Environment Protection Authority v Steggles Foods Mt Kuring-gai Pty Ltd

Land and Environment Court (NSW)|2017-03-16|Before: Sheahan J

Solicitors: Environment Protection Authority (Prosecutor) Henry Davis York (Defendant) File Number(s): 2016/360015

Introduction and Charge

The parties to this Class 5 prosecution are in dispute about the provision of "particulars".
The defendant holds an environment protection licence ("EPL"), and is charged with breaching a maintenance condition of it, thus causing an ammonia leak, which occurred on or about 3 December 2015.

The Section

Section 64 of the POEO Act provides (again my emphasis): Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. ... (2) Defence The holder of a licence is not guilty of an offence against this section if the holder establishes that: (a) the contravention of the condition was caused by another person, and (b) that other person was not associated with the holder at the time the condition was contravened, and (c) the holder took all reasonable steps to prevent the contravention of the condition. A person is associated with the holder 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 holder. ...
As the prosecutor acknowledged (Tp10, LL26 - 27), "there isn't a lot of authority on s 64(1) and what it involves", but clearly the section creates a "status offence" and a defence to it.
In Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley ("Werris Creek") [2009] NSWLEC 124, Lloyd J said (at [1]): ... An offence against s 64(1) is a status offence. If a condition of an environment protection licence is contravened, the holder of the licence is guilty of an offence, regardless of who contravened the condition and why and how it was contravened.
Environment Protection Authority v Truegain Pty Ltd ("Truegain") (2013) 85 NSWLR 125; [2013] NSWCCA 204 was a Court of Criminal Appeal case concerned primarily with duplicity, and the ordering of costs, but Leeming JA, had these things to say about s 64 of the POEO Act (commencing at [53]): 53 In the present case, the elements of the offence are (a) holding a licence and (b) any person contravening a condition of that licence. Section 64(2) creates a defence in certain circumstances where a person other than the holder of the licence causes the contravention of the condition. 54 Here the condition of the Licence said to have been contravened was a condition that "Licensed activities must be carried out in a competent manner". ... Thus, the statutory definition and criteria that determine whether an activity is a "scheduled activity" look to receipt, "having on site" (i.e. storage) and processing. 55 In the present case, the critical element of the offence alleged was the failure to carry out "waste processing (non-thermal treatment) in a competent manner". ... ... 65 ... Section 64 brings all forms of contraventions of licence conditions into a single section. But that merely requires one to turn to the conditions of the licence alleged to have been contravened. Although the prosecutor has relied only on a contravention of condition O.1, that of itself cannot in my view be determinative of the question of duplicity. The question is one of substance, not form, and as soon as one considers the activities which are authorised by the Licence and which are particularised by the prosecutor, one can immediately see the distinct conduct (both acts and omissions) which suffices to constitute an offence.

