Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd

Court of Criminal Appeal (NSW)|2021-11-17|Before: Preston CJ, Price J, Adamson J, Pepper J

Nature of appeal and outcome

This appeal concerns whether a summons that charges in one count multiple acts of polluting waters committed over an extended period, each of which could constitute a separate offence against s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act), is bad for duplicity.
The defendant, Charlotte Pass Snow Resort Pty Ltd (Charlotte Pass), has been charged with a single offence of polluting waters, although there were some 78 acts of polluting waters over a two and a half month period. Charlotte Pass pleaded guilty to this charge. Subsequently, Charlotte Pass applied by notice of motion for orders that the summons charging it with the offence of polluting waters be set aside as duplicitous or alternatively requiring the prosecutor, the Environment Protection Authority (EPA), to elect as to the single act of water pollution that should be charged and to seek leave to amend the summons accordingly to avoid the duplicity. In addition, Charlotte Pass applied for leave to withdraw its plea of guilty to the charge.

The statutory scheme regulating the operation of the STP

Charlotte Pass is the head lessee of Charlotte Pass Village, located within the Kosciusko National Park in the Snowy Mountains of New South Wales. It operates a resort at Charlotte Pass Village with accommodation and facilities and a sewage treatment plant (STP) to service the village. The STP is located about 300-400m from the main resort area. The STP receives and treats sewage and waste water from Charlotte Pass Village. The effluent is pumped into a lagoon, passed either automatically or manually through sand filters and an ultra-violet (UV) steriliser, and discharged by a pipe into an unnamed tributary of Spencers Creek. Although the effluent discharged from the STP into the tributary has been partially treated, the discharge into the tributary still involves pollution of waters as the effluent contains levels of pollutants, such as ammonia and total nitrogen, greater than the levels of those pollutants in the receiving waters of the tributary.
The carrying on of sewage treatment processing at the STP is a scheduled activity under the POEO Act, with the consequence that an environment protection licence is required. Section 48(2) of the POEO Act provides that an occupier of premises on which a scheduled activity is carried out is guilty of an offence unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises. A scheduled activity is one where sch 1 of the POEO Act indicates that a licence is required for premises at which the activity is carried on. Clause 36 of sch 1 identifies sewage treatment as a scheduled activity.
Charlotte Pass, as a person who carries on the scheduled activity of sewage treatment, was required to and did hold an environment protection licence authorising the carrying on of that scheduled activity, being environment protection licence No 1591 (the EPL). Condition A1.4 of the EPL provided in part: "This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2."
The scheduled activity listed in the condition is "sewage treatment." Condition A2.1 identified the premises as being the STP at Charlotte Pass Village. Condition A2.2 extended the premises to include the reticulation system that is associated with the STP.
In addition, the discharge of the partially treated effluent from the STP into the waters of the tributary involves pollution of waters. Under s 120(1) of the POEO Act, a person who pollutes any waters is guilty of an offence. "Waters" is broadly defined in the Dictionary to the POEO Act and relevantly includes "any river, stream…, natural or artificial water course", such as the tributary of Spencers Creek. "Water pollution" or "pollution of waters" is also broadly defined in the Dictionary to include: "(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed…"
It is a defence to an offence against s 120(1) if the pollution of waters was regulated by, and in accordance with, an environment protection licence. Section 122(1) provides: "It is a defence in proceedings against a person for an offence under this Part if the person establishes that - (a) the pollution was regulated by an environment protection licence held by the person or another person, and (b) the conditions to which that licence was subject relating to the pollution of waters were not contravened."
As the discharge of partially treated effluent from the STP into the tributary involved pollution of waters, Charlotte Pass was required to and did hold an environment protection licence that regulated this water pollution. The EPL that authorised the carrying on of the scheduled activity of sewage treatment also regulated water pollution from the carrying on of that scheduled activity. Condition A1.1 of the EPL provided that: "This licence regulates water pollution resulting from the activity specified below carried out at the premises specified in A2."
The activity specified in condition A2.1 was sewage treatment processing by small plants. Condition A2.1 specified the premises as being the STP, which includes the reticulation system associated with the STP (condition A2.2).
Condition L1 dealt with pollution of waters. Condition L1.1 stated: "Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997."
Condition L1.2 stated: "The licensee may only discharge untreated or partially treated sewerage from the sewage treatment plant and/or the reticulation system subject to the conditions of the licence, including O1 and O2."
Condition L1.2 referred to conditions O1 and O2. Condition O1 required that the licensed activities be carried on in a competent manner and Condition O2 required all plant and equipment installed at the premises or used in connection with the licensed activity to be maintained in a proper and efficient condition and be operated in a proper and efficient manner.
Other conditions regulated the discharge of untreated or partially treated sewage from the STP. Condition P1 identified the discharge and monitoring points. Condition P1.2 provided: "The following points referred to in the table are identified in this licence for the purposes of the monitoring and/or the setting of limits for discharges of pollutants to water from the point."
The table to condition P1.2 identified the point at which partially treated effluent is authorised to be discharged from the STP into the tributary as being discharge point 1.
Conditions L2 and L3 specified respectively the concentration limits and the volume and mass limits for any pollutant discharged at a monitoring or discharge point specified in the table to the condition. Each of the tables to conditions L2 and L3 only specified point 2, which was the monitoring point in the plant room of the STP, rather than point 1, which was the discharge point to the tributary. The concentration limits specified for pollutants in the table to condition L2 are expressed in terms of percentile concentration limits. For example, for the pollutant of nitrogen (ammonia), the 90 percentile concentration limit was 2mg per litre and the 100 percentile concentration limit was 5mg per litre.
The discharge of pollutants was required to be monitored. Condition M2 required that for each monitoring or discharge point or utilisation area specified in the table to the condition, the licensee was required to monitor the concentration of each pollutant specified in the table. The table to condition M2 specified point 2, the monitoring point in the plant room of the STP, and points 3 and 4, which are upstream and downstream of discharge point 1 in Spencers Creek. The pollutants specified in the table include nitrogen (ammonia). Condition M6 requires monitoring of the volume of liquids discharged at the point specified in the table to the condition, which was only monitoring point 2.

