court on 22 January 2010 is probably shorter than in Metaxas. Also, it should be noted that, unlike in Metaxas, in this case the summons that issued the same day as the complaint specified 22 January 2010 as the first return date in court. The time appointed under the summonses issued 1 December 2009 was not extended pursuant to section 54(3) & (4) JA so that the complaints and summonses had been served for the initial date in court on 22 January 2010. In Metaxas, the period from the making of the complaints on 28 February 1990 to the first return date in court on 22 November 1990 due to delaying service of the summons is considerably longer. [33] Therefore, I conclude that the circumstances surrounding the making of the complaints and issuing of the summonses do not amount to an abuse of process so as to warrant a permanent stay of proceedings. Arms Length Commercial Arrangement for 18 Years (para (b)) Actions Based on Official Advice (para (e)) [34] It was submitted there had been an existing commercial arrangement over 18 years where ACI (Unimin‘s predecessor) and then Unimin paid royalties to the government to extract and on sell B Grade silica sand by-product: paragraph (b) at [10] above. I also think that the issue at paragraph (e), namely, actions based upon advice is closely related. 36 Transcript 2-21 lines 38 to 46; 1-105 lines 36 to 40; -- 16 of 87 -- 13 [35] Around 1973 the Governor in Council granted ACI mining leases for the purposes of mining silica sand on North Stradbroke Island. From the 1992/93 financial year it appears that ACI had paid royalties for B Grade sand which is a by-product generated in the course of mining for glass grade sand under ACI‘s mining leases. Unimin took over operations on 1 March 200137. [36] On 17 September 1995, Minister for Mines and Energy The Hon T McGrady approved, in the words of submissions for Unimin, ―a recommendation that …. by–product ‗building sand/reject sand‘ be categorised as a ‗mineral‘ for the purposes of payment of a mining royalty in respect of the extraction and sale of that sand by ACI Glass‖38. It was submitted for Unimin that this approval, followed by a course of conduct of paying royalty for ―building/reject sand‖ over 18 years reflected in the royalty returns (exhibit 13), constituted a commercial arrangement or contract between ACI and then Unimin with the government to sell that sand for any use. On the other hand the complainants submit that this was purely a decision about the rate of royalty to be paid and not an open decision for ACI to do what it likes with the B Grade sand. [37] The relevant definitions of ―mineral‖ are in section 6(3)(b) & (d)(i) Mineral Resources Act 1989 (MRA) respectively as follows: (b) …. silica and silica sand is only a mineral if it is mined for use for its chemical properties; ….. (d) each of the following is not a mineral— (i) soil, sand, gravel or rock …if it is to be used, or to be supplied for use, as sand, gravel or rock, whether intact or in broken form; [38] The 1995 briefing note is entitled ―ACI Industrial Minerals Royalty on Reject/Building Sand‖. After referring to the definition of ―mineral‖ in the MRA it reads in part as follows: 37 Exhibit 8 – letter dated 25 September 2001 from Bob Harris of Unimin to Department of Natural Resources and Mines; 38 Exhibit 1 Memo to Minister from A/Executive Director Policy, Department of Mines; -- 17 of 87 -- 14 The royalty on silica sand is $0.50 per tonne or 5% of value whichever is the greater. Royalty payable to Forest Services for extractive materials taken from Crown Land is currently $1.10 per cubic metre. Discussions with Mr J Marshall, Operations Manager [of ACI], revealed that the building sand is sold to the Rocla group for manufacturing concrete. Apparently the sand has certain chemical qualities that are beneficial to Rocla…… Mr Marshall‘s comments concerning the chemical properties of the sand were supported by Mr B Butler, Quality Manager, Rocla Concrete who advised by facsimile: Because of the course nature of Brisbane river sand it is necessary to include minor additions of fine blending sand in Brisbane concrete. The suitability of the ACI Stradbroke Island sand as a blending sand depends in no small measure on its high silica content and low clay content. Sands containing clay are detrimental to the properties of the concrete, influencing both setting rate and cracking tendency. Attempts to remove the clay from less pure sources also remove much of the required silica sand. ……. The question arises as to whether royalty on such material should be paid to the Department at $0.50/tonne or Forest Services at $1.10/cu.m. If one assumes a density factor of 1.50 the additional royalty for extractive materials would be approximately $17,000 per annum. However, the following arguments can be advanced to support its inclusion with silica sand for royalty purposes:  It results from the process of mining silica sand for its chemical properties  The company has a mining lease for silica sand and already pays royalty thereon  The reject material constitutes only 10% of the total material sold  The extractive materials royalty rate of $1.10/cu.m. would equate to approximately 17% of the value of the material for what is clearly a low value product. The rate of $0.50/tonne is already some 12% of the value  The company has paid royalty in good faith at the rate of $0.50/tonne over the past 3 years  The company considered the need for an Extractive Industries Permit but was advised this would not be necessary  There is evidence that the reject sand material does have chemical properties that are sought by Rocla -- 18 of 87 -- 15  It is administratively more expedient to capture the full royalty within the Department Notwithstanding that State royalty would increase if this material was administered by Forest Services, it is considered that the above points can justify the product being categorised as a mineral in this instance. Accordingly it is proposed that the rate of $0.50 continue to apply and be collected by the Department….(my emphasis) [39] This was reaffirmed along similar lines by, for example, an email dated 20 February 2003 from the Manager of Royalty and Rent, David Johnson, to Bob Harris of Unimin39. After referring to the statutory definition of ―mineral‖ in that email Mr Johnson said: The Department has collected royalty from ―reject‖ building sand from Stradbroke Island for many years. The issue of whether the royalty should have been paid to the Department was addressed in 1995, and Ministerial approval was given to continue to collect the current rate of royalty. In reaching this decision, consideration was given to a number of issues, for example:  Comments concerning the coarse nature of Brisbane River sand, and the need to include minor additions of fine blending sand in Brisbane concrete. In particular, the suitability of the (formerly) ACI Stradbroke Island sand as a blending sand depended in no small measure to its high silica content and low clay content. Sands containing clay are detrimental to the properties of the concrete, influencing both the setting rate and cracking tendency.  The company had a mining lease for silica sand on which it was already paying royalty, and if it was not paid to the Department then an alternative royalty arrangement would have applied at the time involving Forest Services.  The ―reject‖ sand itself resulted from the process of mining silica sand for its chemical properties, on which royalty was payable, rather than being extracted independently.  The company had considered the need for obtaining an Extractive Industries permit some 18 months earlier, but Redlands Shire Council was apparently not concerned given that there was already a mining lease over the area.  The ―reject‖ sand constituted only 10% of the total material sold, and was clearly a by product rather than being the principal ―mineral‖. Given the above, it was considered that the product could be categorised as a mineral in this instance with royalty continuing to be paid to the Department. ….. (my emphasis) 39 Exhibit 14; also in exhibit 29 (a folder of ―Documents for David Johnson‖); -- 19 of 87 -- 16 [40] Mr Johnson gave evidence that the department‘s position was, given that context, it believed that reject silica sand called ―building sand‖ was a ―mineral‖ as defined because of information provided to them at the time40. [41] Having regard to that, it appears the decision to accept royalty for reject sand was based on representations by Mr Marshall of ACI and Mr Butler of Rocla Concrete41 that reject sand was used for its chemical properties by Rocla in making Brisbane concrete so that it fell within the definition of ―mineral‖. Mr Johnson, who has a solid understanding of the definition of ―mineral‖42, said this during evidence: Yes?-- And the one very concluding point that was made was the fact that the sales of this - the company acquiring this so-called reject sand, was acquiring it for its chemical properties. Right?-- And that was the distinction between sand being used, you know, for its chemical properties and sand being used for physical properties.43 [42] After referring to the facsimile from Mr Butler, the Quality Manager of Rocla Concrete, dated August 1995 (exhibit 31), Mr Johnson said this: MR GLYNN: You referred also to discussions with Mr Marshall, in the lead-up to making this recommendation?-- Yes. All right. The - in those discussions again, Mr Marshall, who was from ACI-----?-- Yes? -----told you that the sand had certain chemical qualities which are beneficial to Rocla, for whom Mr Butler worked?-- Yes, I had to comment whether - well yeah, I think he worked there, but was then a consultant. As a consultant, or something?-- Yeah, yeah. Okay. And so again, this underlay the decision or the treatment of this sand, as a mineral rather than something else?-- Yes. Okay. Now-----?-- I remember the words, it was due in no small part to its chemical properties, or something or other. Yeah. 40 Transcript 2-64 lines 20 to 25; 41 Exhibit 31 – facsimile W B Butler to Department of Mines dated August 1995; 42 See for example transcript 2-63 lines 40 to 50; 43 Evidence in Chief - Transcript 2-64 lines 20 to 28; -- 20 of 87 -- 17 So what you were doing in drafting this was drawing a recommendation for the Minister not that he should find this to be, or declare this to be a mineral, but rather to decide whether to treat it for the purposes of royalty, as a royalty under the Mineral Resources Act, or a royalty under the Forestry Act?-- Yes. Okay. And in the process, your recommendation was that, for a number of reasons which you set out on the second page, it be treated as - under the Mineral Resources Act?-- Yes. And of course that was significantly or significantly persuasive in that was the fact that you'd been led to believe that it was being used for its chemical properties?-- Yes. Okay?-- Yes, I was well aware that - of the distinction between - with sand. In terms of the definition of mineral----- That's right?-- -----and it was that chemical properties was the underlying attribute that determined it was a mineral. [43] It was submitted for Unimin that there was a commercial relationship or a contract evidenced partly in writing and partly by conduct as it had been determined that B Grade sand or reject sand was a mineral in 1995 and the government accepted royalties on it for years. Compliance inspection reports were prepared in 2000 and 2003 and officials within the government knew that royalties were being paid for B Grade sand44. I interpolate, while that may be so, it does not necessarily follow that the government knew that it was being sold for any use. In this respect, The State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455 and Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) NSWLR 540 were referred to. [44] In Bardolph, there was a written agreement between a private citizen with a State in which the private citizen would place advertisements in a newspaper for a specified period. There was a change in government. The new government did not honour the contract. The citizen performed his part of the contract over the agreed period and payment was refused. He successfully litigated the matter in the High Court. Relevantly, there were statements in the judgments to the effect that 44 See exhibit 39 – ―Compliance – Inspection Program‖ dated 23 May 2003 & exhibit 40 ―Environmental Compliance Assessment Report‖ dated 4 April 2000; -- 21 of 87 -- 18 contracts entered into by officers of the Crown binds the Crown. I agree with that as a general proposition. However, in this case it is difficult to conclude there was a binding contract as contended by Unimin where the parties intended to create legal relations to be bound by the 1995 determination for an indeterminate period. It appears that, in contrast with Bardolph, the determination could have been unilaterally changed by the government at any time without the need to be released from any contractual obligation by Unimin. Even if there was a contract of sorts, the terms of it are uncertain. The prosecution submits that the 1995 determination merely sets a rate of royalty on the assumption that B Grade sand was being used for its chemical qualities. Based on the evidence so far, I think this more likely to be the case. In my opinion it may also be open to suggest this was an ―arrangement‖ to treat ―reject‖ sand as a mineral for a specific use in making Brisbane concrete because it was determined in 1995 that it was being used for its chemical properties. This view is also supported by reference to ACI‘s Environmental Compliance Assessment Report dated 4 April 2000 (exhibit 40) where it said at 6: ACI produces some silica sand for specialised cement manufacture in the construction industry. This material is regarded as a mineral under the [MRA] and ACI does not require an Extractive Industry Permit …(my emphasis) [45] Australian Broadcasting Commission was cited for the proposition that the intention of the parties is to be ascertained by reference to objective words and conduct having regard to the commercial circumstances surrounding the exchange. While, as a general statement of principle that is undoubtedly correct, even if it could be said a contract existed, the terms of that contract remain unclear. As presently advised on the evidence adduced in this application, there is at least a dispute as to what the 1995 Ministerial approval encompassed. Unimin submits that it covers all B Grade sand used for any purpose. It is a by-product of its lawful mining activities under its mining leases. The prosecution submits that it does not apply to B Grade sand not used for its chemical properties. This in turn -- 22 of 87 -- 19 suggests that B Grade sand may be a ―mineral‖ in certain circumstances but not in others. These are matters for trial. [46] It was submitted for Unimin that to accept the prosecution‘s view that the decision was only about the rate of royalty would be to read down those documents. I respectfully do not agree. Mr Johnson was relying on the initial determination in 1995 when advising Bob Harris in 2003. It may be open to suggest it was based on information provided by persons who were not entirely independent. The initial determination itself makes it clear that as the reject sand was to be used for its chemical properties as advised by those persons, then it would be treated as a mineral. At that stage, Rocla was going to use North Stradbroke Island B Grade sand in concrete instead of Brisbane River sand because B Grade sand had less clay content. I agree with the prosecution‘s submissions that it is more likely that the Minister gave no approval for the general sale of B Grade. Nor did he enter into a contract for its general use. If an agreement can be found, it might be one where B Grade sand would be treated as ―mineral‖ if it is used in concrete for its chemical properties45. After accepting that, the Minister had to decide whether royalties should be paid at a lower rate to Department of Mines or at a higher rate to Forest Products. He decided to charge the royalty of $0.50/ tonne to the Department of Mines rather than $1.10 cu.m. to Forest Products. [47] Stanton v Federal Commissioner of Taxation [1955] HCA 56; (1955) 92 CLR 630 was referred to in Unimin‘s submissions as to the meaning of ―royalty‖ to support the view that because that word has been used, there must have been a ―right‖ in Unimin to take B Grade sand for any use46. A farmer contracted with a sawmill for the sawmill to take timber from his land over a certain period. In return, the sawmill agreed to pay a total contract price by regular instalments whether or not the sawmill had taken the timber. Pursuant to that agreement regular payments were made although timber had not been harvested. The High Court held that the payments made did not constitute a royalty for the purposes of income taxation 45 Paragraph [32] submissions for prosecution; 46 Paragraphs 3.6 & 3.7 and Appendix H2 paragraphs 2.1 to 2.7; -- 23 of 87 -- 20 laws applicable at the time and therefore they did not constitute assessable income for taxation purposes47. ―Royalty‖ connoted an amount of payment calculated in respect of quantities of something that has been taken and the payments here were not in respect of timber actually taken. I do not accept that the decision in Stanton has the effect as agitated in submissions for Unimin. [48] Further, that submission is prefaced on the basis there was a right to take B Grade sand for any use. In Stanton a right was created by an agreement to simply take the timber for agreed periodical payments. There was no agreement as to ultimate use of that timber. However, Unimin submits that B Grade sand is a by-product of its lawful mining activities under its mining leases and that pursuant to the Minister‘s approval in 1995 together with Mr Johnson‘s later communications, it had the right to sell off B Grade sand as it chooses. I do not think that automatically follows. Further, consistent with that, Applegarth J in Unimin Australia Limited v State of Queensland made it clear that no rights of a ―non-mineral‖ could pass here. At [27] and [32] respectively: Section 310 of the MR Act relevantly provides for passing of property to the holder of the mining lease in respect of ―all minerals lawfully mined under the authority of a mining lease‖. …. I conclude that the principal purpose for which the undifferentiated mass of silica sand is mined, namely for use in glass manufacturing, does not mean that all of the silica sand, including the by-product or B