Environment Protection Authority v Newcastle Port Corporation

Land and Environment Court (NSW)|2019-12-12|Before: Pain J

SOLICITORS: Environment Protection Authority (Prosecutor) HWL Ebsworth (Defendant) File Number(s): 18/379993

Judgment

The Prosecutor the Environment Protection Authority (EPA) has commenced by summons filed on 10 December 2018 criminal proceedings alleging water pollution by the Newcastle Port Corporation (Defendant) between 12 and 14 December 2017 at or near Lot 101 DP 1095252 on William Allen Drive, Eden (Premises). The EPA has filed a notice of motion dated 23 August 2019 seeking leave of the Court to rely on an amended summons annexed to the notice of motion. The notice of motion is opposed by the Defendant.

Proposed amended summons

The amended summons sought to be relied on by the EPA (Ex A) provides (proposed additions are underlined): Relief Claimed The Prosecutor claims: 1 An order that the defendant, Newcastle Port Corporation (ABN 50 825 884 846), having its registered office at 100 Wharf Road, Newcastle in the State of New South Wales, appear before a Judge of the Court to answer the charge that, between about 12 December 2017 and about 14 December 2017 inclusive, at or near Lot 101 DP 1095252 on William Allen Drive, Eden in the said State (Premises), it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it polluted waters. Particulars a. Waters A table drain that runs between the northern boundary of the Premises and William Allen Drive and downstream thereof. b. Pollutant Sediment laden water, containing: i. Plant matter; and/or ii. Matter that causes biochemical oxygen demand; and/or iii. Liquid that contains suspended and dissolved solids; and/or iv. Matter that has a pH value of less than 6.5. c. Manner of breach The Defendant, as owner of the Premises, caused a contractor engaged by it, John Michelin & Son Pty Ltd, to pump the Pollutant from a dam on the Premises known as Sediment Basin 1, resulted in the Pollutant entering, or being likely to enter, the Waters (Pollution). Alternatively, the Defendant was, within the meaning of "occupier" as defined in the Dictionary to the POEO Act, an occupier of: i. Sediment Basin 1 and/or ii. the point of the table drain at which the Pollutant entered the table drain, and is accordingly taken to have caused the Pollution by force of s 257(1) of the POEO Act. 2 An order under section 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence. 3 That the Defendant be dealt with according to law for the commission of the above offence. 4 An order that the Defendant pay the Prosecutor's costs. 5 Such orders pursuant to Part 8.3 of the POEO Act as the Court in its discretion sees fit to make. 6 Such other orders as the Court in its discretion sees fit to make.
According to the EPA's amended statement of facts (Ex B), the Defendant, a statutory body, owns Newcastle Port which includes the Premises. John Michelin & Son Pty Ltd (Michelin) is an excavation and earthmoving company contracted by the Defendant to inter alia clean the sediment basins on the Premises. Australian Marshalling Services Pty Ltd (AMS) holds an environment protection licence (EPL) covering the Premises.
The EPA provided a bundle of photographs of the Premises (Ex C).

Protection of the Environment Operations Act 1997

Relevant provisions of the Protection of the Environment Operations Act 1997 (POEO Act) provide: Chapter 5 Environment protection offences … Part 5.3 Water pollution 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted. … Chapter 8 Criminal and other proceedings … Part 8.2 Proceedings for offences Division 1 Proceedings for offences generally … 216 Time within which summary proceedings may be commenced (1) Proceedings for an offence under this Act or the regulations may be commenced - … (b) in any other case - within but not later than 12 months after that date. … Part 8.5 Evidentiary provisions … 257 Occupier of premises responsible for pollution from premises (1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that: (a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution. 258 Evidence relating to occupier of premises ... (2) In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period.