The Argument About Providing Additional Particulars

The defendant's solicitors, Henry Davis York, wrote to the prosecutor ("the EPA") on 23 Jan 2017 in these terms (emphasis added): 2. Our client's position is that the Summons does not adequately particularise the charge, and that further particulars are reasonably required in order for our client to understand the case against it. Accordingly, we request the following further and better particulars. 3. In paragraph 1 of the Summons, it is alleged that the defendant was the holder of a licence, a condition of which was contravened by "a person". We take it from the particulars in paragraph (c) of the Summons that the prosecutor alleges the defendant is the "person", within the meaning of s 64(1) of the POEO Act, who contravened the subject licence condition. Please confirm whether that is the prosecutor's case. If that is not the prosecutor's case, please provide particulars of the identity of the person alleged to have contravened the subject licence condition. 4. The particulars under paragraph (c) of the Summons are deficient in two respects. (a) First, the reference to "a refrigeration system" does not properly identify what plant or equipment constituting "a refrigeration system" is alleged to have not been maintained in a proper and efficient condition. Please specify with reasonable precision the plant or equipment the subject of the charge. (b) Secondly, the particulars do not properly identify the manner of breach, as they do not identify how it is, or in what way, the defendant is alleged to have failed to maintain the subject plant or equipment in a proper and efficient condition. That is, the particulars do not identify what the defendant is alleged to have done, or to have omitted to do, which constituted the alleged failure on its part to maintain the subject plant or equipment in a proper and efficient condition. Please specify the act(s) or omission(s) on the part of the defendant alleged by the prosecutor to constitute the failure to maintain the subject plant or equipment in a proper and efficient condition. 5. Without such fundamental particulars, the defendant is unable to understand the case against it or make an informed decision on how to plead.
The prosecutor replied on 27 January 2017 in these terms (again emphasis added): In relation to the matters raised in your numbered paragraph 3, in our view this is not a valid request for further and better particulars. In relation to the matters raised in your numbered paragraph 4a, we refer you to the evidence that has been filed by the Prosecutor in the proceedings. This evidence includes, but is not limited to, your client's incident report (Exhibit AS-01 (tab 6)), its notice response (Exhibit AS-01 (tab 8)), the "Tri-tech" report (Exhibit AS-01 (tab 8)) and the records of interview. The evidence identifies that the relevant plant and equipment is located in, and is connected to, an area of the premises known, interchangeably, as the compressor room and the plant room. In relation to the matters raised in your numbered paragraph 4b, in our view this is not a valid request for further and better particulars. We do not agree that we are required to nominate a particular manner of maintenance that would have been proper and efficient in order to establish that the particular manner in which your client maintained plant and equipment was not proper and efficient.
The defendant then filed its first Notice of Motion ("NOM" - filed 30 January 2017) seeking, inter alia, an order that: 1 The Prosecutor is to provide the further and better particulars, as requested in the letter dated 23 January 2017 from Henry Davis York to the Prosecutor, by the close of business on 10 February 2016.
On 3 February 2017, that NOM came before the List Judge (Moore J), who made the following orders: 1. The Prosecutor to provide the Defendant with a further response to the Defendant's request for further and better particulars of 23 January 2017, by no later than 3 March 2017. 2. The Defendant's Notice of Motion dated 30 January 2017 is dismissed - each party to pay its own costs of the Motion. ...