Grade silica sand that is not suitable for glass manufacturing, is a mineral. The B Grade silica sand that is stockpiled at the end of the applicant‘s mining operation will be a ―mineral‖ if it is mined for use for its chemical properties and if s 6(3)(d)(i) does not apply to it. It does not qualify as a mineral because earlier in the mining operation it formed part of an undifferentiated mass of silica sand that included Glass Grade silica sand. [49] A number of cases were cited for the proposition that where citizens act on the representation of a public official later proved to be incorrect, it can be an abuse of process to then prosecute the person who acts on that representation; and further that it is in the public interest to hold officials to promises made by them. 47 Section 26(f) Income Tax and Social Services Contribution Assessment Act 1936-1953 (C‘th); -- 24 of 87 -- 21 [50] In Postermobile Plc v The London Borough of Brent 1997 WL 1103943 the defendant had consulted the council about erecting signs and was advised, incorrectly, that no planning consent was necessary. The defendant then erected a number of signs. Without warning, the council laid 25 informations against the defendant. They were quashed by the High Court on the basis that a citizen ought to be able to rely and act upon the advice of a public official. Other English authorities were cited in support, for example R v Horseferry Road Magistrates Court, ex parte Bennett [1944] 1 AC 42 and The Queen on the Application of City of Westminster v National Car Parks [2002] EWHC 285. [51] In the latter case, Sullivan J at para [31] noted the particular features in Postermobile including the fact that the defendant was lulled into a false sense of security by incorrect advice, that prosecution was commenced without warning, and without affording the opportunity to the defendant a reasonable time to remove the signs. If that opportunity had been given, Sullivan J considered that Postermobile may have been decided differently. [52] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, referred to in Unimin‘s submissions, was an appeal after trial about whether section 22 (mistake of law) or section 24 (mistake of fact)48 applied in respect of a fisheries offence. A stay for abuse of process was not applied for. The defendant was a commercial fisherman who attended the fisheries government office seeking copies of relevant regulations to determine if there was any prohibition on lobster fishing in a certain area. The official photocopied what she said were the complete set of regulations. They were not. The documents provided did not indicate prohibition of lobster fishing in a certain area. The applicable regulations did. He commenced lobster fishing in that area and was prosecuted. The purpose of citing this case was to show that representations by public officials that are acted on can have consequences and that discretion should be exercised in deciding to prosecute49. In Ostrowski, in sympathising with the defendant, the High Court reluctantly 48 Criminal Code of Western Australia; 49 Appendix G para [3.4] submissions for Unimin; -- 25 of 87 -- 22 upheld the prosecutor‘s appeal and found that section 22 applied. Callinan & Heydon JJ said at [521] that for the prosecution to continue in those circumstances had ―the appearance of an act of mindless oppression‖. [53] Unlike in Postermobile and Ostrowski, the prosecution submit that Unimin well knew what it was doing was unlawful. In this respect reference was made to exhibits 23, 24, 25 & 2650. The admissibility of the facts contained in exhibits 23, 25 & 26 as to their truth have been challenged by Unimin in this application on the basis that the authors of those documents were not called and the documents cannot be tendered as truth of their contents without their authors being called because section 93 Evidence Act 1997 has not been complied with51. A number of authorities were cited including R v Ross [2010] QCA 63 (23 March 2010). In order to tender a document as to the truth of its contents without calling the author, it was submitted the prosecution needed to place material before the court to satisfy the conditions in section 93(1)(b) Evidence Act 1997, for example, that the author was dead, or is out of the State and not reasonably practicable to secure attendance. Nothing has been placed before the court to this effect. I accept the submissions for Unimin that those exhibits cannot be relied on as to the truth of their contents in this application. They were, however, taken into account by DERM‘s legal officer Mr Kwan, whether true or not. [54] Exhibit 23 is a 1 paged letter dated 30 August 1996 from Clayton Utz Solicitors to ACI enclosing part of a Mining Warden‘s judgment (3 pages) in respect of mining in North Queensland. Mr Kwan gave evidence that it was found in a filing cabinet on Unimin‘s site at North Stradbroke Island during the execution of a warrant on 16 December 200852. The Mining Warden among other things said: Silica sand or sand, when used in conjunction with concrete (eg to make blocks) without heat is not being utilized for its chemical properties, and is therefore quarry material under the Forestry Act 1959. 50 Paragraphs 8, 9 & 21 submissions for prosecution; 51 Appendix H3 submissions for Unimin; 52 Transcript 2-25 lines 55 to 60; 2-26 lines 1 to 40; -- 26 of 87 -- 23 [55] While it was submitted for Unimin that there was no evidence it knew of that letter53, it was found in its possession. [56] Exhibit 25 is ―Pre-lodgement Meeting – Notes of Meeting‖ held 21 November 2007 and 12 December 2007 attended by three representatives of Unimin including Greg Watkins and a number of departmental and council officers. The proposal discussed was the selling of sand by Unimin to the local construction and landscaping industries. [57] Exhibit 26 (also exhibit 57) is Unimin‘s situation report dated 14 July 2008 by John Flynn (Unimin‘s site Manager) in which it is noted that Unimin‘s environmental officer Greg Watkins had requested the site cease the sale of construction material as the Minister had questioned the EPA ―weather [sic] we are selling this product (The site doesn‘t have the appropriate licence)‖. Under the heading ―Action Plans/Required Actions‖ it said ―Progress application for an extractive industries licence‖. Contrary to submissions for Unimin, in my opinion if those comments were true, they would lend support for the view that Greg Watkins at least was aware that there was an issue. Again, Mr Kwan took exhibit 26 (and 57) into account. I note this situation report was located at the offices on Unimin on North Stradbroke Island by Ms Fyfe on 16 December 2009 during the execution of a warrant54. [58] Exhibits 23, 25 & 26 were tendered on the limited basis that they are documents that Mr Kwan took into account in relation to prosecuting the matter. [59] Exhibit 24 is an email from David Trezise to Greg Watkins of Unimin dated 30 July 2007 concerning the removing of sandy loam for other purposes such as construction purposes. It was in response to an email from Greg Watkins of Unimin dated 23 July 2007 (exhibit 38) as follows: Subject: Unimin Nth Stradbroke Is – Sandy Loam Extraction Hi David 53 Paragraph 11.3(a)(3) submissions for Unimin; 54 Transcript 5-56 lines 45 to 60; 5-57 lines 1 to 7; -- 27 of 87 -- 24 We are exploring potential opportunities on site to further maximize the beneficial use of resource on our MLs. Some of the non-glass grade material on site had been identified as being suitable for other applications (e.g. construction material). Potential tonnage extracted would still be within our current quantities under our EA. Would the activity may be considered a different ERA? Could we include it on our existing EA as a variation or do we need a separate registration certificate? [60] Mr Trezise was the Chief Scientific Advisor (Mines). After referring to the definition of ―mineral‖, in reply he said that essentially Unimin will require dual permits, one for mining activities (in place) and a second permit or development approval issued by Redland Shire Council under the IPA. He referred to an ERA 20 application. As Mr Trezise was called to give evidence, there was no objection to this exhibit being tendered as to the truth of its contents. [61] Submissions for Unimin were that this proposed new activity involving ―construction material‖ did not relate to by-product sand which it called B Grade sand sold as building sand. It was submitted the email referred to ―sandy loam‖ which is not almost pure silica sand that was still not suitable for glass making as is B Grade sand55. There was much cross examination on this distinction. I note that in the body of Mr Watkins‘ email he still referred to it as ―non-glass material on site‖. By sending that email he was obviously acutely aware to the possible need for a separate certificate for that proposed activity, whatever that was. The fact that Mr Trezise said during cross examination that ―sandy loam‖ generally had 40% silt, 40% sand and 20% clay56 which is not the same as B Grade silica sand with a far higher silica content, does not necessarily lead to the conclusion that that is what was being referred to in that email exchange when one has regard to Mr Trezise‘s response and what Mr Watkins is alleged to have said to Ms Jordon during a site inspection on 17 November 2008 to be discussed later. In relation to the various descriptions of sands, Mr Trezise‘s answers during cross examination were general and, in my view, do not lend the degree of support to Unimin‘s submissions as suggested: For example he said57: 55 Paragraphs 9.24 & 9.25 submissions for Unimin; 56 Paragraph 9.27 submissions for Unimin; 57 Transcript 3-63 lines 1 to 38; -- 28 of 87 -- 25 Have you ever heard of the term "construction sand"?-- Yes. Is construction sand in your understanding building sand or don't you know?-- It - it could be used as building sand. It could be but it mightn't be?-- That is correct it could be top soil. Thank you. And so the same as with sandy loam, it could be building sand but it might not be?-- That‘s correct. And because building sand is the by-product of the glass grade sand, it's called B-grade glass sand, isn't it?-- I don't know. That's another term for it?-- I haven't seen that term. I - I refer you back to Mr Watkins' letter----- Yes?-- -----construction material. Construction material?-- Yeah. Yes?-- Construction materials are crushed aggregates. Yes?-- For concrete. Yes?-- Road metal. Yes, exactly?-- Sand for building purposes. And nowhere-----?-- Construction purposes. You'd agree with this, wouldn't you, nowhere in Mr Watkins' email to you is the term "building sand" used?-- He used the term "construction material". And he used the term in his title-----?-- Sandy loam----- [62] Another reason why those answers do not assist greatly is that descriptions of the sands seem to vary from time to time and from individual to individual. The phrase ―B Grade sand‖ seems to have been a description introduced by Unimin at some stage. At para [1] of his judgement Applegarth J in Unimin said during his introduction ―[Unimin] also extracts silica sand of a lower purity, which the -- 29 of 87 -- 26 applicant refers to as ―B Grade‖ silica sand‖ (my emphasis)58. I also note an undated notice to truck drivers found attached to the weighbridge on North Stradbroke Island tendered during cross examination of Ms Caruso (exhibit 46)59. It provided that ―building sand‖ was now to be called ―B Grade Glass‖ even though the same code (code 2) was maintained. There is no apparent reason for this change nor is any given in that notice. The notice provided: To All Truck Drivers Please Note the updated Product Code list. The product name for two of our products has been updated. The codes remain unchanged. Code 2, formerly called Building Sand, is now B Grade Glass …… All information entered when producing a weighbridge docket is exactly the same as before, however, when the docket prints, it will show the updated names. If it is necessary to write out a Manual Docket, please use the updated names – B Grade Glass and ….. [63] While the contents of exhibit 23 (the Clayton Utz letter) are not admitted as to their truth, Mr Kwan gave evidence that it was found in Unimin‘s offices. One would have thought that, whether or not its contents are true, those contents would have put the reader of it on inquiry. On the state of the admissible evidence in this interim application, I would not put Unimin‘s level of knowledge of wrongdoing as highly as suggested by the prosecution. However, I think there were factors present to at least put Unimin on inquiry coupled with some evidence of declarations against interest. These are matters for trial. [64] Ms Jordon, who was the Manager of the Redlands Unit of then Environmental Protection Agency (EPA), conducted site visits on North Stradbroke Island. One such visit occurred on 17 & 18 November 2008. Mr P Nand, who worked with the EPA, and Mr Greg Watkins, who was the environment manager for Unimin at the 58 The applicant being Unimin; 59 Transcript 4-36 lines 55 to 60; 4-37 lines 1 to 60; 4-38 lines 1 to 42; -- 30 of 87 -- 27 time, were present as they were driving out on 17 November 2008. In a conversation about the stockpiles on the left of the driveway as they were driving out, Ms Jordon gave this evidence60: Right. And before having the conversation, or immediately at having the conversation, did you indicate to Mr Watkins a set of stockpiles?-- Yes. Okay. So what did you do and what did you say?-- I motioned to the stockpiles to the left of the window and I asked him if they were construction or building sand. And what did he say to you?-- Mr Watkins replied, saying that he didn't have approval to do that. That one of my predecessors had said that they didn't have approval to do that and that the predecessor had told them to stop doing that. Did he use the word "predecessor" or did he name someone?-- He used the word "predecessor". [65] There was a great deal of cross examination as to the witnesses understanding of the differences if any between building sand, construction sand and B Grade sand61. For present purposes, I don‘t think that assists greatly in the task I am asked to perform in this application. As I have already noted, descriptions of ―reject‖ sand have varied from time to time and from person to person. In answer to Ms Jordan‘s question as to whether the stockpiles were ―building sand‖ or ―construction sand‖, Mr Watkins did not answer in those terms. He simply said that ―he didn‘t have approval to do that‖…‖they didn‘t have approval to do that‖…‖the predecessor had told them to stop doing that‖. There might be an explanation to clarify these answers but prima facie it suggests that Unimin through Mr Watkins at least was aware that this was an issue and that it had been an issue for some time. [66] The prosecution has led this evidence with a view to showing it was within Unimin‘s knowledge that it needed to have proper licences and authorities for the removal of B Grade sand. In my opinion the evidence I have referred to is sufficient to come to the conclusion that Unimin at least possessed some 60 Transcript 3-77 lines 35 to 51; 61 See for example transcript 5-7 onwards –cross examination of Parma Nand; -- 31 of 87 -- 28 knowledge that there were issues. I note exhibit 19 which is DERM‘s ―Summary of Facts‖. It says that a show cause notice was issued to Unimin on 10 February 2009 after surveillance of trucks leaving Unimin‘s site were observed taking sand to landscape supply companies, Ormeau Landscaping Supplies and Caboolture Sand and Gravel. The notice also alleges offences under IPA and EPA on 2 December 2008, shortly after Ms Jordan‘s site visit on 17 November 2008 and prior to the execution of the warrant on 16 December 2008, which, according to Unimin‘s submissions, was ―the first overt indication of any purported change of attitude by DERM towards disposal of the by-product ‗building sand…‘‖.62 [67] In Postermobile and Ostrowski the citizens were lulled into a false sense of security. Their circumstances were clear and unambiguous. There was no discourse or communication with the government officials after the incorrect advice was given prior to commencement of prosecution. In my opinion, the scenario in this case is completely different. There had been communications and dealings between the parties the detail of which may be the subject of evidence at trial. I note some of that has been ruled inadmissible in this application. Unimin‘s application on this ground is refused. Conflicting Judicial Determinations (para (a))63 Selective reading of Applegarth J‘s judgment (para (d)) [68] It was submitted for Unimin while ―estoppel‖ is not embraced by the criminal law as it is in civil law64, the concept of abuse of process encapsulates notions of estoppel65. [69] The thrust of this submission is that ―[T]hese proceedings effectively ask this Court to overrule the declaration by Applegarth J that the extraction of the B Grade silica sand by-product was a constituent part of its authorised and lawful operations, namely, ‗the lower purity B Grade silica sand by –product, that is 62 Paragraph 9.23 (second sentence) submissions for Unimin; 63 Pages 12 & 13, 45 & 46, 60; Appendix A at pages 78 to 88 submissions for Unimin; 64 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 was referred to; 65 Paragraph 19.3 submissions for Unimin; -- 32 of 87 -- 29 obtained by [Unimin] in the course of mining higher purity A Grade silica sand‘‖66. Even though Applegarth J declared B Grade silica sand not a ―mineral‖ he ―clearly acknowledged that the sand was lawfully mined‖67. [70] After citing numerous authorities in the criminal jurisdiction, it was submitted for Unimin that this court will not be called upon to decide an issue estoppel. Rather, the submission is that incontrovertibility will arise because of the ―calling into question‖ or ―tending to undermine‖ Applegarth J‘s decision68. [71] The prosecution agree with the general proposition of the ―need for decisions of courts, unless set aside, to be accepted as incontrovertibly correct‖ and ―that there is a power to stay proceedings which will controvert an earlier decision of a court‖. However, the prosecution says that incontrovertibility has no application in this case and that it was important to determine what in fact the decision was69. [72] The judgment referred to is Unimin Australia Ltd v State of Queensland [2009] QSC 384 delivered 30 November 2009. Unimin brought an application seeking declaratory relief in