Kiangatha Holdings Pty Limited v Water NSW; Natale v Water NSW

The primary judge's judgment

1. The issues between the parties at the hearing of the notices of motion were identified by Robson J at [23] as follows: (1) Whether the proposed amended summonses are so different to the original summonses that they constitute "fresh" charges. This requires consideration of the scope and content of the proposed amendments. (2) Whether the statutory requirements and common law requirements for the amendment of summonses have been fulfilled. This requires consideration of the interests of justice, any injustice caused, notice of the charges, and other issues of procedural fairness. (3) Whether the manner in which the proposed amended summonses were prepared (that is, attendances by authorised officers of Water NSW and the use of a drone to take aerial photography) constitutes trespass onto Kiangatha's property, which is unfair or disentitling conduct by the prosecutor.
2. The primary judge set out ss 20 and 21 of the Criminal Procedure Act 1986 (NSW) and s 68 of the Land and Environment Court Act 1979 (NSW), being relevant provisions concerning amendment of process. His Honour discussed a number of the cases concerning amendments of, and defects in, indictments, and requirements for the content of a summons.
3. The significance of the issue of whether the amended summonses amount to fresh charges is that s 216 of the POEO Act requires that proceedings for an offence under the Act be commenced not later than 12 months after the date on which the offence is alleged to have been committed. The last date on which the offences were alleged to have been committed was 10 October 2017. The original summonses were issued on 27 September 2018. As mentioned, leave was only sought to rely upon the proposed amended summonses on 7 May 2021.
4. The main evidence before the primary judge consisted of affidavits from Liam Mulligan, a solicitor in the employ of the solicitor for the respondent, and an affidavit from James Caddey, a catchment assessments officer with the respondent. Mr Caddey was a qualified but not registered surveyor. His Honour also had an affidavit from Stephanie Vatala, the solicitor for the applicants, and affidavits from Geoffrey Meyer, a registered surveyor engaged by the applicants.
5. Mr Mulligan said in his affidavit that his understanding, from what was said in Kiangatha CCA at [68], was that the respondent was entitled to make an election and undertake further particularisation of a single offence for each of the summonses on which the respondent would proceed. Accordingly, the respondent selected four locations to be the subject of proposed amended summonses, and decided to represent those locations graphically on maps to identify to the applicants the locations where it was alleged the earthworks had been carried out "which placed soil or sediment in a position where it was placed in, or was likely to fall or descent into" waters. The maps would also identify the particular waters which were the subject of the charges.
6. Mr Mulligan described the preparation of the maps. He said that the aerial photography data available to the respondent was at a scale of 1:100,000, and that was sufficient to produce a large-scale overview map of the whole of Kiangatha's property. However, it had a margin of error when zoomed in to the individual sites to produce individual maps. That meant that certain landscape features did not align with GPS data of the road and drainage lines with reasonable accuracy.
7. Mr Mulligan said that in order to obtain more accurate aerial imagery of the individual sites, authorised officers of the respondent attended Kiangatha's property on 20 April 2021 and undertook aerial photography using a drone. At the time further detailed GPS surveying of the ephemeral drainage lines at the individual sites was also undertaken. The further aerial photographs were compiled into individual map layouts for the individual sites, and then overlain with GPS data of the constructed road and the drainage lines creating maps for each of the individual sites at a scale of 1:1,250. Those composite aerial maps for the sites were attached to the proposed amended summonses.
8. In his affidavit, Mr Caddey said that he had attended Kiangatha's property on four occasions in 2017 and 2018 with members of the respondent's compliance team, and assisted in the assessment of the recent roadworks that had been undertaken by carrying out surveying work in respect of the roadworks. On 20 June 2018 he took photographs and recorded coordinates, using the GPS function available on an iPhone and other field information of various points along the newly constructed road to enable the preparation of a map showing the approximate location and extent of the recent road construction works.
9. Mr Caddey again attended the property 20 April 2021. He carried out further survey work in the company of a Mr Newport who was operating the drone. Mr Caddey used a combination of GPS and photogrammetry obtained from the drone, focusing on the individual sites. He described his and Mr Newport's processes, including locating and obtaining GPS coordinates for a Permanent Mark. He also described the process at the individual sites including what was done to obtain GPS coordinates, when the drone was launched, and the surveys undertaken.
10. Finally, in his affidavit, Mr Caddey responded to the evidence of Mr Meyer retained on behalf of the applicants. Mr Caddey noted that he and Mr Meyer had been requested to undertake "quite different tasks". Mr Meyer had been asked to prepare a map which compared the location of the GPS coordinates for the sites shown in the proposed amended summonses with those of the Red Dot Locations shown on the Red Dot Map, which had previously been provided with the respondent's response to the request for further and better particulars of the alleged offences in December 2018. In contrast, Mr Caddey had been making a survey of the physical location of the earthworks and preparing a map. In 2018, Mr Caddey located various physical features using the equipment he had at that time, while in 2021 he was able to obtain a more accurate representation of the location of the roads and watercourses.
