Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Lidokew Pty Ltd

Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490 Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd [2006] NSWIRComm 68; (2006) 151 IR 90 Category: Principal judgment Parties: Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator (Prosecutor) Lidokew Pty Ltd (Defendant) Representation: Counsel: H El-Hage and A Brown (Prosecutor) C Ireland (Defendant)

Solicitors: Crown Solicitor's Office (NSW) (Prosecutor) Bell & Johnson Solicitors (Defendant) File Number(s): 2020/88368, 2020/88369, 2020/88370 and 2020/187127 Publication restriction: Nil

The Defendant is Charged With Four Offences Against the Water Management Act

1. By summonses filed on 19 March 2020, the prosecutor alleges that between 29 January and 29 April 2019 the defendant, Lidokew Pty Ltd ("Lidokew"), committed three offences contrary to s 91I(2) of the Water Management Act 2000 ("WMA"), or in the alternative, three offences contrary to s 91H(2) of that Act ("the meter offences").
2. By further summons filed on 24 June 2020, the prosecutor alleges that between 1 July 2016 and 30 June 2019 Lidokew committed an offence against s 60C(1)(b) of the WMA, or in the alternative, an offence contrary to s 60C(2) of that Act ("the allocation offence").
3. Lidokew has filed notices of motion in all four proceedings seeking to set aside the summonses, or alternatively, an order that the prosecutor be put to an election to amend the summonses because: 1. the use of alternative offences in each summons is duplicitous; 2. the s 91I(2) meter offences charges are duplicitous and/or plead an offence unknown to law insofar as they plead particulars of offences under s 91H(2) of the WMA; 3. the s 60C(1) allocation offence charge is duplicitous because the particulars plead alternative formulations of liability (that is, knowledge and a reasonable cause to believe); and 4. the s 60C(1)(b) and s 60C(2) allocation offence summons is duplicitous and/or is an offence not known to law insofar as it rolls up three different water years in the one charge.

The Meter Offences

1. The meter offences summonses were relevantly identical, the only difference being the description of the pump in the particulars. Thus, for example, in relation to the summons for the meter offences in respect of the Davis Shephard meter fitted to the house pump, the summons was in the following terms: An order that the Defendant, Lidokew Pty Ltd (ACN: 002 942 289) appear before a Judge of the Court to answer to the charge that, between about 29 January 2019 and 29 April 2019 inclusive, at the property comprising Lot 1 of Deposited Plan 1128755, located at 1563 Doreen Lane, Wee Waa in the State of New South Wales ("Havana North"), the Defendant committed an offence contrary to: (i) s 91I(2) of the Water Management Act 2000 (NSW) (the Act), in that it took water from a water source to which Part 3 of Chapter 3 of the Act applied by means of a metered work while its metering equipment was not operating properly or was not operating. Particulars (a) A person who takes water The Defendant pumped water through a bore from the Lower Namoi Groundwater Source between about 29 January 2019 and 29 April 2019. Or alternatively was the occupier of premises at which such water was pumped. (b) from a water source to which Part 3 of Chapter 3 of the Act applies The Lower Namoi Groundwater Source is a water source to which Part 3 of Chapter 3 of the Act applies in relation to all approvals, as proclaimed in the Proclamation under the Water Management Act 2000 No 92 published in Gazette No. 127 of 27 October 2006. (c) by means of a metered work The water was pumped using a house pump located at GPS Coordinates S30.04956° and E149.30904°. The house pump was authorised for use at Havana North by reason of Water Supply Work Approval 90CA806356. (d) Metering equipment The house pump was fitted with a Davies Shephard water meter. (e) Metering equipment not operating properly or not operating Between about 29 January 2019 and 29 April 2019 inclusive, when the house pump was used to take water from the Lower Namoi Groundwater Source: (i) the Davies Shephard water meter was not operating or not operating properly. (ii) or alternatively was the occupier of premises at which there was a failure to ensure the proper operation of the Davies Shepherd water meter. (ii) s 91H(2) of the Act, in the alternative to the offence set out above in sub-paragraph (i), in that it failed to ensure the proper operation of the metering equipment that had been installed in connection with a water management work. Particulars (a) Metering equipment The house pump was fitted with a Davies Shephard water meter. (b) installed in connection with a mater management work The house pump was authorised for use at Havana North by reason of Water Supply Work Approval 90CA806356. (c) the person failed to ensure the proper operation of the metering equipment Between about 29 January 2019 and 4 June 2019 inclusive the Defendant: (i) failed to ensure the proper operation of the Davies Shephard water meter.

