Environment Protection Authority v Truegain Pty Ltd

Judgment 1The defendant is the holder of an environment protection licence issued under the Protection of the Environment Operations Act 1997. The licence is expressed to apply to the premises described as "Truegain Pty Ltd 62 Kyle Street Rutherford NSW 2320" for the scheduled activity of "petroleum and fuel production" and "waste processing (non-thermal treatment)". 2The defendant has been served with a summons to answer a charge: ... that, between about 2 June 2010 and about 9 July 20120, at or near Rutherford in the said State, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) in that it was the holder of a licence, a condition of which was contravened by a person. 3The particulars in the summons describe the licence issued to the defendant and the summons specifies the condition contravened as condition 01.1, which is then set out (in particular (b)): 01.1 Licensed activities must be carried out in a competent manner. This includes: (a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and (b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity. 4The defendant, by an amended Notice of Motion filed on 1 March 2012, now applies for the proceedings to be dismissed, or otherwise stayed, on the basis that the charge is duplicitous. 5The defendant says that the duplicitous nature of the charge is apparent from the further and better particulars supplied by the prosecutor on 24 February 2012 and 28 February 2012. In its particulars the prosecutor alleges that the defendant committed the offence by way of seventeen separate acts or omissions and at twelve different locations within the premises. The applicant submits that each is a separate offence which is contained in a single charge, and accordingly the charge is bad for duplicity and ought to be dismissed. 6The offence provision is s 64(1) of the Protection of the Environment Operations Act , which simply states: If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. 7The question for determination is whether the offence provision envisages a single criminal enterprise made up of more than one act. That is: is it directed solely at a specific and individual act or omission or at a course of conduct or offence? 8As noted at [5] above, the defendant contends that the duplicitous nature of the charge is apparent from the further and better particulars supplied by the prosecutor on 21 February 2012 and 28 February 2012. Those further and better particulars identify seventeen acts which, the defendant contends, amount to separate offences which have been alleged under a single charge. The particulars may be summarised as follows: (i) the defendant committed the offence by breaching condition 01.1 of the licence (see particular (b) in the summons); (ii) the defendant committed the offence by breaching condition 05.1 of the licence (see, e.g., para. 19 (first bullet point) in the second letter); (iii) the defendant committed the offence by breaching condition 05.2 of the licence (see, e.g., para. 19 (second bullet point) in the second letter); (iv) the defendant committed the offence by breaching condition L1.1 of the licence (see, e.g., para. 19 (third bullet point) in the second letter); (v) the defendant committed the offence by failing, itself, to comply with the licence, in breach of s 64 of the Act (see, e.g., para. 14 in the second letter); (vi) the defendant committed the offence by failing to ensure that persons associated with the defendant complied with the licence, in breach of s 64 of the Act (see, e.g., para. 24 (first bullet point) in the second letter); (vii) the defendant committed the offence by failing to notify the EPA of a tank overflow in breach of the obligations set out in Part 5.7 of the Act (see, e.g., para. 24 (third bullet point) in the second letter); (viii) the defendant committed the offence by polluting waters in breach of s 120 of the Act (see, e.g., para. 24 (top of page 9) in the Second Letter); (ix) the defendant committed the offence by carrying out the processing of materials and substances incompetently (see, e.g., para. 10 (penultimate bullet point) in the second letter); (x) the defendant committed the offence by carrying out the movement of materials and substances incompetently (see, e.g., para. 19 (viii) in the second letter); (xi) the defendant committed the offence by storing materials and substances incompetently (see, e.g., para. 25 (xxxvii) in the second letter); (xii) the defendant committed the offence by carrying out the treatment of waste incompetently (see, e.g., para. 10 (third-last bullet point) in the second letter); (xiii) the defendant committed the offence by storing waste incompetently (see, e.g., para. 19 in the second letter); (xiv) the defendant committed the offence by carrying out the processing of waste incompetently (see, e.g., para. 14 (second group of bullet points commencing, 'Failure to maintain DAF') in the second letter); (xv) the defendant committed the offence by carrying out the reprocessing of waste incompetently (see, e.g., para. 25 (1i) in the second letter); (xvi) the defendant committed the offence by carrying out the disposal of waste incompetently (see, e.g., para. 15 in the second letter); (xvii) the defendant committed the offence by failing to properly treat rainwater at the premises (see, e.g., para. 17 (last paragraph) in the second letter). 