Power to amend

There is no dispute that the Court has the power to amend the summons. As the EPA submitted, pursuant to s 215(1)(b) of the POEO Act, proceedings for a breach of s 120(1) may be dealt with summarily before this Court in its summary jurisdiction. By s 21(a) of the Land and Environment Court Act 1979 (LEC Act), the proceedings are within Class 5 of this Court's jurisdiction. Pursuant to r 5.3 of the Land and Environment Court Rules 2007 (LEC Rules), the proceedings were commenced by summons claiming an order under s 246 of the Criminal Procedure Act 1986 (CP Act).
The summons falls within the definition of "indictment" in Pt 2 s 15(2) of the CP Act. Accordingly, the provisions of Pt 2 apply, as stated in s 15(1). Part 2 s 20(1)(a) confers power on the Court to permit an amendment to the summons. As Simpson J stated (Blanch and Garling JJ agreeing) in Rajendran v R (2010) 206 A Crim R 316; [2010] NSWCCA 322 at [36], "[a]lthough s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment".
Alternative sources of power include s 68(1) of the LEC Act and Pt 19 of the Uniform Civil Procedure Rules 2005, which applies to Class 5 proceedings by r 5.2(2)(e) of the LEC Rules: see, eg, Chief Executive, Office of Environment and Heritage v Manchee (2015) 209 LGERA 280; [2015] NSWLEC 117 at [78].

EPA's submissions

The amendment seeks to add an alternative particular to the present particulars as to the manner of breach. An amended statement of facts supporting the amendment was served on the Defendant on 20 August 2019. The proposed alternative particular as to the manner of breach seeks to engage s 257(1) of the POEO Act.
The first proposed amendment defines the act of pollution in the existing particular. The second proposed amendment adds an alternative particular that identifies the manner of the breach.

No duplicity

Where a statutory provision provides for alternative ways of committing the one offence, those alternatives may be the subject of a single count. In R v Ginies [1972] VR 394 (Ginies) a single count that the accused fraudulently "induced or attempted to induce" a named person to invest specified money was not duplicitous. The offence provision relevantly commenced as follows "[a]ny person who [fraudulently] induces or attempts to induce another person" to invest money shall be guilty of an offence. This was held to create only one offence which could be committed in alternative ways.
Similarly in Levidis v R [1991] 2 VR 179 (Levidis), there was no duplicity in a charge that the accused at a particular place and time "stole a quantity of jewellery belonging to" a specified person. This was so even though the prosecution sought to prove the offence in the following ways. Firstly, by showing from the evidence of witnesses that the accused assumed the rights of the owner of the goods on the day in question so as to engage the statutory definition of "appropriation". Secondly, in the alternative by the "doctrine of recent possession" - proof of possession of stolen goods without a satisfactory explanation so as to allow the inference to be drawn that the possessor was the thief.
The EPA intends to rely on the deeming provision in s 257 to establish the element in s 120(1) of the POEO Act that the Defendant caused waters to be polluted. This does not mean that a charge which relies on the deeming provision alleges a different offence from one which does not: Environment Protection Authority v Riverina Australia Pty Ltd (2015) 90 NSWLR 57; [2015] NSWCCA 165 (Riverina) at [123]-[127]. There is a single offence and the POEO Act provides alternative ways for that offence to be committed. Duplicity does not arise merely from reliance on the deeming provision.
In Riverina, the manner of contravention particularised in the summons relied both on the defendant's status as occupier (particular (i)) and alternatively on the defendant's act as causing or permitting the pollutant to enter the waters (particulars (ii) and (iii)): at [12]-[13]. There was no suggestion by the Court of Criminal Appeal that this, of itself, meant that the count was bad for duplicity. The difficulty in Riverina was that while particulars (ii) and (iii) when read with the letters of particulars made a precise allegation as to placement of the pollutant into a specific location, particular (i) was entirely general. The Court found that particular (i) was uncertain and therefore duplicitous because it was not sufficiently confined to the acts of pollution outlined in particulars (ii) and (iii).