The Allocation Offence

1. In respect of the allocation offence the summons charged: An order that the Defendant, Lidokew Pty Ltd (ACN: 002 942 289) appear before a Judge of the Court to answer to the charge that, between about 1 July 2016 and 30 June 2019 inclusive, at the property comprising Lot 1 of Deposited Plan 1128755, located at 1563 Doreen Lane, Wee Waa in the state of New South Wales (Havana North), the Defendant committed an offence contrary to: (i) s 60C(1)(b) of the Water Management Act 2000 (NSW) (the Act), in that it took water from a water source to which Part 2 of Chapter 3 of the Act applied otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source was authorised, and knew or had reasonable cause to believe that the taking of the water was not in accordance with the water allocation. Particulars (a) A person who takes water The Defendant took water using three pumps located at Havana North from the Lower Namoi Groundwater Source between about 1 July 2016 and 30 June 2016. Alternatively, the Defendant was the occupier of premises at which such water was taken from the Lower Namoi Groundwater Source between about 1 July 2016 and 30 June 2019. (b) from a water source to which Part 2 of Chapter 3 of the Act applies The Lower Namoi Groundwater Source is a water source to which Part 2 of Chapter 3 of the Act applies in relation to all approvals, as proclaimed in the Proclamation under the Water Management Act 2000 No 92 published in Gazette No. 127 of 27 October 2006. (c) an access license authorises the taking of water from the water source At all relevant times, the Defendant was the holder of a water access licence (WAL) known as "WAL 12400" (reference number 90AL806354) which authorised the taking of water from the Lower Namoi Groundwater Source. (d) the water is taken otherwise than in accordance with the water allocation for the access license At all relevant times, the share component of WAL 12400 was 494 unit shares. The available water determination that applied to WAL 12400 for each water year during the period of alleged offending was 1.0 mega litres (ML) per unit share. In addition, the Defendant was entitled to carry over any unused account water from the previous water year, up to the relevant carryover limit, which was 2.0 ML per unit share, for each water year during the period of alleged offending. In each relevant water year the amount of water taken was not to exceed 2.0 ML per unit share in the absence of any water allocations assigned from another access licence, of which there were none in the period. Accordingly, the total water allocation for WAL 12400 was 988 ML per water year during the period 1 July 2016 to 30 June 2019. The defendant took water from the Lower Namoi Groundwater Source for use in irrigation at Havana North at a rate in excess of the total water allocation for WAL 12400. (e) the person knew or had reasonable cause to believe that the taking of the water was not in accordance with the water allocation The defendant knew or had reasonable cause to believe that the taking of the water was not in accordance with the water allocation. (ii) s 60C(2) of the Act, in the alternative to the offence set out above in sub-paragraph (i), in that it took water from a water source to which Part 2 of Chapter 3 applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source was authorised. Particulars The Particulars at sub-paragraphs (i)(a)-(d) are repeated here.

The Statutory Framework Creating the Offences

1. Because the question of whether the summonses are duplicitous turns upon the proper construction of the provisions enacting the relevant offences, it is necessary to set out the statutory framework governing the charges.
2. Section 60C(1) and (2) of the WMA provide as follows: 60C Taking water for which there is no, or insufficient, water allocation (1) Offences involving allocations under a single access licence A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and - (a) who intentionally or negligently fails to ascertain whether the taking of water is in accordance with the water allocation, or (b) who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation, is guilty of an offence. Tier 1 penalty. (2) A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised is guilty of an offence. Tier 2 penalty.
3. Section 85(1), (2) and (6) concerns the keeping of water allocation accounts and relevantly states: 85 Keeping of water allocation accounts (1) For each access licence, the Minister is to cause an account to be kept of - (a) the water allocations that are acquired under section 71T or 71V in relation to the water allocation account for the licence or otherwise credited from time to time to the water allocation account for the licence, and (b) the water allocations that are taken or assigned under section 71T or 71V or otherwise debited or withdrawn from time to time in relation to the water allocation account for the licence, and (c) the water allocations that are recredited to the water allocation account for the licence from time to time under section 76. (2) Water allocations are to be credited to the water allocation account for an access licence in accordance with any relevant available water determination. … (6) The regulations may make provision for or with respect to the form in which a water allocation account is to be kept under this section and the particulars that are to be recorded in such a water allocation account.
4. Section 91H(2) of the WMA is in the following terms: 91H Failure to install, use or maintain metering equipment (2) A person is guilty of an offence if the person fails to ensure the proper operation of any metering equipment that has been installed in connection with a water management work. Tier 2 penalty.