11. There was evidence from the applicants' solicitor, Ms Vatala, that the respondent had flown a drone over Kiangatha's property subsequent to the decision of this Court in Kiangatha CCA in a manner which constituted a trespass. The respondent claimed to be lawfully exercising powers under ss 196 and 198 of the POEO Act to conduct surveying operations. Part of Mr Caddey's survey work was derived from the material that emanated from the flying of the drone.
12. One of the principal issues between the parties concerned whether the new locations specified in the proposed amended summonses, called Sites A, B, C and D, corresponded with any of the original Red Dot Locations. Ms Vatala had stated in her affidavit that each of Sites A, B, C and D were spatially and physically different locations from any of the Red Dot Locations. The applicants relied in that regard on a survey plan prepared by Mr Meyer. Mr Meyer prepared a survey plan showing the location of each of the Sites and each of Red Dot Locations 2, 6, 5 and 18 (shown on the Red Dot map and being the closest Red Dot Locations to each of the Sites).
13. The primary judge summarised Mr Meyer's evidence in this way: [65] Mr Meyer measured the distance between each of Sites A, B, C and D and the corresponding Red Dot Location, being a distance of 53.8m between Site A and Red Dot Location 2 (Mr Meyer's 2A); a distance of 34.1m between Site B and Red Dot Location 6 (Mr Meyer's 6B); a distance of 35.5m between Site C to Red Dot Location 5 (Mr Meyer's 5C); and a distance of 85.7m between Site D to Red Dot Location 18 (Mr Meyer's 18D). [66] Mr Meyer made a number of observations in relation to the "topographical differences" between the four Sites and the four Red Dot Locations as follows: (1) Site A is on "newly installed aggregate" (which Mr Natale informed Mr Meyer had been placed there in within the last three months) and close to the centre-line of a minor watercourse, whereas Red Dot Location 2 is upslope 53.8m. (2) Site B is also on "newly installed aggregate" (which Mr Natale informed Mr Meyer had been placed there in within the last three months) and close to the centre-line of a minor watercourse, whereas Red Dot Location 6 is 34.1m away on flat level land uphill and west of the same minor watercourse. (3) Site C is located in the centre-line of a watercourse and 35.5m downstream from Red Dot Location 5, which is located on top of a slope very near a track and within a rudimentary silt trap. (4) Site D is located on the bank and in reeds close to the line of a watercourse 85.7m downstream from Red Dot Location 18, which is located on the side of a hill approximately 10m east and upslope from the watercourse. [67] On 5 June 2021, Mr Meyer took video footage walking between each of the individual Sites and the corresponding Red Dot Locations. The video footage was shown in Court.
14. The video footage was also shown at the hearing of the appeal.
15. Having set out the parties' submissions, the primary judge noted two important matters not in issue. First, the applicants did not seek to argue that the original summonses were a nullity and thus incapable of amendment. Secondly, the applicants did not dispute that the original summonses charged them with offences that were known to the law.
16. His Honour said that the two issues raised by the applicants that were said to be key differences between the earlier form of the summonses and what was proposed, were the change in locations of the offences (from the Red Dot Locations to the Sites), and the reference to actual pollution occurring in the likely pollution charges.
17. In relation to the change in locations of the offences, his Honour accepted the evidence of Mr Meyer and found that there was a difference in the locations of the geographic coordinates of Red Dot Locations 2, 6, 5 and 18 and the geographic coordinates of the Sites, and that the distance between the Sites and their respective closest Red Dot Locations varied between 34.1 metres and 85.7 metres.
18. The primary judge accepted that there were minor differences in slope, vegetation coverage and proximity to ephemeral water courses and parts of the constructed road. However, his Honour did not consider those differences to be material in the circumstances where the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations were generally located within the same dry gully, were proximate to the same ephemeral water courses and the same parts of the constructed road, and had similar vegetation coverage.
19. In that way, his Honour found that the differences in the locations of the geographic coordinates of the closest Red Dot Locations and the Sites represented the permissible particularisation of the location of the offences. His Honour noted that the applicants were also informed of the locations of the offences in each of the summonses through alternative visual methods, as the Red Dot Locations had been marked on the Red Dot Map in the respondent's response to the request for further and better particulars of the alleged offences, and the Sites were marked on the aerial map and composite aerial maps attached to the proposed amended summonses. In that way his Honour found that the applicants were informed of the locations of the offences such that they could meet criminal charges.
20. His Honour found that there was a clear visual correlation between the locations of the Sites and Red Dot Locations 2, 6, 5 and 18.
21. In relation to the second difference identified by the applicants, that is where actual pollution occurred in the likely pollution charges, his Honour accepted the respondent's submission that the likely pollution and actual pollution was the same offence, so to include alleged actual pollution in the likely pollution charges did not constitute a new charge. His Honour made reference in that regard to what was said by this Court in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at [82]: There must be many cases in which a person places matter in a position such that it is likely to be washed into waters and then, subsequently, the matter is actually washed into those waters. That does not necessarily mean that the person will have committed two contraventions of s 16(1). Rather, it may mean simply that the prosecution will be able to rely on additional evidence.