the Supreme Court exercising civil jurisdiction. [73] Passages from Applegarth J‘s judgement were cited in support of Unimin‘s submissions70. In part at [17]: …There is also extracted in the treatment process a by-product or tailing in the form of lower purity silica sand which Unimin refers to as ‗B Grade‘ silica sand. B Grade silica sand has always been produced as a direct consequence of the production of Glass Grade silica sand. [74] At [29]: Reliance is placed by [Unimin] upon the fact that there is one mining operation, and it is only at the end of the process that silica sand is graded and separately stockpiled. This is not a case where there is a separate mining operation for Glass Grade silica sand and another mining operation for B Grade silica sand. 66 Paragraph 19.5 submissions for Unimin; 67 Appendix A para [4.2] p 78 submissions for Unimin; 68 Appendix A para [5.19] p 83 submissions for Unimin; 69 Paragraph 12 et.seq. in submissions for prosecution; 70 Appendix A para 6.3 at pp 84 to 86 submissions for Unimin; -- 33 of 87 -- 30 [75] At [30]: I accept [Unimin‘s] submission that the focus of s 6(3)(b) [MRA] is on the use for which the silica sand is mined by the applicant, not on the purpose of an eventual purchaser of any by-product of lawfully mined silica sand. However, the lawfulness of the mining operation in which an undifferentiated mass of silica sand is mined with a view to grading the silica sand into a portion that is suitable for use in glass manufacturing, and a portion that is not, does not mean that all of the silica sand that is extracted is a ‗mineral‘. [76] At [32]: I conclude that the principle purpose for which the undifferentiated mass of silica sand is mined, namely for use in glass manufacturing, does not mean that all of the silica sand, including the by-product or B Grade silica sand that is not suitable for glass manufacturing, is a mineral. [77] And finally at [126] he declared: 1. On the proper construction of section 6 of the [MRA], the lower purity B Grade silica sand by-product, that is obtained by [Unimin] in the course of winning and extracting higher purity A Grade silica sand, is not a ‗mineral‘ within the meaning of s 6 of the [MRA]. [78] I note also at [126] Applegarth J declared: 2. On the proper construction of s 6(3)(b) of the Mineral Resources Act 1989, the lower purity B Grade silica sand by-product that is mined for use in white mortars and white renders is not mined ―for use for its chemical properties‖ within the meaning of s 6(3)(b) of the Mineral Resources Act 1989. [79] It is important to note the Supreme Court application brought by Unimin largely proceeded on an agreed set of facts71. [80] In respect of B Grade sand it was submitted for Unimin that Applegarth J‘s determination ―only challenges it[‗s] subsequent on sale for use in white mortars and white renders, not the lawfulness of its extraction as a constituent and integral part of the mining of silica sand for glass making‖. The submission continues that the prosecution is seeking to put in issue the lawfulness of the extraction of 71 Rule 11 Uniform Civil Procedure Rules 1999 allows proceedings to commence by way of an ―application‖ where the main issue is a question of law and where it is unlikely there will be substantial disputed fact; otherwise proceedings are to commence by way of ―claim‖; -- 34 of 87 -- 31 B Grade silica sand. Therefore, there is potential for there to be the ―scandal of conflicting decisions‖. These complaints should be stayed as an abuse of process because they would be vexatious and oppressive by making Unimin re-litigate a case which has already been disposed of72. [81] On the other hand, the prosecution submits that the issue at trial is not whether B Grade silica sand was lawfully mined, but whether the conduct occurred without Unimin: a) Being the registered operator for the activity acting under the relevant registration certificate to carry out the type of activity [EPA]; b) Having a proper permit to carry out assessable development [IPA]; c) Having a permit, lease, licence, agreement or contract made under the Forestry Act, Land Act 1962, the Mining Acts, or another Act [FA]73. [82] Those remarks reflect the issues in this case which are defined in the provisions creating the offences. The elements of the offences under the IPA, EPA and FA offences are as follows: 4.3.1 Carrying out assessable development without permit (1) A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty—1665 penalty units. 427 Only registered operators may carry out chapter 4 activities (1) A person must not carry out a chapter 4 activity, unless the person is a registered operator for the activity or is acting under a registration certificate for the activity. Maximum penalty—400 penalty units. 53 Interference with forest products on Crown holdings and particular entitlements 72 Appendix A paras [6.4] to [6.8] at pp 87 & 88 submissions for Unimin; 73 Paragraph 13 submissions for prosecution; -- 35 of 87 -- 32 (1) A person must not— (b)…. (c) …..get ….quarry material, on any lands, the property of the Crown, that are included in a lease or other entitlement granted under the Mining Acts, the Geothermal Act or the GHG Storage Act; or (d) … Maximum penalty— (a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. [83] From paragraphs [3], [4], [6] & [7] of the judgment, Applegarth J defined the issues he was to decide: [3] The applicant‘s first contention is that all of the silica sand mined by it – both Glass Grade and B Grade – is mined for use for its chemical properties, and the lower purity B Grade silica sand that is produced as a direct consequence, or by-product, of winning and extracting the higher purity Glass Grade silica sand, is therefore a ―mineral‖. I shall refer to this as ―the by-product issue‖. [4] The applicant‘s alternative argument is that the B Grade silica sand is a ―mineral‖ in its own right because it is ―mined for use for its chemical properties‖. I shall refer to this as ―the chemical properties issue‖. … [6] The final issue is as follows: ―Can and does any condition of the leases, or any environmental authority, or any provision of the MR Act or any other Act operate such as to pass property to Unimin in respect of anything other than what constitutes ‗a mineral‘ for the purposes of s 6 of the MR Act?‖ I shall refer to this as ―the passing of property issue‖. [7] The practical significance of the resolution of these issues is that a determination that B Grade silica sand is a ―mineral‖ within the meaning of s 6 of the MR Act, and may be lawfully sold, is that there is no requirement for a permit for extraction or other permits and approvals under the Integrated Planning Act 1997 (Qld) in respect of the mining, treatment and sale of B Grade silica sand. [84] In respect of each issue Applegarth J respectively found at [32], [92], [124]: [32] I conclude that the principal purpose for which the undifferentiated mass of silica sand is mined, namely for use in glass manufacturing, does not mean that all of the silica sand, including the by-product or B Grade silica sand that is not suitable for glass manufacturing, is a mineral. The B Grade silica sand that is stockpiled at the end of the applicant‘s mining -- 36 of 87 -- 33 operation will be a ―mineral‖ if it is mined for use for its chemical properties and if s 6(3)(d)(i) does not apply to it. It does not qualify as a mineral because earlier in the mining operation it formed part of an undifferentiated mass of silica sand that included Glass Grade silica sand. [92] I conclude that the B Grade silica sand that is mined by the applicant for use in white mortars and white renders is not a ―mineral‖ because it is not ―mined for use for its chemical properties‖. [124] I conclude that neither the conditions of the relevant leases, any environmental authority, the provisions of the MR Act nor the provisions any other Act operate to pass property to the applicant in respect of anything other than what constitutes a ―mineral‖ for the purposes of section 6 of the MR Act. [85] Applegarth J made some preliminary comments about the task that affronted him at [18] to [21]: [18] Unimin had sold and wishes to continue selling B Grade silica sand for use in the construction industry in specialty white mortar and white renders. [19] The higher purity Glass Grade silica sand is a mineral within the meaning of s 6(1) of the MR Act. The Glass Grade silica sand may be lawfully sold. [20] There is no requirement for a permit for extraction or other permits and approvals under the Integrated Planning Act 1997 (Qld) in respect of the mining, treatment and sale of Glass Grade silica sand. [21] Should the Court rule the B Grade silica sand is a ―mineral‖ within the meaning of s 6 of the MR Act, and may be lawfully sold, there is no requirement for a permit for extraction or other permits and approvals under the Integrated Planning Act 1997 (Qld) in respect of the mining, treatment and sale of B Grade silica sand. [86] The prosecution submitted that Applegarth J made no finding of unlawfulness or of lawful mining and that the issues he had to decide have no bearing on the elements of the offences in this case. Having regard to the above I agree. At [21] for example, he characterised one issue that if he ruled B Grade sand a mineral there would be no requirement for a permit under IPA. He does not go on to decide if he found to the contrary, what the consequences would be or whether in fact Unimin had the requisite permits. It was Unimin‘s application. The gravamen of the offences is, as the prosecution submit, whether Unimin had the requisite permits. -- 37 of 87 -- 34 [87] On the submission by Unimin that continuance would be vexatious and oppressive because it would be forced to litigate again, I note that the authorities relied on in support relate to situations where a defendant has been the subject of previous proceedings and then proceeded against again74. Thus, in those cases the defendant had been forced to defend in proceedings on a previous occasion and the question was whether the defendant should be forced again. Here, the previous court case was instigated by Unimin itself as the applicant. [88] The application on this ground is refused. Attempting to invoke retrospective criminal liability (para (c)) and Errors in the Investigation (para (i)) [89] The unsatisfactory features of the investigation are said to be75: a) Failure to determine the history of the relationship between the parties including establishing for certain whether royalties had been paid for B Grade sand before the IPA & EPA complaints were made. b) Failure to consider the implications of Compliance Inspection Reports in 2000 and 2003 which acknowledge sale of by-product sand; c) Failure to properly investigate the advice by Mr Trezise in his 2007 email in which he advised that a separate permit was necessary; d) Failure to investigate alleged statements against interest, for example, what Mr Watkins said to Ms Jordan on 17 November 2008; and a failure to put these to Unimin‘s representatives on 20 January 2009 when questioned. e) Failure to put to Unimin‘s representatives documents seized under a warrant executed 16 December 2008 i.e the Clayton Utz letter to ACI enclosing part of a Mining Warden‘s decision (exhibit 23), Mr Trezise‘s 2007 email (exhibit 24), the Redland Shire Council meeting notes (exhibit 25), and the situation report (exhibit 26). [90] Written submissions for the prosecution do not address this issue. However, even if these are identified as deficiencies, in my opinion this does not amount to an 74 For example Connelly v Director of Public Prosecutions [1964] AC 1254; R v Carroll [2002] HCA 55; Walton v Gardiner (1987) HCA 77; 75 Paragraph [10.2] at pp 32 & 33 submissions for Unimin; -- 38 of 87 -- 35 abuse of process which would warrant a permanent stay of the complaints. These may be issues for trial. [91] As to invoking criminal liability retrospectively, it was submitted for Unimin that there was in place an arms length commercial arrangement lasting for 18 years in which royalties were paid by Unimin to extract and on sell B Grade sand. So, at the time, the actions of Unimin were ―unremarkable‖. It is in that sense that the prosecution now wish to punish Unimin for that conduct which was the subject of that commercial arrangement76. [92] For reasons already outlined based on the limited evidence in this application, I have concluded above it unlikely there was such an arrangement or contract for Unimin to sell B Grade sand for any purpose. [93] I agree with the prosecution‘s submissions that the complainants simply wish to enforce the law that was in force at all alleged times. It is not a case of retrospectively legislating to outlaw conduct that was previously lawful. The prosecution is retrospective only in the sense that it seeks to punish past unlawful conduct, which was unlawful at the time. This is the case for all prosecutions77. Conclusion on Abuse of Process [94] Certain recognised categories of conduct have attracted intervention by the courts over the years that could be considered to be an abuse of process. They include, for example, commencing proceedings for some ulterior or improper purpose, proceedings that serve no useful purpose, or proceedings that are likely to cause improper vexation or oppression. However, as referred to in submissions for Unimin, it appears settled that the categories of abuse of process are not closed: see for example Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378. 76 Paragaphs [19.7] to [19.9] at pp 46 & 47 submissions for Unimin; 77 Paragraph [26] submissions for the prosecution; -- 39 of 87 -- 36 [95] The principles on abuse of process have been outlined in detail in Unimin‘s submissions78. It is not intended to recite them all. In Rogers v R [1994] HCA 42; (1994) 181 CLR 251 after referring to Walton v Gardiner Mason CJ said at [396]: Those considerations, which reflect the two aspects of abuse of process outlined above, include: ―the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice‖ [96] Reference was also made to statements in Rogers by Deane & Gaudron JJ at [7] regarding the possibility of conflicting decisions as an abuse of process described as ―the scandal of conflicting decisions‖. Two principles were referred to. First, judicial determinations need to be final and conclusive i.e. incontrovertible. Secondly, injustice would flow to an individual if required to again litigate matters that have already been determined by the courts79. [97] I also note Moti v R [2011] HCA 50 to the effect that a court must ensure that its processes are used fairly by the State and citizen alike80. [98] There is no dispute that this court has the power to regulate its own procedure to stay proceedings for an abuse of process before the prosecution case begins: see for example Power v Heyward [2007] QSC 26 per Byrne J (as he then was)81. The power to stay a proceeding, which amounts to refusal to exercise jurisdiction, is justified only in exceptional circumstances82. It is also clear that Unimin bears the onus of proving there is an abuse of process83. [99] In view of my conclusions on the issues above, I decline to stay the complaints on the basis of an abuse of process. 78 Pages 5 to 14; 79 Paragraph [8.2] submissions for Unimin; 80 Appendix G at paras [1] & [2] submissions for Unimin; 81 Paragraphs 3.1, 3.4 & 3.5 submissions for Unimin and cases cited therein at footnotes 1, 4, 5 & 8; 82 Walton v Gardiner at 392 per Mason CJ, Deane & Dawson JJ; Williams v Spautz (1992) 174 CLR 509 at 529; Jago v The District Court of NSW (1989) 168 CLR 23 at [31] per Mason CJ, [60] per Deane J. & [76] per Gaudron J.; 83 Paragraph 7.1 submissions for Unimin and footnote 24; -- 40 of 87 -- 37 Flawed IPA and EPA Complaints of 1 December 200984 [100] The Justice of the Peace, Ms Huddlestone – Holmes and the complainant Mr Bell were called by Unimin as the main witnesses relevant to this ground. [101] The thrust of this ground of the application is that, having regard to the principles of making complaints and the issuing of summonses to be outlined shortly, Mr Bell did not properly ―make‖ the IPA and EPA complaints before Ms Huddlestone- Holmes so that no valid summons could be issued in respect of them. In the alternative, it was submitted that if the complaints were validly ―made‖, the summonses issued thereupon were not validly issued in that there was no exercise of a judicial discretion. In either instance it was submitted that the proceedings should be dismissed. Relevant provisions were cited as follows. [102] Section 42(1) JA provides85: 42 Commencement of proceedings (1) Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant‘s lawyer or other person authorised in that behalf. (my emphasis) [103] Section 51 JA relevantly provides86: 51 When complaint to be on oath and when not Unless otherwise expressly provided— (a) ….; and (b) when it is intended to issue a summons in the first instance against the party charged—the complaint in writing need not be on oath. [104] Section 53(1) JA provides87: 53 When justice may issue summons (1) When a complaint is made before a justice that any person is guilty of or is suspected of having committed any indictable 84 Pages 37 to 41 and Appendices B, J1 & J2 submissions for Unimin; 85 In Division 1 (Complaints) of Part 4 (General procedure); 86 In Division 3 (How complaints are made) of Part 4 (General procedure); 87 In Division 5 (Summonses) of Part 4 (General procedure); -- 41 of 87 -- 38 offence, simple offence, or breach of duty, within the jurisdiction of such justice, then such justice may issue the justice‘s summons. (my emphasis) [105] The question is what constitutes the making of a complaint? The leading case is Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27; [1971] HCA 13. [106] After citing the following passage from presumably a text called ―Paley on Summary Convictions‖ at [38] Windeyer J (with whom Barwick CJ and Owen J agreed) said at [39] of the CLR; ―It is in general requisite in all summary proceedings of a penal nature that there should be an information or complaint, which is the basis of all subsequent proceedings, and without which the justice is not authorised in intermeddling‖. …….. In the cases presently before us an offence was alleged and documents couched in the form of informations were momentarily before the justices. Does this mean that an information was "laid before a justice", within the meaning of s 52 of the Justices Act, if the justice was not told the nature of the document put into his hand, did not read