9It can immediately been seen that the prosecutor by its particulars alleges breaches of other conditions of the licence and breaches of other provisions of the Act, all of which are said to amount to a commission of the offence. 10The defendant accepts that the question is whether an offence against s 64(1) of the Act can be of a single event, or an event of a continuing nature as recognised in penalty provision, and whether the particulars disclose a number of discrete offences which infringe the rule against duplicity. 11The prosecutor submits that on the proper construction of s 64 it is an offence provision that envisages a single criminal enterprise made up of more than one act; it is not directed at specific and individual acts or omissions, but at a course of conduct or series of events over time. 12The defendant submits that the offence created by s 64 is not a course of conduct offence; but if it is, the allegations in the particulars of various kinds of disparate acts of themselves, if established, amount to separate offences which are said to give rise to duplicity. 13I have come to the view that the charge in the present case, as amplified by the particulars, is bad for duplicity. As Kirby J noted, however, in Walsh v Tattersall (1996) 188 CLR 77 at 110, such a finding does not oblige the Court to dismiss the charge where the defect is one of patent duplicity. The proper course is to put the complainant to an election to remove the embarrassment. I have come to this view for the following reasons. 14In Walsh v Tattersall , Kirby J noted (at 110) that a strict approach to resolving questions of duplicity has been consistently applied in the High Court (citing Johnson v Miller (1937) 59 CLR 467, Iannella v French (1968) 119 CLR 84 and S v The Queen (1989) 168 CLR 266), noting that there are reasons of principle or policy which favour the approach. In that case s 120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) read: (1) A person who (a) obtains by dishonest means any payment or other benefit under this Act ... is guilty of an offence. 15The Court (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ dissenting) held that a discrete offence is completed upon the receipt of any one payment or benefit, so that a charge of obtaining by dishonest means "payment or benefits" made under the Act and where those such payments were particularised was bad for duplicity. Kirby P noted (at 112) that, as in Johnson v Miller , the appellant had few merits on his side; except legal merits, which are sufficient. 16So, too, in the present case, the offence is created if "any condition" is contravened: s 64(1). As in Walsh v Tattersall the subsection uses the singular. Particularising alleged breaches of other conditions and of other sections of the Act gives rise to duplicity. 17In Johnson v Miller , Johnson was charged with being the licensee of specified premises out of which person unspecified were seen coming during prohibited hours. In the course of correspondence furnishing particulars, it appeared that the informant Miller alleged and proposed to prove that about thirty men were seen coming in and out of the premises between the prohibited hours and that Miller was in a position to give the exact time when each man was seen, but could prove the identity of only four of them. Later Miller withdrew the letter giving particulars as to the thirty men and substituted for it a statement that an unknown person was seen coming out of the premises during the prohibited hours on the date stated. At the hearing the complaint was amended to refer to "a certain person" instead of "certain persons". Johnson then contended that Miller should supply further particulars to show which of the thirty men was the man whose emergence from the hotel was the subject of the complaint. Miller refused to do so, and the complaint was dismissed on the ground that it was defective in substance and Johnson was prejudiced by the defect. The High Court (Dixon, Evatt and McTiernan JJ, Latham CJ dissenting) held that the complaint was rightly dismissed. 18In the course of his judgment Dixon J said (at 487): Prima facie, but one offence can be proved under one charge. For, except to prove intent or system and to exclude accident or mistake, evidence that accused persons committed other like offences is seldom relevant to the issue of guilt. But, if the present case fell within the prima-facie rule, plainly to admit evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule. 19Dixon J continued (at 489): For, in many cases, evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence because each will indifferently fit the complaint is to pursue a course contrary to law. It cannot be enough to require the complainant to elect among the instances he has proved after his evidence has been given in full. Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v Needham [1909] 1 KB 626, the proper course is to put the complainant to his election. 