22. His Honour found further that, in circumstances where Site C and Site D were not materially different from Red Dot Locations 5 and 18, and the latter were identified during the particularisation of the original summonses as locations of alleged actual pollution in the actual pollution charges, his Honour did not consider that the reference to Site C and Site D in relation to the likely pollution charges was new evidence not previously provided to the applicants.
23. His Honour next turned to consider statutory and common law requirements for amendments to summonses. His Honour held that there was a public interest in making the amendment as it facilitated the proper conduct of the criminal trial in relation to the commission of alleged offences in accordance with law. As a result, his Honour was of the view that it was also necessary in the interests of justice for the amendment to occur pursuant to s 68 of the Land and Environment Court Act 1979 (NSW) (LEC Act). His Honour held that both the statutory requirements pursuant to s 21(1) of the Civil Procedure Act 2005 (NSW) and s 68 of the LEC Act and common law requirements for the amendment of summonses had been fulfilled.
24. Finally, his Honour considered the issue arising out of the use of the drone by the respondent pursuant to the statutory powers under ss 196 and 198 contained in Chapter 7 of the POEO Act. Those sections provide: 196 Powers of authorised officers to enter premises (1) An authorised officer may enter - (a) any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out - at any time during which those activities are being carried out there, and (b) any premises at or from which the authorised officer reasonably suspects pollution has been, is being or is likely to be caused - at any time, and (c) any other premises - at any reasonable time. (2) A power to enter premises conferred by this Act authorises entry by foot or by means of a motor vehicle or other vehicle, or by an aircraft or vessel, or in any other manner. (2A) If entry is effected by means of an unmanned vehicle, vessel or aircraft, the vehicle, vessel or aircraft must be operated by or under the authority of an authorised officer. (3) Entry may be effected under this Act by an authorised officer with the aid of such authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force. (4) Entry may be effected to any premises with the authority of a search warrant under section 199. 198 Powers of authorised officers to do things at premises (1) An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Chapter, including (but not limited to) the things specified in subsection (2). (2) An authorised officer may do any or all of the following - (a) examine and inspect any works, plant, vehicle, aircraft or other article, (b) take and remove samples, (c) make such examinations, inquiries and tests as the authorised officer considers necessary, (d) take such photographs, films, audio, video and other recordings as the authorised officer considers necessary, (e) require records to be produced for inspection, (f) examine and inspect any records, (g) copy any records, (h) seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations, (h1) for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier, (i) do any other thing the authorised officer is empowered to do under this Chapter. (3) The power to seize anything connected with an offence includes a power to seize - (a) a thing with respect to which the offence has been committed, and (b) a thing that will afford evidence of the commission of the offence, and (c) a thing that was used for the purpose of committing the offence. A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
25. His Honour considered that Parliament intended s 198 to have broad application, and that the powers under ss 196 and 198 should not be limited to empowering authorised officers to undertake investigations prior to the commencement of proceedings only.
26. His Honour held that it did not necessarily follow that the advantage the prosecutor obtained by exercising the statutory powers could not be obtained in another manner which is permitted by procedural rules or rules of court. His Honour accepted the respondent's submission in that regard that it could have obtained an accurate depiction of the locations using another method.
27. His Honour then considered the matter on the basis that the exercise of the statutory powers provided the respondent with an advantage that would have been denied under Court Rules. On that basis, the primary judge concluded, that the advantage did not constitute an interference, or a "real risk" of interference, in the administration of justice. His Honour provided three reasons for that conclusion.
28. First, the exercise of the statutory powers was being undertaken at an early stage of the proceedings for the purpose of electing and further particularising the offences with which the applicants were charged.
29. Secondly, the respondent exercised the statutory powers in order to obtain aerial photography, because the existing aerial photography data available to the prosecutor suffered from inaccuracies. In that way, the material obtained was confirmatory in nature, given the other material which was already available to the respondent.
30. Thirdly, in reliance on what was said by Mason CJ at Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 502, there was a distinction between the need to protect against requiring a person to testify to guilt and the production of documents which tend to implicate a person in the commission of an offence already in existence, on the basis of the privilege against self-incrimination. The investigative power being used here was not one that involved requiring the applicants to testify to guilt. In that way there was no need to circumscribe the broad powers in those sections.

