Kiangatha Holdings Pty Ltd v Water NSW

Court of Criminal Appeal (NSW)|2020-06-15|Before: Hoeben CJ, Rothman J, Fagan J, Robson J

Judgment

HOEBEN CJ at CL: I agree with the judgment of Fagan J and the orders which he proposes.
ROTHMAN J: I agree with the analysis of Fagan J and, for the reasons given by him, I agree with the orders his Honour proposes.
FAGAN J: The applicants seek leave to appeal from a decision of Robson J in the Land and Environment Court dismissing notices of motion by which they had sought to have charges against them struck out, or stayed pending an election by the prosecutor, on the basis that the charges are duplicitous. The offences alleged are of polluting waters, contrary to s 120 of the Protection of the Environment Operations Act 1997 (NSW) ("the Protection of the Environment Act"), between 1 May and 10 October 2017.

Land on which the offences are alleged to have been committed

In 2017 the first applicant ("Kiangatha") was the owner and occupier of 13 parcels of land comprising a total of about 5,000 ha located approximately 15 km west of Katoomba in the Megalong Valley ("the land"). The second applicant, Mr Natale, was the director of Kiangatha at that time. At its eastern end the land has a frontage onto Cox's River. From there the various parcels extend for approximately 5km to the west. Gibraltar Creek joins Cox's River at the north-eastern corner of the land. From this point Gibraltar Creek runs more or less due west and forms approximately 1 km of the northern boundary of the land.
The land is hilly, with slopes generally descending from the southern boundary toward the north, steeply in places. Most of the land is covered by light eucalypt forest, with some cleared areas. A public road known as The Six Foot Track traverses parts of the land. The Track follows Gibraltar Creek for about 1 km west of Cox's River and crosses parts of the western section of the land along the south bank of a tributary of Gibraltar Creek named Murdering Creek.
The respondent alleges that between 1 May and 10 October 2017 Kiangatha constructed an unsealed road over numerous parcels of the land at the direction and under the control of the Mr Natale. The length of the road is given, variously, as 8 km or 10 km. This work was not discovered until an inspection was conducted by an officer of Oberon Council on 4 October 2017. It was reported by the Council to the respondent the next day. It is alleged that in performing this work the applicants failed to implement sufficient measures for sediment and erosion control to contain the flow of sediment from the disturbed ground, resulting in sedimentary pollutants either being deposited into ephemeral drainage lines or being placed in a position from which it was likely the sediment would descend or be washed into the drainage lines.
Ephemeral drainage lines are depressions in the natural surface of the land that become watercourses when sufficient run-off occurs during significant rainfall. They may also be referred to as gullies. The gullies that are the subject of the respondent's allegations follow the slope of the land from south to north and lead to Murdering Creek and Gibraltar Creek. From photographs that are in evidence it appears the gullies are dry most of the time. In some locations road construction was carried out directly across gullies with the result that soil and sediment was placed directly into those features. In other places disturbed soil on cuttings, batters, embankments and the like was left in such a position that plumes of sediment could fall or be washed or blown into gullies.

Provisions under which the charges have been laid

Section 120 of the Protection of the Environment Act under which the applicants have been charged is as follows: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. Note - An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation - see section 169. (2) In this section - pollute waters includes cause or permit any waters to be polluted.
The Dictionary at the end of the Protection of the Environment Act includes the following definitions of "water pollution or pollution of waters" and of "waters" (extracted so far as relevant and with emphasis added). The definitions expand these terms well beyond their natural meaning. water pollution or pollution of waters means - (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or (b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any […] debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the […] debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean […] or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or (c) […], and, without affecting the generality of the foregoing, includes - (d) placing any matter (whether solid, liquid or gaseous) in a position where - (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters. waters means the whole or any part of - (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.
These definitions are so wide that soil or sediment may constitute a pollutant and placement of such material in the bed of a dry gully may constitute water pollution. Also, placement of material where it may fall or be blown into the bed of a dry gully may constitute water pollution. An offence of pollution of waters contrary to s 120 may therefore be committed without any polluting material having come into contact with any water. In the present case the charges against the applicants have been particularised in a manner that does not involve the alleged pollutant, being soil and sediment, having entered any body of water, either flowing or still. The so-called "likely pollution charges" do not even involve the soil having actually reached a dry bed of any watercourse.
Section 169, referred to in the note to s 120(1) is as follows (so far as applicable to the present case): 169 Liability of directors etc for offences by corporation - offences attracting special executive liability (1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that - (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. (1A) For the purposes of this section, each of the following provisions attract special executive liability - (i) section 120 (1), […]. (2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