20Johnson v Miller was expressly followed by the Full Court in Byrne v Baker [1964] VR 443. In that case a charge was laid under s 107 of the Companies Act 1958, which relevantly stated: (1) A director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office. The defendant, a director of the company, was charged that between 3 May 1960 and 21 June 1962 he "did not at all times use reasonable diligence in the discharge of the duties of his office". In response to a request for particulars to enable the preparation of a defence, a ten-page document containing 61 paragraphs was furnished which specified a number of acts or omissions in which it was alleged that the director had not acted honestly or used reasonable diligence in the discharge of his duties of office. I observe that this is not dissimilar to what has occurred in the present case. The Full Court held that the charge as particularised was bad for duplicity. In so holding the Court observed (at 153) that the information charged the defendant with a single offence, but each of the particulars if proved would constitute an offence. This placed the defendant in the position of having to defend himself, upon one information, against 25 other charges, proof of any one of which would establish guilt of the first. The whole proceeding was gravely oppressive. 21In Chugg v Pacific Dunlop Ltd [1988] VR 411, section 21(1) of the Occupational Health and Safety Act 1985 stated: (1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health. An information based on s 21 charged a defendant that: ... being an employer it did fail to provide and maintain so far as was practicable for employees a working environment that was safe and without risk to health. The information contained particulars of a number of separate acts and omissions in which it was alleged that the defendant had failed to provide and maintain so far as is practicable for employees a working environment that was safe and without risk to health. 22It should be noted that s 21(1) is in similar terms to s 64(1) in the present case, and the particulars contained a number of alleged acts and omissions, as in this case. Fullager J held that the information as particularised was bad for duplicity because it contained more than one offence. In so deciding, Fullager J applied Byrne v Baker . His Honour said (at 415) that the language of s 21(1) is apt to convey the concept of the tort of negligence in the field of employer and employee, and that each and every act or omission particularised constituted an offence under the section. 23In Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, the Full Court of the Industrial Court of NSW considered an information under s 15 of the Occupational Health and Safety Act 1983, which alleged that the appellant: ... being an employer at Port Botany Liquids Terminal, Port Botany ... did fail to ensure the health, safety and welfare at work of all its employees, contrary to the Occupational Health and Safety Act 1983, section 15. That section relevantly states: 15(1) Every employer shall ensure the health, safety and welfare at work of all of his employees. 24Subsection 15(2) stated: (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if he fails - ... and thereafter the subsection lists a number of specific activities and steps to be done or taken. 25Particulars were later furnished which identified a number of respects in which it was alleged that the appellant failed to ensure the health, safety and welfare of its employees. The appellant contended that, having regard to the particulars later furnished, the information was bad for duplicity. 26Fisher CJ did not consider that there was such ambiguity, uncertainty or duplicity as to render that (and two other informations) invalid. Hill J, however (at 128) expressly followed the reasoning of the Full Supreme Court of Victoria in Byrne v Baker and of Fullager J in Chugg v Pacific Dunlop Ltd. Hill J noted that the particulars alleging contravention of s 15(1) consisted of a number of separate and distinct failures, each one of which was a contravention of the subsection. Hill J then continued (at 179): In my view, these alleged failures involve at least two alleged contraventions of s 15(1) and therefore two offences. The nature and content of each failure is separate and distinct. The fact that each failure may occur and/or become evident on the same day, in my opinion, is not to the point. Each one is a contravention of s 15. The letter of 28 June 1993 states that the respondent alleges and relies upon various failures falling within all paragraphs of s 15(2). If, of course, the same act or omission falls coincidentally within more than one of the categories of failure set out in s 15(2) (or more than one of the subcategories set out in each category), then, in my opinion, only one offence will be involved. But that is not the case here. Many of the acts and/or omissions identified as failures are disparate in nature and content. They involve different items of plant, different systems of work, different operations and procedures, different locations on the premises, and the safety of ingress to and/or egress from the premises, which in turn could involve, and is seemingly alleged to do so, different risks of danger to different employees. The defence, if any, under s 53 of the Occupational Health and Safety Act may