Events Giving Rise to the Charges under the WMA

1. For the purpose of the applications, most of the facts founding the four charges were set out in a statement of facts agreed to by the parties, together with the prosecutor's statement of facts.
2. In short, all proceedings concern the alleged taking of water from a groundwater source by means of metered pumps at a property. The prosecutor alleges that Lidokew was taking groundwater for the purpose of cotton irrigation at a rate higher than the amount reflected on the meters installed on the property, and in amounts exceeding its water allocation.
3. The alleged offences occurred at a property located at 1563 Doreen Lane, Wee Waa (Lot 1, DP1128755) known as "Havana North" ("the property").
4. Lidokew is the registered owner of the property, which is between 1,212 and 1,225 ha in size. Garry Phelps is Lidokew's sole director and secretary. Lidokew used the property primarily for cotton production.
5. Lidokew takes bore water from the lower Namoi groundwater source by using three metered works (pumps) installed at the property. It was not a matter of controversy that at all relevant times Pts 2 and 3 of Ch 3 of the WMA applied to the lower Namoi groundwater source. Similarly, it was not in dispute that the use of the groundwater source at Havana North was regulated by the Water Sharing Plan for the Upper and Lower Namoi Groundwater Sources 2003 ("the WSP").
6. Lidokew held water access licence 12400 ("the WAL").
7. Condition 10 of the WAL mandates that: The licence holder must comply with the Water Allocation Account Management Rules established by the Plan.
8. The Water Allocation Account Management Rules established by the WSP include those contained in cl 34 of the WSP.
9. Clause 34(9) of the WSP relevantly provided that in each of water years 2016/17, 2017/18, and 2018/19, the maximum amount able to be taken under the WAL (on the annual limit) was 2 ML per share (plus or minus any water trades that occurred in each water year).
10. Clause 34 of the WSP relevantly provides: 34 Annual accounting for water extraction (1) Water taken from these groundwater sources will be accounted for at least annually. (2) Water taken by a water supply work (bore) nominated by an access license will be periodically debited against the access licence water allocation account. (3) A water allocation account shall remain at or above zero at all times. (4) Unused water allocations in the water allocation accounts of domestic and stock access licences or of local water utility access licences, cannot be carried over from one water year to the next. (5) In any water year, subject to local impact management restrictions arising from Part 10, Division 2 of this Plan, water taken from these groundwater sources under a local water utility access licence or a domestic and stock access license may not exceed a volume equal to: (a) 100% of the share component of the access licence at the beginning of that water year, (b) plus any water allocations assigned from another access licence under section 71T of the Act in that year, (c) plus any water allocations re-credited in accordance with section 76 of the Act in that year, and (d) minus any water allocations assigned to another licence under section 71T of the Act in that year. (6) Unused water allocations in the water allocation accounts of aquifer access licenses may be carried over from one water year to the next, subject to subclauses (7) and (8). (7) The maximum amount of unused water allocations that can be carried over under subclause (6) is equal to 2 ML per unit of share component for Zones 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and the Lower Namoi. (8) The maximum amount of unused water allocations that can be carried over under subclause (6) is equal to 2.3 ML per unit of share component for Zone 1. (9) In any water year, subject to local impact management restrictions arising from Part 10, Division 2 of this Plan, water taken from Zones 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and the Lower Namoi under an aquifer access licence may not exceed a volume that is equal to: (a) 2 ML per unit of aquifer access licence share component at the beginning of that water year, plus (b) any water allocations assigned from another access licence under section 71T of the Act in that year, minus (c) any water allocations assigned to another access licence under section 71T of the Act in that year.