"Actual" and "likely" pollution charges against each applicant

On 27 September 2018 the respondent issued two summonses against Kiangatha, in each of which a single charge was laid against the company in the following terms: that it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters.
The only difference between the two summonses was in the particulars of "Manner of breach". In the first summons, the file number of which in the Land and Environment Court ends with the digits "09", the respondent gave particulars that were intended to invoke par (d)(ii) of the definition of "water pollution". The manner of breach was specified as the placing of soil and sediment in a position where "it is likely to fall, descend, be washed, be blown or percolate" into or onto the dry beds of gullies on the land. The charge so particularised was referred to before the primary judge and in his Honour's judgment as the "likely pollution charge" against Kiangatha. The second summons, with file number ending "10", gave particulars of the manner of breach intended to invoke pars (a), (b), (d)(i) and (e) of the definition of "water pollution". These particulars allege that soil and sediment were actually placed in the dry beds of gullies. That second charge has been referred to as the "actual pollution charge" against Kiangatha.
Also on 27 September 2018 the respondent issued two summonses against Mr Natale, in each of which a single charge was pleaded as follows: that he committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 in that Kiangatha Holdings Pty Limited did commit an offence that attracts special executive liability, in that it did pollute waters and further that the Defendant, being a director or person concerned in the management of Kiangatha Holdings Pty Limited, is taken, pursuant to s 169 of the Protection of the Environment Operations Act 1997 to have committed the same offence […].
The two summonses against Mr Natale were differentiated in the same way as the two summonses against his company. The summons with file number ending "11" alleged a likely pollution charge, the manner of breach being particularised as the placement of material in a position from which it would be likely to descend or be washed or blown into the dry beds of gullies. The summons with file number ending "12" gave particulars intended to describe actual placement of pollutant into the dry beds.
From the outset of the hearing of the applicants' notices of motion in the Land and Environment Court the respondent indicated an intention to apply for leave to amend. The original summonses had identified the relevant waters as both ephemeral drainage lines across the land and a dam located at its western end. The respondent accepted that that gave rise to duplicity and proposed to remove all reference to the dam in its proposed amended summonses. The respondent also proposed to reduce the number of locations at which it alleged that the actual pollution offences were committed. In the primary judge's orders disposing of the notices of motion his Honour granted leave to amend. His Honour's determination that the charges were not duplicitous was on the basis that the amended summonses would constitute the operative pleading. Both parties argued the present leave application by reference to the amended summonses, which make no reference to the dam and confine the location of the actual pollution charges to parts of only three parcels of Kiangatha's land.

Particulars of the likely pollution charges

In order to understand the applicants' contention that the charges are duplicitous it is necessary to examine the particulars provided by the respondent. In the original summonses particulars were given of the waters said to have been polluted, the nature of the pollutant and the manner of breach of s 120. By letter of 16 November 2018 the applicants' solicitor sought further particulars. The respondent's solicitors replied with a letter dated 4 December 2018 annexing a map of the land by on which the respondent identified the location of the road, construction of which was said to have displaced soil and sediment. The letter of particulars also identified by reference to the map the ephemeral drainage lines, into the dry beds of which it is alleged the polluting material was actually deposited or was likely to be deposited.
Although this correspondence was concerned with the summonses as originally filed, parts of the particulars supplied therein are applicable to the amended summonses. The current particulars of the charges may now be gleaned from the particulars given in the amended summonses coupled with the expansion of the particulars in the respondent's solicitor's letter of 4 December 2018.
In amended summonses Nos 09 and 11 the land on which the likely pollution offence is alleged to have been committed by Kiangatha and by Mr Natale is specified as comprising 12 of the 13 lots that make up Kiangatha's total holding. The following additional particulars are given in the same terms in each summons (emphasis added): Waters: The ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox's River. Pollutant: Soil and sediment from the earthworks. Manner of breach: [Kiangatha] was the occupier of the land at which [Kiangatha], its servants or agents, undertook earthworks involved in the construction of roads by the use of heavy plant and machinery. The works created significant areas of disturbed soil and involved the placing of soil and sediment on the land.

The defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.

The defendant thereby placed the Pollutant in a position where the Pollutant was likely to fall descend or be washed into the Waters or the dry beds of the Waters.