it, and as a result of what was said to him believed it to be not what it was? I do not think so. The word "lay", like the word "exhibit", is well known in law as meaning the present or put forward an accusation or charge (usually in the form of an information or indictment) or some other relevant allegation as in "lay the damages" or "lay the venue". An information is not laid by handing a document to a justice and misleading him as to its nature. Such misinformation is not an information. A written information is only duly laid before a justice when he receives it as information for his attention. (emphasis in submissions for Unimin) [107] There were two informations in that case with different Justices of the Peace and different informants. The Justices of the Peace were called by the prosecution and cross examined by the defendant‘s legal representatives in a preliminary application similar to the present one. The informants did not give evidence. [108] In respect of the first one, the evidence was that the informant called on the Justice of the Peace and ―asked him to witness his signature to documents he presented‖. There was no other conversation except possibly words to the effect ―we have to issue some summonses‖. The Justice of the Peace said he did not read the complaint and summons and that he did not have any conversation with the -- 42 of 87 -- 39 informant about their contents. Windeyer J. said that the actions of the Justice of the Peace were at least ―perfunctory‖ and that of the informant were ―reprehensible‖ in misleading the Justice of the Peace88. [109] For the second information, the informant called the Justice of the Peace ―to witness his signature on documents‖ but told him nothing about them except that they were legal documents. The Justice of the Peace said he had no idea of their contents and had not read them at all89. [110] Then, before making the statement cited above at [106] herein, Windeyer J. said at [38] of the CLR: The justices were not asked to say what passed through their minds. Their evidence was not of what led them to exercise a discretion. What they said was that they did not exercise any discretion at all - in effect that they did not know what they were doing beyond signing their names. They were told, they said, that their signatures were required as witnesses: that is to say that they were asked to authenticate the acts of another person. But what they actually signed were summonses purporting to be their own acts, commands issued by them as a result of informations duly laid. They were, they say, misled…. [111] The next case cited in support of this application was Galaxy International Pty Ltd v Bates [1988] V.R. 948 per Nathan J. The two central issues in that case were (1) whether a complaint could be laid before, and summons be issued by, an interstate Justice of the Peace (2) in adjourning a complaint initially made by an interstate Justice of the Peace for mention to a future date by a Magistrate, whether the complaint was duly laid before that Magistrate. [112] It is on this second issue, that an examination of what constitutes the laying of a complaint was considered. It was accepted that when the matter was brought on for first mention in court in February 1987, both parties did not appear but consented to a number of adjournments until the matter was set down for hearing on 26 October 1987 when the validity of the summons was raised for the first time. It was also accepted as usual practice in the Victorian Magistrates Court that 88 At pages 33 & 34 of the CLR; 89 At page 34 of the CLR (point 4); -- 43 of 87 -- 40 the clerk would simply advise the Magistrate that the parties have consented to adjournment without handing the file to the Magistrate unless, on occasion, the Magistrate wished to see the file to be satisfied that the parties have so consented. After citing Electronic Rentals and other cases, Nathan J said at [953]: These authorities are unanimous in the view that for an information to be properly laid the justice must know what task he is performing…… To lay an information before a justice, involving its receipt and the issuing of a summons, requires presentation of it to the justice, in a manner which engages his mind in such a way whereby he becomes cognisant and appreciative of the ministerial task he is then performing. The justice must become aware of the nature of the information, although not necessarily of all its details. He must know the character of the function he is statutorily empowered to perform. A mere inadvertent, transitory handling of an information does not amount to a lying of it. (emphasis in Unimin‘s submissions) [113] Having regard to evidence of court processes in the Magistrates Court Nathan J found that the Magistrate would only have handled the complaint briefly (if at all) when he adjourned the matter. Thus it could not be said that the complaint was laid before him in accordance with the tests outlined above. [114] For the laying of informations reference was also made to other cases including Police v Korber [2003] SASC 69, a decision of the Full Court of South Australia at [31] The justice must first receive the information in the sense of applying his mind to the matter so as to receive in his mind the information which the Statement of Complaint contains. [115] The facts in the present case surrounding the circumstances of Mr Bell making the complaints before Ms Huddlestone –Holmes and the issuing of the summons by her are far removed from the facts in the Electronic Rentals and Galaxy which led those courts to make the comments they did. Here, there was no evidence, either express or implied, that Mr Bell misled Ms Huddlstone- Holmes. Nor is there a suggestion that Ms Huddlstone- Homes was perfunctory in the way she approached her task. To the contrary, she appeared to take her task seriously particularly given her inexperience in taking complaints and issuing summonses. -- 44 of 87 -- 41 Placing the IPA and EPA complaints before Ms Huddlestone- Holmes over a period of 10 to 15 minutes cannot be described as ―mere inadvertent, transitory handling‖ of them or that they were only placed ―momentarily‖ before her. [116] In this case Mr Bell was contacted by his superior Ms Ready to make the IPA and EPA complaints. Legal officer Mr Kwan forwarded documents to Mr Bell at about 3:15 pm on 1 December 2009 which he read. They included litigation advice and a summary of facts. Mr Bell said he accessed the database. [117] He was questioned by Unimin‘s counsel as to the level of his involvement with these matters with a view to establishing limited knowledge in them. The fact that he had not read the witness statements was criticised. During cross examination Mr Bell said this90: When you read the material, you were satisfied that there was in fact a proper basis for bringing a case against the defendant?-- That's correct, your Honour. And you would not have issued a complaint, I take it, had you had any doubts about the propriety of bringing the case?-- That's correct, your Honour. Okay. Had you, for example, thought that there was a flaw in the case, you would have raised that and declined to seek the issue of a summons?-- That's correct, your Honour. Now, you told us that you looked at a number of documents that afternoon and that included, as I understood it, the brief - the brief of evidence?-- A copy of the brief of evidence, yes. A copy of the brief of evidence?-- Yes. Now, that included witness statements?-- I didn't look at the witness statements. You didn't look at any of them, or you didn't look at all of them?-- I didn't look at any of them. You didn't look at any of them?-- No, your Honour. 90 Transcript 1-85 lines 40 to 60; 1-86 lines 1 to 19; -- 45 of 87 -- 42 So you were satisfied, simply on the documents that you saw, that there was a case to be brought?-- That's correct, your Honour. Reinforced, no doubt, because you were aware that there had been a significant or lengthy investigation into the allegations?-- Yeah, that's correct, your Honour. By people in DERM, who you respected?-- That's correct, your Honour. [118] Mr Bell was examined at length as to why a departmental Justice of the Peace was not utilised and how Ms Huddlestone – Holmes was located. There appeared to be a suggestion on behalf of Unimin that there was something inappropriate in not using a departmental Justice of the Peace particularly given section 53(2) JA which relevantly provides that no objection shall be taken to a summons issued on a complaint by a Justice of the Peace within the same department. I do not accept that submission. I agree with the complainant‘s submissions that Justices of the Peace can make their own minds up as the departmental Justices of the Peace did here according to Mr Bell‘s evidence. Section 53(2) JA simply provides protection for a challenge to the summons had they decided to do so. [119] In this respect I note also Mr Kwan‘s evidence that on 1 December 2009 late in the afternoon Mr Bell informed him ―that there were no DERM [Justices of the Peace] available‖ to take the complaints91. Submissions for Unimin are that this contradicts Mr Bell‘s evidence in that DERM Justices of the Peace had declined to act and this is a matter that may be considered in determining Mr Bell‘s credit92. I reject that submission. The fact that Justices of the Peace are ―unavailable‖ could mean that they were not at work or not physically available at any given time for some reason. Alternatively, it could also mean they were physically present but not available because they were not prepared to act. [120] Mr Kwan delivered the drafted complaints and summonses to Mr Bell at around 4:30 to 5:00 pm on 1 December 2009. Mr Bell attended Ms Huddlstone –Holmes residence around 6:30 pm around dinner time for Ms Huddlestone –Holmes‘ two 91 Transcript 1-99 lines 45 to 51; 92 Appendix J1 at paragraphs 2.7 & 2.8; -- 46 of 87 -- 43 children. He was there about 10 to 15 minutes. During evidence in chief he said93: Tell us what happened?-- I attended at the - at the JP's premises, I introduced myself, said what I was there for. We went into the kitchen, I went through the complaint summons with the JP. Well, when you say you went through it, what happened?-- I went through the actual document. The - Mrs Holmes said that she hadn't done this before so I went through - I read through the document virtually - not word-for-word but read through the document with her, explained it as I went and then went through the process that you know, I would sign it if she agreed that it was okay. [121] And later94: By looking at the Environmental Protection Act complaint, are you able to explain to his Honour what you explained to Ms Huddlestone- Holmes?-- That Unimin were removing sand, a particular type of sand for manufacturing and they had - the actual sand that they were selling to construction and landscaping was a different type of sand and under the Environmental Protection Act they were removed to be the registered operator or have a registration certificate for it, and they didn't at that time. What else did you explain to the Justice in relation to the Environmental Protection Act charge?-- That's about what I recall, your Honour. Turn to the Integrated Planning Act charge; look at the face of that charge, please. What did you explain to the Justice?-- Your Honour, along similar lines, that Unimin were extracting sand, that a development approval to extract a particular type of sand for manufacturing. They were extracting a different type of sand, they required a development approval to do so and at that time they'd been extracting that sand and selling it to landscaping and constructing people and at that particular time they didn't have a development approval to do so. [122] During cross examination Mr Bell said in respect of the 1 December 2009 visit95: Okay. Now, you've sought summonses on many occasions, I would have thought?-- That's correct. And I take it that over the years you've built up a process that you use when you visit a JP, to have a summons issue?-- That's correct, your Honour. 93 Transcript 1-37 lines 34 to 60; 94 Transcript 1-38 lines 15 to 41; 95 Transcript 1-86 lines 40 to 60 ; 1-87 lines 1 to 12; -- 47 of 87 -- 44 Okay. And you followed, no doubt, your standard procedure that evening when you dealt with Mrs Huddlestone-Holmes?-- That's correct, your Honour. Okay. You know that it is important f course not to take a shortcut with these things?-- Yeah, that's correct, your Honour. And the situation was that you were very careful to - you were very careful to make sure that you gave her appropriate information to enable her to exercise her discretion as to whether or not to issue the summons?-- That's correct, your Honour. You in fact gave her an outline of the facts that were alleged?-- That's correct, your Honour. That included telling her that Unimin have a licence to extract sand for a manufacturing purpose?-- That's correct, your Honour. Whereas they were actually taking sand of a type they weren't permitted to?-- That's correct. [123] And again96: Okay. You told her that they were actually taking sand of a type they weren't permitted to?-- That's correct. That they were taking it to landscaping and building suppliers?-- That's correct. And while you were telling her that, she was reading the document through?-- Yes, she was, she was following me through the document. And you actually pointed to sections of the document as making out the charge?-- That's correct. Okay. Did you ask her - and you may not have - whether she was satisfied that the charge was - that the complaint was a valid one?-- I don't recall saying that. Okay. Did she indicate to you that she thought that the charge was a valid one?-- No, she didn't. Okay. Did you ask her if she was satisfied whether she was prepared to issue the summons?-- Yes, I did, your Honour. 96 Transcript 1-87 lines 40 to 60; 1-88 lines 1 to 18; -- 48 of 87 -- 45 Okay. And you swore the document on a Bible?-- I did, your Honour. In her presence?-- Yes, your Honour. Okay. You told us that the - I think earlier, that the event lasted 10 or 15 minutes?-- That's my best recollection, your Honour. I'm not sure how long. What it was, was that it was a relatively short exchange, for the purpose of explaining to her what she needed to hear?-- Yeah, that's correct, your Honour. And having her issue the summons in - if she was satisfied that she was entitled to?-- That's correct, your Honour. [124] Ms Huddlestone – Holmes gave evidence, it was submitted, that was contradictory to Mr Bell‘s evidence. I am invited in submissions for Unimin to prefer her evidence over Mr Bell‘s. [125] It is not in issue that while she had been a Justice of the Peace for over 12 years, she was inexperienced in taking complaints and issuing summonses. The duties of Justices of the Peace outlined in publications were referred to. [126] She said Mr Bell attended her residence at about 6:00 pm on 1 December 2009. After introductions she explained97: What happened next?-- Documents were laid out and I was looking at what I needed to view and I just read through what was put in front of me and then I verified that he was who he was and signed the documents. [127] In respect of the EPA complaint she said in evidence in chief98: Why did you sign that document?-- Because it was brought to me to sign and it looked legitimate and properly and - and----- Did you - sorry?-- It just looked that it was formal and there as an Act to back up what was being accused. Right. Did you know anything about the contents of the document?-- No. Sorry?-- No. 97 Transcript 1-12 lines32 to 36; 98 Transcript 1-13 lines 56 to 60; 1-14 lines 1 to 20; -- 49 of 87 -- 46 If you go to the next page; that's headed "Summons" - it separated in the file?-- Yes. Do you recognise your original signature there?-- Yes. Why did you sign that document?-- The same principle that it looked formal and it - I had - I've never seen a summons before, I've never administered that in my JP role, so I assumed that it was all true and correct. And was that the first one you'd ever done?-- Yeah. [128] And later99: All right. Now, just listen carefully, please. Back at your home, did Mr Bell give you a brief outline of the alleged facts relevant to the charge?-- No. Did Mr Bell also tell you that Unimin had a licence to extract sand for a manufacturing purpose, whereas they were actually taking sand of a type they weren't permitted to?-- No. Did Mr Bell tell you they were taking it to landscaping and building suppliers?-- No. [129] It was submitted for Unimin that Ms Huddlestone –Holmes account was that she was not informed of nor did she fully understand the nature of the function she had to perform; she was not given any information other than what was in the complaints themselves, and simply signed the summonses as ―true and correct‖ as if she were performing duties as a Commissioner for Declarations. [130] I found Ms Huddleston-Holmes to be quite nervous while giving her evidence. At one stage she became upset. She gave the impression of a witness doing her best. I agree that she probably does not appreciate the intricacies of taking complaints and issuing summonses to the extent canvassed in submissions. However, when asked about the process on 1 December 2009 she said that she read the documents place in front of her. She said in answers during cross examination100: 99 Transcript 1-19 lines 6 to 18; 100 Transcript 1-21 lines 18 to 45; -- 50 of 87 -- 47 Okay. And I suggest that you were obviously satisfied that it was appropriate to issue the summons?-- Yes, because I thought it was all legal, and it looked like, from just reading the summons, that there was an act to back up what the complaint was. And there was an Act to back it up, and when you read it, it looked like a charge-----?-- Yes. -----of an offence against the Act?-- Yes. So you were satisfied that it was appropriate to issue the summons?-- Yes. On the basis that there was an offence set out in the summons?-- Yes. Or sorry, in the complaint, okay. And when I say the complaint, I'm talking about both complaints; that was - there were two complaints, two separate documents?-- Mmm-hmm. And what I'm putting to you, you agree, is the situation with respect to each of the complaints?-- Yes. Okay. Now, when Mr Bell - when you - you then signed the summons?