Is the Manner of Contravention Duplicitous?
42It is convenient to deal with the second manner in which Riverina submits that the summons is bad for duplicity, first. It was with this aspect of the summons upon which the debate primarily centred, and to the extent that there is any impermissible latent ambiguity in the manner in which the "pollutant" is particularised, it is, in my opinion, squarely informed by the alleged duplicity in the manner of contravention described in the summons. This latter point is elaborated upon below.
43Having regard to the charge as particularised in the summons and the further particulars furnished on 2 June 2014, it is tolerably clear that the EPA alleges that the offence occurred in one or both of two ways:
(a)first, as Riverina was the occupier of the premises at or from which pollution (not particularised other than "the pollutant") occurred, it caused the pollution; and/or
(b)second, Riverina placed a pollutant (particularised) into the drain leading from the bund and the drain or drains into which that drain flowed.
44Riverina therefore submits that the summons is duplicitous in that it alleges both a particular manner of contravention by a particular act and set of factual circumstances as set out in OEH's letter dated 2 June 2014, and at the same time, and in the alternative, by the EPA seeking to rely on s 257 of the POEOA as a covering class of undefined events resulting in the pollution of waters by the introduction of the "pollutant" (as expansively particularised) into the specified "waters".
45Put another way, unless particular (1)(c)(i) of the summons is understood as alleging as the "manner of contravention" of s 120 of the POEOA the placing of a pollutant into the drain leading from the bund, the charge is defective because, read on its own, it is capable of referring to a class of unparticularised and entirely different disparate acts that may have occurred at different places on Riverina's premises, involving unrelated equipment and practices. That is to say, the implicit reference to s 257 in particular 1(c)(i) (confirmed in the letter dated 2 June 2014) impermissibly leaves at large what act of pollution of waters is alleged. Thus, for example, it is unknown whether the charge relates to the actions of Riverina at the bund, at the main concrete hardstand area where pellets are sometimes spilled and cleaned up, or on the western side of Riverina's premises (the bund and the drains leading from it are located on the eastern side of its premises).
46The EPA's evidence (read by Riverina for the purpose of the application) purports to deal with all of the factual contingencies referred to above (see, for example, the affidavit of Mr Geff Cramb, affirmed 14 April 2014, at paragraphs 40-41, 56, 66 and 72-81. And similarly, the affidavit of Mr Ian Greenbank, sworn 25 June 2014, which refers to both the overland flow and flow through drainage pipe 2 to the east, in addition to flow to the west: at paragraphs 35 and 36). Hence, as presently framed, the summons contemplates an act of pollution arising at the bund, and some other unspecified act of pollution occurring from one or other parts of the Riverina premises. It is consequently duplicitous giving rise, as it does, to two distinct unlawful acts, and therefore, two separate offences charged within the one count.
Is There Additional Latent Duplicity in the Particularisation of the "Pollutant"?
47Riverina also asserted that there was an inherent vice in the definition of "pollutant" in the summons in the use of the disjunctive "or" linking every one of the particularised substances. It contended that this drafting device deprived the definition of "pollutant" of all real meaning and made the charge operate unfairly upon it. This is because the pollutant could be 25 or 26 separate items or materials, comprising both mineral and vegetable substances, or it could be thousands of items, if each polluting matter was present in combination with another. Given that Riverina operates an industrial facility, uses a large number of different ingredients for its pelletised stock feed products (which have different compositions depending on their intended market, for example, for cattle, poultry, pigs or sheep), and that there are other industrial operations operating in close proximity, including immediately across Reynolds Road (for example, NCMC), each of which use a variety of similar substances in their commercial activities, Riverina was entitled to know with precision what the actual pollutant the subject of the charge was.
48Riverina relied on an exhibit to the affidavit of Mr Cramb (referred to above) to demonstrate that the various pellets manufactured at different locations on its premises contained, from time to time, vegetable oil, mineral premix (containing various minerals and elements), molasses, poultry oil and tallow. In addition, the substances utilised by Riverina in its manufacturing processes were stored in different locations and were deployed in different ways across its premises. For example, some of the substances particularised in the description of "pollutant" in the summons were used as additives in pellet manufacture only in the main shed and were not employed or stored anywhere near the bund. Whereas other ingredients, such as molasses, vegetable and poultry oil, were stored in the bund area.