The map enclosed with the letter of 4 December 2018 depicts a road through the land marked with a red dotted line and several side roads, similarly marked, all terminating within the boundaries of the land. The map shows the contours of the natural surface of the land and a number of gullies marked as blue lines. The contours indicate that these gullies pass through natural depressions in the land surface. All of the gullies lead, ultimately, to Murdering Creek or Gibraltar Creek.
With respect to the likely pollution charge against each applicant, pleaded in amended summonses Nos 09 and 11, the letter of 4 December 2018 provides the following further particulars: 1. the offence is alleged to have been committed along the entirety of the road; 2. the earthworks referred to in the particulars of "Manner of breach" in summonses Nos 09 and 11 are "coterminous with the road"; 3. the significant areas of disturbed soil referred to in the particulars of "Manner of breach" are along the entire length of the road; 4. the placing of soil and sediment referred to in the particulars of "Manner of breach" is alleged to have occurred "on the lower side of the road, as the road was created by cut and fill earthworks" and 5. the "Waters or dry beds of Waters" into which the soil and sediment was likely to be washed are specified as the drainage lines marked in blue on the map, "adjacent to, downslope of or transected by the road and any downstream portion of those drainage lines".
With respect to point (5), a number of the blue lines denoting gullies on the map annexed the letter of 4 December 2018 were also marked with red dots. The letter did not suggest that the red dots had any significance for the likely pollution charges, only that they denoted sites of actual pollution by placement of soil or sediment within the creek beds. Having regard to the contours marked on the map, it is evident that the gullies marked with red dots are down slope from sections of the road and that they fall within item (5) of the particulars quoted above.

Particulars of the actual pollution charges

As particularised in amended summonses Nos 10 and 12, the three lots on which an actual pollution offence is said to have been committed by each of Kiangatha and Mr Natale are all located at the western end of the land, in an area less than 1 km square. The "Waters" and "Pollutant" are particularised in the same terms as in the likely pollution charges in amended summonses Nos 09 and 11. The following particulars of manner of breach are given for the actual pollution charges (emphasis added): Manner of breach: [Kiangatha] was the occupier of the land at which place [Kiangatha], its servants or agents, undertook earthworks involved in the construction of roads by the use of heavy plant and machinery.

The defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.

The works have involved the placing of pollutant into ephemeral drainage lines thereby introducing the Pollutant into the Waters.

The letter of 4 December 2018 specified that the actual pollution offence alleged against each applicant was committed at each of 35 locations marked with a red dot on the annexed map. In paras 53-59 of a written outline of submissions to the primary judge, dated 22 March 2019, the respondent reduced this to three locations designated as Priority Areas 1, 2 and 6 marked on a map attached to a report of Dr Peter Hancock of Eco Logical Australia Pty Ltd dated 30 August 2018. That report identifies that in each of the three Priority Areas a section of the road was constructed in a dry watercourse so that soil and sediment was placed directly in the dry bed. The three Priority Areas are within the boundaries of the three lots particularised in summonses Nos 10 and 12.
The description of this as an "actual pollution offence" is potentially confusing. It is not alleged that "actual" pollution of water occurred in the sense of any of the soil or sediment from the roadworks finding its way into any flowing stream or into any pool or other accumulation of water; nor is it alleged that the "physical, chemical or biological condition of [any] waters [was] changed" (see par (a) of the definition of water pollution). What is alleged is only "actual" so far as it relates to the placement of the soil and sediment in the beds of the dry gullies. In this sense the "actual pollution charge" against each of the applicants is one degree closer to involving any impact upon water than in the case of the "likely pollution charge", in which it is not even alleged that soil or sediment got into the beds of dry gullies but only that it was placed in a position from which it was likely to find its way there.

Elements of the offences

On an analysis of asserted duplicity the Court's first task is to identify what is the act or conduct prohibited by the law that creates the offence: Hannes v Director of Public Prosecutions (Cth) (No.2) [2006] NSWCCA 373 at [9] (Basten JA).
The predecessor of s 120 of the Protection of the Environment Act was s 16 of the Clean Waters Act 1970 (NSW)(rep). Subsection (1) of that section was in exactly the same terms as s 120(1) of the Protection of the Environment Act. Subsection (2) of s 16 of the Clean Waters Act prescribed circumstances in which a person would be deemed to have polluted waters, using language to an effect very similar to the wide definition of "water pollution" in the Dictionary to the Protection of the Environment Act. Three decisions of this Court concerning s 16 of the Clean Waters Act have explained the elements of an offence against that section and should be regarded as authoritative with respect to the elements of s 120 of the Protection of the Environment Act.
The decisions are Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 and McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000) 50 NSWLR 127; [2000] NSWCCA 367. Each of those cases concerned pollutants that actually entered water, as commonly understood. None of them concerned the extended concept of deemed or likely pollution, involving the placement of pollutant in a dry watercourse or in a place from which it would be likely to be washed or to descend into a watercourse, although those extended concepts were provided for in s 16 of the Clean Waters Act.
With respect to the elements of an offence of actual pollution, the following was said in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (Spigelman CJ, Grove and Kirby JJ agreeing): [48] Section 16 has been called a "result offence", in the sense that the consequence, i.e. the pollution, is an essential ingredient of the offence. (Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83). However as Hunt CJ at CL said in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82, after referring to the classification as a "result offence": "In Brownlie v SPCC, Gleeson CJ said that he was adopting and modifying the classification so that, so far as s16(1) is concerned, the prosecution is required to prove both the conduct of the defendant in placing the material in the waters and the pollution of the waters as a consequence of the defendant having done so." [49] I agree. Both the polluting and the pollution are essential ingredients of the offence under s16.
By logical extension of those decisions to the offences alleged against the applicants, the two essential ingredients of the likely pollution charge are: 1. the soil and sediment was placed in a location from which it was likely to be washed, or otherwise to descend, into the bed of a dry gully (par (d)(ii) of the definition of water pollution); and 2. the soil and sediment was material that, had it been placed in any waters, would have polluted or would have been likely to pollute those waters (concluding words of the definition of water pollution).
By similar extension of the authorities to the actual pollution charge in the present case, the two essential elements of that offence are: 1. the soil and sediment was placed in the bed of a dry gully (pars (d)(i) and (e) of the definition of water pollution) and 2. the soil and sediment was material that, had it been placed in any waters, would have polluted or would have been likely to pollute those waters (concluding words of the definition of water pollution).
Adapting the words of Spigelman CJ in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority at [49], both the placement of the material and its likely polluting effect are elements of these offences. The only difference between them is with respect to the placement, the respondent alleging in the one case that the material was placed where it was likely to find its way to the bed of dry gully and in the other case that it was directly placed in a gully or, at least, in a position from which it actually went into a gully.