The acts of water pollution at the STP

During the 2019 winter season, Charlotte Pass operated a snow resort at Charlotte Pass Village. This required operation of the STP. During the period from about 9 July to 24 September 2019, Charlotte Pass discharged partially treated effluent from the STP into the tributary on at least 78 occasions. Over three days during this period, effluent was also transported to the Perisher Valley Sewage Treatment Plant, to increase capacity at the STP at Charlotte Pass Village. On another occasion on 26 July 2019, although some of the effluent was discharged into the tributary, other effluent was discharged through a snow gun onto snow near discharge point 1. The EPA no longer presses the discharge of effluent by means of a snow gun as an instance of the water pollution offence.
On each of the 78 instances of discharge of effluent from the STP into the tributary, the EPA contended that concentration of pollutants, such as ammonia and total nitrogen, exceeded the water quality guideline value for these pollutants in the EPL.
Each of these discharges into the tributary over the charge period, therefore, involved an offence against s 120(1) of the POEO Act.

The charge for the water pollution offence

The EPA, in the summons filed on 7 July 2020, sought an order that Charlotte Pass appear before the Court below: "to answer the charge that, from about 9 July 2019 to about 24 September 2019 inclusive, at or near the Charlotte Pass sewage treatment plant, Charlotte Pass Village, Perisher Valley in the State of New South Wales (the STP), committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act), in that it polluted waters. Particulars a. Waters An unnamed tributary of Spencers Creek near the STP, and downstream thereof. b. Pollutant Partially treated sewage effluent containing elevated levels of ammonia and total nitrogen. c. Manner of breach The Defendant, being the occupier of the STP, discharged the Pollutant from the STP into the Waters."

