Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

Court of Criminal Appeal (NSW)|2020-03-25|Before: Harrison J, Hamill J, Wilson J, Moore J

Solicitors: Bradley Allen Love Lawyers (Applicant) Thomson Geer (Respondent) File Number(s): 2016/381474 and 2016/381475 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 5 Citation: [2019] NSWLEC 182 Date of Decision: 27 November 2019 Before: Moore J File Number(s): 2016/381474 and 2016/381475

Judgment

HARRISON J: Snowy Monaro Regional Council seeks leave to appeal to this Court in two related proceedings pursuant to s 5F of the Criminal Appeal Act 1912 from the judgment or order of Moore J on 27 November 2019 in the Land and Environment Court upon the following grounds: 1. The Primary Judge erred in declining to grant leave to amend to substitute the 41 Count Amendment by denying the Prosecutor procedural fairness as a result of not determining a principal contested issue on which the decision to grant that leave depended, namely that by reason of the operation of the principle of totality the overall penalty upon conviction of those 41 counts could not properly be greater than the penalty that may have been imposed on conviction of the unamended charge in the Summons alleging a breach of Condition 4 of development consent DA 10.2014.391.1 (which condition required that the asphalt batching plant to produce no more than 150 tonnes per day at any time during operations) ("Breach") on multiple days over the charge period from 20 January 2015 to March 2015. 2. The Primary Judge erred in declining to grant leave to amend to substitute the 41 Count Amendment by not giving adequate reasons for rejecting the Prosecutor's submission, on which the decision to grant that leave depended, that by reason of the operation of the principle of totality the overall penalty upon conviction of those 41 counts could not properly be greater than the penalty that may have been imposed on conviction of the unamended charge in the Summons. 3. The Primary Judge erred as set out at (1) and (2) above by reason of failing to compare the charge in the Summons with the proposed 41 Count Amendment, as the Prosecutor's written and oral submissions invited the Primary Judge to do, and instead erroneously compared, for the purpose of considering whether the 41 Count Amendment could be made without injustice within the meaning of s 21 of the Criminal Procedure Act 1986, with a charge alleging a Breach of Condition 4 on a single day only. 4. The Primary Judge erred in refusing the leave sought in the Reopening Notice of Motion to reopen to rely on the material in and exhibited to the affidavit of Alan Bradbury affirmed 28 June 2019, as the Primary Judge neither considered the unredacted copy of the Bradbury Affidavit which was tendered by the Prosecutor on the Reopening Notice of Motion and exhibit to it nor ruled on the admissibility of the Bradbury Affidavit. 5. The Primary Judge erred in declining to grant leave to amend to substitute the 41 Count Amendment by expressly not considering relevant evidence going to the matter of whether the 41 Count Amendment was in the interests of justice (within the meaning of s 68 of the Land and Environment Court Act 1979), or whether the charge could be so amended without injustice within the meaning of s 21 of the Criminal Procedure Act 1986, namely the unredacted Bradbury Affidavit. 6. The Primary Judge erred and denied the Prosecutor procedural fairness, failed to consider a principal contested issue, and failed to give adequate reasons, by not considering whether the 41 Count Amendment should be allowed pursuant to s 68 of the Land and Environment Court Act 1979, at all.