Principles concerning duplicitous pleading

Having regard to the elements identified at [30] above, a "likely pollution offence" of the nature alleged in amended summonses Nos 09 and 11 would be separately committed on each occasion when Kiangatha placed soil or sediment in a location from which it would be likely to descend into a gully. Having regard to the elements identified at [31] a separate "actual pollution offence" of the nature alleged in amended summonses Nos 10 and 12 would be committed on each occasion when Kiangatha placed soil or sediment directly in a gully or in a position from which it actually descended into a gully.
"[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.
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.
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.
The charge in Walsh v Tattersall was of obtaining income maintenance payments by dishonest means, namely, by the defendant dishonestly pretending to suffer a medical disability. Nine periodic payments had been obtained over 11 months. Kirby J held that a separate offence was created by the relevant statute for each payment made; that a single charge in respect of the whole course of conduct was duplicitous and that on strict application of the general rule the single charge could not be justified. The quashing of the conviction was supported by Gaudron and Gummow JJ on the different basis that the statute simply did not create an offence that could be committed by the obtaining of more than one benefit payment. In subsequent cases the authority of Kirby J's analysis has not been doubted, including his Honour's strict approach in determining whether the exception for a closely connected course of conduct, amounting to a single criminal transaction, is engaged.

Submissions at first instance

Before the learned primary judge the applicants submitted, first in relation to the likely pollution charges, that "each time the relevant sediment or earthworks material was placed in a position where it was likely to move into the dry beds of the waters or into the ephemeral drainage lines, a s 120 offence would be committed". Secondly, in relation to the actual pollution charges, the applicants submitted that "the criminal act involves the placement of the pollutant into the waters" - in this case meaning, under the wide definition of "waters", into the dry beds of gullies. They submitted that each separate placement of material alleged under either charge would constitute a separate offence and that, having regard to the particulars supplied by the prosecutor, there were clearly multiple offences charged in each count. The applicants submitted that the multiple placements of material so particularised could not be regarded as a single transaction or criminal enterprise because these placements took place over five months, at numerous separate locations, along 8 km or 10 km of road, with periodic cessation of the work and subsequent resumption, affecting a number of separate gullies with either the risk of sediment intrusion or actual placement.
The respondent submitted to the primary judge that "the construction of the road is characterised in the prosecution case as a single criminal enterprise" and that it was "clear from the particularisation of the dates that the defendants' construction of a single road through numerous parcels of land was a continuing course of conduct over those months". Despite the description "continuing course of conduct" it does not appear that the respondent purported to characterise its summonses as charging continuing offences, within the first of the above-mentioned exceptions to the rule against duplicity. It was the second exception, concerning a single criminal enterprise, that was invoked. It was submitted that breaks construction work did not detract from this characterisation. The respondent's submissions to his Honour, referred to at [56]-[60] of the judgment, addressed the applicants' duplicity argument as follows: The defendants' analysis is artificial. It attempts to break up the construction of the road into individual acts. If that was done, each metre or even millimetre of the excavation could be the subject of a separate offence. For example, it could be argued that bulldozing, which initially disturb the soil and sediment, should be the basis of a separate charge, and then that the application of a greater, further disturbing the service of the road, could found another.