49In short, in order to properly defend the charge, Riverina submitted that it was entitled to know what the specific pollutant was that was alleged to have escaped from its premises into the relevant "waters". Absent this information, the summons suffered from latent duplicity.
The Summons is Bad for Duplicity
50According to the EPA, no duplicity, patent or latent, arises in the summons with respect either to the particularisation of the term "pollutant", or the "manner of contravention" of s 120 of the POEOA.
51In respect of the stated "pollutant", the EPA submitted that the summons was not bad because s 120 was a result based offence and the result was the fact of the pollution of waters, as that term was extensively defined both in the POEOA and Sch 5 of the Regulations. It was therefore not verboten to particularise the "pollutant" in the summons in similarly broad terms as that contained in the legislation, because to do so did not result in a separate offence. Riverina was only charged with a single unlawful act in the summons, namely, of the pollution of water with a pollutant that comprised any or all of the matters stated therein. The offence crystallised upon the waters being polluted by the prescribed matter, however constituted. Riverina was not being charged with multiple acts of pollution by a myriad of different substances, and in any event, "alternative or cumulative allegations in respect of the result do not, in the Court's opinion, render the charge bad for uncertainty or duplicity" (Environment Protection Authority v Brazel (No 2) [2002] NSWLEC 26 at [9] and Environment Protection Authority v Brazel [2002] NSWLEC 7; (2002) 119 LGERA 72 at [43]).
52Were it not for the difficulties manifest in the "manner of contravention" particularised in the summons discussed above, this submission would be, in my opinion, correct. Although Riverina is entitled to know the "particular act, matter or thing alleged as the foundation of the charge" (Miller at 489 per Dixon J), the "pollutant", albeit broadly particularised, is known to it: it is one or more of the matters specified in the summons that was placed in a drain leading from the bund.
53The problem emerges, however, when the broad description ascribed to the "pollutant" is read in the context of, and in conjunction with, the summons as a whole, and in particular, the two-fold manner of contravention of s 120 referred to above. It is to this matter which I now turn.
54In respect of the allegation of patent duplicity concerning the manner of contravention stated in the summons, the EPA submitted that particular 1(c)(i) merely proscribed another basis of legal liability grounding Riverina's breach of s 120 of the POEOA pursuant to s 257 of that Act, which was not duplicitous. This is because s 257 obviates the need for the EPA to prove "how and who caused it [the "pollutant"] to escape" (Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; (2005) 141 LGERA 133 at [89] per Pain J), and therefore the need to particularise these factual elements. Hence if the EPA could not prove to the criminal standard the more particular unlawful act specified in 1(c)(ii) and (iii), it could rely on the deeming provision in s 257 to merely prove, without more, that a polluting act occurred at or from Riverina's premises.
55The submission must be rejected for a number of reasons. First, the EPA's reliance on s 257 of the POEOA in this way is, in my opinion, misconceived. That provision does not, by its language, abrogate a prosecutor's obligation to disclose the "particular act, matter or thing alleged as the foundation of the charge". Without further particularisation, however, this is the logical corollary of the EPA's argument.
56Such a result cannot be justified having regard to either the text or the context of s 257. Given the fundamental nature of the common law right of a defendant to know not only the legal nature of the offence with which he or she has been charged, but also the basal factual elements of the offence, it may be presumed that had Parliament intended by the enactment of s 257 of the POEOA to circumscribe this right in the manner in which the EPA contends, it would have done so by express statutory language or necessary intendment, neither of which are present (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304, Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [30]).
57Section 257 of the POEOA is no more than a device attributing the criminal liability of third parties to occupiers of premises. Its purpose is to ensure that defendants do not escape liability under the Act for the pollution caused by, for example, contractors, sub-contractors, agents or licensees. It is a provision directed at the identity of the offender (or 'the person' for the purposes of the elements of s 120 of the Act) and deems, in certain circumstances, that person to be vicariously liable for the unlawful acts of others by reason of the occupation of the premises at or from which pollution occurs. A prosecutor must nevertheless prove, and therefore particularise, the act of pollution, the polluting matter, and the pollution being received or likely to be received into specified waters.