Grounds of appeal

1. The grounds of appeal in proceedings 295909 of 2018 and 295910 of 2018 are as follows: Proceedings 295909 of 2018 1. The Primary Judge erred in granting leave to rely on the amended summons attached to the notice of motion filed 7 May 2021 and marked C in proceedings 00295909 of 2018 by not finding that he was jurisdictionally precluded from doing so as it was a fresh charge brought beyond the limitation period in s216 of the POEO Act. 2. The Primary Judge erred and made a finding not reasonably open in finding the isolation of the yellow shaded areas above Site C was a narrowing of the particularised reference to the lower edge of the road (at [149], [150] and [155] of the Judgment) in circumstances where the yellow shaded area does not coincide with the road and where it extended to the whole road and adjacent land, not just the lower edge of the road. 3. The Primary Judge erred at [153] of the Judgment and misconceived the accusatorial nature of the criminal process in reasoning that the changed pollution locations were not material as ''the defendants would have the ability to consider the proof of various elements of the offences, and the application of any defences in relation to the Sites". 4. The Primary Judge erred in reasoning that as the amended charges were within what his Honour termed the "factual matrix" of the original charges, the amended charges were not fresh charges brought out of time, as in doing so his Honour applied a test or standard unknown to the criminal law rather than the correct requirement that the Defendant be informed of the true nature of the charge within time. 5. The Primary Judge erred and made a finding that was not reasonably open in finding (at [152] of the Judgment) that although the location of the placement of the pollutant had changed there was no change in an essential element of the offence charged, as the location at which the pollutant was placed is an essential element of a charge against s 120 of the POEO Act. 6. The Primary Judge erred in granting leave to rely on the amended summons attached to the notice of motion filed 7 May 2021 and marked C in proceedings 00295909 of 2018 and in not instead finding that the granting of leave was contrary to the interests of justice as the amended summons was the fruit of an illegal, or alternatively non-consensual, inspection of the Defendant's land during the pendency of these criminal proceedings. 7. The Primary Judge erred at [204] of the Judgment in finding that the forensic advantage gained by the Prosecutor's non-consensual inspection of the Defendant's land (being the information gained by that inspection including new aerial photography from a drone deployed during the inspection) could have been obtained in a manner permitted by the court rules, such finding not being based on any evidence before his Honour. 8. The Primary Judge erred and made a finding that was not reasonably open in finding at [205]-[212] of the Judgment that the forensic advantage obtained by the non-consensual inspection was a mere advantage that was not an interference with the accusatorial nature of the criminal justice system. Proceedings 295910 of 2018 1. The Primary Judge erred in granting leave to rely on the amended summons attached to the notice of motion filed 7 May 2021 and marked A in proceedings 00295910 of 2018 by not finding that he was jurisdictionally precluded from doing so as it was a fresh charge brought beyond the limitation period in s216 of the POEO Act. 2. The Primary Judge erred and made a finding not reasonably open at [142] - [144] of the Judgment in reasoning that the differences between the red dot locations (including location 2) given by geographic coordinates in the Prosecutor's letter of 4 December 2018 and the new Site A was not material, including because the apparent location in the "Red Dot Map", as it was the geographic coordinates that the Defendant was told gave the precise location, not the map. 3. The Primary Judge erred and made a finding that was not reasonably open in finding that there was no material difference in the red dot locations (including location 2) given by geographic coordinates and the new Site A when Site A is on a ford where the road crosses the ephemeral creek (i.e., in the creek) a location that substantially eliminates the Defendant's case identifying reasonable doubt as to whether there was dirt from the constructed road placed in the creek, as compared to location 2 the subject of the unamended charge. 4. The Primary Judge erred at [153] of the Judgment and misconceived the accusatorial nature of the criminal process in reasoning that the changed pollution locations were not material as "the defendants would have the ability to consider the proof of various elements of the offences, and the application of any defences in relation to the Sites". 5. The Primary Judge erred in reasoning that as the amended charges were within what his Honour termed the "factual matrix" of the original charges, the amended charges were not fresh charges brought out of time, as in doing so his Honour applied a test or standard unknown to the criminal law rather than the correct requirement that the Defendant be informed of the true nature of the charge within time. 6. The Primary Judge erred and made a finding that was not reasonably open in finding (at [152] of the Judgment) that although the location of the placement of the pollutant had changed there was no change in an essential element of the offence charged, as the location of the pollution is an essential element of a charge against s 120 of the POEO Act. 7. The Primary Judge erred in granting leave to rely on the amended summons attached to the notice of motion filed 7 May 2021 and marked A in proceedings 00295910 of 2018 and in not instead finding that the granting of leave was contrary to the interests of justice as the amended summons was the fruit of an illegal, or alternatively non-consensual, inspection of the Defendant's land during the pendency of these criminal proceedings. 8. The Primary Judge erred at [204] of the Judgment in finding that the forensic advantage gained by the Prosecutor's non-consensual inspection of the Defendant's land (being the information gained by that inspection including new aerial photography from a drone deployed during the inspection) could have been obtained in a manner permitted by the court rules, such finding not being based on any evidence before his Honour. 9. The Primary Judge erred and made a finding that was not reasonably open in finding at [205]-[212] of the Judgment that the forensic advantage obtained by the non-consensual inspection was a mere advantage that was not an interference with the accusatorial nature of the criminal justice system.
2. The grounds of appeal in proceedings 295911 of 2018 are identical to those for proceedings 295909 of 2018 but substituting "D" for "C". Similarly, the grounds of appeal in proceedings 295912 are identical to those for proceedings 295910 but substituting "B" for "A".