The proposed amended summons is entirely different to the summons considered in Riverina. The particularised premises of which it is alleged the Defendant was the occupier, at or from which it is alleged that the pollutant entered the table drain, are not the whole of the premises of which the Defendant is an occupier. The particularised premises are limited to Sediment Basin 1, being the point from which it is alleged the pollutant entered the table drain and the point of the table drain itself at which the pollutant entered the table drain. Further, by the definition of "Pollution" the manner of pollution is identified, namely the pumping of the pollutant from Sediment Basin 1 by Michelin, the Defendant's contractor.
No suggestion can therefore be made that the proposed amended summons "does not specify how or where on the [Defendant's] premises the offence or offences charged occurred" (cf Riverina at [104]). Nor is there any lack of particularisation "as to the acts or conduct alleged to have caused the pollution of waters". The relevant location on the Defendants' premises is identified precisely and is the same as that in the existing particular. The conduct which is alleged to have caused the water pollution is the same as that in the existing particular - the pumping of the pollutant from Sediment Basin 1 by Michelin. The only difference is that for the purpose of the alternative particular, it is not necessary to allege that the Defendant caused that conduct because instead it is alleged that the Defendant was the occupier of the particularised premises so as to engage s 257(1) of the POEO Act.
The cases relied on by the Defendant are distinguishable to this case. In Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 the charge was originally that "certain persons" had been seen coming out from the premises which was found to be duplicitous because the sighting of each person was a separate offence. The count was amended to refer to "a certain person". Since no particulars were given as to which person the count referred to, the count was found to be uncertain. This case is entirely distinguishable to the present case. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202 (Snowy Monaro), the charge of breach of a development consent each day over a three month period was found to be duplicitous because there was a fresh offence each day. In contrast, in this case a single act of pollution is being alleged. In Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain), the charge was breach of a licence condition by inadequately treating liquid waste and inadequately storing liquid waste. That was found to be duplicitous because inadequate treatment and inadequate storage, which occurred on different days and with different equipment, were separate acts that gave rise to separate offences. Again, this contrasts with the present case since a single act of pollution is being alleged. The Defendant cannot be convicted separately for the one act of pollution for firstly causing the pollution and secondly having been deemed to have caused the pollution.
R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 (Yildiz) and Chapman v R (2013) 232 A Crim R 500; [2013] NSWCCA 91 (Chapman) should be contrasted with the present case. In those cases duplicity was found because the alternative ways in which the contraventions were framed were based on different facts (different times in Yildiz and different drugs in Chapman).
The EPA accepted in reply that the alternative manner of breach sought to be introduced requires the EPA to prove that the Defendant was an "occupier" within the meaning of the POEO Act. However, more is required than a new fact to be proved for a particular to be duplicitous. A particular must, for example, outline different occasions of offending or different offending conduct - ultimately, a different offence.
Contrary to the Defendant's submissions, s 257 does not specify a different act of pollution. Similar to McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39; [2002] NSWCCA 24 (McConnell), the act of pollution in this case was the pumping of water. One act of pumping cannot give rise to two offences.