Decision of the primary judge

The learned primary judge identified at [23]-[32] the principles governing duplicitous pleading and, in particular the exception that "where acts form part of the same transaction or criminal enterprise, they can be charged in a single count" (at [28]). His Honour examined a number of decisions in which the principles have been applied in prosecutions for environmental offences, including Environment Protection Authority v Riverina Australia Pty Ltd (2015) 90 NSWLR 57; [2015] NSWCCA 165; Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204; Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376; Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202.
Subject to amendment of the particulars in respects that were foreshadowed to his Honour - and that have subsequently been made to the effect summarised at [17]-[25] above - the learned primary judge drew the following conclusions: [72] … I do not accept the defendants' submission that the summonses disclose "numerous separate offences [committed] in a variety of different ways under or through a number of different factual circumstances". While I accept, as I must, that pollution offences are referred to as "result offences", subject to my comments above, I do not accept the defendants' contention that, as a matter of construction, s 120 of the POEO Act is incapable of being characterised as a continuing offence. Having regard to the subject matter and language of s 120, I consider that offences under that provision may be continuing offences, and that the provision applies to a wide variety of circumstances.
Further, his Honour said: [74] … I consider that a course of conduct may be framed as the cumulation of a number of acts or omissions … and I find that the relevant act of polluting is, properly considered, the construction of the Road, which I consider maybe characterised as a continuous process, and, as contended by the prosecutor, comprised a number of positive acts (construction thereof) and omissions (without appropriate sediment or erosion controls). [75] Although [the applicants' counsel] submitted that the present charges "do not come close" to satisfying the indicia in [Walsh v Tattersall at pp 107-108 (Kirby J)], noting that the works were carried out over a 10km stretch of road, over many months, with potentially different kinds of machinery, at different times by the defendants, in areas of different physical topography, I do not consider this to be determinative. While [the applicants' counsel] further submitted that there was "too great a separation" in terms of location, time, manner of contravention and result, and different parts of the Waters, different drainage lines and different ephemeral streams are alleged to have been polluted by "quite different" acts, I also do not consider this to be persuasive. [76] As stated above, I consider that the offences here involve the construction of a road, which is able to be (and may well be found at trial to be) a continuous process whereby each step is not only closely related to the next, but is relatively indistinguishable in terms of process. [77] Although I am conscious of the manner in which courts have considered various forms of activities that may or may not constitute a single course of conduct; that the Road was constructed over a period of months and was some 8km in length; and that there appears to be no authority dealing with a construction such as this, I consider it to be a matter of common sense that the construction of the Road is able to be regarded as one activity which involved various acts which were closely related to the next and were part of one overall transaction with one underlying factual matrix. […] [80] While there is some force in the defendants' submission that gaps in relation to both the timing of the work and the operation of various plant and equipment prevent conduct from being continuous, I do not find the gaps in the present matter to be determinative so as to preclude the alleged conduct from being continuous. … […] [82] While regard may be had to the fact that it may be oppressive for the defendants to be charged with many separate offences along the course of the road making, as submitted by the prosecutor, and accepting that the defendants do not raise this concern, sensibly considered, I consider that it would be oppressive for defendants to face multiple separate charges in relation to a potential single course of conduct. In this regard, I also accept the prosecutor's submission that characterising the conduct as a single enterprise avoids what is an artificial breaking up of the individual acts involved in the construction of the Road and gives effect to the broad scope and purpose of the legislation.
In the above extracts I have omitted passages in which His Honour elaborated upon whether an offence against s 120 should be characterised as a "results offence", because endeavours to define and apply that label do not appear to assist in understanding his Honour's application of the law to the present circumstances. His Honour's conclusion that an offence against s 120 may be a "continuing offence" (at [72]) is the subject of a ground of appeal and is discussed below.

Grounds of appeal

Grounds 1-4 are raised in respect of amended summonses Nos 09 and 11 concerning the likely pollution charge against each applicant. The grounds raised in respect of amended summonses Nos 10 and 12 may be designated as grounds 5-8.
The substantive grounds of appeal for which leave is sought by both applicants, in relation to both the likely pollution charge and the actual pollution charges, are as follows: 2 & 6 The Primary Judge erred in finding that the offence charged was not duplicitous by reason of alleging the multiple breaches [in relation to multiple locations at which pollutants were placed], as it was a continuous offence, rather than a number of separate offences committed intermittently. 3 & 7 The Primary Judge erred in finding that the offence charged was not duplicitous by reason of alleging the multiple breaches [in relation to multiple locations at which pollutants were placed], as the act of pollution the subject of this charge was the construction of the 8 km road as a whole, being a single criminal transaction.