well be very different in respect of each alleged failure. The gist of the offence created by s 15 is not, in my opinion, the single act or omission of failing to observe a general duty to maintain at all times a safe working environment for employees which may possess one or more of a number of characteristics or features, but each particular act or omission which amounts to a failure to maintain that environment. Each act or omission which constitutes a failure specified in s 15(2) or otherwise amounts to a breach of the duty under s 15(1) is, in my opinion, a separate offence under the section. I respectfully agree with the reasoning and conclusion of Fullagar J in Chugg and Stanley P in Broken Hill Associated Smelters Pty Ltd v Stevenson (at 137-140). The legislation in this case is, in all material respects, in the same terms as the Victorian legislation; and the relevant and material facts in this case are also similar. 27I observe at this point that the legislation in the present case is in material respects similar to the Victorian legislation considered in Chugg and the legislation considered in Boral Gas above. 28Hungerford J also held (at 209) that whilst the information itself exhibited no patent duplicity, the particulars gave rise to latent duplicity or uncertainty - the information was, therefore, bad and contrary to law. In so holding, Hungerford J cited Ex parte Graham: Re Dowling [1969] 1 NSWR 231. In that case the defendant was charged with negligent driving - one offence. The particulars provided, and later evidence showed, that the facts alleged as constituting the negligence occurred at two different parts of the highway. The Court of Appeal held that two separate offences were contained in the information, the conviction was, therefore, bad and the defect could not be remedied. Jacobs JA said (at 236 - 237): Between the two acts, the crossing of the centre line and later the overtaking on the bridge, there was an interval of time and space in which the vehicle driven by the present applicant was not observed by any witness and concerning which there is no evidence by way of inference or otherwise that any negligence shown by crossing the unbroken line continued in substance until the act of overtaking the articulated vehicle on the Paddy's River Bridge ... However, if the charge or complaint is taken on its face value alone then it is bad, whether it be uncertain because the adjudication thereon extended beyond the charge or complaint or because it was based on a charge or complaint which included two separate acts and was therefore bad for its latent duplicity. 29Asprey JA (Wallace P concurring) said (at 242 - 243) that on its face the information was sufficient in law. His Honour continued: But difficulties arise where the nature of the charge, in the absence of particulars, is such that, to support it, evidence is led to prove conduct which comprises a continuity of action or a series of connected acts. In cases of this type, where the evidence adduced passes beyond proof of conduct of the kind so described and calls upon a defendant to answer two or more separate offences upon the single information, a conviction upon the offence charged in the information is bad. ... The question then arises as to whether these occurrences constituted one offence of negligent driving or whether they constituted two or more separate offences. This raises problems of some nicety. The answer to this question would appear to be whether the occurrences alleged in the evidence, although happening at different places on the Hume Highway and at successive times, constituted one continuing offence. ... The test would sometimes be whether the acts in question are so separate and complete in themselves that each constitutes an offence. ... But that is not a universal touchstone as in each case the conduct of the defendant must be considered in relation to the nature of the offence with which he is charged. ... In the present case I would regard the alleged conduct of the applicant when he crossed the separate unbroken lines on the hill on the southern side of the bridge and the continuation of his driving in that position to a point where he caused the police vehicle to turn sharply to avoid a collision as a single, continuous incident of negligent driving. But, in my view, another situation arises in relation to the alleged overtaking of the articulated vehicle on the bridge some one half to three quarters of a mile further along the Highway because for a considerable distance before that position had been reached, the applicant had driven his motor vehicle back to the correct side of the road and had followed the articulated vehicle for the distance in question on to the bridge in a manner of driving to which no exception was taken before he commenced the act of overtaking it. In other words, one alleged act of negligent driving had been completed and followed by a distinct course of exemplary conduct before the alleged occurrence of conduct of quite a different character. ... Whether what took place amounted to duplicity strictly so called or whether the alleged facts disclosed a latent ambiguity or uncertainty in the information matters not. Upon this charge only one offence could be proved and the admission of evidence of more than one offence was contrary to law ... 