The primary judge's finding that the summons was duplicitous

The primary judge found that the summons was duplicitous as the one charge comprised numerous discrete discharges of effluent into the tributary, resulting in multiple discrete contraventions of s 120(1) of the POEO Act within the charge period. The judge found at [99]: "When regard is had to the manner by which the pollute waters offence is charged and particularised, especially as further particularised in the DSOAF, and as the evidence outlined above makes plain, each instance of discharge of effluent into the tributary or onto the snow was a complete offence against s 120(1) as at the moment of discharge. Each discharge was discrete, planned, and manually carried out. The Resort did not allow the effluent to discharge continuously, or even automatically, over a number of days. Rather, a deliberate decision was made on each occasion and on separate days to discharge effluent into the tributary or onto the snow. Each discharge constituted an individual act that was complete as at the moment of its performance. Even viewed as a whole, the discharges remained a number of separate completed acts."
The primary judge found that the polluting activity over the charge period did not fall into either of the exceptions to the rule against duplicity. The primary judge found that the offence charged was not a continuing offence, so it did not fall within the first exception: at [98]. The primary judge rejected the EPA's argument that the polluting activity fell within the second exception to the rule against duplicity, that the acts of discharging effluent into the tributary during the charge period were sufficiently connected with each other to constitute a single criminal enterprise: at [100]. The primary judge found at [101]: "Although finely balanced, I do not accept that these features are sufficient to unify the alleged conduct into a single criminal transaction for the purpose of laying one charge in respect of acts that ought to be prosecuted as multiple offences. In this regard it is noted that: (a) the discharges took place over approximately three months; (b) the fact that there was an almost uniformly consistent method of discharge merely means that the multiple separate acts of discharge were of a similar kind. The repetition of similar acts does not meld those acts into a continuous whole (Kiangatha at [58]); (c) the discharges were not uniform in volume and resulted in varying levels of pollutant entering the tributary on each occasion. For example, according to the DSOAF, the discharges that occurred on 11, 12, and 13 July 2019, are alleged to have exceeded the 90th percentile limit in the EPL, but not the 100th percentile limit. The Resort may therefore have a defence pursuant to s 122(1)(b) of the POEOA to any act concerning a discharge on those days if it can be demonstrated that over the 12 month reporting period 90% of the samples did not exceed 2mg/L of ammonia concentration. While the prosecutor stated that this defence was not plausible given the Resort's on-site testing, this is ultimately a matter for evidence before the trial judge; and (d) only limited weight ought to be placed on the fact that the Resort's intention in committing the alleged offences was consistent. In Kiangatha the defendant's intention was equally consistent, viz, to construct the road."
The reference to Kiangatha was to this Court's decision in Kiangatha Holdings Pty Ltd v Water NSW (2020) 247 LGERA 1; [2020] NSWCCA 263 (Kiangatha).
The primary judge observed in [102]: "By consolidating into a single breach of s 120(1) of the POEOA multiple discharges of effluent occurring over a three month period, the prosecutor is going well beyond, borrowing the example in Kiangatha, 'joining up as one event several bucket loads or dozer pushes at a single location near a single gully' (Kiangatha at [60]). As the facts here demonstrate, a decision was made by the Resort to manually stop and manually start discharging varying quantities of effluent into the tributary each day. Testing of the effluent sometimes occurred prior to recommencing its discharge. These characteristics rendered the offence separate and complete on each occasion that a decision was made, and executed, to turn the pump on and to discharge effluent."
The primary judge considered the multiple acts over the charge period to be unconnected: "It is acknowledged that such factors are not apparent on the facts of this application. However, there is nothing about the offending that took place on 9 July 2019 and the offending that occurred on 24 September 2019 that can be described as close in time (Walsh at 109 per Kirby J). Equally, the snow gun discharge on 26 and 27 July 2019 was neither close in time, space, or method, to the other alleged offending acts occurring within the charge period." (at [104]).
The primary judge considered the fact that there was a different daily intention to discharge effluent from the STP to be of significance: "Furthermore, while the overall intention of the Resort may have remained constant during this period (to avoid an overflow), the Resort's daily intention varied insofar as a decision was separately made each day to discharge differing volumes of effluent into the tributary."(at [105]).
The primary judge referred to this Court's decision in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202. The primary judge continued at [110]: "Although there is no equivalent to the "per day" proscription in the present case, it remains the fact that, applying the reasoning underlying the decisions in Tropic Asphalts and Kiangatha, each time that it was decided that a discharge of a certain quantity of effluent should occur into the tributary and each time that this intention was manually and deliberately carried out, a pollute waters offence was complete and ought to have been separately charged."
The primary judge relied on the event on 26 July 2019 where some of the effluent was discharged by means of a snow gun onto snow, while other effluent was discharged directly into the tributary. The primary judge considered that these different means of discharging the effluent on this occasion were not "similar enough": at [111]-[112].
Finally, the primary judge rejected the EPA's submission concerning the administrative inconvenience if 78 separate charges needed to be laid against Charlotte Pass, saying that "administrative inconvenience is no answer to the rule against duplicity": at [115].
For these reasons, the primary judge found that the summons charging a single pollute waters offence was duplicitous: at [116].
As to remedy, the primary judge considered that: "The pollute waters summons ought therefore be stayed until the prosecutor elects and particularises in relation to the pollute waters summons the single offence contrary to s 120(1) of the POEOA upon which it will proceed." (at [117]).
The primary judge subsequently so ordered.