Submissions

1. The applicants submitted that the common law provides that leave to amend criminal proceedings beyond the expiry of a statutory limitation period can only be granted in circumstances where there was notice of the amended charge in the sense that the defendant had been made to understand the true nature of the amended offence before the expiry of the limitation period. Unambiguous information defining the charge sought to be relied upon must be provided to a defendant within the relevant statutory time limit.
2. The applicants submitted that the prosecutor impermissibly sought to amend the summonses by materially changing an essential element of the s 120 offences, being the location of the alleged act of pollution or likely pollution, by substituting new locations that were not disclosed to the applicants within time.
3. The applicants submitted that the primary judge made findings not reasonably open to him at [142] - [144] of the judgment by finding that the differences in the Red Dot Locations (including locations 2 and 6) given by geographic coordinates in the prosecutor's letter of 4 December 2018 and the new Sites A and B respectively and their different locations were not material.
4. The applicants submitted that the original locations provided significant scope for defending the charges based on the need for the respondent to prove actual migration of sediment into the watercourse or dry watercourse. The applicants submitted that the new locations of Site A and Site B have been selected to be actually in creek beds, eliminating that ground of defence. That was submitted to show materiality in the change of the location. The applicants made similar submissions in relation to Sites C and D.
5. The applicants submitted further in relation to the new specification of Sites C and D, the changes were material not only for the ability of the applicants to make out a defence of honest and reasonable mistake of fact, but to the prospects of the applicants raising a reasonable doubt as to proof of the element of whether the pollution was likely to migrate from the point of placement to a particular stretch or ephemeral stream.
6. The applicants submitted that the primary judge erred in reasoning that the amended charges were within the factual matrix of the original charges. The applicants submitted that this required them to work out the charges alleged against them.
7. The applicants submitted that the amended summonses should not have been the subject of leave as they were based on an inspection by a prosecutor during pending criminal proceedings that gave the prosecutor forensic advantages that the Court rules otherwise denied it, there being no power in the Court to order an inspection to a prosecutor during criminal proceedings or at all.