Grounds 2 & 6 - continuing offence

In its submissions on appeal the respondent claimed to have "particularised the offence as a continuing offence during the period of construction". The term "continuing offence" is used in the authorities on duplicity in a sense confined to offences that are constituted by maintaining a state of affairs. An example is Kirby J's discussion of this exception to the rule against duplicitous pleading at the beginning of his Honour's 6th point in the passage extracted at [35] above from Walsh v TattersallI (citations omitted): 6. Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs.
It can be seen from the elements of the s 120 charges in this case (see [28]-[31] above) that the respondent is not alleging continuing offences in the sense in which that concept has been used to describe an exception to the rule against duplicity.
In support of its argument the respondent referred to s 123 of the Protection of the Environment Act, as follows: 123 Maximum penalty for water pollution offences A person who is guilty of an offence under this Part is liable, on conviction - (a) in the case of a corporation - to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or (b) in the case of an individual - to a penalty not exceeding $250,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues.
Is not difficult to envisage cases where pollution of waters, contrary to s 120, may be a continuing offence. An example would be where the owner of industrial property permits effluent or toxic waste to discharge from its land into a body of water continuously for days at a time or longer. At [72] of the primary judge's reasons his Honour correctly observed that offences against s 120 "may be continuing offences" (emphasis added). But the fact that an offence against s 120 may be committed in that way, as recognised in s 123, does not mean that the offences particularised in the present case are "continuing".
Each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence against s 120 at the moment of placement. Each placement directly into a dry gully, for the purposes of the actual pollution charges, was likewise a complete offence at the moment of placement. A number of individual acts, each one complete at the moment of its performance, do not become something that is "continuing" just by being drawn together under the one charge. Taken together, they remain a number of completed acts. The combination of all of the placements that are relied upon in this case under each charge respectively does not assume the character of a continuing infringement so as to be excused as an exception to the rule against duplicity.
There is no element of continuance in what the respondent has alleged. It does not appear that his Honour treated the offences charged in these summonses as continuing offences. At [74], [76] and [80] his Honour's references to "continuous conduct" appear rather to be an acceptance of the respondent's submission that the entirety of the alleged offending could be characterised as one criminal enterprise in breach of s 120, so as to come within the single transaction exception to the rule against duplicity rather than within the exception for a continuing offence. If, contrary to my understanding, his Honour meant to treat the amended summonses as charging continuing offences, in the sense in which that concept may support an exception to the rule against duplicity, he would have been in error.
On the view that I take of His Honour's reasons, leave to appeal should be granted in respect of grounds 2 and 6 but those grounds should be dismissed.