58Second, to the extent that it was submitted that Pain J in Pace Farm suggested anything to the contrary (at [89]), this is a misreading of her Honour's remarks, which in any event, do not comprehend any part of the ratio decidendi of that decision.
59In that case, her Honour made the observation in the following context (at [3], [4], [80] and [87]-[90], emphasis added):
3 The place of the offence is particularised as the property owned and occupied by the defendant at 23 Warabrook Boulevard, Warabrook ("the site"). The summons alleges that the pollutant consists of "poultry egg waste, caustic and chlorinated cleaning solution and rinse water and in particular, sterols, cholesterol, carboxylic acids, filtered sodium, chloride, oil and grease and coliforms" ("egg waste"). The waters are identified as Warabrook Lagoon (Upper Pond) within the Warabrook Wetland Reserve (Warabrook Lagoon).
4 The manner of the breach is particularised as the placement of the pollutant:
in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or other non-polluted waters. The pollutant was introduced into the said waters by passing though the pipes and pits within the Defendant's land and through the public stormwater drainage pipe and pit system to discharge into the Warabrook Lagoon (Upper Pond) at the Warabrook Wetland Reserve.
...
80 I consider the Prosecutor has not established beyond reasonable doubt that the pollutant in Warabrook Lagoon did come from the defendant's premises as a result of the leak from the black tank before 10 am. The intermediate facts necessary to prove the Prosecutor's case have not been made out. The facts as proven in (i) (there was a leak), (iii) (direct link between the premises and Warabrook Lagoon), (iv) (high correlation between the pollutant and egg waste), (v) (water quality was affected) and (vi) (odour detected) at [66] above do not preclude hypotheses inconsistent with guilt.
...
87 To make out its case the Prosecutor does have the benefit of the statutory presumption in relation to evidence, that the occupier is taken to have caused the pollution as provided in s 257 of the POEO Act. Section 257 essentially provides a defence available to a defendant which can be relied on to overcome the presumption. I do not consider that it is necessary for the Prosecutor to particularise s 257 given that it is in the POEO Act and a matter about which the Defendant can be assumed to be aware. Section 257 does not overcome the necessity for the Prosecutor to prove its case that pollutant did fall or descend into Warabrook Lagoon beyond reasonable doubt, however.
88 It is useful to consider the facts of Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51. In that case, it was alleged that the defendant was the occupier of premises when a large quantity of heating oil escaped into the stormwater system polluting waters in contravention of s 16 of the Clean Waters Act 1970, the equivalent provision of s 120 in the POEO Act. Talbot J was satisfied beyond reasonable doubt that a large quantity of heating oil had escaped from a point on the defendant's premises through the stormwater drain into the waters. On the evidence, however, Talbot J considered that it was not possible to determine the actual cause of the spill and whether it was the actions of the defendant or the defendant's independent contractor which were responsible for the spill. His Honour held accordingly that he was unable to establish beyond reasonable doubt whose actions caused the pollution. As he could not draw any inference as to the cause of the pollution, the offence had not been proved beyond reasonable doubt. Snowy Mountains Engineering Corporation was decided when the Clean Waters Act 1970 had no equivalent provision to s 257 of the POEO Act so that there was no statutory presumption that the occupier was liable for pollution escaping from its premises unless the statutory defence could be relied on.
89. In Snowy Mountains Engineering Corporation it was proved that the pollutant had escaped from the premises. What was unclear was how and who caused it to escape. I consider s 257 of the POEO Act would overcome the need to prove these matters in circumstances where the Prosecutor has proven beyond reasonable doubt that the pollutant had escaped from the premises into the specified "waters".