1. The prosecutor alleges that the balance in the two right-hand columns came from either bores or from above ground storages on the property (filled over time from rainfall and/or bore water). The total water available to Lidokew from the combination of bores and above ground storages, consistent with its annual use limits over the relevant period, was 4,164 ML. On the most conservative estimate, 6,041 ML of water was used by Lidokew, which is 1,877 ML in excess of its allocation across the charge period.
2. On 19 December 2019 Phelps participated in a recorded interview ("ROI") with the prosecutor's investigators during which he: 1. indicated that he collects internal runoff on the property and from overland water flows, but does not obtain or use any other forms of water other than metered bore water (Q/A 28 to 31); 2. denied that his bores are his main source of water and claimed that he relies "more on collecting run-off" in early spring and late winter from infrastructure that he had built up (Q/A 101); 3. stated that he relied upon what the meter told him (Q/A 144 to 145); Q144. So, we'll start with the '16, '17 water year. According to the water account statements - for the recording I'm just looking at water account statement 90AL806354. Okay. So, on the back it has a total usage recorded for the water year of 406 megalitres from the three bores. A. Yeah. Q145. Would that be correct? A. Yeah. That would be correct. I can only go on what the metres tell me. 1. explained the extra water usage on the basis of collected rainfall (Q/A 211 to 224). For example: Q211. Yeah. So, can you explain to us the extra water usage? A. Well the only gap is rainfall. And your statement that you've collected data from Wee Waa doesn't mean a thing. I've got three rain gauges. I've had four inches in my back gauge and none in the front one. … Q223. All right. Can't do that either. A. No. It, it, it really it - with rainfall and storm events it's luck of the draw. Like I, I've seen the neighbour across the paddock getting nothing and I'm getting something and vice versa. Q224. Mm mm. A. It's the nature of the beast. And, you know, if I, if I don't get storms to help me water well generally speaking my irrigated crops quickly become dry land crops. And I think the yields reflect that. 1. indicated that rainfall (both direct and captured) was the difference between Lidokew's bore water usage and the irrigation requirements of its cotton crop (Q/A 282 to 285); and 2. indicated that he does not keep records of his ML/ha usage for crop irrigation but assuming water availability, he would work on 5 ML/ha "tops" (Q/A 82 to 92 and 225): Q82. Right. Okay. Do you have any knowledge - we've made some inquiries around the area and they say in a dry year it might be around about 10 megalitres per hectare. Would that sound? A. Well, if it is I've never gone anywhere near that. Q83. Haven't you? A. That's what I'm saying. Q84. All right. A. I don't know anybody who would have put that amount of water on. Q85. Okay. So, do you have any, I guess indication - you said you would never use that amount of water? So, how much less than that do you think? A. Well, it's not an exact science. I don't really know. You know, it may be, may be five or something. Half that. Q86. Right. A. Certainly we've never, never worked on 10. Q87. Okay. Have you - do you engage or employ an agronomist to come out and assist you with where you're at with your farming practices as far as - - - A. Yeah, yeah. Well, I enlist help from all sorts of people. Q88. Yeah. A. Get their advice. Not necessarily the same people all the time. But we're always bouncing off people for ideas and what they think and that sort of stuff. Q89. Yeah. Okay. A. So, pretty much how I play it Q90. Just to clarify you indicated around about 5 megs? Is that right? A. Yeah, well, yeah. Tops, yeah. Q91. Per hectare? QA. Yeah. Q92. And that's on across your whole farm, Garry? All the irrigated sections of, of the farm? Because, you know, different sorts of sites as you said, you know, you get different rainfall in different areas. Would that be consistent across the whole? A. Well, that would be an average. I'm saying an average. … Q225. So, that's what I'm sort of - I'm a little bit puzzled about, Garry is you indicated there's around about 5 megalitres per hectare, right. That, that's what - - - A. Up, up to that but that's not necessarily what goes on with the crop. In, in an ideal situation. If you've got the water availability, I'd work on about 5 litres a hectare.