On 6 March 2017, the prosecutor wrote again to the defendant's solicitor (some emphasis added): In relation to the matters that your client has raised regarding the particulars under paragraph (c) of the Summons (titled "manner of breach"), we respond as follows. (i) Plant The 900 spiral freezer refrigeration system (the refrigeration system) installed at the premises as defined in Environment Protection Licence number 13244, being 4-6 Mundowi Road Mt Kuring-gai. (ii) Failure to maintain the refrigeration system in a proper and efficient manner Failure to properly secure and seal the flange joint in the discharge pipe located within the refrigeration system between the Mycom model 250VLD compressor and respective oil separator, causing ammonia to be discharged from the refrigeration system at the premises on 3 December 2015. We note that you have also requested confirmation that it is the prosecutor's case that the defendant was the "person" within the meaning of s 64(1) of the POEO Act who contravened the subject licence condition. The defendant as licence-holder bears responsibility for ensuring that the refrigeration system is maintained in a proper and efficient manner. The prosecutor alleges that the defendant has breached s 64(1) as a result of a failure to maintain the refrigeration system in a proper and efficient manner in the circumstances outlined above. It is not necessary for the prosecutor to nominate a specific person as the cause of those circumstances for your client to understand the case against it given that a licence-holder commits an offence under s 64(1) if a licence condition is breached by any person.
The defendant's solicitors replied on 9 March 2017 (emphasis again added): 4. In our opinion, the further and better particulars received on 6 March 2017 are still not adequate. 5. In the Motion we have asked the Court to make an order that the Prosecutor provide the particulars of the identity of the "person" it alleges to have contravened the subject licence condition. We consider this to be an essential element of the offence alleged. 6. Having now had a proper opportunity to review your letter dated 6 March 2017, we do not consider that the "Manner of breach" was adequately particularised in your letter of 6 March 2017. Simply put, our client still does not know what it is that it is alleged to have done or failed to do, and especially, what it should instead have done or not done, in order to prevent commission of the alleged offence. 7. We therefore wish to put you on notice that in addition to the orders sought in the Motion, we intend to ask the Court to make an order that the Prosecutor be ordered to provide further and better particulars with respect to part (c) of the charge claimed in the Summons dated 1 December 2017, being the "Manner of breach".
The prosecutor wrote again that same day: So as to further assist your client understand the "manner of breach" as particularised in the Summons, we are prepared to make amendments to numbered paragraph (ii) of our 6 March 2017 letter. Those amendments are underlined in the immediately below paragraph. (ii) Failure to maintain the refrigeration system in a proper and efficient manner Failure to properly secure and seal the flange joint in the discharge pipe located within the refrigeration system between the Mycom model 250VLD compressor and respective oil separator, due to the absence of a nut on one of the bolts on the flange bolt set and/or the re-use of a flange gasket, causing ammonia to be discharged from the refrigeration system at the premises on 3 December 2015. Please advise us by no later than 5 pm today whether, given the above, your client still intends to seek an order in relation to the "manner of breach" as referred to in numbered paragraph seven of your Letter.
The defendant's solicitor responded later that same day: We note the further particularisation of the EPA's Summons which related to the "Failure to maintain the refrigeration system in a proper and efficient manner". The defendant's position is that the further particularisation still is not sufficient to properly apprise the defendant of the case it has to meet
On 10 March 2017 a second NOM (filed 6 March 2017) by the defendant came before me as List Judge, primarily seeking an order: 1 The Prosecutor is to provide the particulars of the identity of the "person" it alleges to have contravened the subject licence condition, as requested in paragraph 3 of the letter dated 23 January 2017 from Henry Davis York to the Prosecutor, by the close of business on 15 March 2017.
I adjourned the NOM for a more fulsome hearing on 16 March 2017.
Following that hearing, the prosecutor wrote again to the solicitors for the defendant, and, by arrangement with the Court (Tp9, LL24 - 27); p12, L49 - p13, L11; and p13, L43 - p14, L15), forwarded a copy to my chambers. The letter said (my emphasis): We refer to the above matter and today's hearing of your client's Notice of Motion. The Prosecutor alleges that the refrigeration system was not maintained in a proper and efficient manner from on or about December 2011 until 3 December 2015.