90. In this case, I have already found that the Prosecutor has failed to satisfy the onus of proving beyond reasonable doubt that egg waste from the black tank fell, descended or washed into Warabrook Lagoon. I also consider that it has not been proved that egg waste fell, descended or washed into Warabrook Lagoon from the actions of Mr Fitzpatrick. In these circumstances s 257 of the POEO Act does not assist the Prosecutor's case.
60As is evident from the quote above, in Pace Farm the 'when', the 'where' and the 'how' of the alleged breach was particularised the prosecutor. The prosecutor failed to secure a conviction because it could not prove beyond reasonable doubt that the pollutant (the egg waste) found in Warabrook Lagoon came from the defendant's premises in the manner alleged (ie from a leak in the black tank) - or in other words, the 'how'. It was for this reason that s 257 could not assist the prosecutor.
61I do not understand her Honour's remarks (at [89]) to mean that s 257 obviates the obligation of a prosecutor from disclosing details about how the pollution occurred. It could not (see Pace Egg Farm Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 at [34]-[38] per Handley JA). Rather, Pain J appeared to be stating no more than that in the circumstances of the decision in Environment Protection Authority v Snowy Mountains Engineering Corp Pty Ltd (1994) 83 LGERA 51, s 257 would have been available to attribute the actions of the defendant's contractor to the defendant absent any need to demonstrate "whose actions caused the pollution" (at [88]). In Snowy, Talbot J had already found, where, if not how, the heating oil had escaped, namely, "from a point on the defendant's premises through the stormwater drain into the waters" (at [88]).
62Moreover, to construe Pain J's observations in this way would be inconsistent with earlier remarks made by her Honour in the judgment that s 257 "does not overcome the necessity for the Prosecutor to prove its case" (at [87]). And it would also be inconsistent with the latter half of the sentence upon which the EPA relies, viz (at [89], emphasis added):
I consider s 257 of the POEO Act would overcome the need to prove these matters in circumstances where the Prosecutor has proven beyond reasonable doubt that the pollutant had escaped the premises into the specified "waters".
63Put another way, where the prosecutor has not proven to the requisite standard that the pollutant has in fact escaped from the premises, s 257 of the POEOA will be of no assistance.
64In the present case, no details are given for the purpose of particular 1(c)(i) of either when (other than sometime on 22 April 2013), from where, or how the pollutant escaped Riverina's premises. In such circumstances, s 257 will provide cold comfort to the EPA; it cannot cure the defects in the summons in relation to this separately alleged manner of contravention of s 120 of the Act. Were it otherwise, the word "from" in s 257 would be rendered otiose.
65Third, the construction contended for by the EPA of s 257 would make it extremely difficult, if not impossible, for a defendant to avail himself or herself of the defences contained in s 257(1)(a)-(c), or any common law defences, such as honest and reasonable mistake of fact. Again, it is unlikely that this was the objective intention of the legislature in drafting the provision.
66It was no answer to say, as the EPA did, that because this is a result based offence, it was sufficient merely to particularise that pollution occurred at the specified waters (the result) at or from Riverina's premises as the occupier of those premises. To do so ignores the conduct upon which the consequence is founded - the conduct being an element of the offence that the EPA must prove beyond reasonable doubt - and about which sufficient particulars are necessary.
67An analogy may be drawn from the facts and the result in Miller. Relevantly in that case, the legislation provided that "any licensee out of whose premises any person is seen coming during any Sunday except during certain specified hours shall be guilty of an offence" unless certain specified exemptions could be proven to exist (at 472). On one view, this is no less a result based offence than that created by s 120 of the POEOA. The appellant was charged with an offence under the legislation. The following particulars were given by the complainant, namely, that "a certain person" whose name was unknown to the police was seen coming out of the premises in question at a time between 9am and 10.45am on 29 November 1936. However, 30 men were seen to have emerged from the premises during this period. Accordingly, at the trial, the appellant requested particulars to identify which of the 30 men was the actual subject of the complaint. The complainant refused to provide them and the complaint was dismissed on the grounds that it was defective in substance. The dismissal was upheld on appeal.