The EPA's appeal

The EPA accepted that each of the 78 discharges of effluent from the STP into the tributary was capable of being charged as a separate offence of polluting waters contrary to s 120(1) of the POEO Act. The EPA submitted, however, that by reason of each discharge being sufficiently connected with the other discharges, the discharges amount to a single compendious instance of offending, which can be charged in a single count: Kiangatha at [34]. The EPA submitted that whether acts are "sufficiently connected" is "a question of fact and degree for decision in each case": R v Eades (1991) 57 A Crim R 151 at 156; Walsh v Tattersall (1996) 188 CLR 77 at 108; [1996] HCA 76; Kiangatha at [35].
The EPA noted that some indicia have emerged from the authorities, which if present, could sustain a single count, notwithstanding that the events would constitute separate offences. The EPA referred to Kirby J's summary of the indicia in Walsh v Tattersall at 108: "Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct [Weinel v Fedcheshen (1995) 65 SASR 156 at 170 per Perry J]". See also Kiangatha at [35].
In the present case, the EPA submitted each separate act of discharging effluent into the tributary was sufficiently connected with the others to constitute a single criminal enterprise because: "a. The acts of discharging were connected in time, in that there were multiple discharges each day throughout the 3 month charge period. b. The acts of discharging were connected by location. Even though the STP was sometimes operating automatically and sometimes operating manually, the effluent was discharged from the STP into the same place (Discharge Point 1) and the same way each time ie it was pumped up from the lagoon through the filters and out through the pipe at Discharge Point 1 and into the Tributary (noting that the Appellant no longer relies on the discharges through the snow gun). c. The acts of discharging were connected by virtue of the same intention on the part of the Respondent. The Respondent had the same intention each time it discharged the Effluent, namely, to facilitate and control the volume of Effluent being discharged from the STP so as to avoid any uncontrolled discharges from the lagoon into the environment. d. Accordingly, it is submitted that the separate acts of discharging are all connected in time, place, method and intention, thereby satisfying the indicia for the second exception to the rule against duplicity." (paragraph 59 of the EPA's submissions).
The EPA submitted that the primary judge erred in rejecting these as indicia of a single criminal enterprise.
The EPA further challenged the primary judge's rejection of the administrative inconvenience of having to bring 78 separate charges. The EPA submitted that the prosecutor was not present when the discharges occurred and could not know when, what and how the discharges were made, a similar problem to that noted in Bentley v Gordon [2005] NSWCCA 117 at [55]. Laying 78 charges would involve paying the filing fee of the Court below for each summons 78 times, and photocopying the supporting affidavit and documentary material 78 times, adding further cost and inconvenience.