Discretion

The Defendant's assertion that the amendment should be refused as a matter of discretion since the EPA's reliance on s 257 of the POEO Act must fail is unfounded. The Defendant stated that s 258(2) deems AMS to be "the occupier" of Sediment Basin 1 and the point of the table drain at which the pollutant entered the table drain because it held the EPL covering those locations.
The EPA will contend at trial that s 258(2) has a different operation. It does not state that someone else who would be an occupier under the definition of that term in the Dictionary to the POEO Act would not also be an occupier. The use of the word "the" in s 258(2) does not do so given the rule of interpretation that "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form": Interpretation Act 1987 s 8(b). Section 258(2) must therefore be read as merely deeming the licence holder to be "one of the occupiers".
Notwithstanding the above, this is a question of construction for trial. The Court should not refuse an amendment on this basis unless satisfied that the construction for which the EPA contends is so hopeless that it is doomed to fail: R v Blackett [2018] NSWCCA 114 at [27]-[43]. The Court should not be so satisfied.

Duplicity

The proposed amended summons seeks to add an additional factual mode or manner of breach, namely that the Defendant, because it was an occupier (as defined in the Dictionary to the POEO Act) of Sediment Basin 1 and/or the table drain is deemed to have caused the pollution (the pumping of the pollutant from Sediment Basin 1 resulting in the pollution entering or being likely to enter the table drain).
Referring to Spigelman CJ's judgment in Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA 71, Ipp AJA (Kirby and Howie JJ agreeing) stated in McConnell at [29] that the conduct of the appellant's subcontractor in that case (the appellant was alleged to be vicariously liable for an offence under s 16 of the Clean Waters Act 1970) was required in the summons to explain the manner in which the offence was said to have been committed. The failure to allege the manner of the commission of the offence meant that there was an essential factual ingredient missing from the charge. According to McConnell, an act of pollution for the purposes of s 120 is not simply the physical movement of a pollutant. It may involve contractual arrangements that lead to vicarious liability. In this case, the EPA seeks to insert an alternative mode of contravention in the summons namely, that the Defendant was an occupier of the Premises. This involves an assertion that the Defendant has management or control of the Premises, factual matters which the EPA must particularise and prove.
This amendment introduces impermissible uncertainty. The amendment, as with the amendment considered by the High Court in Johnson v Miller, is bad because it is not now possible for the Defendant to know the particular offence it is called on to answer, see also Truegain at [42] (Leeming JA). In Johnson v Miller, the count was uncertain because it referred to "a certain person" leaving a premises at a prohibited time and the defendant would not know which of the relevant persons was the subject of the charge. The count was uncertain because it covered multiple separate factual scenarios (multiple people leaving the premises at a prohibited time) which is similar to the present case since the particular as amended would cover at least two separate factual scenarios. If the Defendant pleads guilty to the charge, it is uncertain what it would be found guilty of. This is because the proposed amended summons includes an alternative case based on different facts. The offence as originally alleged (the Defendant caused Michelin to pump water from Sediment Basin 1) is factually different in character to the alternative method of offending included in the proposed amended summons (occupation of the Premises).
It is also duplicitous because the result of the proposed amendment is that the summons now alleges four factually distinct offences against s 120 of the POEO Act as follows: 1. by the Defendant causing Michelin to pump the pollutant from Sediment Basin 1 into the table drain by giving instructions to Michelin; 2. by occupying the Sediment Basin 1 while Michelin pumped material into the table drain; 3. by occupying the table drain while Michelin pumped material into the table drain; and 4. by occupying both the table drain and Sediment Basin 1 while Michelin pumped material into the table drain.
It is impermissible for a summons to be duplicitous by including more than one offence in the same count (even against the same statutory provision): Johnson v Miller, Snowy Monaro and Truegain. The allegation sought to be made now would give rise to an offence that as a factual matter would be different in nature and content to that originally alleged: Truegain at [66]. To prove the offence originally alleged the EPA would need to establish some level of direction, control, relationship or actual involvement with the contractor Michelin. If the inclusion of the alternative factual particulars is allowed, the offence is alleged to be one that will be committed by mere occupancy of the table drain and/or Sediment Basin 1.
In Riverina, the summons was found to be duplicitous because it specified two different modes of contravention of the pollution offence there alleged. This is precisely what the EPA is seeking to introduce here by including in the summons three additional modes of contravention. Riverina is not authority that s 257 avoids a finding of duplicity where it is sought to allege different modes of breach or manners of contravention in the one charge. Indeed it was held in Riverina that reliance on s 257 does not mean that the defendant can be left in a position of embarrassment by not being told the particular matter or thing that is the foundation of the charge: Riverina at [127] and [128].
Chapman is similar to the present case since there were two different factual bases of liability rather than alternative legal formulations based on the same or substantially the same facts.
Yildiz is applicable and distinguished a mode of contravention that relies on a deeming provision (that is, does not require proof of intent or that drugs were held for the purpose of supply) from a mode of contravention that relies on an allegation as to the amount of drug above the trafficable quantity. Simpson J at [30] stated that these different modes of proof gave rise to two different offences.
In Levidis the applicant was charged with theft and there was only one act in respect of that offence, possession of the goods. Two legal principles were relied on to give rise to a possible finding of theft - the concept of recent possession giving rise to an inference of guilt and the assumption of the rights of an owner so as to statutorily establish guilt. Since there was only one alleged act and two legal principles applied, Levidis is distinguishable from the present case.
In Ginies the applicant was convicted of counts of the offence of fraudulently inducing or attempting to induce investment in shares. The counts alleged both inducement or attempted inducement. The Supreme Court of Victoria held that the counts were not bad for duplicity because they reflected the wording of the offence the applicant was charged with. The Court's finding of no duplicity was contingent on the specific wording of the relevant offence and therefore is not applicable to the present case.
The duplicity in this case cannot be overcome by the Defendant indicating to the EPA the basis on which it pleads guilty. The doctrine of duplicity must be applied strictly: S v R (1989) 168 CLR 266; [1989] HCA 66 at 284 (Gaudron and McHugh JJ) and Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at 111 (Kirby J).
The EPA through its proposed amended summons seeks to insert an alternative mode of contravention that departs from a strict application of the rule against duplicity.

Amendment seeks to charge a new offence after expiry of the limitation period

Even if not duplicitous, the amendment gives rise to a fresh charge which is not within the one-year limitation period specified in s 216(1)(b) of the POEO Act and is therefore statute-barred. The amendment alters the nature of the charge out of time as it is in substance a fresh charge, see Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257 (DPP v Kypri).