30Hungerford J found (at 205) that the position in Boral Gas was analogous to the quoted position in Ex parte Graham; Re Dowling where there was found to be two disparate acts of negligent driving so as to constitute two separate breaches of that one offence. Hungerford J (at 207 - 209) then referred to and followed the two Victorian cases of Byrne v Baker and Chugg v Pacific Dunlop Ltd , in which he said that the issue arose directly for consideration. 31As a consequence of the decision in Boral Gas , a new section was inserted into the Occupational Health and Safety Act 1983 (s 49A) - now s 31 of the Occupational Health and Safety Act 2000, which is in the following terms: (1) More than one contravention of a provision of Division 1 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. 32Thus, in John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338, Spigelman CJ (Beazley and Giles JJA concurring) said: 65 The fact that the Application for Order expresses a range of matters in terms of a single offence does not, in the specific context under consideration, raise the kind of issues of duplicity which often arise in a criminal prosecution. That is by reason of s 31 of the OH&S Act , which I have set out at [15] above. 66 Section 31 was originally enacted as s 49A of the Occupational Health and Safety Act 1983, in response to the decision of the Industrial Relations Commission in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150. 33At [71] Spigelman CJ said: Section 31(1) is facultative and permits a course which common law principles of duplicity would not permit. 34Mr J Horowitz, appearing for the defendant, submits that each of these cases strongly supports his submission that the charge in the present summons, amplified by the particulars, is bad for duplicity. 35I accept, of course, that ultimately what is presented is a question of fact and degree in each case (as noted by Kirby J in Walsh v Tattersall at 108). There are also cases, such as those relied upon by the prosecutor in this case, which go the other way. 36Notwithstanding the submissions of the prosecutor and the authorities upon which it relies (as discussed below), I am persuaded by each of the above-mentioned cases - which are almost directly relevant to the present case - to conclude that the charge in the present case, as amplified by the particulars, is bad for patent duplicity. Moreover, the absence of a provision of such as s 31(1) of the Occupational Health and Safety Act 2000 reinforces this view. The wide-ranging particulars in the present case, raising as they do alleged breaches of other conditions of the licence and other statutory provisions contravenes the common law principles of duplicity which the High Court had reaffirmed in Walsh v Tattersall , noted above. 37I accept, however, that there is a contextual indication in s 64 itself that the offence is one which can encompass a course of conduct. That is, it is legitimate to charge in a single count one offence although involving more than one act, in which case a charge may not be bad for duplicity: R v Locchi (1991) 22 NSWLR 309. This appears to be so when one looks at the penalty provisions for an offence against s 64, which provides for both a single penalty and a further penalty "in the case of a continuing offence". 38In Ex parte Graham; Re Dowling the two offences occurred at successive times and at different placed on the Hume Highway. Between the two acts there was an interval of time and space when there was no evidence by inference or otherwise of any negligence. One act of negligence had been completed, followed by exemplary conduct, before the second act of negligence and at a different location. These two facts led to the conclusion that they were two separate and distinct offences. 39In the present case the particularised conduct all occurred within the licensed premises, albeit in different parts of those premises. The licence applies to the premises described as "Truegain Pty Ltd, 62 Kyle Street Rutherford NSW 2320, Lot 29 DP221102". Unlike the case of Ex parte Graham: Re Dowling , each of the particularised conducts occurred at the same location, namely, the licensed premises. The real question is whether the particularised conduct - which may be of a continuing nature - describes a series of discrete or separate offences, accepting, however, that a single offence may be of a continuing nature. 40Some of the authorities relied upon by the prosecutor relate to a single course of conduct of a continuing nature. For example, in CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 134, the Court of Criminal Appeal held that a summons was not bad for duplicity which alleged that the defendant negligently caused a substance to leak in a manner which harmed or was likely to harm the environment: there was but one continuing offence which possessed one or two forbidden characteristics - the single act remained unlawful whether it harmed the environment or was likely to harm the environment. That is, there was only one offence which was charged, relevantly to cause a substance to leak for a continuous period. 