Charlotte Pass' defence of the appeal

Charlotte Pass' primary position was that the primary judge's decision and reasoning were correct and did not contain error. The primary judge was correct in finding that each of the 78 instances of water pollution constituted a separate offence against s 120(1) of the POEO Act. Each discharge of effluent from the STP into the tributary involved a different pollution of waters, not the least because the water that was polluted by its discharge was different water by reason of the flowing of the stream. The volume of effluent discharged, and the concentration of pollutants in the effluent discharged, varied with each act of pollution. Charlotte Pass also noted that the discharges of effluent into the tributary were interrupted during the charge period by instances of transportation of effluent from the STP to the Perisher Valley Sewage Treatment Plant and discharge of effluent by use of snow guns.
In these different respects, Charlotte Pass submitted, there can be seen to be such variations in mode and circumstances of the discharge on each occasion that the various acts of water pollution do not have the requisite degree of similarity so as to be capable of being considered a single compendious instance of offending by polluting waters.
Charlotte Pass rebutted the EPA's argument concerning the administrative inconvenience of having to bring multiple charges. Charlotte Pass submitted that the primary judge was correct in saying that administrative inconvenience does not permit significant departure from the strict approach to the issue of duplicity. It might be a significant burden for the prosecutor to bring multiple charges but the rule against duplicity is to be strictly applied, for the reasons given by Kirby J in Walsh v Tattersall at 110-111.
Departure from the strict rule against duplicity would work unfairness in this case, as it might affect the availability of the defence in s 122(1)(b) of the POEO Act based on the EPL and the non-contravention of the conditions of the EPL. Charlotte Pass submitted that it may have more difficulty in relying on the defence to a compendious charge for multiple acts of water pollution in the charge period, rather than separate charges for each act of water pollution in this period, as the issue of whether the discharge on any occasion contravened the conditions of the EPL would need to be addressed having regard to the facts and circumstances of each discharge.
Charlotte Pass also rebutted the EPA's reliance on the indicia of intention. The offence under s 120(1) of the POEO Act is one of strict liability. Charlotte Pass' intention is not an element of the offence and hence cannot be a criterion for ascertaining whether multiple offences constitute a single criminal enterprise.