Defendant, as mover

Mr Howard, senior counsel for the defendant acknowledges that the EPL condition required of the defendant that the plant and equipment at its premises, used in connection with the licenced activity, "be maintained in a proper and efficient condition" (Tp2, LL18 - 26), and that s 64 exposes the licence holder to a charge if the condition is not satisfied.
The prosecutor alleges simply that the defendant failed to maintain its refrigeration system so that it did not leak ammonia, and Mr Howard says the defendant needs more specificity in order to decide whether to defend the charge or plead guilty.
The defendant's requests for more specificity have been met by some additional information, but, in other respects, by the bald assertion that they are "not a valid request for further and better particulars".
Mr Howard says (Tp16, LL41 - 43): [W]e need these particulars ... in order for the defendant to be properly advised, and ... to understand how it [can plead] to the charge.
A request for the details of the alleged "manner of breach" "is entirely orthodox and justified" (Tp4, LL10 - 16).
Question 3 in the letter of 23 January 2017, and prayer 1 of the NOM now before the Court, ask(ed) the prosecutor to identify the "person" who contravened the condition - the defendant asked if it is the prosecutor's case that the defendant is the "person", or if not, who is?
As Mr Howard says (Tp5, L46 - p6, L3): ... it may be the case, your Honour, we don't know, it is unclear. But it may be the case that the prosecutor is saying the only thing that you did wrong was that you held the licence. If that's the case, ... it should be stated, and the person who is alleged to have contravened the condition should also be stated. But if there is any other act or omission that is said that the defendant engaged in or failed to engage in constitutes any part of this offence then it is only fair that we are told about it.
Mr Howard referred the Court to several leading cases on particulars:
In Johnson v Miller (1937) 59 CLR 467, Dixon J said (at 486, and 489): ... such a description shall be sufficient in law. But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions ... ... ... a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.
In Kirk v Industrial Relations Commission (NSW) ("Kirk") (2010) 239 CLR 531, the plurality of the High Court said, in the context of an industrial offence: 14 ... Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. 15 The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. Section 53 provided: "It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision .... 16 ... A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence. ... 26 The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge ... . In John L Pty Ltd v Attorney-General (NSW) [(1987) 163 CLR 508], it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed ... . In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet ... . The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence" ... . These facts need not be as extensive as those which a defendant might obtain on an application for particulars ... . In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions" ... . McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged. ... ... 28 The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.
Kirk affirmed the principles drawn from Johnson v Miller , which Mr Howard described in these terms (Tp7, LL7 - 10): That is such a concise and seminal statement of the requirement of a prosecutor to provide particulars. There's a necessity to specify the time, place and manner of the defendant's acts or omissions. That remains as good law now as it did then.
Of Kirk itself, Mr Howard said (Tp8, LL9 -12): ... where you have an offence and a defence as part of a scheme one expects the prosecutor will provide particulars of the offence which are adequate sufficiently detailed to enable the defendant to assess whether it has a statutory defence and that accords with common sense.
He submitted that the utility of the defence in s 64 (Tp8, LL15 - 22): ... depends on whether the person who contravened the licence is associated with the defendant [and] the onus is on the defendant to establish that the contravention of the condition was caused by another person and that the other person was not associated with the holder at the time the conditions contravened. However notwithstanding that onus the elements of the offence clearly distinguish between ... a person who contravenes the condition and each licence holder who [is] guilty of the offence.
He continued (Tp8, LL26 - 34): If the defendant was a person who contravened the condition then that would make sense, but it's got to be stated, because it's clearly contemplated that each holder of the licence, subject to the defence, is guilty of offence if any other person breaches the licence ... [The] modern statutory regime which takes away sensible defences and basically makes it harder and harder for a person to escape liability. That's what the legislature has enacted, that's the way it is, but all the more reason why it's important, we say, that the person be identified.
His oral submissions concluded (Tp9, LL5 - 17): ... the prosecutor must tell the defendant who the person is who is alleged to have failed to the maintain the plant and equipment, and when it is that that condition requiring it to be maintained was breached? So that the defendant can disconsider the defence. Without those particulars the defendant cannot consider properly the defence. ... when a person is charged with a criminal offence, and even [if] it's a corporation and even if it's New South Wales in the 21st century it's still evidently okay for that person to say what did I do wrong? It's as fundamental as that, please tell me what I did wrong? What should I have done that I didn't do? What should I not have done that I did do? If it's simply that the defendant was the holder of the licence that must be stated.