-- Mmm-hmm. [131] I come to the view that Mr Bell‘s account is more likely to be a more accurate account. In my opinion his credibility was not impugned to the extent that his evidence should be rejected as to what he said to Ms Huddlestone –Holmes on 1 December 2009. The fact that he said he swore on the bible when the complaint was not sworn does not in itself render his evidence otherwise unreliable. He is an experienced investigator as well as having years experience as a police officer. On the other hand, while Ms Huddlestone –Holmes was doing the best she could, she was clearly not comfortable in the court room setting. She was honestly doing the best that her recollection would permit. These events were well in the past and, as a lay person, these events may well have been subsumed or forgotten. On balance I prefer the evidence of Mr Bell as to the accuracy as to what occurred at her residence on 1 December 2009. [132] Even on Ms Huddlestone-Holmes‘ evidence she said she read through the documents placed before her, that there were ―Acts‖ to back them up, and that these were offences. To an extent it may be conceded as submitted for Unimin it -- 51 of 87 -- 48 prudent that a complainant provide additional assistance to an inexperienced Justice of the Peace as opposed to an experienced one. It must be remembered that the function of a Justice of the Peace does not extend to considering the merits of the case. [133] In my view, the complaints were properly ―made‖ before Ms Huddlestone- Holmes on l December 2009. She ―received‖ the complaints for her attention. As Nathan J said in Galaxy at [953]101: The receiving of a complaint appears to involve no more than [the Justice of the Peace] accepting it as a communication to him of a statement of the commission of an offence. [134] And in Police v Corber [2003] SASC 69 at para [33]: …the Justice should consider what is alleged in the complaint, but save in exceptional circumstances, where, for example, the complaint is clearly made out of time or contains a patently frivolous or nonsensical charge, I do not think the Justice is called upon to decide whether there is a good cause to take it, or otherwise to exercise a judicial discretion. Certainly, there is no occasion for his considering whether the complainant has a case against the defendant. [135] This case is in contrast to the position in Electronic Rentals where the Justices of the Peace were misled and in Galaxy where the Magistrate was not given it to direct his mind to the task at hand. Ms Huddlstone –Holmes ―received‖ the complaints which she considered together with Mr Bell‘s explanations which I accept he gave to her. She was given sufficient information to appreciate the function she had to perform and was aware of the nature of the complaints. As Nathan J pointed out in Galaxy at [953]102, it was not necessary for her to become aware of all details in the complaints. [136] Based on that material Ms Huddlestone-Holmes then signed both summonses on 1 December 2009. Section 53(1) JA cited above, applies. [137] It was then submitted that if this court finds that the complaints were duly ―made‖, she did not properly exercise her discretion to issue the summons based 101 [1988] V.R. 948 at 953 (lines 7 to 10); 102 At lines 32 & 33; -- 52 of 87 -- 49 on the material provided to her. In R v Peacock ex parte Whelan [1971] Qd R 471 Skerman J said at 475: …that when a complaint is made before a justice in Queensland pursuant to the provisions of s 53 of the Justices Acts he has a discretion as to whether or not he should issue a summons and he must exercise his discretion in a judicial manner. (emphasis in Unimin‘s submissions) [138] In finding that the expression ―prima facie case‖ is not helpful on the question of how Justices of the Peace discharge their duties, Skerman J adopted passages by Asprey J in Ex parte Electronic Rentals Pty Ltd (1970) 92 WN (NSW) 672103. After noting that the laying of a complaint is an ex parte proceeding and that, subject to exceptions, its contents are not required to be verified by oath, Asprey J said at 68: …although in the exercise of his discretion the Justice of the Peace may wish to be satisfied by the introduction before him of evidence that it is a proper case for him to issue a summons and, if the informant tenders such evidence, he would be bound to hear it…… In the exercise of his discretion he may also decline to issue a summons upon other grounds, even though a legal offence is averred in the information, as, for instance, where he considers that the issue of a summons would be vexatious or improper…(my emphasis) [139] And, after discussing the role of Justices of the Peace in the laying of complaints in Police v Corber at [33] the South Australian Full Court said: Nevertheless, different considerations apply if a Justice is asked to issue a summons on the complaint. When he is called upon to perform this function, an exercise of judicial discretion is involved. (emphasis in Unimin‘s submissions) [140] Further, it has been noted that the discretion to issue a summons by a Justice of the Peace is an important filter in preventing commencement of proceedings in some circumstances, such as an abuse of process104. However, in my opinion, it is not incumbent on a lay Justice of the Peace to inquire into the intricacies of DERM‘s internal processes and every step leading up to the preparation of the complaints to anywhere near the level it has in the hearing of this application. 103 The dissenting Judgment in the New South Wales Court of Appeal; these remarks were generally adopted by the High Court on appeal at page 38 of Windeyer J‘s judgement; 104 Mount Isa Mines Limited v Commissioner for Mine Safety and Health [2011] QMC 38 at [16]; -- 53 of 87 -- 50 While an important filter, in my opinion the role encompasses obvious abuses of process based on the information placed before the Justice of the Peace or, upon further information requested by the Justice of the Peace, if any. [141] Essentially, in respect of issuing both summonses, Ms Huddlestone-Holmes said during cross examination (cited above) that she thought ―it was all legal, and it looked like, from just reading the summons, that there was an Act to back up what the complaint was‖ and that it looked like a charge of an offence against the Act. She said she was satisfied that it was appropriate to issue both summonses. I add that, for reasons set out above, I accept that Mr Bell had provided further information verbally to her and that this would have been taken into account by Ms Huddleston-Holmes. It was not mandatory for Ms Huddlestone-Holmes to require Mr Bell to give evidence under oath: see Asprey J cited at [138] above and section 51(b) JA. [142] With the benefit of hindsight, while a more fulsome explanation of the process to Ms Huddlestone –Holmes may have been desirable, that does not mean that what actually occurred was defective to warrant a permanent stay. She was cognisant of the charges after reading the complaints and summonses and after taking into account what Mr Bell told her that night. The process took 10 to 15 minutes. In the light of that evidence it would be difficult to conclude that she simply thought she was witnessing documents as if performing duties as a Commissioner for Declarations105. [143] By letter dated 3 September 2010 (exhibit 15) Mr Bell wrote to Ms Huddlestone- Holmes seeking fresh summonses be issued in respect of the complaints made 1 December 2009 because there was a suggestion, undoubtedly from Unimin‘s legal representatives, that the validity of the summonses issued 1 December 2009 would be challenged. Copies of the complaints made 1 December 2009 were attached. He briefly set out the IPA and EPA offences and drew her attention to 105 The powers of Commissioners for Declarations are limited to administrative tasks as opposed to non- bench judicial tasks eg issuing summonses under the Justices Act 1886: see Duties of Commissioners for Declarations, Justices of the Peace Branch, Department of Justice and Attorney General; s 29 Justices of the Peace and Commissioners for Declarations Act 1991; -- 54 of 87 -- 51 ―some guiding principles‖ relevant to her decision. On 1 December 2010 Ms Huddlestone-Holmes issued fresh summonses in respect of both complaints. [144] It was submitted for Unimin that by doing this, the complainant himself had doubts about the validity of the summonses issued on 1 December 2009 and that the additional information provided in the 3 September 2010 letter highlights the deficiencies of the information provided on 1 December 2009. I do not agree that an adverse inference should be drawn to the effect contended for. In my view, given the proposed challenge to the validity of both complaints issued 1 December 2009, the complainant was simply making sure that further summonses would be valid in the event the court subsequently ruled against him on the summonses issued 1 December 2009. It was undoubtedly a precautionary measure. There is nothing in the Justices Act 1886 precluding such a course although, as noted in submissions for Unimin, it is generally desirable for summonses to issue and be served in a timely fashion to so that a defendant becomes aware of it as soon as possible to afford the best opportunity to defend the allegations. The difference in this case is that Unimin had previously been served with summonses issued 1 December 2009 to appear in court on 22 January 2010. It communicated to the complainants an intention to challenge their validity. It was aware of the proceedings at that time. It is not a case where there was delay in the issue and serving of the summonses in the first place while Unimin remained blissfully ignorant of the proceedings. [145] I agree with submissions for the complainants that Ms Huddlstone-Holmes properly exercised her discretion in issuing both summonses on 1 December 2009106. She did not consider that further evidence on oath by the complainant was necessary and did not see a reason to decline to issue the summonses such as that they would be vexatious or improper. [146] Given this conclusion, there is no need to consider the validity of the summonses issued 1 December 2010 which Unimin has also challenged. Subject to appeal 106 Paragraphs [37] & [38] submissions for complainants; -- 55 of 87 -- 52 against this decision, the complainant should indicate as soon as possible prior to trial that it proceeds on the summonses issued 1 December 2009. [147] The application on this ground is refused. Making of the FA Complaint107 [148] William Gordon‘s position within DERM108 is, and was at relevant times ―manager, sales and marketing in the forestry products unit‖109. He started his public service career in May 1981 in former Department of Forestry and has remained in forestry within various departments due to machinery of government changes over the years110. He has dealt with the management of state forests and the sale of forest products and quarry material on state owned land nearly his entire public service career111. His roles in DERM involved, among other things, negotiating and drafting contracts and permits for the commercial sale of quarry material and the calculation of royalties112. [149] At about 3:15 pm on 4 June 2010 Mr Gordon made the FA complaint before a Justice of the Peace at the Brisbane Magistrates Court113. The period of alleged offending in the complaint is ―on dates unknown on or between 1 October 2005 and 18 December 2008‖. Mr Gordon averred in the complaint that the offence came to his knowledge on 3 December 2009: [150] Section 88(4) FA provides: Time for commencement of prosecutions (4) A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the later period. 107 Pages 128 to 145 and Appendices C & K submissions for Unimin; 108 Department of Environment and Resource Management; 109 Transcript 3-11 lines 44 & 45; 110 Transcript 3-17 lines 10 to 33; Forestry became part of the Department of Natural Resources about 1April 2006 and then with DERM sometime in 2008 – transcript 3-16 lines 52 to 60; 3-17 lines 1-10; 111 Transcript 3-18 lines 5 to 15; 112 Transcript 3 – 18 lines 20 to 39; 113 Transcript 3- 50 lines 58 to 60; 3-51 lines 1 to 25; -- 56 of 87 -- 53 [151] The word ―month‖ means ―calendar month‖: section 36 Acts Interpretation Act 1954 (Qld)(AIA). ―Calendar month‖ is then defined in section 36: calendar month means a period starting at the beginning of any day of 1 of the 12 named months and ending— (a) immediately before the beginning of the corresponding day of the next named month; or (b) if there is no such corresponding day—at the end of the next named month. [152] Section 38 AIA relevantly provides that, subject to irrelevant exceptions, the day at the beginning of a period in which a purpose is to be fulfilled is excluded in calculating the period but includes the day the purpose is to be fulfilled. [153] Proceedings for an offence under the FA are prosecuted in a summary way upon complaint under the Justices Act 1886 (Qld) (JA): section 88(3) FA. Proceedings under the JA are commenced by way of written complaint made by the complainant in person, the complainant‘s lawyer, or other person authorised in that behalf: section 42(1) JA. [154] It is not in dispute that on the face of the pleading as it stands, the complaint was made on 4 June 2010 and one day outside the applicable limitation period being six months after the offence came to the complainant‘s knowledge. The complaint should have been made on 3 June 2010 being the last day of the six months in which the offence came to the complainant‘s knowledge on 3 December 2009. [155] It is now asserted for the complainant that the requisite knowledge of the offence did not come to him until he received the royalty returns enclosed with lengthy submissions by Unimin‘s solicitors dated 27 April 2010 marked ―without prejudice‖ (exhibit 21) about withdrawing the IPA and EPA complaints previously made on 1 December 2009. He said he actually received this around 18 May 2010114. I note DERM lawyer Mr Kwan received them ―late April‖115. The royalty returns, it is said, provided the complainant with the precise period of 114 Transcript 3-15 line 33; this is about when Mr Kwan said he received it and sent a copy to Mr Gordon: see transcript 1-106 lines 8 to 14; 2-11 lines 39 to 41; 115 Transcript 1-106 line 13; -- 57 of 87 -- 54 offending. The submission continues that the complainant‘s actual state of knowledge, as opposed to his belief as to his state of knowledge, is to be gleaned from the judgement of Applegarth J in Unimin Australia Ltd v State of Queensland [2009] QSC 384 being the only information he had as at 3 December 2009. [156] At the hearing of Unimin‘s application the complainant called evidence from Mr Gordon seeking to establish that he did not acquire the requisite knowledge until he received the royalty returns from Unimin‘s solicitors shortly after 27 April 2010. [157] It is probably fair to say that it is usually the defendant who challenges an averment such as this in attempting to take the matter outside the limitation period. In this case the prosecution seeks to change its own averment by giving evidence in order to bring itself within the limitation period. At the hearing it was thought that this had not been done before. Indeed submissions for Unimin are that this is an ―unprecedented course‖116. [158] In Environment Protection Authority v CSR t/as Woodpanels [2001] 114 LGERA 217117, the prosecution brought a similar application. In that case the complaint as originally drafted did not set out any date of the alleged offence but pleaded a date when the offence came to the relevant officer‘s knowledge. This was permissible having regard to the relevant provision although that provision made it mandatory to aver the date the offence came to the attention of the complainant. The prosecution applied before trial to amend the complaint by inserting the dates representing the period of the alleged offence and by deleting the averment that the offence came to the complainant‘s knowledge on a certain day. In other words, the prosecution changed its mind after the original drafting of the complaint by deciding not to rely on the ―coming to knowledge‖ method of 116 Paragraph [6.7] at page 132 submissions for Unimin; 117 Considered in DeBray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275 and on appeal in Cohen v Macefield [2010] QCA 95; -- 58 of 87 -- 55 calculating the limitation period but on the basis that the complaint was made with three years of the offence being committed118. The application was granted. [159] Section 95(g) FA provides: 95 Facilitation of proof In any proceedings under or for the purpose of this Act— (g) the averment in any complaint of the date on which the commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter; [160] There is nothing in section 95(g) that restricts any party from adducing evidence in rebuttal of such averment. Thus, I come to the view that the prosecution can call evidence in an attempt to rebut its own pleading. As Pearlman J in Environmental Protection Authority v CSR t/as Woodpanels Pty Ltd said at [21] this is merely a procedural matter in that it relates to identifying a starting point for computation of the limitation period and not matters which are ingredients of the offence. [161] The question remains whether the evidence of Mr Gordon is sufficient to displace the averment. [162] A number of cases referred to in Unimin‘s submissions speak of the relevant test in showing that an offence has come to the knowledge of a complainant. In Smith v Baldwin [1979] Qd R 380 W B Campbell J (as he then was) said at 385: The complainant could be said to have acquired knowledge of the commission of the offence only when he had such information before him as to give him reasonable grounds for such belief. (emphasis in Unimin‘s submissions) [163] McMurdo P in Cross Country Realty v Peebles [2006] QCA 501 at [50]: The knowledge of the complainant referred to in s 589(1)(b) [Property Agents and Motor Dealers Act 2000] requires a higher degree of certainty than the reasonable grounds for suspicion required for the issue of a search warrant under s 550(1) of the Act. It involves the complainant having 118 Section 12(1)(a) Environmental Offences and Penalties Act 1989 (NSW); -- 59 of 87 -- 56 knowledge of facts, sufficient to establish a person‘s contravention of the Act. (emphasis in Unimin‘s submissions) [164] Fraser JA in Witheyman v Van Riet [2008] 2 Qd R 587 was cited by both parties. The defendant was charged with an offence under section 4.3.1 IPA. In rejecting the submission that an ‘―offence comes to the complainant‘s knowledge‖ necessarily implies knowledge of the identity of the offender‘ which was the central issue in that case, Fraser JA (with whom Holmes JA & Daubney J agreed) said at [15]: I disagree. The requirement that ‗a proceeding for a vegetation clearing offence must start …within one year after the offence comes to the complainant‘s knowledge …‘ does not necessarily imply knowledge of the identity of the offender. Where someone knows of specific facts that constitute the elements of a particular offence at a particular place and within a particular period, but is in doubt as to the identity of the offender, it is a perfectly natural use of language to say that the person knows the offence has been committed. (emphasis in submissions for both parties although extra emphasis on ‗within a particular period‘ in submissions for Mr Gordon) [165] I think the rest of that passage in [15] and part of [16] assists in understanding Fraser JA‘s reasoning. Paragraph [15] continues: It involves no misuse of language to say that the applicant knew of the commission of the offence against s. 4.3.1. [IPA] …once the applicant knew that someone had started assessable development within the specified period in the form of clearing trees covering the specified 2,823.9 hectares of the described land without any development permit. [166] He continues at [16]: That view derives support from a number of considerations identified by the [District Court judge]. The authorities provide some guidance as to what is required for the relevant ―knowledge‖, but in none of the authorities is there a clear statement that knowledge of the identity of the offender is required…… [167] In referring to the relevant limitation provision and in adopting the conclusions of the District Court judge on appeal, Fraser JA further said at [17] and [28] respectively: This provision is an exception to the general rule allowing 12 months in which to commence a prosecution after a summary offence is committed. It concerns the prosecution of an offence. One purpose of the limitation -- 60 of 87 -- 57 provision is to provide protection to citizens who may have committed offences. Another purpose is to encourage the efficient and timely investigation of offences. As his Honour observed, these matters also suggest that s 68(3)(b) should not be given a wider construction that is clearly indicated by its text. …… The limitation period enacted in s 68(3) serves very important public purposes. An inevitable result of such provisions is that some prosecutions that otherwise might proceed cannot do so. [168] In focussing on statements made by Fraser JA at [15] cited above, it was submitted for Mr Gordon at [51] of those submissions dated 15 February 2012: Implicit in this statement is that for a person to have the requisite knowledge, they must know of specific acts that constitute the elements of a particular offence within a particular period. The particular period was not known to Mr Gordon until he received the letter from Sparke Helmore attaching the royalty returns. Time did not start to run until Mr Gordon received that information. (emphasis in complainant‘s submissions) [169] Thus, the sole basis relied on that the FA offence only came to Mr Gordon‘s knowledge after receiving the royalty returns for the purposes of calculating the limitation period, is that he did not know ―actual time periods‖ of the alleged offending. It is not suggested that he lacked any other knowledge about the FA offence. It appears therefore, having regard to what follows, he must have been reasonably aware of every other aspect of the FA offence sufficient for this purpose. [170] On the other hand in applying the above principles it was submitted for Unimin that even having regard to Mr Gordon‘s evidence, he acquired the requisite knowledge of the FA offence on 3 December 2009 despite not knowing ―actual time periods‖ of offending identified in the royalty returns. [171] On 2 December 2010 Mr Gordon received an email from the Principal Lawyer for DERM, Steven Carpenter, attaching a copy of the decision in Unimin Australia Ltd v State of Queensland [2009] QSC 384. On 3 December 2010 he said he read that judgement and formed a view that removal of building sand from the mining lease on North Stradbroke Island needed to be authorised under the FA. If it was -- 61 of 87 -- 58 not a mineral, it was quarry material. He said he had no other information about the matter at that time119. [172] On 3 December 2009 Mr Gordon emailed a Julie Ball stating that he believed there had been unauthorised removal of quarry material by Unimin and expressing the need to obtain the royalty returns120. On 22 December 2009 Mr Gordon emailed Director of Legal Services in DERM, Tracey Jackson, requesting copies of the royalty returns121. By email dated 11 January 2010 Tracey Jackson declined to provide the royalty returns ultimately on the basis of awaiting the decision of the Court of Appeal on appeal from Applegarth J‘s decision122. [173] In the meantime it appears Mr Gordon was alerted to Unimin having been charged with offences by ―DERM Compliance‖ by complaints lodged in the Cleveland Magistrates Court and that this was without consultation with ―DERM Forest Products‖: see his email of 7 December 2009 (exhibit 37). He had subsequent discussions with officers in ―DERM Compliance‖ about it123. Mr Kwan‘s evidence is that after receiving Sparke Helmore‘s 27 April 2009 letter (exhibit 21) enclosing the royalty returns, he drafted a briefing note to the Associate Director General after liaising with ―relevant officers in DERM‖. He then said124: I also liaised with the, who was the potential complainant at the time, William Gordon, about potential complaints being made or a potential complaint being made. [174] That would suggest that he had conversations or contact with Mr Gordon at a time prior to the FA complaint being drafted by Mr Kwan. Mr Kwan also discussed Sparke Helmore‘s submissions in its 27 April 2010 letter with Mr Gordon along with others during ―several discussions‖125. Again, these discussions probably occurred before the drafting of the FA complaint and support the view that Mr 119 Transcript 3-11 lines 55 to 60; 3-12 lines 1 – 15; 120 Transcript 3-13 lines 18 to 22 and exhibit 33; 121 Transcript 3-14 lines 28 to 32 and exhibit 34; 122 Transcript 3-14 lines 33 to 37 and exhibit 35; The Court of Appeal heard the matter on 24 June 2010 and delivered judgement on 2 July 2010 dismissing the appeal: [2010] QCA 169; 123 Transcript 3-37 lines 54 to 60; 3-38 lines 1 to 8 & 20 to 35; 124 Transcript 1-106 lines 21 to 25; 125 Transcript 2-19 lines 8 to 18; -- 62 of 87 -- 59 Gordon was indeed apprised of all matters by no later than 3 June 2010. Mr Kwan personally attended on the Associate Director General on 4 June 2010 for his approval. [175] During examination in chief Mr Gordon said that prior to receiving the royalty returns undercover letter dated 27 April 2010 from Unimin‘s solicitors he was not aware of actual dates on the royalty returns. He said the only concrete information regarding ―actual time periods‖ was from the royalty returns. Initially he said he was generally aware that building sand had been removed for a period of time and had suspected the removal had been over a longer period of time than the period reflected in the royalty returns. [176] I note during cross examination Mr Gordon said he attended a meeting with Mr Carpenter and others in July 2009 on the question of getting general advice as to whether silica sand was quarry material. There appeared to be uncertainty at that time. He said ―it all came down to its use…‖.126 Unimin was not mentioned at the meeting127. [177] During cross examination Mr Gordon said he came to the view on 3 December 2009 that Unimin had been committing FA offences by dealing with B Grade silica sand as quarry material as it was not a mineral. He was in no doubt about that as at 3 December 2009. He was aware of who held forestry permits on North Stradbroke Island and that Unimin did not hold any. The only thing he says he did not know was ―actual times periods‖. While he did not know of the quantities of B Grade silica sand involved, he said this was irrelevant although he formed the view that it must have been substantial128. [178] During further cross examination, it emerged that Mr Gordon‘s complaint was drafted with the assistance of departmental lawyer Mr Kwan on 3 December 2009. They sat together and changes were made in the process of drafting. Mr 126 Transcript 3-19 lines 10 to 60; 3-20 lines 1 to 127 Transcript 3-21 lines 5 to 13; 128 Transcript 3-50 lines 23 to 26; -- 63 of 87 -- 60 Gordon said he made a few minor changes. He said he averred 3 December 2009 as the date when the FA offence came to his knowledge based on having read Applegarth J‘s judgement in Unimin Australia Ltd v State of Queensland [2009] QSC 384 on 3 December 2009. [179] It was submitted for Unimin that from his reading the judgment in Unimin Australia Ltd v State of Queensland 129coupled with his knowledge of sales permits granted on North Stradbroke Island130, the FA offence came to Mr Gordon‘s knowledge on 3 December 2009. In fact, Mr Gordon knew prior to reading Applegarth J‘s judgement that Unimin did not hold any permits or authorities to take quarry materials on North Stradbroke Island131. It was then submitted that, by reading Applegarth J‘s judgement he was informed of the following:  Unimin was authorised to and had conducted mining operations over mining leases 1108, 1124, 1132 and 7064.  Unimin mined glass grade silica sand which resulted in B Grade sand being produced as a by-product.  B Grade sand was not a mineral as defined under the Mineral Resources Act 1989.  The judgement as a whole shows that Unimin was relying on its authorities under its mining leases and that this was not sufficient in respect of quarry material. [180] It was submitted for Unimin that Mr Gordon also knew from the decision that:  The mining leases date back in some cases to 1975 but at least since 2003 which all refer to silica sand.  B Grade silica sand was produced as a by-product of Unimin‘s glass grade silica sand mining operations.  That from 2003 Unimin was mining silica sand from all four leases which were described in the complaint made 4 June 2010. 129 Transcript 3-21 lines 20 to 25; lines 25 to 60; 3-22 lines 53 to 60; 3-23; 3-24; 3-25 lines 1 to 15; 130 Transcript 3-25 lines 58 – 60; 3-26 lines 1 to 10; 131 Transcript 3-49 lines 23 to 31; -- 64 of 87 -- 61  It is clearly inferred from the judgment that Unimin was selling B Grade silica sand by-product. [181] I interpolate, that after Mr Gordon received the royalty returns on 18 May 2010, he did not make the FA complaint until 4 June 2010, some 17 days later. It is not clear as to why it took this period of time given that he already knew all other ingredients of the FA offence and that he had averred in the complaint that it came to his knowledge on 3 December 2009 with the limitation period expiring 3 June 2010. [182] After detailed cross examination on the contents of Applegarth J‘s judgment, Mr Gordon agreed that he knew an offence was committed by Unimin on 3 December 2009. The transcript reads132: And as you correctly stated in the averment to the complaint you made on the 4th of June 2010 you knew, as of the 3rd of December 2009, just go to the complaint, that an offence had been committed?-- Yes. [183] The level of knowledge of an offence possessed by a complainant in order to satisfy the relevant limitation provision must vary enormously from case to case. For example, in Mount Isa Mines et al v Commissioner for Mine Safety and Health [2011] QMC 38 a full investigation had been carried out and a voluminous report prepared and discussed in a departmental meeting before this was presented to the Commissioner for Mine Safety and Health as complainant. The investigation included records of interview, witness statements, expert inspections of a truck to establish why the brakes failed, and examining the defendants‘ systems of maintenance and repair existing prior to the incident. The level of material presented to the Commissioner was extremely high when it was said the offence first came to his knowledge on the day that the information was presented to him. [184] In my view that level of detailed knowledge of an offence is not necessary to fulfil the requirement in section 88(4) FA that an offence comes to the knowledge of a complainant on a particular day. In Witheyman v Van Riet for example, in the 132 Transcript 3-50 lines 27 to 31; -- 65 of 87 -- 62 course of correspondence concerning information notices sent to the defendants, the complainant sent a letter to the defendant‘s solicitors stating that due to satellite imagery, there was a reasonable belief that an offence had been committed and that the parties served with the notices were able to give information about the alleged offences. A warrant allowing a field inspection some months beforehand confirmed satellite imagery that large areas of land had been cleared. It was found that the offence came to the complainant‘s knowledge by no later than the date of that letter and not upon receipt of the defendants‘ responses the next month when the complainant said he formed the belief that the defendants committed the offences. The complaint was held to have been made out of time. [185] The ultimate question is whether on the facts of this case it can be said that the FA offence came to Mr Gordon‘s knowledge on 3 December 2009 or at a later time. [186] In considering the approach adopted by Fraser JA in Witheyman v Van Riet I see little difference between not knowing the identity of the defendant and, as in this case, not knowing the ―actual time periods‖ of the FA offence. As in the reasoning in Witheyman v Van Riet, in my view section 88(4) FA does not imply knowledge of ―actual time periods‖. In his judgement at [15] Fraser JA was not saying, as was submitted for Mr Gordon, that it is essential the ―particular period‖ must be known before it can be said that an offence comes to the knowledge of a complainant. In my view he was simply applying the circumstances of that case. If a complainant knows all other matters about the offence including the identity of the defendant, the offence has come to the knowledge of the complainant for the purposes of section 88(4) FA. [187] In my view, Mr Gordon‘s level of knowledge as of 3 December 2009 exceeded mere reasonable grounds for suspicion to found a warrant as referred to by McMurdo P in Cross Country Realty v Peebles [2006] QCA 501. He at least had enough information on 3 December 2009 to give him reasonable grounds to believe that Unimin had committed the FA offence. -- 66 of 87 -- 63 [188] It should be noted for the purposes of the limitation provision, the relevant time is the point in time when the actual complainant discovers the relevant facts of the offence. This is not to be confused with the point it time when a decision to prosecute has been made: see for example Tesco Stores Ltd v London Borough of Harrow [2003] EWHC 2919. [189] Therefore, I conclude that the FA offence came to Mr Gordon‘s knowledge on 3 December 2009. Section 88(4) FA provides that a proceeding must be instituted within six months of the offence coming to the knowledge of the complainant. Six months from 3 December 2009 expired at midnight (separating 3 and 4 June 2010)133. The complaint was made after midnight (separating 3 and 4 June 2010) during the day of 4 June 2010. Therefore, the complaint was made outside the limitation period. This does, therefore, provide a valid defence for Unimin on the FA charge. The FA proceedings should be stayed as an abuse of process. In finding that a Magistrates Court can decide the limitation point in an application such as this, in the words of Byrne J (as he then was) in Power v Heyward [2007] QSC 26 at [17]: If the limitation point is good, and so proceedings must fail, their continuance may be stayed as an abuse of process. [190] Unimin‘s application on this ground is successful. [191] For completeness, I note Unimin also submitted that Mr Gordon was purposely quarantined from the investigation so as to take advantage of the ―coming to knowledge‖ provisions in section 88(4) FA and that this was an abuse of process. I reject that submission. There is no restriction in section 88(4) FA as to who can be a complainant. Mr Gordon was authorised to make a complaint in his capacity as a forestry officer appointed under the FA: exhibit 51. Complaints otherwise fundamentally flawed and must inevitably fail134 133 Generally, the law does not recognise fractions of days: Prowse v McIntyre (1961) 111 CLR 264 at 270, 280 and Forster v Jododex Australia Pty Ltd [1972] HCA 61 at [21]; 134 Page 44 and Appendices D & L submissions for Unimin; -- 67 of 87 -- 64 [192] As part of Unimin‘s lawful mining activity under its mining leases, topsoil covering the sand is first removed to expose the raw sand in the ground. The raw sand is then excavated to its base. The raw sand, which is said to be extracted from the ground as an undifferentiated mass, is then processed resulting in minerals such as rutile and zircon and glass grade sand being extracted. These are minerals within the meaning of the Mineral Resources Act 1989. The processing also results in the production of other silica sand as a by-product that does not meet the specifications for glass grade sand. The submission continues that this sand, called B Grade sand or reject sand, is a by-product or ―tailing‖ of the lawful mining and processing activities carried out by Unimin under its mining leases135. It was submitted that B Grade sand is produced as a result of this lawful activity regardless of whether it was sold or left on the leases. It is said that there has never been any separate activity in obtaining B Grade sand. [193] It was submitted for Unimin that the IPA and EPA charges are in relation to extraction of sand on its mining leases. B Grade by-product sand is obtained from ―the undifferentiated mass‖ on the leases as a direct consequence of its lawful mining activities. Similar submissions were made in Unimin Australia Pty Ltd v State of Queensland [2009] QSC 384 at [28] & [29]. The submission continues that the prosecution will fail to prove that ―extraction‖ was unlawful, namely, not authorised under its mining leases and that the prosecution should have preferred charges of selling the B Grade sand knowing it was not entitled to do so. [194] Reference was made to the combined effect of the following legislative provisions in support. [195] Item 1 Table 2 Schedule 8 IPA relevantly defines ―assessable development‖ as follows: Table 2: Material change of use of premises For an environmentally relevant activity 1 Making