The multiple acts involve a single criminal enterprise

The question of whether a statute attaches criminality to an ongoing criminal enterprise, as opposed to a particular act, is inevitably a question of statutory construction: Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [51].
In the case of acts of water pollution, this involves statutory construction not only of the provision of the POEO Act that creates the offence of water pollution (s 120(1)) but also the provision that allows for a defence to the offence if the water pollution was regulated by an environment protection licence (s 122(1)) and the provisions of any environment protection licence that has been issued to regulate water pollution.
Construction of these provisions of the POEO Act and any environment protection licence issued under the POEO Act will ordinarily reveal that multiple acts of water pollution resulting from carrying out the activity specified in the environment protection licence will be sufficiently connected to amount to a single compendious instance of offending.
In the present case, the operation of the STP involves the carrying on of the scheduled activity of sewage treatment. Charlotte Pass, as the occupier of the premises on which the scheduled activity of sewage treatment is carried on, is required to hold an environment protection licence that authorises that activity to be carried on at those premises: s 48(2) of the POEO Act. The EPL does authorise sewage treatment to be carried on at the premises of the STP. Operation of the STP necessarily involves the discharge of effluent that has been treated at the STP. The EPL authorises the discharge of treated effluent from the STP into the waters of the tributary joining Spencers Creek. The only authorised discharge point into the tributary is point 1. Any discharge of effluent at this point is subject to the conditions of the EPL, including conditions specifying the concentration limits for specified pollutants and the volume/mass limit specified for discharges at this point.
The necessary consequence of these provisions of the POEO Act and the EPL is that, in order to be authorised by the EPL, each act of water pollution must involve only the discharge of "untreated or partially treated sewage" (condition L1.2); from the scheduled activity of sewage treatment carried on at the specified premises of the STP (condition A1.1, A1.4, A2.1, A2.2 and L1.2); at the discharge point specified in the EPL, being discharge point 1 (condition P1.2 and L1.2); and not exceeding the specified concentration limits for pollutants and the specified volume/mass limit for any monitoring or discharge point (condition L2.1, L2.4 and L3.1).
The POEO Act and the EPL accordingly dictate that the acts of discharging effluent from the STP into the tributary, which involve the pollution of waters, not only will be similar (the second of the indicia in Walsh v Tattersall) but also will occur at the same place (the third of the indicia). As to the similarity of the acts, the volume of effluent discharged and the concentration of pollutants in the discharged effluent may vary from day to day, depending on, amongst other things, the volume of sewage and waste water received at the STP, the capacity of the lagoon at the time and the efficiency of operation of the STP. But the unifying characteristics are that the discharges must be by the same specified scheduled activity (sewage treatment), from the specified premises (the STP), of the specified nature (untreated or partially treated sewage), at the specified discharge point (discharge point 1) and not exceeding the specified concentration limits for pollutants or the specified volume/mass limit at the specified monitoring or discharge point. The need for the discharges from the STP to have these characteristics leads to the similarity of the acts of discharge. So too, the need for the discharges to be from the STP and at the same discharge point leads to the physical proximity, indeed identicality, of the place where the acts of discharge occur.
The acts of discharge were, therefore, sufficiently connected as to be fairly and properly identified as part of the same criminal enterprise or the one criminal activity of polluting the waters of the tributary: see R v Hamzy (1994) 74 A Crim R 341 at 348 (Hamzy).
I have dealt so far with two of the indicia summarised by Kirby J in Walsh v Tattersall that are supportive of this conclusion that the acts of discharge may be charged compendiously in the one count of polluting waters. The other two indicia are more equivocal in their application to this case, although neither point against this conclusion.
The first of the indicia is the connection of the events in point of time. The charge period is around two and half months in the 2019 winter season. The 78 discharges of effluent from the STP into the tributary occurred during this period. To this extent, a common characteristic of the discharges is that they all occur in the charge period. But to so note is somewhat self-fulfilling; the discharges have this common characteristic because the charge period was selected to embrace these discharges. There is another way of viewing this temporal connectivity and commonality. The connection in time derives from the discharges all occurring during, and as a necessary consequence of, the operation of the STP. The connection in time is between the acts of discharge from the STP and the operation of the STP; the two are necessarily co-terminous. Again, this connection might be seen to be self-fulfilling: the discharge of effluent as part of the operation of the STP necessarily will be connected in time with the operation of the STP.