The Rule Against Duplicity

1. The legal principles to be applied in determining whether a summons is bad for duplicity have been restated in a number of authorities (see, for example, their exposition in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 at [31]-[52], Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165; (2015) 90 NSWLR 57 at [91]-[98], and Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [47]-[54]).
2. More recently, the Court of Criminal Appeal articulated the legal principles in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 as follows (at [34]-[36]): 34 "[T]he general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law": Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at p 107 (Kirby J). Two exceptions are recognised. The first is where the alleged offence is of a continuing nature, such as maintaining a brothel or carrying on a business without a statutory licence. In such cases conduct that continues over an extended period, any part of which would constitute the offence, may all be charged in one count. The second exception is that a single charge may be laid in respect of multiple acts that may each individually constitute a separate offence if those acts are sufficiently connected with each other to amount to a single compendious instance of offending. This exception was expressed by Lord Diplock in the following terms in Director of Public Prosecutions v Merriman [1973] AC 584 at 607: The rule against duplicity, viz that only one offence should be charged in any count of an indictment ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. 35 In Walsh v Tattersall Kirby J drew together and analysed the authorities concerning the second exception in the following passages (at pp 107-109; some citations omitted): 5 The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? (Jemmison v Priddle [1972] 1 QB 489). If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England: Director of Public Prosecutions v Merriman. … Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity: Jemmison v Priddle. […] 6 … Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity": Hamzy (1994) 74 A Crim R 341 at 348. … Ultimately, what is presented is a question of fact and degree for decision in each case: Eades (1991) 57 A Crim R 151 at 156. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct: Weinel v Fedcheshen [1995] SASC 5216; (1995) 65 SASR 156 at 170 per Perry J. Perhaps an indication of the considerable difficulty of the task is to be found in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 at 472; Kitto J dissented in Montgomery v Stewart; and Brennan J (as he then was) dissented in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at 267. 36 Kirby J rejected (at p 110) any reduction in "the strict approach to resolving questions of duplicity in the pleading of criminal charges" and noted that "a strict approach has been consistently applied by this Court", citing Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, Iannella v French (1968) 119 CLR 84; [1968] HCA 14 and S v The Queen (1989) 168 CLR 266; [1989] HCA 66. Whilst emphasising strictness of application, his Honour did not question the recognised exceptions to the rule against duplicity in cases of, first, continuing offences and, secondly, single criminal transactions. At p 112 his Honour said: This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.

Are the Meter Offences Duplicitous?

1. Lidokew submitted that the meter offences summonses were duplicitous on two bases: 1. first, because the summonses plead two offences in the alternative in the one count, namely, an offence against s 91I(2) and an offence against s 91H(2), each of which has different elements; and 2. second, insofar as the s 91I(2) charge "alternatively" pleads in particular 1(i)(e)(ii) that Lidokew "was the occupier of premises at which there was a failure to ensure the proper operation of the…water meter" the charge is fatally flawed because while the deeming provision contained in s 91L(1) applies to the s 91I(2) offence, that deeming provision does not import an element of failure to ensure the proper operation of the metering equipment into s 91I. Put another way, the alternative allegation in the s 91I(2) offences contained in particular 1(i)(e)(ii) has averred text from the s 91H(2) offence with the result being an offence not known to law.
2. There is no doubt that the summonses have not been drafted with the particularity or pellucidity required by, or expected from, a prosecuting authority.

There is Nothing Impermissible About Charging Alternative Offences in the One Summons

1. As Lidokew notes, ss 91H(2) and 91I(2) contain different elements. Given that they are different offences this is unsurprising. The offence created by s 91H(2) of the WMA has as its elements: 1. a person; 2. who fails to ensure; 3. the proper operation of any metering equipment; 4. that has been installed in connection with a water management work.
2. These may be contrasted with the elements of s 91I(2), where the prosecutor must establish that: 1. a person; 2. who takes water from a water source to which Pt 3 applies; 3. by means of a metered work; 4. while its metering equipment is not operating properly or is not operating.
3. The use of alternative counts does not of itself give rise to duplicity. Patent duplicity arises where one charge alleges two or more offences within the same charge. Where two charges within the same summons each allege a separate single offence, there is no duplicity. Lidokew is not being exposed to conviction on both the s 91I(2) and s 91H(2) offences. This is because no verdict can be returned on an alternative count unless and until there has been a determination of not guilty in respect of the primary count.
4. The right of a prosecutor to bring charges in the alternative is recognised at common law and has been enshrined in s 23(3) of the Criminal Procedure Act 1986 ("the CPA"): 23 Indictment may contain up to 3 similar counts … (3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment.
5. The term "indictment" is defined broadly to include "a court attendance notice or any other process or document by which criminal proceedings are commenced" (s 15(2) of the CPA). This includes a summons filed in Class 5 of this Court's jurisdiction.
6. As Kirby J opined in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 (at [96]), "in many instances, where the elements of offences substantially overlap (although they may not be identical) sound prosecutorial practice will result in the charges being expressed in the alternative" (see also R v Thomson; R v Dann [2002] NSWCCA 400; (2002) 134 A Crim R 252 and WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd [2006] NSWIRComm 68; (2006) 151 IR 90 at [39]-[42], both of which cite R v Bellman [1989] AC 836).

