Prosecutor v EMERALD PEAT PTY LTD

Land and Environment Court (NSW)|1999-02-26|Before: Talbot J

The applicant in Hamzy was charged with supplying not less than a large commercial quantity of heroin. After referring to Merriman Hunt CJ at CL, while dealing with the entitlement of the Crown to plead in the one count a charge of supplying where it intends to prove a number of individual acts of supply by the accused to different people and at different times, observed at 349:-

I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury. According to the evidence, the appellant was constantly involved in the one criminal enterprise of dealing in heroin. Even if the individual acts of supply had been divided up into different counts, each count relating to the acts of supply to a different Crown witness, there would have been no real justification for separate trials relating to each count.

In Walsh v Tattersall (1996) 188 CLR 77 Gaudron and Gummow JJ in a joint judgment expressly acknowledged, at p 91, that an offence defined in terms of a course of conduct or state of affairs might depend upon proof of a series of material facts, although no particular fact suffices. Although agreeing with Gaudron and Gummow JJ that the conviction should be quashed, Kirby J also recognised at 107 that there are offences which, of their definition, are constituted by continuous activities. He referred specifically to conduct which need not, but in some circumstances might, be constituted by activity over time and quite properly be charged in a single count. Kirby J also recognised the permissibility of multiple acts being seen as part of the one transaction or criminal enterprise.

Although the majority in Walsh decided that each single act relied upon in that case resulted in the completion of a discreet offence, the Court of Criminal Appeal has maintained, on at least three occasions since, that the decision of the High Court did not overrule the decision in Hanzy ( F (1996) 90 A Crim R 356; Lisa Deng (1996) 91 A Crim R 80 and Carcosa Pty Ltd v Czerwaniw (Dept of Health) (1997) 93 A Crim R 287).

Citing Merriman the then Chief Justice of New South Wales noted in EPA v Sydney Water Corp Ltd (1997) 98 A Crim R 481 at 483 that charging a single offence in respect of an allegation of five acts of omission is consistent with authority and practice in criminal cases.

The Court is satisfied that if the prosecutor is permitted to amend the summons so that the charge is particularised to allege pollution of the relevant waters over an extended but nevertheless continuous period, the rule against duplicity will not apply.

Ultimately the prosecutor must prove that the acts which took place in the dredging pond can be fairly regarded as components of the one activity or enterprise. This is not the time to make a final decision in that regard.

It is alleged that the pollution of the waters is a continuing event. The separate activities which are said to have caused the pollution did so, according to the prosecutor, by creating disturbance to the material in the pond within sufficient temporal context to produce the resulting discharge over the whole period between 4 August 1997 and 17 September 1997.

On 24 August 1998 the Director-General of the EPA, on behalf of the EPA, consented in writing to the institution of the proceedings for an offence against the EOP Act as follows:-

Proceedings for the offence that, on about 25 August 1997 and continuing on each day thereafter until about 12 September 1997, at Burrawang, in the State of New South Wales, Emerald Peat Pty Ltd did pollute waters, contrary to sections 16(1) and 16(7) of the Clean Waters Act 1970.

Mr McEwen submits on behalf of the defendant that if the charge is amended the purpose of s 13 of the EOP Act will be frustrated. Although there clearly can be an amendment that does not result in a fresh charge, in this case the change in particulars changes the nature of the consent required because of the specificity of the terms of the consent given.

The purpose of the requirement that proceedings for an offence may be instituted only with the consent referred to in s 13(1) is to protect an accused person by ensuring that a prosecution will only be instituted if the EPA considers that it should. In Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 46 Bowen CJ, Dean and Toohey JJ in a joint judgment recognised that the objective will not be satisfied unless the authority has in truth consented to the proceedings in question. What is necessary is that the authority should give its consent in terms which enable it to be said that the proceedings which are instituted have been instituted with its consent.