Prosecutor, as respondent

In response, Mr Kelly, counsel for the EPA, referred the Court to KRM v The Queen ("KRM") (2001) 206 CLR 221, in which McHugh J adopted what Dixon J had said in Johnson v Miller, and continued (at [15] - [16]): 15 ... an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear. An accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge". ... particulars are needed to ensure that the accused person has a fair opportunity to defend the charge. 16 ... the legislature ... may modify - even abolish - the need for particulars of criminal charges. But an intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear. Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal charge. Here the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence. But that is all. It has not said that the prosecution need not give particulars or need not prove the general circumstances of each act constituting an offence.
The prosecutor accepted (Tp11, LL45 - 46) that it has to "show that the condition was breached by human agency ...", but claimed it doesn't have to identify who/which. Mr Kelly did, however, (Tp11, LL48 -50 - my emphasis) concede: ... it would be enough for the prosecutor to say some unknown person breached that provision and he was (sic) the license holder responsible for that breach, and then the onus shifts to the defendant ...
He then submitted (Tp10, LL5 - 19): ... this offence properly construed is not one that requires the prosecutor to identify a particular person as causing a breach and nor is it one which requires the prosecutor to say what ought to have been done but wasn't done by the defendant. Your Honour, I say that, firstly because in relation to the person, the conditions specify that the offence refers to any person. And the word "any" on its own is something which imports a particularly broad spectrum of people. It doesn't suggest that the prosecutor needs to nominate any particular person. The breadth of that requirement is reflected by the characterisation of this particular offence as being a status offence. That is, it is the status of the licence holder as a licence holder which leads to criminal guilt. There is no requirement for the licence holder to commit any acts or omissions on its own in order to breach the licence condition.
He argued that Truegain and Werris Creek establish: 1. that (Tp10, LL36 - 38) "there is no act or omission of the licence holder per se which leads to their guilt, it is their status as a licence holder that does so"; 2. that it is consistent with the statutory EPL scheme that licence holders be held to account (Tp10, L44) "in any circumstances where the condition is breached" (emphasis mine); and 3. that the prosecutor is excused from identifying "a person" (Tp11, LL2 - 5) "by the very existence of the requirement in the defence, for the defendant to say it was some other person who contravened this condition it was not us and that person is not related to us".
Mr Kelly relied also on Environment Protection Authority v Terrace Earthmoving Pty Ltd ("Terrace") (2013) 84 NSWLR 679; [2013] NSWCCA 180, in which Basten ACJ said (at [35] - [38]): Did transport include deposit? 35 The trial judge held that the offence was completed by transportation to a "place" which satisfied the statutory criterion of not being licensed as a relevant waste facility. The offence was completed when the vehicle arrived at the place: it was not an essential element of the offence that the material be deposited, for the offence to be complete: ... 36 In Shannongrove [Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179], it was the offender who sought to argue that deposit was necessary, in order to avail itself of the intention or state of mind of the new owner. In the present case it was the Authority which sought to argue that deposit constituted part of the offence, ... It was no doubt for that reason that the trial judge placed some emphasis on the existence of a separate offence of allowing land to be used as a waste facility when that is not a lawful use: ... However, that offence is committed by the owner or occupier of the land, who may not (and probably would not in the usual case) be the carrier. In any event, the possibility of overlap between two offences is a flimsy basis for construing the essential elements of each offence, in the absence of any indication that the offences were intended to be mutually exclusive in their operation. 37 The other relevant consideration lies in the defence ..., namely that the offence is not committed if the waste transported by the defendant was not deposited at the place to which it was transported. 38 It is, of course, possible that particular conduct be an essential element of an offence, but one which is presumed to be satisfied unless the defendant proves otherwise. However, the language of s 143 is not in those terms. The fact that non-deposit is described as a defence, at least in circumstances where the ordinary meaning of "transport" does not include depositing the load, speaks strongly against the proposition that depositing is an element of the offence under s 143. The trial judge was correct to conclude that it was not.
The relevant section in Terrace (s 143) differs materially from s 64.
Section 143 of the POEO Act provided: 143 Unlawful transporting of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. ... (3C) Defence - waste not deposited It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported. ...
Mr Kelly submitted (Tp11, LL27 - 29) that, on the Terrace principles: because the onus is on the defendant to say it was some other person, it was not us, we do not have to say who that person was.
He then said (Tp12, LL6 - 26): ... we rely on the fact that this is a status charge, there is no act or omission of the defendant that the prosecutor needs to point to in order to establish guilt. So whether or not it was the defendant that contravened the condition is irrelevant to the offence. Clearly it's going to be relevant to the defence at the stage of penalty, there is no doubt about that, but for the purposes of the offence who it was who contravened that condition is irrelevant. ... The defence requires the defendant to establish that it took all reasonable steps to prevent the contravention of the condition and again if it was the prosecutor's job to say here is all the things that you should have done, then it would be requiring the prosecutor to do in particularising the offence the defendant's job under the defence which is to say we did everything that was reasonably practicable to do - sorry, those aren't the words of the provision, they say the holder took all reasonable steps to prevent the contravention of the condition, that is the onus on the defendant, they have to establish that they took all reasonable steps to prevent the contravention of the condition.
He added (Tp12, LL37 - 39): ... all we have to prove is that they were the licence holder and then they have to show that they took all reasonable steps to prevent the commission of the offence.
The Court pointed out (Tp13, LL15 - 26) that the objective of "just quick and cheap" would suggest that strict liability criminal cases "work better if you can extract a plea and agree on a statement of facts", but, "if you don't provide the particulars", there is not much scope for an agreement on facts, and "you might delay the plea", and prejudice the 'plea of guilty' discount.
Mr Kelly accepted those consequences, and also accepted (Tp13, LL31 - 37 - my emphasis) that: We need to give them enough particulars that they can understand what we say are the circumstances that led to the contravention of this offence in these circumstances and then whether or not they have a defence is a matter for them. But I agree with your Honour wholeheartedly that it's entirely in our interest to give them as much detail as we can and we have attempted to do that.

