Island Maritime Limited v Barbara Filipowski Sachin Kulkarni v Barbara Filipowski [2004] NSWCCA 453

Island Maritime Limited v Barbara Filipowski Sachin Kulkarni v Barbara Filipowski [2004] NSWCCA 453

The later s 8 prosecutions were not barred by double jeopardy because the elements of the earlier s 27 charges, including that the discharge occurred in or in connection with a transfer operation and was a discharge to which Part 4 applied, were not the same as and were not wholly included in the elements of the s 8 charges. Section 26(d) also meant Part 4 did not apply where Part 2 applied. The s 8 prosecutions did not controvert the earlier acquittals but accepted the basis on which the s 27 charges failed. Although the delay and prosecutorial conduct were criticised, the applicants did not establish relevant prejudice or discretionary error by Bignold J in refusing a permanent stay.

Jurisdiction
Australia
Judgment Date
21 December 2004
Procedural Posture
Applications for Leave to Appeal Under S 5 F(3) of the Criminal Appeal Act 1912 / Appeal From Refusal by Bignold J in the Land and Environment Court to Grant Permanent Stays of Prosecutions
Outcome
Leave to appeal granted, appeals dismissed.
Legal Topics
['abuse of Process' 'double Jeopardy' 'autrefois Acquit' 'successive Prosecutions Arising Out of Same Facts' 'delay' 'permanent Stay of Proceedings' 'discharge of Oil Into State Waters']
['criminal Law and Procedure' 'environmental Law' 'marine Pollution'] ['abuse of Process' 'double Jeopardy' 'autrefois Acquit' 'successive Prosecutions Arising Out of Same Facts' 'delay' 'permanent Stay of Proceedings' 'discharge of Oil Into State Waters']

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Procedural Posture

Applications for Leave to Appeal Under S 5 F(3) of the Criminal Appeal Act 1912 / Appeal From Refusal by Bignold J in the Land and Environment Court to Grant Permanent Stays of Prosecutions

Legal Issues

  1. 1 ['Whether the prosecutions under s 8(1) of the Marine Pollution Act 1987 offended the rule against double jeopardy after earlier charges under s 27(1) were dismissed.' 'Whether the elements of the s 8 offence were the same as, or included in, the elements of the earlier s 27 offence.' 'Whether the applicants had been in jeopardy of conviction on the earlier s 27 charges.' 'Whether the later s 8 prosecutions constituted an abuse of process because they arose out of the same facts as the earlier proceedings.' 'Whether delay in commencing the current proceedings justified a permanent stay.']

Ratio Decidendi

The later s 8 prosecutions were not barred by double jeopardy because the elements of the earlier s 27 charges, including that the discharge occurred in or in connection with a transfer operation and was a discharge to which Part 4 applied, were not the same as and were not wholly included in the elements of the s 8 charges. Section 26(d) also meant Part 4 did not apply where Part 2 applied. The s 8 prosecutions did not controvert the earlier acquittals but accepted the basis on which the s 27 charges failed. Although the delay and prosecutorial conduct were criticised, the applicants did not establish relevant prejudice or discretionary error by Bignold J in refusing a permanent stay.

Court Disposition

Leave to appeal granted, appeals dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeals dismissed.']