It was recognised in Traveland that consent to a prosecution may be given in general terms. Otherwise if the precise form of the charge were necessary to be stated then provisions permitting amendments would be inoperative.

In Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36 Brennan J, after noting that the consent could be expressed in quite general terms observed at p 38 that where the authority limits its consent, the limitation is one which the prosecutor is bound to observe when commencing the proceedings. In that case the Minister, as the relevant authority, gave consent to the institution of a prosecution specifying the offences to be prosecuted in the instrument of consent which he signed. The information was laid three days later in terms different from the terms to be found in the Minister's instrument of consent. The difference between the consent and the information related to the element "in connexion with the supply of goods" in s 53 (of the Trade Practices Act 1974). That element was the element selected by the Minister in the consent which he gave. The information chose another element "in connexion with the promotion by any means of the supply or use of goods". His Honour held that conduct of a kind specified in one of the lettered paragraphs of s 53, when combined with the several alternatives in the introductory part of that section, constituted differing offences. It followed therefore that the Minister consented to one offence but another offence was found in the information. The disparity between the offences meant that the offences laid in the information were not offences consented to by the Minister (p 39).

The circumstances in the present case are quite different to those which prevailed in Gilmour .

In Water Board v EPA (1994) 83 LGERA 174 Blanch J, with whom Grove and Abadee JJ agreed, referred to the underlying question of policy as whether the Minister considered the breaches of the relevant acts by the appellant and gave his consent to the prosecution of the appellant in respect of those breaches.

In Brownlie v State Pollution Control Commission (1992) 76 LGRA 419 the Chief Justice observed, at p 429, that if the proceedings in their amended form are, in nature and in substance, proceedings to the institution of which the requisite consent has been given then the amendments are permissible. The Chief Justice cited Traveland as an authority for that proposition.

In the present case the amendments will do nothing to alter the substance of the charge, namely that between stated dates (including coincidentally the dates specified in the consent) the defendant continuously polluted water contrary to s 16 of the CW Act.

It is a relevant matter to take into account that the authority vested with the power to give written consent pursuant to s 13(1) is the prosecutor. In terms of policy it is difficult to comprehend how it can be said that the amendment will be made without the consent or authority of the EPA.

The prosecutor does not seek to add a further count but merely to amend the particulars of the dates when the alleged offence, expressly referred to in the consent given, occurred. In that sense no change is made to the substance of the offence. Strictly speaking it is only the particulars that are being changed.

Section 13(1) is directed only to the institution of the proceedings "for an offence" against the Act. The consent given in writing on 24 August 1998 authorised the institution of the proceedings for the offence specifically referred to in the summons. Following amendment the proceedings will relate to the same offence. If an amendment changes the nature or substance of the offence then arguably a further consent may be required if proceedings for the offence as amended are instituted for the first time when the amendment is made. That is not the case here. The amendment will not result in a fresh charge.

The Court is not persuaded that it should dismiss the application for amendment as being inconsistent with the requirement for consent required pursuant to s 13(1) of the EOP Act.

It follows therefore that the Court has the power to make the amendments proposed and that the charge, as amended, will not, on its face, be duplicitous. The prosecutor is entitled to an order making the amendment.

For the reasons given above, no further written consent is required from the EPA.

The summons is amended by deleting the words in the charge -

"On or about 25 August 1997 and continuing on each day thereafter until about 12 September 1997,"

"On or about 4 August 1997 and continuing on each day thereafter until about 17 September 1997,"

The Prosecutor is directed to file an amended summons within seven days.

I hereby certify that this and the preceding 11 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

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.

Land and Environment Court of New South Wales CITATION: Environment Protection Authority -V- Emerald Peat Pty Ltd [1999] NSWLEC 28

The following explanation by Lord Diplock in DPP v Merriman [1973] AC 584 (HL) at 607 has been adopted by the New South Wales Court of Criminal Appeal ( R v Hamzy (1994) 74 A Crim R 356):-

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