68Just as the appellant in Miller was entitled to know the identity of the man claimed to be seen leaving the hotel that upon his departure resulted in the commission of the offence, likewise here Riverina is entitled to be apprised of, as a matter of fairness, the location and method by which the pollutant is said to have entered the specified waters with respect to the manner of contravention alleged in particular 1(c)(i).
69It was also no answer to say, as the EPA did, that the particulars of the "waters", when read in combination with the particulars provided for "pollutant" and particular 1(c)(i) of "the manner of contravention", are sufficient to avoid any duplicity. While it is true that the "waters" refers only to the drains located to the west and to the east of the property, this is still not adequate; it does not afford Riverina with the requisite details of where the polluting act took place, when it took place (other than on 22 April 2013, however, more than one act of pollution could have occurred on that day), or how it took place.
70When regard is had to the extensive description of the "pollutant" in the summons, and the evidence of Mr Cramb and Mr Greenback, it is conceivable, if not likely, that the manner of contravention envisaged by the EPA in 1(c)(i) is as a consequence of a separate act of pollution to that alleged at the bund, occurring at another location on the premises, and at a different time on 22 April 2013. It must be recalled in this regard that the EPA has disavowed any reliance on any criminal enterprise by Riverina, and moreover, that the evidence demonstrates that some of the matters said to comprise the "pollutant" were stored and used at different locations on Riverina's premises.
71As framed, the summons does more than permissibly state alternative or cumulative allegations in respect of the result (Brazel (No 2) at [7] and CSR Ltd (t/as CSR Woodpanels) v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 at [34]). To the contrary, having regard to the particulars as confirmed in the letter dated 2 June 2014, the summons alleges wholly separate and discrete acts in respect of the pollution of the specified waters.
72The summons in the present proceedings may be contrasted with that in Brazel (No 2) where a single act of placing pesticide into holes drilled into a cement floor (where it fell into the street gutter and ultimately made its way to the creek) was alleged to give rise to actual or likely pollution within the one count. An argument that the summons was duplicitous was, with great respect, properly rejected by Talbot J. In Brazel (No 2) there was one act of contravention of s 120 of the POEOA, but with the occurrence of two consequences: one certain and one likely. This was not duplicitous. But in the present case, there are two acts of contravention particularised, with the occurrence of two certain consequences.
73Similarly in CSR, it was held that there was one offence that penalised one unlawful act (negligently causing a substance to leak which caused actual or likely harm to the environment) which possessed one or both of the two unlawful characteristics (at [33]-[35] per Smart AJ). Again, this may be contrasted with the present summons, where there are two potential unlawful acts possessing the same but separate unlawful characteristics on separate occasions.
74For all these reasons, in my opinion, the summons is bad for duplicity. It is either patently duplicitous insofar as it plainly alleges two separate contraventions of s 120, or it is latently ambiguous insofar as it fails to provide the essential matters of fact giving rise to the criminal liability with which Riverina has been charged, or it is both.
Appropriate Remedy
75I have found that the summons as amplified by the particulars, specifically particular 1(c)(i) and especially when read together with the description of the "pollutant", is bad for duplicity. However, as has been noted in other authorities (Tattersall at 110 per Kirby J and Truegain at [13] per Lloyd AJ), this finding does not oblige the Court to dismiss the summons in its entirety. In my view, the charge is not incurable.
76The proper course, therefore, is to put the EPA to election to remove the duplicity. This may be effected in at least three ways:
(a)first, it can amend the summons to delete particular 1(c)(i) of the "manner of contravention";
(b)second, it can retain and provide proper particulars of particular 1(c)(i) in conformity with the reasons provided above; or
(c)third, it can remove the disjunctive "or" between particulars 1(c)(i) and 1(c) (ii) and (iii).
77Provided this is done, it will not be necessary, consistent with the discussion above, to refine the particulars to the "pollutant". As I have earlier determined, these particulars are not of themselves embarrassing, it is only when they are read in conjunction with particular 1(c)(i) of the "manner of contravention" that they become troublesome.
Conclusion
78The EPA is therefore directed to elect which of the matters alleged in the particulars of the "manner of contravention" in the summons it proposes to pursue.