Background

Tropic Asphalts was originally charged with three summary offences under the Environmental Planning and Assessment Act 1979 in relation to the alleged carrying out of development in breach of the terms of consent granted to it by Snowy Monaro on 13 January 2015, permitting the production of asphalt from a mobile batching plant. The charges all involved allegations of breaches over the period of operation of the plant at a particular site between 20 January 2015 and 18 March 2015.
One of the charges was dismissed by Moore J on 25 August 2017: see Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109. That decision was upheld by this Court on 21 September 2018: see Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202. The remaining two charges (Charges 2 and 3) are listed for trial in the Land and Environment Court on 22 May 2020 with an estimate of five days. These charges are the subject of this interlocutory appeal.
Charge 2 in proceedings 381474 of 2016 concerned an alleged breach of Condition 4 of the development consent. That condition provided that the plant's production must not exceed 150 tonnes per day at any time during operations. Charge 3 in proceedings 381475 concerned a similar breach of Condition 6. That condition provided that the number of trucks entering and exiting the site shall not exceed 12 trucks per day at any one time.
Tropic challenged these charges on the grounds of duplicity. Moore J upheld that challenge: [2017] NSWLEC 109 at [84]. His Honour found that each charge was duplicitous because it failed to nominate a specified day upon which the relevant condition was said to have been breached. That decision was upheld by this Court, finding that the two charges encompassed "multiple separate offences" rather than a single offence: [2018] NSWCCA 202 at [60]. This Court expressly recorded at [57] that the two charges were not attacked by Tropic upon the ground that they were bad at law for that reason, based upon the approach taken by Gaudron and Gummow JJ in Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26. An application by Snowy Monaro for special leave to appeal to the High Court was refused: Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] HCASL 86.
When the charges were remitted to the Land and Environment Court, Snowy Monaro sought leave, by notice of motion filed on 23 April 2019, to amend each charge in each proceeding as follows: 1. In proceeding 2016/381474, in respect of Charge 2, Snowy Monaro sought either: 1. to amend the particulars of contravention for Charge 2 to delete reference to engaging in a 'course of conduct' between 20 January 2015 and 18 March 2015 and instead allege breach of Condition 4 on a particular day (21 January 2015) and also to add 40 additional charges alleging breach of Condition 4 on various other days (making a total of 41 charges); or 2. alternatively, to amend the particulars of contravention for Charge 2 to delete reference to engaging in a 'course of conduct' between 20 January 2015 and 18 March 2015 and instead allege breach of Condition 4 on 6 February 2015 only. 1. In proceeding 2016/381475, in respect of Charge 3, Snowy Monaro sought either: 1. to amend the particulars of contravention for Charge 3 to delete reference to engaging in a 'course of conduct' between 20 January 2015 and 18 March 2015 and instead allege breach of Condition 6 on a particular day (21 January 2015) and also to add 39 additional charges alleging breach of Condition 6 on various other days (making a total of 40 charges); or 2. alternatively, to amend the particulars of contravention for Charge 3 to delete reference to engaging in a 'course of conduct' between 20 January 2015 and 18 March 2015 and instead allege breach of Condition 6 on 18 March 2015 only.
Accordingly, the first amendment sought was to amend the summons in each case in order to nominate the particular working days within the original charge period from 20 January 2015 until 18 March 2015 as separate counts within each summons. The second amendment sought in the alternative was to amend each summons so as only to allege a contravention of the relevant condition on a particular day within the same period. Tropic opposed the grant of leave to amend both charges. In the events that occurred, Moore J only granted Snowy Monaro leave as sought in the alternative to amend each summons to allege contravention of the relevant condition on one particular day: Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182.
The proceedings in this Court are brought by Snowy Monaro pursuant to s 5F of the Criminal Appeal Act challenging Moore J's interlocutory order or judgment dismissing Snowy Monaro's application to amend each summons so as to break up each charge and separate it into multiple counts nominating individual days within the charge period. Tropic has lodged a competing application pursuant to s 5F challenging Moore J's decision granting leave to Snowy Monaro to amend the summonses in order to reduce each charge to a single day.

Ground 1

Snowy Monaro contended before Moore J that s 21 of the Criminal Procedure Act 1986 conferred power on the Land and Environment Court to permit amendment if it formed the opinion that this could occur without injustice in that the amendment was thought necessary to meet the circumstances of the case. Snowy Monaro also relied upon s 68 of the Land and Environment Court Act as a provision conferring power to permit any amendments which the Court considered to be in the interests of justice. Snowy Monaro contended that unless the amendments were permitted, Tropic would escape a trial on charges that captured the full criminality of its conduct, being serial breaches of the relevant conditions on working days during the charge period. Snowy Monaro submitted in this context that the amendments were required in the interests of justice. Snowy Monaro also submitted that the amendments could be made without unfairness or injustice to Tropic because: 1. the amendments did no more than break up the original charges that alleged contravention over the whole period from 20 January 2015 to 18 March 2015 into separate and distinct counts on specified days of which the original charges had consisted; and 2. the sentencing principle of totality meant that, even though there would now be 41 separate counts in relation to Charge 2 and 40 separate counts in relation to Charge 3, this could not result in a cumulative penalty, even if convicted on all 40 or 41 of the separate counts, that was greater than the penalty that could be imposed if Tropic were convicted of each original unamended charge extending over the same period.
Snowy Monaro contended in this Court, as it did before Moore J, that no unfairness would be occasioned to Tropic if the amendments were permitted. The principle of totality meant that no sentence could ever be imposed that was disproportionate to Tropic's overall criminality. That would be so even if Tropic were convicted on all of the proposed post-amendment broken-up charges: see EPA v Hanna [2018] NSWLEC 80 and EPA v Davis [2019] NSWLEC 79. The upper limit of any sentences that could properly have been imposed for the original Charge 2 and Charge 3 would be unaffected by the amendments sought: howsoever the charges were framed, Tropic's overall criminality did not change or increase.
Moore J took a different approach. His Honour compared the sentence that could be imposed if Tropic were convicted of the single (daily) counts with the total sentence that could be imposed if it were convicted on all of the 40 or 41 separate counts the subject of the proposed amendments. Snowy Monaro submitted in this Court that his Honour erred in doing so by comparing the wrong things and failing to address Snowy Monaro's submissions based upon the totality principle. This error meant that his Honour rejected Snowy Monaro's argument that there was no difference in the penalty that could be imposed whether the amendments were permitted or not. His Honour reasoned as follows: "[47] In this instance, if the Company was to be convicted of all of the offences pressed for each of the multi-count charges, there could be absolutely no doubt that the total penalties which would be appropriate to be imposed would be significantly higher than the penalty which would be likely to be imposed if the Company was convicted on a single-count charge in each of these proceedings. This would be an injustice (and one of significance) in the sense envisaged by the use of that word in s 21(1) of the Criminal Procedure Act. [48] Although I have set out above the submissions made for the Prosecutor concerning why the principle of totality in sentencing would be ameliorative of this position, I reject those submissions in light of the significantly higher maximum penalty exposure that would arise. [49] Whatever might be the application of the principle of totality (if all counts resulted in findings of guilt), the necessary outcome would be a penalty on each charge significantly higher than could be expect[ed] after a finding of guilt on a single charge."
Snowy Monaro submitted that his Honour's reasons demonstrate that he failed to consider or to determine the principal contested issue, being whether a materially higher penalty would be imposed upon conviction on the original rolled-up charge, incorporating the multiple daily offences, compared to a conviction on all of the separated counts in the multi-day amendment. Snowy Monaro contended that "it can intuitively be seen", even without resort to the totality principle, the likely penalties would be similar in either case as the factual basis for the allegations against Tropic remains unchanged.
Snowy Monaro submitted that this error, if established, would vitiate his Honour's decision: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310.