a material change of use of premises for an environmentally 135 See also Unimin Australia Ltd v State of Queensland [2009] QSC 384 per Applegarth J at paragraphs [16] to [18] for a similar description; -- 68 of 87 -- 65 relevant activity, other than— (a) a mining activity; or [196] The definition of ―Environmentally relevant activity‖ in section 18 EPA is adopted for IPA purposes: 18 Meaning of environmentally relevant activity An environmentally relevant activity is— (a) ……; or (b) a mining activity as defined under section 147; or (c) ……; or (d) another activity prescribed under section 19 as an evironmentally relevant activity. [197] Section 19 EPA provides: 19 Environmentally relevant activity may be prescribed A regulation may prescribe an activity, other than ..a mining activity ….as an environmentally relevant activity if the Governor in Council is satisfied— (a) a contaminant will or may be released into the environment when the activity is carried out; and (b) the release of the contaminant will or may cause environmental harm. [198] I was then referred to the definition of ―mining activity‖ in section 147 EPA which includes activities in section 147(2) such as mining under the Mineral Resources Act 1989, processing a mineral won or extracted or an activity directly associated with such mining or processing. The opening words of section 147 are important: 147 What is a mining activity (1) A mining activity means an activity mentioned in subsection (2) that, under the Mineral Resources Act, is authorised to take place on— (a) land to which a mining tenement relates; or (b) land authorised under that Act for access to land mentioned in paragraph (a). [199] I was also referred to the definition of ―mine‖ in section 6A Mineral Resources Act 1989 which includes an operation for the purposes of ―extracting‖ mineral from its natural state. ―Extracting‖ is defined as including a range of processes in -- 69 of 87 -- 66 separating the mineral including screening, washing, jigging and so forth: section 6A(2) & (3). [200] Finally, for the purposes of this submission I was referred to the Environmentally Relevant Activity (ERA) that applies here i.e. ERA 20 in Schedule 1 to the Environmental Protection Regulation 1998: ―extracting …sand (other than foundry sand) …from a pit or quarry using plant or equipment having a design capacity of ….100000 t or more a year. [201] The same provisions apply to the EPA charge so far as is relevant to this submission. It alleges Unimin engaged in a ―Level 1 Chapter 4 activity‖ which is defined in section 19 of the Environmental Protection Act 1994 to be ERA 20. [202] A similar submission was made in respect of the FA complaint. The alleged ―getting‖ of B Grade sand was in accordance with Unimin‘s leases and authorities that it did hold. Further, the charge is intended to punish for getting ―on‖ the land and not for the removal or sale of quarry materials. These are factual issues to be determined after evidence at trial. Once the facts have been established then consideration can be given to the application of the law. [203] The submission is that while Unimin‘s mining operation on the leases involving the removal of sand from the ground matches the ERA 20 definition, by virtue of section 19 EPA a prescribed ERA cannot include a mining activity. The submission continued that if Unimin was performing a mining activity ―and nothing else‖, it cannot be carrying out an ERA. Therefore, it was argued, there has been no material change of use for the IPA charge and Unimin has not carried out a Level 1 Chapter 4 activity for the EPA charge. [204] The complainants submit that determination of Unimin‘s precise activities is a matter for trial136. 136 Paragraph 53 submissions for the complainants; -- 70 of 87 -- 67 [205] I am inclined to agree with the complainant‘s submissions. It is premature to say what Unimin‘s activities were until all evidence has unfolded. Unimin‘s submissions are prefaced on the basis that it was simply engaging in a mining activity as defined, that it was lawful, and that it did nothing else outside that lawful activity. That is, Unimin could only possibly be liable if it can be shown that it engaged in something in addition to its lawful mining activities. These are factual matters for trial. [206] Unimin‘s application on this ground is refused. Latent Duplicity of Further Particulars Provided137 [207] On 11 March 2011 the complainants provided further and better particulars in respect of all three complaints cited at [5] above. [208] For Complaint 1 (IPA), the particulars provided of the activity alleged i.e. extracting sand in the period 4 October 2005 and 18 December 2008 are:  on Mining lease 7064 between 4 October 2005 and 18 December 2008 using a Caterpillar 970F front end loader; and  on Mining lease 1108 between 1 July 2007 and 18 December 2008 using a Komatsu WA480 front end loader. [209] For Complaint 2 (EPA), the particulars provided of the activity alleged i.e. extracting sand in the period 3 December 2003 and 18 December 2008 are:  on Mining lease 7064 between 3 December 2003 and 18 December 2008 using a Caterpillar 970F front end loader; and  on Mining lease 1108 between 1 April 2007 and 18 December 2008 using a Komatsu WA480 front end loader. 137 Paragraph 17, Appendix E (pages 154 to 156) & Appendix M submissions for Unimin; -- 71 of 87 -- 68 [210] For Complaint 3 (FA), the particulars provided of the activity alleged i.e. ―get‖ in the period 1 October 2005 and 18 December 2008 are:  on Mining lease 7064 between 1 October 2005 and 18 December 2008; and  on Mining lease 1108 between 1 April 2007 and 18 December 2008. [211] In citing Johnson v Miller (1937) 59 CLR 467 per Dixon J (as he then was) at 489 to 490 approved by the majority in S v The Queen (1989) 168 CLR 266 it was submitted for Unimin that the particulars in each case disclose two offences committed over different time spans at different locations. I note however that the end dates in all the complaints and the further particulars provided are one and the same i.e. 18 December 2008. Although it was acknowledged that the two leases referred to are adjoining, it was submitted that separate mining activities took place on each lease and it was not a case of one operation spaning two leases. Therefore, the submission continues that the complainants should either elect which offence they wish to rely on or the complaints should be dismissed. [212] In response the complainants deny duplicity as each charge alleges a continuing course of conduct and it does not matter that extracting or getting B grade sand occurred at more than one location138. Walsh v Tattersall (1996) 188 CLR 77, a workers compensation fraud case involving interpretation of a particular statute creating the offence was referred to139. In one sense it was more a case of ―patent‖ not ―latent‖ duplicity. Johnson v Miller and S v The Queen were considered with approval for the proposition of maintaining ―precision and specificity‖ in criminal pleadings. 138 Paragraph [55] submissions for complainants dated 15 February 2012; 139 See the leading judgement of Kirby J (in the majority of 3:2) at pp 92 et seq who found that the intention of the relevant provision was to create a separate offence for each payment of benefit at pp 100 to 102; 111 (para 4); the court disapproved the prosecution pleading one charge over a period of time in which many separate payments were made at various times where the element of dishonesty had to be tested for each payment; -- 72 of 87 -- 69 [213] In Johnson v. Miller, there was an allegation against a licensee under liquor legislation that a certain person came out of the licensed premises during specified hours. Thirty men were seen coming out of the premises. The complainant refused to particularise which of those persons was the ―certain person‖. After the complainant refused to give particulars, the court dismissed the complaint on the grounds it was defective in substance as the accused was prejudiced by the defect. The offence, under section 209(1) Licensing Act 1932-1935 (S.A.) was an offence involving a discrete event and not continuing in nature. Nor was it an offence that could be described as constituting a series of facts so closely related that they amount to the one activity. It provided: Any licensee …out of whose licensed premises any person is seen coming during any Sunday …except between [certain times] …shall be guilty of an offence ….unless he proves to the satisfaction of the ..magistrate….that the person (a) was not on the premises …(b) was on the premises contrary to the will of the licencee ….(c) was on the premises without the knowledge of the licensee ….. (my emphasis) [214] It is clear that that provision intended to create an offence in respect of an identifiable person seen coming out of licensed premises at a particular time. As Dixon J (as he then was) put it a licensee could not bring himself within any of those exculpatory grounds unless ―the presence or departure of some identifiable person or collection of persons on some distinct occasion‖140 was pleaded. [215] It is in that context that Dixon J made the comments at 489 to 490 relied on by Unimin particularly having regard to the statutory defences available to a defendant141: …the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to 140 Johnson v Miller (1937) 59 CLR 467 at 483 & 484 per Dixon J (in the majority); 141 Cited with approval by Dawson & Toohey JJ (in the majority) in S v The Queen at 277 & 281 respectively; -- 73 of 87 -- 70 be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint ..for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. [216] S v. The Queen (1989) 168 CLR 266142 applied Johnson v Miller. It involved three counts of incest allegedly committed over a three year period. Each count alleged a single act of carnal knowledge over different and in one case overlapping 12 month periods. The evidence at trial revealed a multiplicity of offences without identifying which offence related to which count charged. The counts as pleaded did not distinguish between each offence and from other similar acts over that period. The allegations in the counts were not for continuing offences such as maintaining an unlawful sexual relationship and this, it appears, affected the outcome of that case. [217] The general statements of principle outlined in Johnson v Miller and S v The Queen were endorsed in Walsh v Tattersall. However, Kirby J., who wrote the leading judgement, said at 102: In most cases of alleged duplicity of criminal pleading the court, considering the challenge, is obliged to examine the substantive basis of the criminal charge or charges in question. It must then consider whether pleading rules permit the collection of several offences known to law under one count or charge or require that they be separately expressed in individual counts or charges. [218] In examining the principles of duplicity Kirby J acknowledged the difficulty facing courts in applying the duplicity rule in cases of offences constituted by continuous activity143. He went on the say (footnotes omitted): Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs. 142 Applied in Jenkins v Kedcorp Pty Ltd [2002] 1 Qd R 49; [1999] QCA 452, a prosecution under now repealed Auctioneers and Agents Act 1971; 143 At 107 (at para 6); -- 74 of 87 -- 71 [219] Kirby J then expressed indicia that might sustain a single count against an allegation of duplicity. These include connection of events in point in time, similarity of the acts, the physical proximity of the place where the acts occurred and the intention of the defendant throughout the conduct144. [220] While Kirby J reinforced the strict rule of pleading as expressed in Johnson v Miller, he said in conclusion145: This court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges. (my emphasis) [221] The substantive basis for the charges in this case are sections 4.3.1(1) IPA (now repealed), 427(1) EPA and 53(1) FA. They are respectively as follows: 4.3.1 Carrying out assessable development without permit (1) A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty—1665 penalty units. 427 Only registered operators may carry out chapter 4 activities (1) A person must not carry out a chapter 4 activity, unless the person is a registered operator for the activity or is acting under a registration certificate for the activity. Maximum penalty—400 penalty units. 53 Interference with forest products on Crown holdings and particular entitlements (1) A person must not— (b)…. (c) …..get ….quarry material, on any lands, the property of the Crown, that are included in a lease or other entitlement granted under the Mining Acts, the Geothermal Act or the GHG Storage Act; or (d) … Maximum penalty— (a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. 144 At 108; 145 At 112 under the heading ―Conclusion and orders‖; -- 75 of 87 -- 72 [222] Having regard to the above provisions and to the complaints together with the further particulars provided, in my view these cases fall within the exceptions referred to by Kirby J in S v The Queen. The complaints together with the further particulars seems to allege continuing conduct and that they allege facts so closely related to the one activity however described i.e. extracting or getting. [223] The IPA and EPA offences provisions are framed in terms of ―carry out‖ which may, but not necessarily, connote a course of conduct. The FA offence provision is framed as ―get‖ which may, but not necessarily, connote a course of conduct. The conduct alleged is similar in nature and is pleaded to have occurred over periods of time with different starting dates although all ending on 18 December 2008. It is not a case of having to establish an element of an offence at different times within a pleaded period as was the case in Walsh v Tattersall where dishonesty, an element of the offence, had to be determined each and every time a workers compensation payment was made. At what point does one conclude that the instances or activities of ―carry[ing] on‖ by extracting or ―get[ting]‖ are capable of rendering a pleading duplicitous? If Unimin‘s submissions were taken to the extreme, every single dig of the digger with a load of material in its bucket may constitute an offence each time so that on each dig a separate offence is committed. If that is not enough to constitute ―carry[ing] on‖ or ―get[ting]‖ when does it? After every six digs perhaps? What about after each day of digging, or perhaps each week of digging? This is probably why there is an exception to the rule against duplicity for continuing offences or for offences where the alleged facts are closely related to the one activity. This is contrasted with having to prove carnal knowledge at a fixed time within a pleaded period so as to attribute that offence to a particular count as in S v The Queen. [224] I agree with the complainant‘s submissions that it does not matter that the extracting or getting occurred at more than one location during periods which start on different dates but end on the same date. -- 76 of 87 -- 73 [225] The further and better particulars in each matter are consistent with the view they constitute continuing offences. In my view the complaints and further and better particulars do not appear to be duplicitous. Courts over time have expressed tests in different ways in determining whether an offence is a continuing one. However, on their face, the offences appear to also fall within the expression of the test by Jeune J146 in Ellis v Ellis [1896] P. 251 supporting the view they are continuous at 254: The test whether an offence is to be treated in law as continuous is…. whether its gravamen is to be found in something which the offender can, at will, discontinue. (my emphasis) [226] Unimin submits that the further and better particulars identify two courses of conduct over different time spans at different locations. In my view the courses of conduct appear to be similar if not the same so that they fall within the exceptions outlined by Kirby J above. [227] The case is to be contrasted with pleading completely separate and distinct offences as was the case in Cohen v Macefield Pty Ltd [2010] QCA 95. It was held that ―damage or permit to be damaged‖ were two distinct offences created under the one legislative provision. In this case there is the same allegation of conduct ie extraction, although on two different locations and within different time periods. [228] Nevertheless, final determination of whether or not these charges as pleaded are continuing offences so as to overcome ―duplicity‖ should be left until after all evidence has been adduced at trial. This was the approach taken by Pearlman J in Environment Protection Authority v CSR Ltd t/as Woodpanels [2001] NSWLEC 41 at [41] with which I agree. [229] If it were concluded that the charges in this case are duplicitous, consideration would need to be given to section 43 of the Justices Act 1886 (Qld)147 which 146 With whom Gorrell Barnes J agreed; although the court found the offence was not a continuing one in that case; the offence was complete once the wife left the husband because of cruelty and neglect; 147 In Division 1 (Complaints) of Part 4 (General procedure); taken from Reprint No 10 (as in force 1 November 2010); -- 77 of 87 -- 74 governs proceedings commenced by way of complaint. Section 43 provides for ―election‖ as follows: 43 Matter of complaint (1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except— (a) ….. (b) in cases other than cases of indictable offences—if the matters of complaint— (i) are alleged to be constituted by the same act or omission on the part of the defendant; or (ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or (iii) are founded on substantially the same facts; or (iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character; or (c) when otherwise expressly provided. (2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph. (3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section— (a) if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or (b) ….. [230] The phrase ―matter of complaint‖ is not defined although it most likely refers to an offence. This is supported by the wording in section 43(1)(b)(iv) where it says ―a series of offences or matters of complaint‖. If, as Unimin submits, two different offences have been pleaded in each case, then a complaint can only be for two matters of complaint if they fall within one of the categories in subsection 43(1)(b) JA. As presently advised, they would appear to at least fall within section 43(1)(b) (iv). I