Defendant, in reply

Mr Howard (Tp14, LL9 - 24) contrasted the "offence and defence" schemes under s 64 (here) and s 143 (in Terrace).
The waste transportation offence in s 143 did not require, as an element of the offence, proof that waste was deposited, but lack of deposition of the waste was a defence. On the other hand (Tp14, LL34 - 38), the involvement of "any person" in the s 64 offence is, in Mr Howard's submission, an "element of the offence and the prosecutor must provide particulars".
Those particulars could acceptably say that the condition was "breached by a person unknown to the prosecutor", but the prosecutor must do its best to provide even those uninformative particulars (Tp14, LL48 - 50): "We are entitled to know whether the prosecution case is that someone else breached ... the condition, or we breached it" (Tp15, LL6 - 7).
The operator of a chicken business is not expected to be "expert in the operation and maintenance of sophisticated refrigeration or freezer systems" (Tp15, LL13 - 14), but is responsible, under s 64, for ensuring their proper maintenance, by "persons" on its behalf.
If the defendant pleads guilty to the offence, as holder of the licence, Mr Howard asks: Will the prosecutor provide, at the sentencing hearing, the name of the responsible "person"?
Mr Howard submitted (in his reply): 1. (Tp15, LL32 - 39): "both by reason of the reference to the elements of the offence themselves and also the reference to principles of fairness and common sense in prosecution. It is incumbent on the prosecutor to tell us who the person is who breached the licence condition. That is a matter as to which we bear an onus on the defence, but the onus that we bear on our side of the bar table in respect of the defence never displaces the burden on a prosecutor to identify particulars in respect of elements of the offence."; 1. (Tp16, LL3 - 4): "A prosecutor is required to provide the specificity that it can."; 1. (Tp16, LL15 - 20): "... there is no reason to think that the prosecutor is not well versed in understanding who it was who was maintaining the refrigeration systems and freezer systems on this site at points in time. ... [T]he fact that the onus rests on the defendant in respect of the defence does not obviate the need to provide that particular."; and 1. (Tp16, LL24 - 27): "... if it is the case that this is a case saying that you're the licence holders and it is a status offence, just please tell us. But if it is the case that the prosecutor is saying you did something wrong, then please tell us."
The defendant's asserted difficulty regarding particulars would seem to be exacerbated by the broad timeframe the EPA has now particularised (see [20] above).