Nature of the appeal

1. In DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 Spigelman CJ said: [54] In the case of an appeal after conviction under s 5(1), this Court will focus on the terminology of "wrong decision on a question of law" and "miscarriage of justice", as s 6(1) provides. In the case of an appeal from an interlocutory judgment or order under s 5F, there is no express statutory standard or criterion. However, that does not mean that the jurisdiction is at large. [55] When enacting s 5F, the Parliament adopted terminology to which well established principles applied with respect to the degree of restraint that an appellate court should manifest. Relevantly, a high degree of restraint has always been required with regard to an interlocutory decision on a matter of practice and procedure, as distinct from a decision determinative of legal rights. The basal authorities are Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 322 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The position is the same in criminal procedure. (See, eg, Rogerson v R (1990) 45 A Crim R 253 at 253-254; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599; R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 at [13].) … [57] The relevant case law under s 5F has focussed on the leave requirement. However, this case law has adopted similar principles to those developed over many years with respect to appeals from interlocutory decisions in civil cases. The principles developed in that context are also applicable to a proceeding in which leave is not required under s 5F or when leave is granted. [58] In R v Matovski (1989) 15 NSWLR 720 at 723, Gleeson CJ said: "For my part it seems to me that the reasons for (sic) the learned judge disclose no error of principle, assuming the view of the facts which he took to be correct. It has not been suggested that the view which the learned trial judge took of the facts is not one that was possibly open to him, the submission is simply that his Honour got the facts wrong. I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made ... The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed." [59] This analysis is closely analogous to the House v R test. I include in that observation the last category in House v R, to the effect that a decision is "unreasonable or plainly unjust". The comparable terminology of Gleeson CJ in Matovski is "the interests of justice" which, in the context of his Honour's reasons, appears to me to be equivalent to the House v R test. (See also Alexandroaia v R (1995) 81 A Crim R 286 at 290.) [60] Although Matovski focuses on the grant of leave, in my opinion, the reasoning applies to the second matter to which I have referred at [5] above, namely the decision to exercise the power to interfere with the interlocutory decision. On this basis, the relevant degree of appellate restraint is at the House v R end of the spectrum, rather than at the Warren v Coombes end. [61] The position would be different in an appeal after conviction. As I have noted, that appellate jurisdiction encompasses an error of law and a miscarriage of justice. When applying such a standard, the degree of appellate restraint applicable to a reversible, interlocutory ruling does not apply. Specifically the terminology of "miscarriage of justice" is broader than the House v R terminology of "unreasonable or patent injustice".
2. The application that Robson J had before him was an application to amend the summonses. Such an application is one concerned with procedure which brings it within the well-known rules of restraint from interference by an appellate court: DSJ v R; NS v R [2014] NSWCCA 77 at 11; DAO at [55].
3. The result is that, of the two possible bases put forward by a number of the grounds of appeal, being whether the primary judge erred or whether a finding was not reasonably open to him, the latter is the appropriate inquiry on an appeal like the present.

Consideration

1. The grounds of appeal comprehend two principal issues. The first issue (grounds 1 to 5 in proceedings 295909 and 295911, and grounds 1 to 6 in proceedings 295910 and 295912) is whether the locations now identified are different from the locations previously specified in the earlier form of the summonses. In the course of his submissions, Mr Ireland of counsel for the applicants made clear that ground 1 was asserting, in substance, that the primary judge erred in permitting the amendments, and that grounds 2 to 5 and 2 to 6 respectively were particulars of ground 1.
2. The second issue concerns the use of evidence obtained from what is said to be the trespass onto the applicants' land (grounds 6 to 8 in proceedings 295909 and 295911), and grounds 7 to 9 in (proceedings 295910 and 295912).