Discretion

Even if the amendment was legally permissible, there is no discretionary reason for the amendment to be granted. The amendment should not be allowed because by operation of s 257 of the POEO Act the Defendant is deemed to have caused the pollution by reason of it being "an occupier" of the Premises in circumstances where AMS was the holder of the applicable EPL. Section 258(2) of the POEO Act deems the holder of a licence to be "the occupier of the premises". To allow the amendment would be entirely futile and doomed to failure as the Defendant cannot be found to be an occupier of the Premises as this would be contrary to s 258(2).

Consideration

In the proposed amended summons, the EPA is seeking to rely on the deeming provision in s 257 of the POEO Act in relation to the placement of a specified pollutant (particular 1(b)) into waters, a table drain at a specified location (particular 1(a)). This is pleaded as an alternative basis of liability of the Defendant arising from the same circumstances already specified in the summons where the manner of breach is identified in particular 1(c) as the Defendant causing its contractor Michelin to pollute water in the manner specified therein.
At issue is the legal effect of relying on s 257. The most relevant case is Riverina, given that the Court of Criminal Appeal considered s 257 in the context of whether a summons was duplicitous. The avoidance of duplicity in criminal indictments, here the summons filed by the EPA, is so that an accused can know the nature of the charge he is facing. An explanation of the history and importance of the avoidance of duplicity can be found in Truegain at [36]-[46] (Leeming JA).
In Riverina, the Court of Criminal Appeal considered whether a summons was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the POEO Act. The summons particularised the manner of contravention in the following terms: (i) the defendant was the occupier of the premises at or from which pollution occurred; (ii) the defendant placed the pollutant in a particular location; and (iii) the defendant placed the pollutant in a position where it was likely to enter defined waters. The defendant argued that merely alleging an act of pollution "at or from" the premises as stated in particular (i) was inadequate and duplicitous because there were many drains and other areas on the premises. Hall J (Hoeben CJ at CL and Garling J agreeing) held at [103]-[104] that in contrast to particulars (ii) and (iii), particular (i) did not specify how or where on the defendant's premises the offence charged in reliance on s 257 occurred. The failure by the prosecutor to identify the act or manner of pollution referred to in (i) meant that the summons was capable of encompassing any or all possible acts of pollution at or from the premises and was therefore duplicitous: at [105] and [109].
Hall J also held at [111] in relation to a separate question of law on the operation of s 257 that it does not obviate the need for the prosecutor to provide the defendant with the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) contained in particular (i). Hall J also stated that s 257 only operates upon proof of a particularised act of pollution which is an element of the offence charged under s 120: at [125]-[126].
Importantly for current purposes Hall J stated at [123]-[124]: 123. Section 257, as the appellant's submissions state, is not an offence creating provision. It does not make any express reference to s 120. It is in the nature of a deeming provision to proceedings in which a person is charged with a pollution offence under the Act. It is not limited to water pollution. Section 257 is a provision that facilitates proof of one matter, namely that the particular defendant (occupier) caused the alleged pollution. 124. Section 120 by its terms facilitates proof of an offence, inter alia, of a contravention of s 120 by attributing pollution to the occupier of premises at and from which the pollution occurs.
I do not agree with the Defendant's summary made in purported reliance on Riverina identified above in [29] that the summons in issue specified two modes of contravention. The difficulty with the summons in Riverina was the failure to specify the pollution for which liability on the basis of s 257 was alleged. The summons was not otherwise found to be duplicitous. The summons was not found to allege different modes or manner of contravention so as to give rise to two offences.
Riverina at [123]-[127] supports the EPA's construction of the proposed amended summons in relation to the effect of pleading reliance on s 257. Doing so does not create a separate offence. As the EPA submitted, there is a single offence and the POEO Act provides alternative ways for the offence to be committed. As identified in the summary of the EPA's submissions in [15] above, the proposed amended summons does not fail to identify the elements of the offence in relation to which s 257 is pleaded, unlike the summons in Riverina. The proposed amended summons specifies the essential elements of the offence for which s 257 is pleaded. It must follow that I do not accept the Defendant's characterisation of the proposed amended summons as set out in [27] above as giving rise to four factually distinct offences under s 120 of the POEO Act. The EPA's case pleads with sufficient precision alternative bases for liability for the one offence of water pollution. To rely on s 257 does not give rise to duplicity.