This indicia can be viewed in the converse. If this is done, it does not point against the acts of discharge being sufficiently closely connected so as to be regarded as a single criminal enterprise. Charlotte Pass' attempt to distinguish different acts of discharge during the charge period, the early ones from the later ones and the direct discharges into the tributary from the indirect discharges by means of snow guns onto the snow next to the discharge point into the tributary, do not break the temporal connection between the acts of discharge from the STP into the tributary and the operation of the STP.
The fourth of the indicia concerns the intention of Charlotte Pass throughout the charge period in discharging effluent into the tributary. Necessarily, in order not to commit the offence of polluting waters and not to contravene the EPL, the intention of Charlotte Pass in discharging the effluent remained constant, namely to discharge effluent treated at the STP into the tributary as authorised by, and in accordance with, the EPL. This is the relevant intention for the inquiry of whether the acts of discharge were part of the one criminal enterprise, so as to be susceptible to be charged in the one count of polluting waters. It is not to the point that the offence of polluting waters is one of strict liability, so that an intention to pollute waters is not an element of the offence. That is uninformative for determining whether the multiple acts of polluting waters can be charged in the one count.
To the extent that the primary judge found these four indicia pointed against a conclusion that the multiple acts of discharge of effluent into the tributary were part of one compendious instance of offending, the primary judge erred. The fact that the discharges occurred over a two and half month period does not indicate a lack of connection between the discharges, for the reasons given above. The primary judge recognised "an almost uniformly consistent method of discharge", but rather than finding that this indicated connectivity and commonality between the acts of discharge, found that it merely indicated repetition of similar acts. For the reasons I have given earlier, that repetition of similar acts of discharge is a necessary result of the operation of the provisions of the POEO Act and the EPL. Charlotte Pass sought to ensure that each discharge of effluent from the STP into the tributary would not contravene the EPL and the POEO Act, which lead to the similarity in the acts of discharge.
The differences in the volume of effluent discharged or the concentrations of pollutants in the discharged effluent did not break the connection between the discharges that derives from them all being a necessary product of carrying on the STP in accordance with the EPL and POEO Act. The conditions of the EPL allow for differences in volume and concentration levels of the effluent discharged from the STP into the tributary, provided that the volume and concentration levels of pollutants do not exceed those set by the conditions of the EPL. That is particularly evident with regard to the concentration limits set by condition L2 of the EPL. The condition does not set a concentration limit for the specified pollutants for each and every discharge of effluent on any occasion, but rather the concentration limits are set by reference to the 90 percentile and 100 percentile of the concentration levels of discharges over an annual period. For example, 90% of the discharges over a year need to meet the concentration level for nitrogen (ammonia) of 2mg per litre. This would permit some discharges to have a concentration of nitrogen (ammonia) in excess of 2mg per litre.
Thus, the fact that there was variability in the volume and concentration levels of the pollutants in the effluent discharged is, by itself, uninformative and does not indicate that there is a lack of connection between the discharges. Other indicators of connectivity and commonality between the discharges are more informative, including the discharges being by the same scheduled activity, from the same premises, of the same nature, at the same location (the same discharge point into the same waters) and in accordance with the same conditions of the EPL.
There would also be the same defence under s 122(1) of the POEO Act regardless of whether the acts of discharge that polluted the waters of the tributary are charged as one count or multiple counts. The defence operates distributively in respect of each act of discharge. Charlotte Pass will have a defence if any discharge that pollutes waters is authorised by, and not in contravention of the conditions of, the EPL.
Finally, as I have stated earlier, the relevant intention is not Charlotte Pass' intention in committing the offences, as the primary judge found, but simply the intention to discharge effluent in the operation of the STP. It is this latter commonality of intention in undertaking the discharge of effluent into the tributary that is an indicator of the connection between the various acts of discharge.
For these reasons, the primary judge erred in the application of the second exception to the rule against duplicity. On a proper application of the exception to the facts of this case, the exception is established. Accordingly, the multiple acts of discharge from the STP into the tributary during the charge period were able to be charged as a single count of polluting waters contrary to s 120(1) of the POEO Act.
The primary judge's order, based on her finding that the summons was duplicitous, staying the proceedings until the EPA elects and particularises a single count contrary to s 120(1) of the POEO Act upon which it will proceed, should be set aside.

