Judgment
1 IPP AJA: On 24 February 1999 the respondent issued a summons charging the appellant with polluting waters contrary to s 16(1) of the Clean Waters Act 1970. The summons alleged:
"On or about 25 February 1998 at Woolloomooloo Bay in the State of New South Wales, [the appellant] committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970".
2 The appellant sought an order striking out the summons. It contended before Pearlman J, the Chief Judge of the Land and Environment Court, that the summons was defective in several respects. For the purposes of these reasons it is necessary only to refer to the appellant's argument that the summons was defective in that:
"It fails to set out the acts or omissions of the [appellant] which are alleged to constitute the alleged offence - in simple terms, it fails to disclose what the defendant did which is alleged to be wrong".
3 On 20 May 1999 Pearlman J delivered a judgment in which she rejected the appellant's argument.
4 By judgment delivered 13 September 2000 (McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No. 1) (2000) 50 NSWLR 127 this Court held that Pearlman J had erred as the summons did not identify an act of polluting which is an essential factual ingredient of the offence.
5 In so deciding, the Court did not consider the question whether an act of polluting was a legal element of the offence. This was not a question that the court was required to address. Nor did the court consider s 43 of the Land and Environment Court Act 1979. Spigelman CJ observed (at 134):
"The applicability of s 43 of the Land and Environment Court Act is a matter for further consideration in that Court".
6 Thereafter, the question of the operation of s 43 arose before Pearlman J when the appellant, by way of notice of motion, sought an order that the summons be struck out as invalid or, alternatively, an order that the proceedings be permanently stayed. The crisp issue before her Honour was whether s 43 operated so as to cure the defect identified by this Court.
7 Section 43 provides:
"No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, s 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order".
8 In the subsequent hearing before Pearlman J, the appellant submitted that the omission to allege an act of polluting on the part of the appellant was fatal as such an act was an essential legal element of the offence alleged and therefore could not be cured by the application of s 43. Pearlman J did not accept this argument. She held that the summons should not be dismissed and the proceedings should not be permanently stayed.
9 The appellant repeats its contentions before this Court. It seeks an order that the determinations made by Pearlman J on 20 June 2001 be set aside and the proceedings against it be dismissed.
10 In Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Sperling J (with whom Meagher JA and James J agreed) said at (57):
"Section 43 of the Land and Environment Court Act 1979 provides, so far as is material, that no objection shall be taken or allowed to any application (ie the summons) referred to in, or to an order made under s 41, by reason of any alleged defect in it in substance or in form. This is what is known as a Lord Jervis provision. Similar provisions are to be found in the Justices Act 1902, ss 30 and 65.
A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision : Ex parte Price : (1899) 20 LR (NSW) 343. ex parte Bartlett ; (1896) 17 LR (NSW) 108 . Ex parte Thomas; Re Otzen; (1947) 47 SR (NSW) 261 . ex parte Burnett ; Re Wicks ; [1968] 2 NSWR 11 . Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 per Mahoney JA at 517. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd ; per Brennan J at 529, 531. Stanton v Abernathy ; (1990) 19 NSWLR 656 per Gleeson CJ at 667. R v Cassell ; (1996) 2 NSWCR 89 . R v Duff . (1924) 41 WN (NSW) 23.
The summons in the present case falls within the second category of defective informations. It is saved by s 43."
11 The charge in the summons alleged that the appellant "did pollute waters contrary to s 16(1)". Particulars of the place and kind of pollution alleged were provided in the summons. Accordingly, the question in this appeal is whether the omission of an allegation detailing the act of polluting said to have caused the pollution renders the charge fatally defective so as to preclude the curative effect of s 43.
12 The answer to that question depends, in turn, on whether the act of polluting is a legal element of the offence or merely an essential factual ingredient thereof. That is because a charge that omits a legal element of the offence is incurable, whereas, by reason of s 43, a charge that lacks an essential factual ingredient of the offence may still be maintained.
13 The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process.
14 I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out.
15 The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients.
16 This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are ss 16(1) and (7a) of the Clean Waters Act. Section 16(1) provides:
"A person shall not pollute any waters".
Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act 1989.
17 Significantly, the term "pollute", in relation to waters, is defined by the Clean Waters Act (s 5). The definition contains three paragraphs, each of which provides for a different meaning of pollute. Paragraph (a) provides, generally, that pollute means to introduce into waters any matter so that "the physical, chemical or biological condition of the waters is changed". Paragraph (b) contains a complex definition that broadens the meaning of pollute so that it means (in summary form) to introduce into waters matter which alone or together with other matter makes or is likely to make the waters unclean, etc, detrimental to health of persons, undrinkable to farm animals or is likely to interfere with the enjoyment of rights. Paragraph (c) provides that pollute means to introduce into waters any matter that is of a prescribed nature, description or class that does not comply with a prescribed standard. The latter, in effect, is a deemed polluting.
18 It follows that there are several ways in which a person may pollute waters, namely, the ways defined in the statutory definition of "pollute. That being so, it seems to me, by the language of the statute, the relevant legal element of the offence is the act of "polluting", as defined, of waters. The particular way in which the defendant is alleged to have polluted the waters concerned will constitute the essential factual ingredients of the charge.
19 In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Gleeson CJ said at 83 that an offence of contravening s 16(1) requires the prosecution to prove that the defendant performed some act which resulted in waters being polluted (see also Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82). This, I think, is on the basis that the prosecution relies on "pollute" as defined in either one of paras (a) or (b). The need to prove these matters stems from the statutory definition of "pollute". The existence of the need, however, does not convert these matters into legal elements of the offence. In my view, they are and remain essential factual ingredients of the legal element of "pollute" in the offence of contravening s 16(1).
20 Accordingly, in my view, the elements of the offence are:
(a) a polluting;