Grounds 3 & 7 - single criminal transaction

The particulars provided by the respondent show that multiple separate instances of breach of s 120 are alleged against the applicants under each charge.
In respect of the likely pollution charges in amended summonses Nos 09 and 11, the respective positions of the numerous gullies particularised by blue lines marked on the respondent's map show that the conduct alleged to satisfy element (1) of each offence (see [30] above) comprised a substantial number of separate placements of material. The contours on the map indicate that material placed in a position from which it would likely descend into any one of the gullies could not possibly descend into any of the other gullies. They are separated by spurs and other features. Hence, what has been particularised by the respondent is a series of separate placements each creating a likelihood of the descent of soil into a separate dry watercourse. The gullies affected are at distances of hundreds of metres from each other, some of them being separated by more than a kilometre. Thus, in the likely pollution charges the respondent is alleging a large number of infringements of s 120.
The respondent submitted to this Court that, notwithstanding that individual constituents of the overall conduct alleged under each of the likely pollution charges may have involved separate offences, the totality falls within the exception to the general rule against duplicity as constituting a single criminal enterprise. The following was submitted: [T]he indicia of commonality include the period of time over which the act took place (continuous over several months), the similarity in repetition of the acts required to build the road (ie driving a bulldozer over many days), the physical proximity of a place where the events happened (a continuous road, built across multiple parcels of land with the same ownership), and the intention of the [applicants) throughout the conduct (to build one road). [T]here was one contractor, acting an instruction from the [applicants] throughout, who carried out the activity in an unchanged fashion over the course of 6 months, almost without interruption, pursuant to an overall scheme designed by the [applicants]. It is artificial to view the construction of each part of the road closest to each specified drainage line as activities separate from one another.
I do not accept that these features are sufficient to unify the alleged conduct into a single criminal transaction for the purposes of laying one charge in respect of acts that could be prosecuted as multiple offences. The fact that the numerous placements of soil and sediment took place in the course of building one road has been a constant refrain in the respondent's submissions at first instance and in this Court. But it is not a significant consideration when one has regard to the fact that the construction took place over five months (from early May to the beginning of October) and extended over a length that has been alternately referred to as 8 km or 10 km, through variable features of terrain and in proximity to a significant number of distinct dry gullies.
The learned primary judge was impressed with the common sense of regarding "the construction of the Road as one activity which involved various acts which were closely related to the next and were part of one overall transaction": at [80]. But it does not follow from recognising the road construction as a single engineering project that one may regard numerous individual acts, committed in the course of that project and being of a kind that s 120 forbids, as an "overall transaction" from the point of view of criminal pleading. The fact that all placements of soil took place during five months of construction of one road means that the placements of soil in proximity to widely separated gullies necessarily took place at distinct times and locations as work progressed.
The uniformity of the construction method by which each separate placement of soil is likely to have been made, namely, using a bulldozer operated by a single contractor, contributes no weight to the respondent's endeavour to construe numerous placements as a single transaction. The allegedly consistent method simply means that the many separate acts, each allegedly infringing s 120 of the Protection of the Environment Act, were of a similar kind. Repetition of similar acts at different locations and times does not weld those acts into one. The fact that the applicant had only one intention, to construct a road, is also not a significant feature in support of the single transaction argument in this case.
I reject the respondent's argument that, for the purpose of laying a charge under s 120, it is artificial to break up the overall enterprise of building the road into individual acts of soil placement on the sections, respectively, that were nearest to the gullies affected. If, for example, construction of the road commenced at the western end of the land, there would be nothing artificial about treating a soil placement in or near a gully at that location in May 2017 as an infringement of s 120 distinct from another soil placement 4 km away to the east, near a different gully, in late September 2017.
There must certainly be a lower limit to the analysis of soil placements along this road into separate infringements of s 120. I accept that it would not be necessary, in order to avoid duplicity, for a prosecutor to lay a separate charge for each bucket load from an excavator or each thrust of a bulldozer. A number of such applications of a machine leading to a placement of material where it was likely to find its way into single dry gully, could no doubt be properly charged as one offence. Depending upon the circumstances, it may be that even if such actions continued over more than one day they could properly be so charged. But what the respondent has endeavoured to consolidate into a single instance of infringement of s 120, to be prosecuted on one count, is far more ambitious than joining up as one event several bucket loads or dozer pushes at a single location near a single gully.
In relation to the actual pollution charges in amended summonses Nos 10 and 12, the three Priority Areas in which it is alleged that soil and sediment was actually placed in the beds of gullies are separated from each other by 200-300 m. This can be seen from the map annexed to Dr Hancock's report on which the Priority Areas are marked. In each of these areas the map shows sections of gullies, marked by blue lines, that are alleged to have been affected by actual placement of pollutant. The sections of gullies in any of the Priority Areas are plainly distinct from the gullies in any other such Area. Even if all of the roadwork that caused material to be placed at each of these three locations was undertaken on the same day, the fact that the Areas are separated by hundreds of metres necessarily means that there were distinct events of placement of material (element (1) of the offence - see [31] above).
Accordingly, the activity at the three locations the subject of the actual pollution charges amounts to the commission of at least three separate offences against s 120. I say "at least" because further examination of the dates on which the relevant work was done and the parts of the dry gully beds affected may reveal that the activity in the three Priority Areas involved a still greater number of separate offences. The respondent's arguments in support of treating the actual placement of soil in these three Areas as a single criminal transaction are the same arguments quoted above in relation to the likely pollution charges. The arguments are no stronger in relation to the actual pollution charges. The placement of material in these three Areas is not able to be viewed as a single compendious action just because each of the locations was part of the one road, constructed by the same contractor using the same methodology, at some time or times over a five-month period.
I would grant leave to appeal in respect of grounds 3 and 7 and uphold those grounds.