Consideration

In Environment Protection Authority v Riverina Australia Pty Ltd ("Riverina") (2015) 90 NSWLR 57; [2015] NSWCCA 165, the Court of Criminal Appeal was concerned with questions of law referred by this Court in a water pollution prosecution.
The principal judgment was that of Hall J, with whom Hoeben and Garling JJ agreed, and I will quote Hall J at some length.
One central issue before the Court in Riverina was the possible duplicity of the summons, and the other was the construction of s 257(1) of the POEO Act, which provided: 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. ...
The headnote (in the NSWLR) records the Court's decision on s 257 in these terms: Section 257 of the [POEO Act] facilitates proof that a defendant caused the alleged offence and removes a requirement to prove that the occupier was the person who committed the offence. It does not otherwise alter the legal elements of an offence. Section 257 operates only after evidence adduced in a prosecution establishes the relevant act in contravention of the [POEO Act]. Section 257 does not exempt a prosecutor from an obligation to identify in a summons the factual substratum of the alleged offence.
There was, in Riverina, as here, correspondence between the parties regarding provision of further particulars.
Hall J summarized the defendant's submissions in these terms ([63] - [79]): 63 In relation to s 257, a primary submission made on behalf of Riverina was that the section does not permit a Prosecutor to refrain from giving adequate particulars or providing the essential factual particulars of the act, matter or thing said to constitute the offence. ... 64 The obligation upon the Prosecutor to provide particulars it was submitted exists and is not displaced or removed by s 257: ... 65 The substance of the charge ... was said to be an "act of pollution". Particularisation of "waters" and "pollutant" accordingly was said to be insufficient to describe the act of pollution: ... 66 Without further particulars the defendant it was submitted, was in the position of not knowing whether the charged act involves placing a prescribed matter in waters or placing any matter in a position where it is likely to fall or descend or be washed or blown or percolated into any waters: ... 67 More specifically, in relation to Question 1, it was noted that the expression "water pollution" is defined in the Dictionary to the Act in terms of: "(a) placing in or on, otherwise introducing into or onto, waters (whether through act or omission) any matter …" (emphasis added) 68 It was not merely the presence of pollutant in waters "but conduct being the act of placing it there (or introducing it into or onto or placing it in a position from where it was likely to get into the waters …". ... ... 70 To merely allege an act of pollution "at and from" the Premises as stated in para 1(c)(i) was manifestly inadequate, there being many drains, plant where ingredients are used, a large hardstand area and multiple sheds on the premises: ... ... 73 As to Question 2, it was submitted by the respondent that s 257 obviates the need to prove the particular defendant caused or was the actor in the "act of pollution" at the Premises but does not purport to obviate the need to particularise and prove the act of pollution at the Premises: ... 74 The principle as to the provision of particulars of a charge stand notwithstanding s 257. The section facilitates proof of causation but does not exonerate a prosecutor from proving anything more than "pollutant" in "the waters". Further, s 257 does not alter the legal elements of the s 120 offence: ... 75 [Section 257] ... addresses the mischief of a defendant escaping liability where their personal involvement cannot be proved: .... .. 78 Reliance was placed upon the decision of Pain J at [87] in Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; (2005) 141 LGERA 133 for the proposition that s 257 does not overcome the necessity for the prosecutor to prove its case that the pollutant fell or descended into the relevant waters to the required standard of proof: ... 79 It was submitted that the defence provisions in s 257 themselves suggest that a defendant must be informed of the act of pollution to be relied upon by the prosecutor: ...
