R v Dumble & Ors

Following a reference by the Director of Public Prosecutions, pursuant to s 668A Criminal Code 1899, the Court of Appeal considered the issue of whether it is “necessary, pursuant to s 493(2) of the Environmental Protection Act 1994, that, for an executive officer of a corporation to be guilty of the offence of failing to ensure that the corporation complies with the Act (in circumstances where the corporation commits the offence of wilfully and unlawfully causing serious environmental harm), the serious environmental harm caused by the corporation must have come to fruition during the executive officer’s tenure as an executive officer?” The Court of Appeal held that an executive officer is only guilty under s 493(2) Environmental Protection Act 1994 if they were in office at the time the corporation’s act actually resulted in serious environmental harm. In turn, the Court of Appeal held that a corporation is only taken to have committed an offence under s 437(1) Environmental Protection Act 1994 at the moment when serious environmental harm results from their act.

Sofronoff P and Mullins and Bond JJA

6 August 2021

Background

Linc Energy Limited (“Linc”) conducted “underground coal gasification” on a site near Chinchilla. The prosecution alleged that serious environmental harm was caused wilfully and unlawfully by Linc as a result of that gasification process. [6].

As a consequence of that alleged harm, each of the respondents, executive officers of Linc, were charged  under  s 493(2)  Environmental  Protection  Act 1994 (“the Act”) with “the offence of failing to ensure the corporation complies with [the] Act”. [5]. Specifically, s 493(2) provides as follows:

“If a corporation commits an offence against a provision of this Act, each of the executive officers of the corporation also commits an offence, namely, the offence of failing to ensure the corporation complies with this Act.” (Emphasis added)

On 25 June 2021, Claire DCJ ruled, pursuant to s 590AA Criminal Code 1899, that liability under s 493(2) of the Act extended only to those executive officers in office at the time of the offence and did not capture those who “had involvement as executive officers at some point”. [8].

The appellant, the Director of Public Prosecutions, referred the following question to the Court of Appeal pursuant to s 668A of the Criminal Code 1899:

“Is it necessary, pursuant to s 493(2) of the [Act], that, for an executive officer of a corporation to be guilty of the offence of failing to ensure that the corporation complies with the [Act] (in circumstances where the corporation commits the offence of wilfully and unlawfully causing serious environmental harm), the serious environmental harm caused by the corporation must have come to fruition during the executive officer’s tenure as an executive officer?” [9].

Decision of the Court of Appeal

The Court of Appeal (Sofronoff P and Mullins and Bond JJA) upheld the decision of Claire DCJ. [20]. The Court found that an executive officer is only guilty under s 493(2) of the Act if they were in office at the time the harm was actually caused. [19].

The Court observed that s 493(2) is not a provision which requires “actual involvement” of the accused in the offending act, rather liability arises from the accused’s status as an executive officer of the corporation at the time of the offence. [7], [18]. Therefore, as the Court explained:

“A person who was once an executive officer of the corporation, but who is not an executive officer at the moment the offence is committed by the corporation, can in no sense answer the description of an ‘executive officer’ who ‘also’ commits an offence.” [19].

The Court acknowledged the appellant’s submission that an executive officer may be able to avoid liability under s 493(2) by resigning before the serious environment harm occurs but noted that there are other offence provisions which may operate to capture a person in these circumstances. [31].

In determining whether an executive officer is liable under s 493(2) it is necessary to identify when the corporation committed the offence. [21]. This issue presents “no difficulty” when the corporation’s act causes harm immediately. [23]. However, issues of causation may arise when there is a delay between the corporation’s act and the resulting harm. [24]. In cases where there are issues of causation, the Court held the analysis remains the same:

“It is only upon the occurrence of an effect which must be regarded as falling within the definition of serious environmental harm that the corporation becomes criminally liable under s 437(1).” [24].

In considering the operation of s 493(2), the Court observed that s 493(3) provides a rebuttal presumption that evidence of a corporation having committed an offence is also evidence of the liability of its executive officers in office at the time of the offending. [24]. However, that presumption can be rebutted, pursuant to s 493(4) if the executive officer proves that they “took all reasonable steps to ensure the corporation” complied with the Act or that they were “not in a position to influence the conduct of the corporation in relation to the offence”. [26].

Therefore, in a case where the accused person was not an executive officer at the time of the offending by the corporation, the extent to which the accused person, “before his or her tenure”, had taken steps to ensure that the corporation’s act did not result in serious environmental harm or was in a position to influence the conduct of the corporation would be relevant. [28].

A Hughes of Counsel