The first issue - location of the pollution sites

1. The first significant issue between the parties both before Robson J and in this Court concerned the location of the sites where the actual and deemed pollution offences were said to have occurred. In the respondent's letter of particulars of 4 December 2018, the location of the offending in relation to the earlier form of the summonses was said to be the Red Dot Locations given by geographic coordinates. In the proposed amended summonses the location of the sites where the offences were said to have been committed were described as Sites A, B, C and D marked on aerial photographs.
2. As noted earlier, the primary judge accepted the evidence of Mr Meyer that there was a difference in the locations of geographic coordinates of Red Dot Locations 2, 6, 5 and 18, and the geographic coordinates of the Sites, and that the distance between the Sites and their respective closeness to Red Dot Locations varied between 34.1 metres and 85.7 metres. His Honour did not, however, consider the differences to be material in circumstances where the locations of the respective geographic coordinates of the Sites and closest Red Dot Locations were generally located within the same dry gully, were approximate to the same ephemeral water courses and the same parts of the constructed road, and had similar vegetation coverage. His Honour found that the differences in the locations of the geographic coordinates of the closest Red Dot Locations and the Sites represented the permissible particularisation of the location of the offences.
3. The primary judge noted that the applicants were also informed of the locations of the offences in each of the summonses through alternative visual methods, as the Red Dot Locations had been marked on the Red Dot Map in the respondent's response to the request for further and better particulars of the alleged offences, and the Sites were marked on the aerial map and composite aerial maps attached to the proposed amended summonses.
4. The primary judge found that there was a clear visual correlation between the locations of the Sites and Red Dot Locations 2, 6, 5 and 18. He considered that that correlation indicated that the locations of the Sites were previously visually identified to the applicants as the closest Red Dot Locations on the Red Dot Map.
5. His Honour found that after reviewing the locations of geographic coordinates of the closest Red Dot Locations and the Sites and the visual representation on the maps, the placement of soil and sediment in either of the locations of Site A and Site B or Red Dot Locations 2 and 6 constituted the placement of soil and sediment in the bed of the same dry gully. His Honour came to the same conclusion in relation to the locations of Site C and Site D and Red Dot Locations 5 and 18.
6. Mr Ireland relied on Director of Public Prosecutions v Kypri (2011) 33 VR 157; [2011] VSCA 257 to submit that, if there was not disclosure of the true nature of the offence within the limitation period, the amendments could not be permitted. Here, the true nature of the offences was disclosed. The differences between what was previously alleged and what is now alleged resulted from a refinement of the locations. Where the issue is where soil or sediment is placed to constitute an offence issues are bound to arise about the precise location of the placement. Questions of materiality will arise in relation to variations in the precise identification of the placement.
7. As the primary judge said, the essential elements of the actual pollution charges included the placement of soil and sediment in the bed of a dry gully and the essential elements of the likely pollution charges included the placement in a location from which it was likely to move into the bed of a dry gully. The amended summonses refined the locations. The question is ultimately whether it was open to the primary judge to reach the view about whether the refinements in the amended summons constituted a material change.
8. The applicants effectively invite this Court to take a different view of the factual conclusions reached by the primary judge and set out at [32] to [37] above. The principal factual matter in dispute before the primary judge was whether the locations of Sites A, B, C and D sufficiently correlated with Red Dot locations 2, 6, 5 and 18. This Court had the advantage of reviewing the location of the Sites and the Red Dot locations on the one map, and of viewing the videos taken moving between each of the corresponding Sites and locations.
9. It cannot be said that the primary judge's conclusions on those factual issues were not reasonably open to him, for the reasons his Honour gave. Further, the factual findings were made in order to determine an interlocutory application seeking amendment of the summonses. As Spigelman CJ said in DAO at [55], a high degree of restraint is required by an appellate court when asked to interfere with a determination of an interlocutory matter involving practice and procedure. A factual error by a primary judge will not normally satisfy the requirement for the grant of leave required by s 5F: R v Matovski (1989) 15 NSWLR 720 at 722-723.
10. No basis is shown for interfering with the determination of the primary judge concerning the locations of the alleged offending, and the materiality of the changes.
11. Grounds 1 to 5 in proceedings 295909 and 295911, and grounds 1 to 6 in proceedings 295910 and 295912 should be rejected.