The cases of Yildez and Chapman are not helpful in that they provide examples of courts finding that pleadings gave rise to duplicity in the particular circumstances of those cases. In Yildiz the prosecutor presented its case on the basis that the appellant was guilty of drug supply as he agreed to supply a drug or alternatively that he had the drug in his possession for supply. By reason of the quantity of the drug located, the appellant was deemed to have had it in his possession for the purpose of supply unless proved otherwise. Simpson J (Hoeben J agreeing) held that there was latent duplicity, not in the counts, but in the directions given by the judge based on a misunderstanding of counsel. Some of the directions were capable of suggesting that the appellant might be guilty by reason of an agreement to supply or from his possession for the purpose of supply, which were two different offences. In Chapman the defendant successfully argued that a count charging them with a drug trafficking offence was duplicitous because they could be convicted in three separate circumstances.
Similarly the nature of the offences and particulars in Johnson v Miller, Snowy Monaro and Truegain are all different to the matters in issue here and provide little assistance to the Defendant for that reason, as the EPA submitted. The facts of Johnson v Miller are summarised in the Defendant's submissions set out in [26] above and simply bear no relation to what is before the Court. In Truegain it was found that there were two offences impermissibly identified in the one charge, a failure to treat waste and a separate failure to properly store waste. The offence as identified in the proposed amended summons does not allege a separate and different offence to the charge in the unamended summons. Snowy Monaro concerned a failure by the prosecuting council to specify breaches of a development consent which limited extraction of material by reference to a daily rate. The council's summons was found to be duplicitous in charging the offence as if being carried out on a continuous basis. Once again that bears no similarity to the circumstances before the Court. It follows from my reasoning above based on Riverina that none of these cases support the Defendant's construction in this matter.
The Defendant's submissions, summarised above in [25], relying on McConnell concerning the liability of a principal for its contractor in committing a water pollution offence to the effect that the conduct of the contractor must be identified in the summons can be accepted. So can the assertion that the EPA is seeking to prove an alternative mode of contravention in the summons, to the effect that the Defendant had management and control of the premises as the occupier. For the reasons I have already given there is no error of principle in this approach. The Defendant submitted there are factual matters which the EPA must particularise and prove in relation to s 257. I am not sure that submission is correct where s 257 is relied on as a basis for liability. There is case law on how the onus of proof applies in the context of s 257 which I do not need to review here. If the Defendant considers its position is correct it can request further particulars from the EPA.
The Defendant relied on passages of S v R and Walsh v Tattersall which emphasise the importance of applying the rule against duplicity strictly at [34]-[35]. These must be accepted but do not give rise to any different result.
The Defendant also submitted that even if the amended charge was not duplicitous the charge as amended gives rise to a new offence outside the one year limitation period in s 216(1)(b) of the POEO Act, relying on DPP v Kypri at [36] and [37]. I agree with the EPA and consistent with my reasoning above, the amended summons does not give rise to a new charge so that no statute-bar arises. As stated at [23] in DPP v Kypri: The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. (Broome v Chenoweth (1946) 73 CLR 583 at 601 (Dixon J)) So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. (Gigante v Hickson (2001) 3 VR 296 at 302 [18] (Batt JA)) But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period. (R v Wakely [1920] 1 KB 688 at 691; R v Jiri Fiala; Ex parte G J Coles & Co Ltd (1986) 46 SASR 47 at 64; Kerr v Hanson [1992] 1 VR 43 at 460)
This observation applies to the proposed amended summons.
The Defendant also submitted that there was no utility in making the amendment in the exercise of the Court's discretion due to the operation of s 258(2) of the POEO Act. It is inappropriate to rule finally in an application to amend pleadings on the construction of that provision in the context of the whole POEO Act. It is not self-evident that the application of s 258(2) means that there can be only one occupier of premises at any one time. It is clearly arguable as the EPA submitted at [22] above that circumstances might result in there being more than one occupier of premises. In any event, this is not a basis for denying the EPA's application to amend the summons. I agree with the EPA's submission in [23] that this is a matter to be considered at trial.
The EPA is successful in relation to its notice of motion dated 23 August 2019 and I will make the order sought.

Order

The Court orders: 1. The Prosecutor is granted leave to file an amended summons in the form annexed to the Prosecutor's notice of motion dated 23 August 2019. 2. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2020

(2015) 209 LGERA 280

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