Can the Meter Offences Summonses be Amended or Do They Plead Offences Not Known to Law?

1. There is, however, superficial attractiveness in Lidokew's assertion that, as pleaded, the alternative s 91I(2) offence is nevertheless defective. This is because, first, as the prosecutor readily accepted, the particulars at sub-paragraph (1)(i)(e)(ii) to each of the meter offences summonses have the effect of importing text from the s 91H(2) offences into the s 91I(2) offences: (ii) or alternatively was the occupier of premises at which there was a failure to ensure the proper operation of the…water meter.
2. Lidokew contends that, as pleaded, the s 91I(2) offences with which it has been charged are not known to law (Walsh at 89 and 91 per Gaudron and Gummow JJ and Attorney General (NSW) v Built NSW Pty Ltd [2013] NSWCCA 299; (2013) 239 IR 102).
3. According to the prosecutor, the intent of that sub-paragraph was to make plain that it was relying on s 91L of the WMA (concerning the liability of an occupier of premises for certain offences), and not to import any further means by which the offence could be established (by virtue of a failure to ensure the proper operation of the meter, as opposed to the meter not operating or the meter not operating properly).
4. As a consequence, the prosecutor also seeks to amend the three meter offences summonses by deleting particular (1)(i)(e)(ii).
5. Second, the prosecutor also seeks, by way of amendment, to remedy another difficulty in the manner in which the two alternative counts are pleaded, namely, the uncertainty surrounding the time period for the commission of the offences. The problem arises because the time period contained in the chapeau to the two charges is different from the time period stipulated for the s 91H(2) offences. This creates confusion as to which time period is applicable.
6. The solution proposed by the prosecutor is to remove the words "between about 29 January 2019 and 29 April 2019" in the chapeau of each summons and to expressly indicate the time period for each alternative pleaded offence.
7. As a result of the proposed amendments, however, the time periods for the two alternative offences will not be the same. That is, for the s 91I(2) offences the charge period will be "between about 29 January 2019 and 29 April 2019", whereas for the s 91H(2) offences the charge period is "between about 29 January 2019 and 4 June 2019". This, Lidokew submits, gives rise to an additional issue with the summonses insofar as the two alleged offences pleaded in the one count in each summons do not arise from the same event.

The Amendment of the Charge Periods for the Alternative Meter Offences

1. The prosecutor submitted that the proposed amendment to the charge periods for the alternative meter offences does no more than clarify the time periods within which it is alleged that the commission of the alternative offences took place. Two time periods have been pleaded, albeit confusingly insofar as it was uncertain whether the date range for the commission of the s 91H(2) offences is between "29 January 2019 and 29 April 2019", as appeared in the chapeau to both offences and in paragraph 1(i)(a) and (e) of the summonses, or "29 January to 4 June 2019" as was particularised in subparagraph (ii)(c) of the charges.
2. There is nothing impermissible or unfair in the prosecutor amending the summons to clarify the applicable charge periods and in electing to proceed with the longer time period previously nominated in the particulars for the s 91H(2) offences. The particulars for the s 91H(2) offences already reference this date at paragraph 1(ii)(c).
3. The amendment will also serve to quell any controversary arising from the suggestion that the offences do not arise out of the same event. They do. The end date of "29 April 2019" was nominated for the s 91I(2) offences because, according to the prosecutor, there was no increment of any of the meters between 29 April and 4 June 2019, suggesting that no water had been taken between those dates for the purpose of those offences.
4. In any event, stating the wrong time or stating the time imperfectly is not a basis for setting aside the summonses (see s 16(1)(g) of the CPA).

The Meter Offences Are Not Duplicitous but Must be Amended

1. I therefore find that the meter offences summonses are not duplicitous but to the extent that defects are contained in their pleading, I grant leave to the prosecutor to amend these summonses in the manner described above.

Is the Allocation Offence Summons Duplicitous?