41In Montgomery v Stewart (1967) 116 CLR 220, the High Court held (by majority) that an information charging a defendant with an offence under s 43 of the Companies Act 1958 (Vic) of issuing of a prospectus containing more than one untrue statement did not create separate offences. The offence involved a single course of conduct - issuing a prospectus - which did not involve, as does the present case, conduct which is alleged to infringe other prohibitions. 42Similarly, in Hamzy v R (1994) 74 A Crim R 341 the appellant was convicted of supplying not less than a large commercial quantity of heroin, based upon evidence that he had supplied a number of witnesses with various amounts of heroin at different times during the twenty-month period specified in the indictment. In holding that there was no duplicity, the Court of Criminal Appeal followed Locchi (inter alia) and held that the Crown is entitled to plead in the one event a charge of supply where it intends to prove a number of individual acts or supply to different people at different times, provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. Hunt CJ at CL explained the principle as follows (at 343 - 344): Prima facie, only one offence may be proved under each count of an indictment: Johnson v Miller (1937) 59 CLR 467 at 487. An indictment is bad for duplicity where it is apparent on its face that more than one offence has been charged in the one count. That is a true duplicity, but that is not the complaint here. The appellant's principal argument here is that there is a latent ambiguity in each count, in the sense described by Dixon J in Johnson v Miller (at 486), in that it is not until the evidence is led in support of the charge that it becomes apparent that the count is referring to more than one offence. It is argued by the appellant that the evidence in the present case discloses a large number of individual supply offences, although none by itself involving a quantity of heroin of not less than 250 g. Both true duplicity and latent duplicity may embarrass an accused, although that is not always the case. So far as true duplicity is concerned, he may wish to plead guilty to one of the offences disclosed and not guilty to the other or others. So far as both types of duplicity are concerned, he cannot at the conclusion of the Crown case submit that there is no case to answer in relation to some but not all of the offences claimed by the crown to have been established. 43In R v Moussad [1999] NSWCCA 337 the appellant was convicted of defrauding the Commonwealth by obtaining money by way of Child Care Fee Relief to which she was not entitled. The charge was laid under s 29D of the Crimes Act 1914 (Cth) which states: A person who defrauds the Commonwealth ... is guilty of an indictable offence. The Crown contended that as part of a continuing offence the appellant submitted nine false quarterly claim forms between 1991 and 1993. After reviewing a large number of cases, each of which turned on their own facts, the Court of Criminal Appeal held that the charge was not bad for duplicity. 44In Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 the defendant was charged with a contravention of a condition of a licence issued by the prosecutor under the then Pollution Control Act 1970. The condition of the licence which was said to have been contravened stated: Pollution control equipment, fuel burning equipment or industrial plant installed in or on the premises must be maintained in an efficient condition and operated in a proper and efficient manner. The EPA, before the commencement of the hearing, provided particulars of the alleged breach of the condition, specifying the respects in which Sydney Water had failed to maintain the industrial plant in an efficient condition. Those particulars were provided on the basis that the sewage treatment plant was regarded "as a single entity wherein the free flow of liquids is interrupted by individual items of plant". There were five items said not to have been maintained in an efficient condition. The Court of Criminal Appeal dealt with an issue in the case which is not presently relevant. However, the Court noted that in a preliminary ruling, which was not challenged on the appeal, Talbot J at first instance had held that it was appropriate for the prosecution to be conducted upon the basis that only a single offence was being alleged and rejected a submission that the alleged failure in respect of each of the items must be regarded as a separate offence. Although not an issue in the Court of Criminal Appeal, Gleeson CJ (Ireland and Bruce JJ concurring) said (at 363): Charging a single offence in such circumstances is consistent with authority and practice in criminal cases: see, eg, Director of Public Prosecutions v Merriman [1973] AC 584 ; R v Hamzy (1994) 74 A Crim R 34l. 45The finding of no duplicity in Sydney Water appears to be inconsistent with the findings of duplicity in Byrne v Baker , in Chugg v Pacific Dunlop Ltd and in Boral Gas (NSW) Pty Ltd v Magill. In Sydney Water it appears that the sewage treatment plant was regarded as a single entity wherein the free flow of liquid was interrupted by individual components of the plant, whereas in the present case the particulars relate to different activities involving different items of plant or equipment and different operations and procedures. The cases are hard to reconcile. I think that some guidance is offered in Montgomery v Stewart , which is authority for the proposition that a single offence can be constituted by more than one individual act or omission, provided that the acts or omissions are of the one kind so as to constitute the one criminal activity. Thus, in both Hamzy and Moussad the acts of the defendants in each case were all of an identical kind - in the case of Hamzy it was the various acts of supplying heroin, and in the case of Moussad it was the various acts of obtaining money to which the defendant was not entitled. 