The second issue - the alleged trespass

1. The applicants submitted that on a proper construction, the Ch 7 powers did not authorise entry for the sole purpose of obtaining evidence and information for use in pending criminal proceedings. That is particularly so, it was submitted, because Ch 7 is the section of the Act headed and expressly concerned with "Investigation", whereas Ch 8 is headed and concerns "Criminal and Other Proceedings". Reliance was placed on s 35(1)(a) of the Interpretation Act 1987 (NSW).
2. The applicants submitted in the alternative that the use of those powers in the circumstances is an interference with the procedure of the Court because it conflicts with the Court rules and is a contempt of Court. The use of these powers here was to obtain an advantage the curial rules otherwise denied the prosecutor. The applicants submitted that any advantage secured by a prosecutor contrary to legal principle compromises criminal proceedings if the fruits of that contravention are then relied upon.
3. The applicants submitted that the primary judge erred in finding that the forensic advantage gained by the inspection could have been obtained otherwise under the Court rules.
4. As the applicants submitted, the powers in ss 196 and 197 are within Ch 7 of the POEO Act, and that chapter is headed "Investigation". However, s 184, the first section in Ch 7, provides: 184 Purposes for which powers under Chapter may be exercised Powers may be exercised under this Chapter for the following purposes - (a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act, (b) for obtaining information or records for purposes connected with the administration of this Act, (c) generally for administering this Act and protecting the environment.
5. As can be seen, the powers in Ch 7 may be exercised "for determining whether there has been compliance with or a contravention of this Act", and "generally for administering this Act and protecting the environment". There is no limitation within the Act which provides any limit on the exercise of the powers once criminal proceedings have been commenced.
6. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 was an appeal principally turning on whether a privilege against self-incrimination applied to a corporation. The issue arose because after proceedings had been commenced by the EPA charging Caltex with an offence of polluting the ocean in contravention of the Clean Waters Act 1970 (NSW), the EPA issued a Notice to Produce and a Notice under s 29(2) of the Clean Waters Act requiring production of documents. Section 29(2)(a) provided that an authorised officer might by notice in writing require the occupier of any premises from which pollutants were being discharged into waters to produce documents relating to the discharge of the pollutants.
7. In his judgment, McHugh J said (at 557-559): [45] It is not open to doubt that a notice may be issued under s.29(2)(a) for the purpose of obtaining evidence to support a prosecution under the Clean Waters Act. Nor is there any reason to suppose that the power cannot be used to obtain evidence to support the prosecution of an offence against the State Pollution Control Commission Act. Nothing in the terms of s.29(2)(a) suggests that the power conferred by that provision to obtain evidence against a person is spent once proceedings against that person have been commenced. Why then should there be read into this statutory provision the limitation that the power can never be used after the commencement of a prosecution? … [48] Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power "would give such a party advantages which the rules of procedure would otherwise deny him" ((276) Pioneer Concrete, (1982) 156 CLR, per Gibbs CJ at p.468.). But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.
8. The joint judgment of Mason CJ and Toohey J said (at 507): [57] There is nothing in the language of s.29(2)(a) which would support the restrictive interpretation. And, having regard to the purpose which the provision is designed to serve, the broader interpretation fits that purpose. It would be artificial to say that it is permissible to issue a notice requiring production of documentary material with a view to ascertaining whether a breach of the statute or a condition of a licence has taken place but it is impermissible to issue a notice with a view to providing evidence of such a breach. And, if it be permissible to issue such a notice for that purpose before the commencement of proceedings, as we think it is, it must be permissible to do so after proceedings have commenced.
9. In NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252, Spigelman CJ (Hidden and Latham JJ agreeing) said: [143] It cannot be said that any "effect" upon extant proceedings constitutes such a contempt. In my opinion, the formulation advanced by Nutricia is too wide. The cases indicate that there must be a finding that a contempt of court has occurred or is threatened, being a "real risk" of interference with the administration of justice. … [145] In my opinion a mere "advantage" will not, when expressed in those terms, constitute an impermissible interference with court proceedings so as to amount to a contempt of court. There may, however, be such an interference and a contempt by reason of conduct undertaken other than "for the sole or dominant purpose of obtaining evidence". It is only necessary to refer to contempt by reason of publicity as an example. However, it cannot be said that any advantage is sufficient.
10. It was significant, as the primary judge found, that no issues regarding the privilege against self-incrimination arose in relation to the evidence gathered by the drone, because there were no testimonial aspects involved. That was a matter which significantly distinguished the present proceedings from the notices issued in Nutricia, or even the notices for production of documents in EPA v Caltex. The purpose of the use of the drones was, as the primary judge said, because the existing aerial photography data available to the prosecutor suffered from inaccuracies. The only advantage obtained by the prosecutor was the benefit of greater accuracy in pinpointing the locations where the pollution was alleged to have occurred or was likely to occur. In that way, the sole and dominating purpose was obtaining evidence.
11. Although the applicants sought to rely on the apparent approval by Spigelman CJ in Nutricia of the passage from the judgment of Deane, Dawson and Gaudron JJ in EPA v Caltex at 537, this reliance is misplaced. The passage was directed specifically to the issue of self-incrimination because of the requirement in Nutricia to answer to what amounted to interrogatories after criminal proceedings had commenced. No question of self-incrimination arises in the present case and could not, in any event, arise insofar as the corporate applicant is concerned by reason of the decision in EPA v Caltex.
12. In relation to the primary judge's conclusions at [204] of his Honour's judgment (summarised at [40] above), no detail was provided about what alternative methods were available, and how they might have been available under the court rules. However, these conclusions, even if wrong, do not seem to me to be determinative of the matter.
13. In the first place, the provisions of ss 196 and 198 should not be read restrictively to prevent or limit their application after the commencement of criminal proceedings: EPA v Caltex at 507 and 557-559. Secondly, there is no "real risk" of interference with the administration of justice when the advantage obtained was merely a greater clarification of the locations of the relevant sites which were already known to the applicants: Nutricia at [143] and [145]. The applicants' submission that "any advantage" secured by the prosecutor compromises criminal proceedings is contrary to what was said in Nutricia.
14. Thirdly, the primary judge was correct to note the distinction between orders or powers that might require a person to testify to their guilt even by the production of documents, and the use of a power here to do no more than gather, or refine, the evidence. As noted earlier, the protection against self-incrimination is only relevant to Mr Natale, but not to Kiangatha.
15. Grounds 6 to 8 in proceedings 295909 and 295911, and grounds 7 to 9 in proceedings 295910 and 295912 should be rejected.

Conclusion

1. I propose the following order: 1. Refuse leave to appeal.
2. BUTTON J: I agree with Davies J.

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: 15 December 2022