note that the allegations in the IPA and EPA complaints of ―extracting sand‖ apply to both places and both periods of time as does ―get‖ in the FA complaint. If they do fall within section 43(1)(b), they would have to be -- 78 of 87 -- 75 pleaded in separate paragraphs (ss 43(2)). If not pleaded in separate paragraphs, then the complainant must choose which matter of complaint upon which to proceed. [231] Unimin‘s application on this ground is refused. Choice of Complainants an abuse of process148 [232] Graham Bell, Principal Environmental Investigator within DERM, made the IPA and EPA complaints on 1 December 2009. He pleaded that the IPA offence on dates unknown between 4 October 2005 to 18 December 2008 and the EPA offence on dates unknown on or between 3 December 2003 and 18 December 2008 came to his knowledge on 1 December 2009. [233] William Gordon, Manager of Sales and Marketing within the Forest Products Unit of DERM, made the FA complaint on 4 June 2010 and pleaded that the offence on dates unknown on or between 1 October 2005 and 18 December 2008 came to his knowledge on 3 December 2009. [234] Unlike provisions in other legislation providing that only a particular person can make a complaint for an offence, there is no such restriction under the IPA, EPA or the FA. An example of such restriction is section 234(5) Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSHA) which provides that a proceeding for an offence under that Act ―must be started by complaint by the [Commissioner for Mine Safety and Health]‖ considered in Mount Isa Mines Limited et al v Commissioner for Mine Safety and Health [2011] QMC 38. [235] The basis for Unimin‘s submissions is that the choice of these complainants is an abuse of process in itself in relying on the coming to knowledge limitation provisions of IPA, EPA and FA in an attempt to encompass a period of antecedent offending going back several years and which would have otherwise been statute barred. Further, it was submitted that alleging the offences are continuous 148 Page 45 and Appendices F & N submissions for Unimin; -- 79 of 87 -- 76 offences during extensive periods even if only one day of it falls within the time limit is incorrect. [236] Although employed by DERM, the complainants were not involved in the investigation of these matters while other officers, for example Ms Deanne Caruso, more directly connected with the investigation had, it is alleged, the required knowledge at a much earlier time and no later, for example, than 20 January 2009 when representatives spoke with her. [237] The IPA, EPA and FA each provide for alternative periods of limitation. Sections 4.4.2 IPA, 497 EPA and 88(4) FA respectively provide: 4.4.2 Limitation on time for starting proceedings A proceeding for an offence against this Act must start— (a) within 1 year after the commission of the offence; or (b) within 6 months after the offence comes to the complainant‘s knowledge. (my emphasis) 497 Limitation on time for starting summary proceedings A proceeding for an offence against this Act by way of summary proceeding under the Justices Act 1886 must start— (a) within 1 year after the commission of the offence; or (b) within 1 year after the offence comes to the complainant‘s knowledge, but within 2 years after the commission of the offence. (my emphasis) 88 Time for commencement of prosecutions (4) A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the later period. (my emphasis) [238] In support of that submission reference was made to statements in authorities that limitation provisions such as these provide for firm temporal limits and the selection of the complainants in this case was contrary to public policy considerations identified by Fraser JA in Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168 concerning similar limitation provisions in a prosecution for an offence under the Vegetation Management Act 1999: section 68(3)(a) & -- 80 of 87 -- 77 (b). Fraser JA, with whom Holmes JA and Daubney J agreed, said at paragraph [15] of Qd R: [15] …..The requirement that a ―proceeding for a vegetation clearing offence must start ….within one year after the offence comes to the knowledge of the complainant‘s knowledge …‖ does not necessarily imply knowledge of the identity of the offender. Where someone knows of specific facts that constitute the elements of a particular offence at a particular place and within a particular period, but is in doubt as to the identity of the offender, it is perfectly natural language to say that the person knows the offence has been committed. [239] In referring to section 68(3)(b) of the Vegetation Management Act 1999 which provides that a proceeding must start within 1 year after the offence comes to the complainant‘s knowledge, but within 5 years after the offence is committed‖, in agreeing with McGill DCJ149 Fraser JA said at [17]: [17] This provision is an exception to the general rule [s 68(3)(a)] allowing 12 months in which to commence a prosecution after a summary offence is committed. It concerns the prosecution of an offence. One purpose of the limitation provision is to provide protection to citizens who may have committed offences. Another purpose is to encourage the efficient and timely investigation of offences. As his Honour observed, these matters also suggest that s 68(3) should not be given a wider construction than is clearly indicated by its text. [240] I interpolate that section 68(4) of the Vegetation Management Act 1999 provides power in the court to extend time if ―just and equitable‖. No such provision appears to exist in the IPA, EPA or FA. Although not determinative of the point, this power was referred to by Fraser JA in support of his conclusion that section 68(3)(b) does not necessarily imply that knowledge of the identity of the offender is necessary: see paragraph [18]. [241] Next, under the heading ―The discretion to extend time‖ pursuant to section 68(4), in which an extension was refused due to the prosecution‘s tardiness, Fraser JA said in conclusion at [28]: The limitation period enacted in s 68(3) serves very important public purposes. An inevitable result of such provisions is that some prosecutions that otherwise might proceed cannot do so. That fact itself does not itself establish any injustice and none is evident in this case. The applicant has 149 At (2008) 29 Qld Lawyer 109; -- 81 of 87 -- 78 already had the benefit of two hearings in which to seek an extension of time. Leave to appeal should not be granted for the purpose of granting the applicant a third hearing. [242] A similar question arose for determination in Cross Country Realty Pty Ltd v Peebles [2007] Qd R 254; [2006] QCA 501 regarding section 598(1)(b) Property Agents and Motor Dealers Act 2000 providing that proceedings must commence ―within ..6 months after the commission of the offence comes to the complainant‘s knowledge, but within 2 years after the commission of the offence‖. [243] The argument for the applicant, which was rejected by unanimous decision of the Court of Appeal, was that time runs under [s 598(1)(b)] as soon as anyone in the [Office of Fair Trading] entitled to lay the complaints has reasonable grounds to believe the applicants have committed an offence..‖. McMurdo P, who wrote the leading judgement, adopted the reasoning of the District Court at paragraph [7] of her reasons: [7]…[The District Court judge] considered that s 589(1)(b) was ―… not satisfied by the fact that information sufficient to found a reasonable belief that an offence has been committed, has come into possession of the complainant or has become available to him, if he has not in fact acquainted himself with that information. Until that situation occurs it is not possible …to say the commission of the offence has ‗come to the complainant‘s knowledge‘‖. [244] In comparing the level of knowledge required for the purposes of section 550 in issuing a search warrant and the limitation provision of section 589(1) (b), McMurdo P said at paragraph [10]: [10]….The knowledge and belief necessary to satisfy a Magistrate under s 550 of the Act that there are reasonable grounds for suspecting that there may be evidence obtained at a place the subject of the search will not necessarily equate to the knowledge to which s 598(1)(b) refers. The knowledge referred to in s 598(1)(b) requires a higher degree of certainty than the reasonable grounds for suspicion required for the issue of a search warrant under s 550(1) of the Act. It involves the complainant having knowledge of facts sufficient to establish a person‘s contravention of the Act. -- 82 of 87 -- 79 [245] While it was conceded in submissions for Unimin that reported cases have ―shied away‖ from constructive knowledge or collective knowledge within a prosecuting body, it was urged that having regard to the purpose of limitation provisions as outlined by Fraser JA in Witheyman v Van Riet, the selection of ignorant complainants manipulates the limitation periods and constitutes an abuse of the court‘s process. Even assuming there was manipulation (unintended or otherwise), I have not been referred to any authorities suggesting that it is an abuse of process for an officer otherwise authorised to make complaints and who has had no involvement in an investigation into the matter to make a complaint in respect of the matter under the JA. [246] On the other hand the complainants submit that the requisite knowledge is not merely constructive or collective knowledge. This, it appears is not in contest. It was submitted however that to suggest that the complaints in this case are statute barred is contrary to the principles outlined in Peebles. [247] In reply Unimin‘s submissions are that the thrust of their argument is not based on constructive or collective knowledge. Rather, it is based on an abuse of process to manipulate time limits by either quarantining appropriate complainants from investigations or selecting complainants based on ignorance. [248] There is nothing in the limitation provisions in this case which impose restrictions on who should be a complainant in any given set of circumstances. Unlike, for example, section 234(5) MQSHA referred to earlier, anyone can be a complainant relying on the public officer provisions of the Justice Act 1886150. These cases must necessarily involve complex investigations arguably more complex than many traditional offences dealt with summarily under a wide range of statutes including, for example, The Criminal Code (Qld), Summary Offences Act 2005 and the Transport Operations (Road Use Management) Act 1995. While only the Commissioner for Mine Safety and Health can be a complainant under the MQSHA, he was not briefed with all relevant facts in Mt Isa Mines until late in 150 Section 4 Justices Act 1886 relevantly defines ―public officer‖ as an officer or employee of the public service of the State or of a statutory body that represents the Crown in right of the State. -- 83 of 87 -- 80 the piece and only after the investigator had fully completed his investigation and report encompassing four large bound volumes (see footnote 46 Mt Isa Mines) including records of interview and statements from all witnesses and after first meeting with members of a Compliance Committee within the department not including the Commissioner for Mine Safety and Health. The essential issue is the discovery by the actual complainant after becoming aware of relevant facts of the offence and not to be confused with the decision to prosecute: see for example Tesco Stores Ltd v London Borough of Harrow [2003] EWHC 2919 cited in argument in Witheyman v Van Riet. The fact that Mr Bell and Mr Gordon were not involved with the investigation in this case, in my view, does not matter. I respectfully reject submissions for Unimin on this ground. [249] Indeed, this is implicit in what McMurdo P said in Peebles in rejecting the submission advanced by the applicant in that case: see para [243] above. Some support for this can also be found in the flexibility accorded to the prosecution in Environment Protection Authority v CSR Ltd t/as Woodpanels [2001] 114 LGERA 217, a decision of the New South Wales Land and Environment Court. In that case the prosecutor sought and was granted leave to amend the complaint by inserting dates representing the period of the offence which was absent in the original pleading and by removing the averment that the offence came to the complainant‘s knowledge on a certain date. That is, well after the complaint had been served on the defendant, the prosecutor was allowed to shift reliance on the coming to knowledge provision to the provision that proceedings were commenced within three years of commission of the offence. In this respect Pearlman J said at 228: It [the relevant provision] provides alternative periods of limitation depending upon the particular offence, and alternative methods of computing the time from which the relevant limitation period commences to run. I cannot discern anything in the language of [the relevant provision] which would indicate that the prosecutor must choose between the alternatives at the outset of proceedings and must thereafter be bound by that choice. [250] Unimin‘s application on this ground is refused. -- 84 of 87 -- 81 [251] At this juncture, in deference to the extensive submissions for Unimin, I should address the question of limitation periods as they apply to continuous offences. [252] I was referred to R v Industrial Appeals Court Ex Parte Barelli’s Bakeries Pty Ltd [1965] V.R. 615, a decision of the Full Court of the Victorian Supreme Court in relation to an offence of failing to pay wages to a specified employee within a prescribed time. One question was whether that was a continuing offence where the limitation period was ―6 months after the commission thereof‖. The information was held to be laid within time even though the six months had elapsed since the obligation to pay first arose on 18 April 1963 because it was a continuing offence. There was a continuing failure to pay on 4 March 1964. The information was laid 20 April 1964. O‘Bryan & Gillard JJ (with whom Smith J agreed) said at 620: A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid, or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence. [253] Submissions for Unimin also referred to De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275 per Wall DCJ and to Cohen v Macefield Pty Ltd [2010] QCA 95, on appeal. That case was primarily a duplicity case on appeal from the decision of a Magistrate after a trial. The provision creating the offence provided ―A person must not damage or permit to be damaged protected vegetation‖. The charge as amended at trial pleaded two separate offences, namely ―damage or permit to be damaged‖. -- 85 of 87 -- 82 [254] Wall DCJ‘s findings that the charge as pleaded was duplicitous was confirmed on appeal. In distinguishing Environmental Protection Authority v CSR Woodpanels Pty Ltd (2001) 114 LGERA 217, at paragraph [64] his Honour concluded that the pleaded offence was not an offence of a continuing or continuous nature even though the acts of poisoning involved a series of acts. The prosecution was required to prove that two things occurred within the limitation period; first, the acts of poisoning; secondly, that those acts destroyed or interfered with the natural growth of the vegetation. It was not enough to prove an act outside the limitation period destroyed or interfered with the natural growth of vegetation within the limitation period. [255] Each case will depend on the precise nature of the offence. The offence in Environmental Protection Authority v CSR Woodpanels Pty Ltd was negligently causing a substance to leak in a manner which harmed or was likely to harm the environment without lawful authority. Like this case, that case was an application before trial. It was held most likely to be a continuing offence and that a final determination on that should be left for trial after all the evidence is given: paragraph 33. It was also held that a limitation period for a continuing offence starts on the day upon which the commission of the offence ceased: paragraph 35. [256] Unimin‘s submissions are that the limitation period for continuous offences constituting conduct from day to day and which constitutes a separate and distinct offence each day the conduct continues runs from each day the conduct occurs (para 3.4). As I understand the submission, it follows that it is inappropriate to include in the charges conduct outside the limitation period. Having regard to the above, I respectfully do not agree. A strikingly similar submission at paragraph [32] in Environmental Protection Authority v CSR Woodpanels Pty Ltd was expressly rejected. In the words of Pearlman J. at [35]: [35] First, I am of the view that, whilst the defendant is correct in contending that a continuing offence may be the subject of prosecution on any day during the stipulated period, it is not correct in asserting that the limitation period commences to run from any day of that period. Rather, the limitation period commences to run from the day upon which the commission of the offence has ceased. Accordingly, if this offence is -- 86 of 87 -- 83 ultimately found to be a continuing offence, then no question of infringement of the limitation period will arise, because the period will commence to run some date in 1995, and the proceedings were instituted within three years thereafter. [257] I respectfully agree with those remarks. Time runs from when the offending conduct ceases if it is a continuing offence however characterised. [258] In my view the charges in the present case appear to be more akin to the charge in Environmental Protection Authority v CSR Woodpanels Pty Ltd. The IPA charge is the carrying out of assessable development without a development permit. The EPA charge is the carrying out of a Level 1 Chapter 4 activity while not being a registered operator. The FA charge is getting quarrying materials. These charges are contrasted to the charges in Cohen v Macefield where the prosecution had to prove the act of poisoning and the consequent damage occurred in the limitation period. However, in saying this, ultimate determination as to whether they are continuing offences should be left for trial after all the evidence has unfolded. Summary [259] The application to permanently stay the FA complaint because it was made outside the limitation period is successful. [260] The application to permanently stay the complaints on all other grounds is refused. [261] I will hear the parties as to costs. Graham C Lee Magistrate -- 87 of 87 --