Other grounds of appeal

Grounds 1 and 5 are formulated in general terms, to the effect that his Honour erred in declining to dismiss the summonses or to order that they be stayed pending the prosecutor making an election between the multiple infringements comprehended in each charge. Grounds 4 and 8 are to the effect that his Honour ought to have found all charges duplicitous by reason of alleging multiple offences. The determination of these grounds is consequential upon the determination of grounds 3 and 7. I would grant leave in respect of all of these grounds and uphold them.
In support of all grounds the applicants made detailed submissions about ways in which they would suffer procedural unfairness and difficulty in attempting to respond to these charges. In Johnson v Miller at p87 Evatt J said that the rule against duplicity is: an essential and integral part of any system of administering justice according to law. In S v The Queen at p284 Gaudron and McHugh JJ identified considerations upon which "the rule against duplicitous counts has, for a very long time rested", including the following: One important consideration is the orderly administration of criminal justice. … The rule … has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.
These and other statements of the fundamental nature of the rule have been frequently reaffirmed by judges of the High Court. It is not necessary that, in each case where duplicitous pleading is complained of, the defendant must identify procedural or other disadvantage that he or she, specifically, will face in attempting to defend the particular impugned charge. The judgment of Kyrou AJA (Maxwell P and Weinberg JA agreeing) in Rixon v Thompson [2009] VSCA 84 contains a clear exposition of why the Court does not approach the question of duplicity "by asking simply whether the defendant was in some sense treated unfairly": at [83]-[88]. That was a case in which duplicity was argued on appeal after conviction. As Kyrou AJA said at [88], "while fairness is one of the principles which underlie the rule, the question whether the defendant was treated fairly is not determinative of whether the rule was breached". Disadvantage, both to the Court in maintaining the general good order of criminal proceedings and to the defendant in responding to a charge, is inherent in duplicitous pleading. If a count offends the rule and is not within one of the recognised exceptions then it must be dismissed or the prosecutor put to an election.
In Bentley v Gordon [2005] NSWCCA 157 the defendants faced charges in the Land and Environment Court under s 118D(1) of the National Parks and Wildlife Act 1974 (NSW). This Court upheld an appeal by the defendants against the prosecutor having been granted leave to amend in a way that would result in the charges being duplicitous. Smart AJ joined in the Court's decision and made the following general observations upon the investigation and prosecution of environmental offences: [55] Environmental offences are notoriously difficult of proof. While the damage caused to a particular area is often all too evident, the prosecuting authority by its officers, is not present when the actual damage is caused and does not know the precise mechanism by which the damage was caused. The prosecuting authority may be able to ascertain the machinery which the landholder has or used. The landholder may do the work himself or have staff do it or engage contractors. From inspections of the property after the damage has been caused it may be evident that the damage has been caused by an act or acts in that the result produced could not have happened without an act (or, in some circumstances, an omission). However, it may not be possible to identify the particular act or acts causing the damage. Not infrequently the damage will have been committed by a series of acts, for example, driving a mower or a dozer or grader over an area for an hour or so, or even over some days or weeks. It may be some weeks later before an inspection takes place as a result of intelligence received or gathered by the Service. [56] I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential.
None of the difficulties identified by Smart AJ would be any impediment to the prosecutor in the present case identifying a series of discrete offences against s 120 and charging them individually. Each such charge could be pleaded as having been committed between 1 May 2017 and 4 October 2017, if the prosecutor is unable to obtain more specific information about when particular placements of soil may have taken place at relevant locations. With respect to the allegations of actual pollution, there would be no difficulty about pleading three separate charges, one in respect of each of the Priority Areas. With respect to the instances of likely pollution, the respondent could readily identify by map coordinates the separate locations at which soil was placed in proximity to a gully that was likely to be polluted by erosion of the soil into it. The specific part of the gully that was placed at risk of such transfer of soil could also be identified by map coordinates.
Determination of how many such charges should be laid would be a matter for the exercise of the prosecutor's discretion. As in all such cases of multiple offending the prosecutor would no doubt take account of the comparative strength of the evidence as between the various infringements and would charge a sufficient number of offences to reflect the overall criminality. Making such judgments is a routine daily activity of prosecuting authorities that enforce the general criminal law.
Judging by the number of cases in which New South Wales authorities have endeavoured to prosecute multiple discrete infringements of environment protection laws on single count summonses, it may be inferred that such authorities have gained the impression that the rule against duplicitous pleading is to be applied more loosely in relation to this type of offence than in the administration of the general criminal law. That is not so. If such a perception has been taken from Smart AJ's observations in Bentley v Gordon then his Honour has been misunderstood. The rule is essential to the administration of criminal justice and must be applied to prosecutions of offences of all kinds.

Orders

In their notice of appeal the applicants do not seek any order for costs. There could be no order for the costs of the proceedings in this Court: s 17 of the Criminal Appeal Act 1912 (NSW). Nor can costs be ordered in respect of the applicant's notices of motion in the Land and Environment Court. The proceedings in that court are governed by Pt 5 of Ch 4 of the Criminal Procedure Act 1986 (NSW) entitled "Summary jurisdiction of Supreme Court and other higher courts". Section 257C, which is within Pt 5 of Ch 4, is the exclusive source of the power of the Land and Environment Court to award costs in such proceedings: Environment Protection Authority v Truegain Pty Ltd at [75]-[99] (Leeming JA, RA Hulme and Button JJ agreeing). Section 257C only permits an order for costs to be made against a prosecutor "at the end of proceedings under this Part". Section 68(1) of the Land and Environment Court Act 1979 (NSW) enables that Court to order an amendment "upon such terms as to costs or otherwise as the Court thinks fit". It was held in Environment Protection Authority v Truegain Pty Ltd that that section does not confer a separate power to order costs of interlocutory applications in Class 5 summary criminal proceedings.
I propose the following orders: 1. Leave granted to the applicants pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against the orders of the Land and Environment Court made 20 December 2019 in proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912. 2. Appeal upheld. 3. Order numbered (1) in each of proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912 made by the Land and Environment Court on 20 December 2019 is set aside. 4. In lieu thereof it is ordered that further proceedings on each summons are stayed until the respondent elects and particularises in relation to each summons a single offence contrary to s 120 of the Protection of the Environment Operations Act 1997 upon which the respondent will proceed.

Amendments 27 October 2020 - Z Shahnawaz added on coversheet 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: 27 October 2020

Clean Waters Act 1970(NSW)

Environment Operations Act 1997(NSW)

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