1. Lidokew alleged that the allocation offence summons was bad for duplicity on three bases: 1. first, because it pleads two separate offences each with different elements in the one summons: an offence against s 60C(1)(b) of the WMA of knowingly or having reasonable cause to believe taking water not in accordance with the water allocation for the subject property; and in the alternative, an offence against s 60C(2), which is the strict liability equivalent of the offence contained in s 60C(1)(b); 2. second, the s 60C(1)(b) offence is duplicitous because it pleads alternative formulations of liability inasmuch as the summons pleads allegations of both knowledge and reasonable cause to believe as the required mens rea; and 3. third, because the alleged offence against s 60C is one that can only be committed in relation to a particular "water year", however, as pleaded the charge rolls up three water years. In the alternative, if the charge is construed as alleging an exceedance of the water allocation over the combined three year period, then it alleges an offence not known to law because a new water allocation arises under the WAL and the applicable WSP each water year.

Pleading Alternative Offences in the One Summons is Not Duplicitous

1. For the reasons given above in respect of the meter offences summonses, the first basis for alleging that the allocation offence summons is bad for duplicity must be rejected.
2. The prosecutor has again sought to avoid all ambiguity as to whether the charges are wholly in the alternative by amending the allocation offence summons in a manner similar to the amendments proposed in relation to the meter offences summonses. For the same reasons, the amendments ought to be allowed.

Pleading Alternative Formulations of Liability is Not Duplicitous

1. For the purpose of determining whether a count in a summons is bad for duplicity, there is a distinction between pleading alternative factual bases of liability, which is likely to infringe the rule against duplicity (see, for example, Riverina Australia Pty Ltd), and pleading alternative legal formulations of liability based on the same, or substantially the same, facts, which is not (R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 at [65] per Barr J).
2. A charge is not duplicitous where the evidence reveals a single offence notwithstanding that the trier of fact may be able to convict on one of several alternative legal bases. For example, a single charge of murder can contemplate a number of alternate bases of liability: an act done with an intention to kill; an act done with an intention to inflict grievous bodily harm; or an act done with reckless indifference to human life. All give rise to a single count of murder, but liability may be established a number of different ways without recourse to multiple counts.
3. Moreover, it has long been permitted to describe the nature of an offence by recourse to the statutory language enacting it (Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [130] per Basten JA). That is what has occurred in the drafting of the allocation offence summons. Provided that all of the legal elements of the offence are identified, either expressly or impliedly (which they have been in the allocation offence summons), this is sufficient (Rockdale at [130]).
4. As is evident from the plain and ordinary meaning of the words in s 60C(1)(b) of the WMA, the mens rea requirement for that provision can be established by proof of either knowledge or reasonable cause to believe. The prosecutor is not required to elect which mental state specified in s 60C(1)(b) it is alleged that Lidokew possessed at the time of the commission of the offence. The provision does not create two separate offences within the one section. On the contrary, s 60C(1)(b) of the WMA creates a single offence that may be established by proof beyond reasonable doubt of either subjective knowledge or, importing an objective element, reasonable cause to believe.
5. As Pain J stated in Environment Protection Authority v Newcastle Port Corporation [2020] NSWLEC 6 (at [11]): 11 Where a statutory provision provides for alternative ways of committing the one offence, those alternatives may be the subject of a single count. In R v Ginies [1972] VR 394 (Ginies) a single count that the accused fraudulently "induced or attempted to induce" a named person to invest specified money was not duplicitous. The offence provision relevantly commenced as follows "[a]ny person who [fraudulently] induces or attempts to induce another person" to invest money shall be guilty of an offence. This was held to create only one offence which could be committed in alternative ways.

Rolled-up Charges Under s 60C(1)(b) and (2)

1. Lidokew contends that the allocation offence summons is duplicitous because the alleged offence against either s 60C(1)(b) or s 60C(2) of the WMA is one that can only be committed in relation to a particular "water year", however, the summons as pleaded impermissibly includes three water years in the one charge, and therefore, three seperate offences.
2. As pleaded, the prosecutor alleges that Lidokew took water from the lower Namoi groundwater source other than in accordance with its water allocation under the WAL per water year during the period 1 July 2016 to 30 June 2019. The excess amount of water per water year relied upon by the prosecutor is particularised in the table above at paragraph [37]. More specifically, the allegation is that more than the allowed allocation of 2 ML per share (or 988 ML) was taken by Lidokew in each water year. Lidokew submits, therefore, that because there are allegations of distinct breaches of s 60C(1) and (2) for each water year in the one charge, the summons is duplicitous.
3. Alternatively, Lidokew argues that if the charge is construed as alleging an exceedance of the water allocation over the combined three year period, it alleges an offence unknown to the law because a new water allocation arises under the WAL and the applicable WSP each water year.
4. Basten JA described the approach to take in determining a complaint of duplicity in such circumstances in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 205 FLR 217 (at [9]): 9 There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities. There are many cases which illustrate this proposition. One referred to in argument in the present case was Montgomery v Stewart (1967) 116 CLR 220, which involved the issue of a company prospectus containing a number of untrue or misleading statements. Each such statement would have been sufficient to give rise to the offence, the prohibited act being the issue of the prospectus. There was only one offence committed by issuing the prospectus, whether there were two or more untrue or misleading statements contained in it. Accordingly, an information alleging several such statements was not bad for duplicity.