Deciding the question of duplicity before the application to withdraw the guilty plea

The second ground on which the EPA appealed the judge's decision flowed from the primary judge choosing to decide Charlotte Pass' application that the summons be dismissed or stayed as duplicitous before deciding its application for withdrawal of its plea of guilty to the charge in the summons.
Logically, Charlotte Pass' application to withdraw its plea of guilty to the charge in the summons needed to be dealt with before determining whether the summons so charging Charlotte Pass was duplicitous. There is nothing untoward in an accused pleading guilty to a compendious charge; indeed the accused may find it advantageous to do so. The accused may agree to plead guilty to a rolled-up change, either by negotiation with the prosecutor or otherwise: R v El-Kotab (2002) 4 VR 546; [2002] VSCA 109; R v Jones [2004] VSCA 68; R v Beary (2004) 11 VR 151; [2004] VSCA 229. The accused may choose to plead guilty to what it thinks might be a duplicitous charge for convenience, or to save the cost of arguing the duplicity point, or because it thinks it would be better off pleading to a single charge than to multiple charges. In the last mentioned situation, the accused might choose to do so in order to cap the level of sentence imposed, such as the quantum of any fine or the length of any sentence of imprisonment.
The current charge in the summons in this case for the offence of polluting waters on multiple occasions is an example. By pleading guilty to one charge of polluting waters contrary to s 120(1) of the POEO Act, Charlotte Pass caps the quantum of the monetary penalty that can be imposed to be the maximum penalty for the offence, which is $1,000,000 for a corporation: s 123(a) of the POEO Act. If separate summonses were to be laid charging Charlotte Pass with each of the 78 discharges involving pollution of waters, Charlotte Pass would be exposed to monetary penalties totaling $78,000,000.
The EPA submitted, therefore, that an accused can choose to plead guilty to a charge that it may think is duplicitous, whether it actually is or is not duplicitous, and to do so for multiple reasons.
The problem of deciding the issue of duplicity of the summons before the issue of the withdrawal of the guilty plea was compounded by the primary judge's decision to stay the proceedings until the EPA elects and particularises a single offence of polluting waters upon which it would proceed. If the EPA were to elect and particularise a single offence of polluting waters, there would be a disconnection and an incompatibility between the extant plea of guilty to the charge of committing polluting waters on multiple occasions and the newly particularised charge of committing the offence of polluting waters on a single occasion.
The EPA argued that the primary judge should have dealt with the application for withdrawal of the guilty plea to the charge in the summons before dealing with the issue of the duplicity of the summons. Nevertheless, having failed to do so, and instead determining the issue of the duplicity of the summons first, the primary judge should not have ordered the EPA to elect and particularise a single offence of polluting waters before dealing with the application for withdrawal of the guilty plea. The EPA submitted that there can be no presumption that just because a court finds a summons to be duplicitous, leave will automatically be granted for a defendant to withdraw its guilty plea. The test for a court granting leave to withdraw a guilty plea remains the same, regardless of whether the summons is duplicitous. The defendant must demonstrate that a miscarriage of justice has occurred: R v F (1996) 90 A Crim R 356 at 357. In that case, Hunt CJ at CL stated at 359-360: "It is not often that the inclusion of more than one offence in the one count could lead to a miscarriage of justice where there is a plea of guilty, in that such a miscarriage arising out of duplicity is usually associated with the difficulty for the accused person in submitting that there is no case to answer in relation to some but not all of the offences included within the charge, and in raising pleas of autrefois acquit or autrefois convict should he subsequently be charged with one of the offences included within the one count, as no one would know whether that particular offence had been accepted or rejected by the jury. [Hamzy at 344, 346-347]. None of those embarrassments can usually arise where there has been a plea of guilty."
The EPA submitted that the onus is on Charlotte Pass to convince the court below that leave ought to be granted to withdraw its guilty plea and there can be no presumption that leave will be granted solely on the basis that the summons is duplicitous, particularly in the absence of any evidence to suggest that it lacked a "genuine consciousness of guilt" when it pleaded guilty to the charge.
Charlotte Pass sought to uphold the primary judge's course of action in, first, deciding the issue of the duplicity of the summons before determining Charlotte Pass' application for withdrawal of its guilty plea and, secondly, ordering the EPA to elect or particularise a single offence of polluting waters before deciding the application for withdrawal of the guilty plea. Charlotte Pass argued that duplicity goes to the root of proceedings: Walsh v Tattersall at 110 citing Hamzy at 344. It was appropriate to decide the issue of duplicity before deciding the application for withdrawal of the guilty plea.
Charlotte Pass submitted that there should be some consequence of the primary judge finding that the summons is duplicitous. The primary judge's order that the EPA elect and particularise a single offence of polluting waters is the logical consequence to remove the duplicity found by the primary judge. The EPA's argument that the primary judge should not have so ordered the EPA to elect and particularise a single charge would mean that there is, in effect, no consequence of the finding of duplicity.
I find that the primary judge ought not to have dealt with the issue of duplicity of the summons before dealing with Charlotte Pass' application to withdraw its plea of guilty to the charge in the summons. Nevertheless, having done so, the primary judge ought not to have ordered the EPA to elect and particularise a single charge of polluting waters before dealing with Charlotte Pass' application to withdraw its guilty plea to the extant charged in the summons. My reasons are those advanced by the EPA and summarised above. The primary judge's order should be set aside on this ground as well.

Orders

I propose this Court make the following orders: 1. Uphold the appeal. 2. Set aside order 1 of Pepper J dated 21 May 2021. 3. Dismiss the application for order 1 and 2(a) in the Notice of Motion filed by the respondent in the Land and Environment Court proceedings 2020/200270 on 27 November 2020.
PRICE J: I agree with Preston CJ of LEC.
ADAMSON J: I agree with Preston CJ of LEC.

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(2005) 139 LGERA 449

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