46In the present case the particulars clearly disclose actual or patent duplicity in alleging acts or omissions which are said to involve contraventions of conditions of the licence other than condition 01.1. This conclusion follows from the wording of s 64(1): "If any condition of a licence is contravened ...". The section uses the singular - "condition". I derive support for this conclusion in Walsh v Tattersall. In that case the offence provision provided that a person who obtains by dishonest means "any payment or other benefit under this Act ... is guilty of an offence". As Gaudron and Gummow JJ pointed out (at 89), in that case: ... there is no offence created of '[obtaining] by dishonest means payments or benefits under [the Act]'. Yet count 1 was so expressed. 47In applying the reasoning in Walsh v Tattersall to the present case, it inevitably follows that the charge as amplified by the particulars which allege contravention of conditions additional to condition 01.1 demonstrate actual duplicity. 48For the same reason it is self-evident that the allegations of acts or omissions which are said to arise from contraventions of other statutory provisions are also duplicitous since they each amount to separate or discrete offences. The duplicity arises, at the very least, in particulars (ii) - (iv) and (vii) - (viii) noted at [8] above. 49I have come to the view that the remaining particulars, with the possible exception of particulars (v) and (vi), are also bad for duplicity. In coming to this view I have relied upon Johnson v Miller, Byrne v Baker, Chugg v Pacific Dunlop Ltd, Boral Gas (NSW) Pt Ltd v Magill and the observation of Spigelman CJ in John Holland Pty Ltd v Industrial Court of NSW (noted at [32] and [33] above) . As Dixon J said in Johnson v Miller: " Prima facie, but one offence can be proved under one charge" and "to admit evidence of thirty distinct offences would be contrary to law". In the present case, as in Byrne v Baker, as in Chugg v Pacific Dunlop Ltd and as in Boral Gas (NSW) Pty Ltd v Magill the summons charges the defendant with a single offence but each of the particulars if proved would constitute an offence. Thus, as in Boral Gas, the particulars allege a number of separate and distinct failures each of which would be a contravention in itself. If, however, the same act or omission were alleged then only one offence would be involved, but that is not the case here. To adopt Hill J in Boral Gas (at 179): Many of the acts and/or omissions identified as failures are disparate in nature and content. They involve different items of plant, different systems of work, different operations and procedures. ... The defence, if any, under s 53 of the Occupational Health and Safety Act may well be very different in respect of each alleged failure. 50I also have come to this view in the light of the statutory defence which is available to a prosecution under s 64. Subsection 64(2) states: (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. 51The defence is available if "the contravention of the condition" was caused by another person. The defence, if any, may well be different in respect of each failure. The defence would thus be available to any or each of the acts or omissions which have been particularised if each were regarded as a discrete offence, but would otherwise not be available if each particular was regarded as part of the one offence against the section unless they were all caused by another person. 52It may also be the case that particulars (i), (v) and (vi), although not demonstrating actual or patent duplicity, may involve latent duplicity depending on what evidence is sought to be led, particularly if the matters do not relate to the "licensed activities", namely "petroleum and fuel production' and "waste processing (non-thermal treatment)". Moreover, particular (xvii), noted at [8] above, appears to have nothing to do with the licensed activities but may amount to a breach of some other provision, in which case it, too, is duplicitous. The difficulty with any latent duplicity is that it is often not possible for a Court to determine whether there is latent duplicity until the evidence is led. 53I hold that the summons, as amplified by the particulars, is duplicitous. The particulars supplied make clear that more than one offence is alleged. However, this does not render the process incurably bad. The prosecutor can, at this preliminary stage, remedy the situation by electing, prior to trial, which of the matters alleged in the particulars it proposes to pursue.