Hall J relevantly decided ([111] - [129]: 111 ... s 257 does not obviate the need for the prosecutor to provide the defendant with the essential details of the particular act, matter of thing alleged as the foundation of the manner of contravention of s 120(1) contained in paragraph 1(c)(i) of the Summons. The discussion that follows seeks to develop the reasons for the conclusion I have expressed. 112 The commencement point is the fundamental requirement for a summons charging an offence to disclose essential elements of the offence. In this respect the principle is well-established. ... 116 In the Letter of Particulars of 2 June 2014, the EPA alleged that the defendant placed the pollutant into the drain leading from the LRMB and the drain or drains into which that drain flowed. No factual ingredient of the offence as particularised in paragraph 1(c)(i) was specified or stated. 117 Accordingly, no facts as to or constituting the act of pollution were identified. In that circumstance the respondent was not informed as to whether the act of pollution related to a particular operation conducted by the respondent on its premises or to a particular part of the premises. No particulars were provided in respect of "the time, place and manner of [the respondent's] acts or omissions", save for the statement "on or about 22 April 2013" in paragraph 1 of the Summons. ... 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. 125 Section 257 however only operates upon proof of a particularised act of pollution which is an element of an offence charged under s 120. The terms of s 257 do not, in my opinion, exempt a prosecutor from an obligation to identify the factual substratum, namely, the specific act of pollution. 126 Section 257 does not eliminate the need for admissible evidence to prove the element of the offence created by s 120, the act of pollution. Section 257 operates only after evidence adduced in a prosecution establishes the relevant act of pollution (or other conduct causing the pollution). Section 257 removes a requirement to prove that the occupier was the person who committed the act of pollution. Section 257 does not otherwise alter the legal elements of a s 120 offence. 127 Whether s 257 applies in a given case or not does not, in my opinion, mean that a defendant must be left in a position of embarrassment or disadvantage in not being informed before trial as to the particular act alleged as the foundation of the charge. The lack of particularity necessarily in the present case gives rise to the potential for a miscarriage of justice. 128 As Dixon J in Johnson v Miller observed: "… a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge …" (at 489) 129 Section 257 does not, either by its terms or by necessary intendment, in my opinion, obviate the need for the prosecutor to provide the respondent with particulars of the facts alleged as the foundation of the charge made in particular 1(c)(i). ...
I have set out these lengthy extracts from Riverina as background to my finding of no flaw in the position taken by Hall J.
I am content to apply His Honour's reasoning to the present NOM, and the High Court's position in Kirk fortifies me in taking this course.
Therefore, I accept the defendant's submissions (see, especially [24], [27], [32] to [35], and [50] to [53]), and again note the prosecutor's concessions ([37] and [47]).
Even the primary authorities relied upon by the prosecutor (KRM and Truegain) do not support the position it has taken in the present case.
Identity of the "human agency" allegedly involved in the contravention of the condition is an element of the offence charged (Truegain at [53], quoted in [9] above), even if the prosecutor particularises it as the defendant company, or as a person unknown to the prosecutor. (Too much should not be read into use of the words "regardless of who ..." in the opening paragraph of Lloyd J's extempore judgment in Werris Creek, quoted in [8] above.)

Conclusion

The defendant's NOM should be upheld, with an order for costs in its favour, and the prosecutor should be ordered to comply immediately with the first Order sought in that NOM.

Orders

The orders of the Court will be: 1. The Defendant's Notice of Motion filed on 6 March 2017 is upheld. 2. The Prosecutor is ordered to provide the particulars of the identity of the "person" it alleges to have contravened the subject licence condition, as requested in paragraph 3 of the letter dated 23 January 2017 from Henry Davis York to the Prosecutor, by the close of business on 31 March 2017. 3. The Prosecutor is ordered to pay the defendant's costs of the hearing on 16 March 2017, as agreed or assessed. Liberty is granted to the Defendant to seek a fixed costs order under s 257F of the Criminal Procedure Act 1986, if needed. 4. Each party is ordered to pay its own costs of the directions hearing on 10 March 2017. 5. Exhibit S1 will be retained. 6. The substantive prosecution is stood over to the List Judge's list on Friday 7 April 2017, for plea and directions.

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: 24 March 2017

(2005) 141 LGERA 133

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (15)