A Single Criminal Enterprise?

1. As discussed above, an exception to the rule against duplicity exists where the offending acts form part of the same criminal transaction or enterprise such that they can be charged in a single count (Walsh at 107-108,110 and 112, Truegain at [48]-[52] and Kiangatha at [34]-[37]).
2. As was observed by Leeming JA in Truegain, the question of whether a statute attaches criminal liability to an ongoing criminal enterprise as opposed to a discrete act is one of construction (at [51] and see Tropic Asphalts at [49]).
3. Lidokew submitted that as a matter of statutory construction s 60C of the WMA creates an offence that attaches criminality to a taking of water in excess of "the water allocation for the access licence", which is an amount of water able to be extracted in a single water year, rather than over a number of water years.
4. A proper interpretation of that provision reveals that this argument cannot be accepted for the reasons given below.
5. Turning to its text, the conduct prohibited by s 60C(1)(b) and (2) is the taking of water by a person in particular circumstances, namely, where it is "otherwise than in accordance with a water allocation for the access licence". As drafted, the offence creating provisions are broad in scope. They are not, for example, confined to the holder of the licence but apply to "a person". Furthermore, and central to the present construction question, there is no mention of time contained in the provision; neither sub-section creates an offence in respect of the taking of water within a specified time period. Attention is instead directed to the water allocation provided for under the access licence.
6. As stated above, the term "water allocation" is defined as "the water to which the holder of an access licence is entitled from time to time under the licence as recorded in the water allocation account" for that licence (emphasis added). The reference to the "water allocation account" is a reference to "the account for the licence referred to in" s 85(1) of the WMA.
7. As can be seen from the definitions of "water allocation" and "water allocation account" quoted earlier in this judgment, the maintenance of a "water allocation account" is a requirement under s 85 of the WMA which records, among other things, credits to the account "in accordance with any relevant available water determination" (s 85(2)). The water allocation account also records the matters identified in s 85(1) for each access licence.

Conclusion and Orders

1. I have concluded that the meter offences summonses are not duplicitous but to the extent that defects are contained in their pleading, leave should be granted to the prosecutor to amend those summonses.
2. To the extent that the allocation offence summons contains relevantly similar drafting infelicities, leave is also granted to the prosecutor to amend that summons.
3. However, because I have determined that the allocation offence summons is, even once amended, bad for duplicity, further proceedings on that summons ought to be stayed until the prosecutor elects and particularises a single offence upon which it will proceed contrary to (in conformity with the reasons above) s 60C(1)(b) or, in the alternative, s 60C(2) of the WMA.
4. It is appropriate that I proceed to make formal orders consistent with the reasons given in this judgment. That is, I decline in advance any request by the prosecutor to submit any questions of law by way of stated case to the New South Wales Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912 (Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd (No 2) [2021] NSWLEC 48).
5. The formal orders of the Court are therefore: In proceedings 2020/88368, 2020/88369 and 2020/88370 (1) the notices of motion filed by Lidokew on 16 December 2020 are dismissed; (2) leave is granted to the prosecutor to amend each of the summonses in accordance with the proposed amended summonses (dated 12 April 2021) the subject of its notices of motion filed on 30 March 2021; In proceedings 2020/187127 (3) leave is granted to the prosecutor to amend the summons in accordance with the proposed amended summons (dated 12 April 2021) the subject of its notice of motion filed on 30 March 2021; (4) subject to order 3, proceedings are stayed until the prosecutor elects and particularises a single offence contrary to s 60C(1)(b), or in the alternative, s 60C(2) of the Water Management Act 2000; and In proceedings 2020/88368, 2020/88369, 2020/88370 and 2020/187127 (5) the exhibits are to be returned.

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