Ground 2

Snowy Monaro contended that the same error vitiates his Honour's decision for the additional reason that he failed to give adequate reasons for rejecting its submissions directed to the totality principle: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 43.

Ground 3

Snowy Monaro made no separate submissions with respect to this ground of appeal. It contended that this ground was "supportive of Grounds 2 and 3". His Honour erroneously compared the penalty that applied to a single day's breach with the total possible penalty arising from a conviction on all of the daily counts.

Grounds 4 and 5

When Snowy Monaro applied to his Honour to amend the summonses, as already discussed, it also sought to be permitted to rely upon further evidence, in addition to the prosecution brief as originally served, in support of its applications to amend. This was described as "an application to amend the prosecution brief" to rely upon delivery dockets that had been produced by Roads and Maritime Services and which, according to Snowy Monaro, disclosed or amounted to evidence to be relied upon by Snowy Monaro at the trial of the multiple daily breaches of condition 4 of the Development Consents. His Honour did not permit this application and specifically did not read the supporting affidavit of Alan Anthony Bradbury affirmed on 28 June 2019 or the material exhibited to it.
Snowy Monaro submitted in these circumstances that his Honour failed to consider a relevant matter and in so doing erred in law: Mifsud v Campbell (1991) 21 NSWLR 725; Segal v Waverley Council at [69].

Ground 6

Snowy Monaro contended that, even if leave to amend were not to be granted pursuant to s 21 of the Criminal Procedure Act, it would nevertheless be granted applying the different "without injustice" test in s 68 of the Land and Environment Court Act. Snowy Monaro complains that his Honour considered the former but not the latter: "[47] In this instance, if the Company was to be convicted of all of the offences pressed for each of the multi-count charges, there could be absolutely no doubt that the total penalties which would be appropriate to be imposed would be significantly higher than the penalty which would be likely to be imposed if the Company was convicted on a single-count charge in each of these proceedings. This would be an injustice (and one of significance) in the sense envisaged by the use of that word in s 21(1) of the Criminal Procedure Act."
Although his Honour made reference to s 68 elsewhere in his judgment, he did not do so in this specific context despite Snowy Monaro's submissions on the point in the court below. Snowy Monaro submitted, therefore, that his Honour's relevant failure to consider or to apply s 68 was a denial of procedural fairness. Snowy Monaro contended that if his Honour has considered and accepted those submissions, his decision would necessarily have been different: the amendment "would have been allowed pursuant to s 68". Alternatively, Snowy Monaro lost the possibility of a different outcome, as the s 68 test is different to the s 21 test. That is said to be sufficient to vitiate the decision as a whole: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at [11]-[12].

Tropic's submissions on its applications for leave to appeal

It is convenient to consider Tropic's submissions made with respect to its applications for leave to appeal before referring to Tropic's response to the Snowy Monaro applications for leave to appeal. That is because the latter is substantially informed by the former.
Tropic raises three grounds of appeal in relevantly cognate terms in each proceeding. They are as follows: "His Honour erred in granting leave in accordance with the orders sought in paragraph 2 of the Snowy Monaro notices of motion filed on 23 April 2019 to amend the charge in the summons pursuant to s 21(1) of the Criminal Procedure Act 1986 in: 1. failing to consider or to properly consider Tropic's submission that the charge in the unamended summons was a nullity and therefore was incapable of amendment by reason of it charging Tropic with having committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 by doing that which was forbidden by s 76A(1)(b) of the Act being engaged in a course of conduct being the operation of the plant to produce more than 150 tonnes per day/so that more than 12 trucks per day were accessing and exiting the site (being the land) at any one time, being a charge which did not disclose a criminal offence; 2. not holding that the charge in the unamended summons was a nullity and therefore was incapable of amendment by reason of it charging Tropic with having committed an offence against s 125(1) of the Act by doing that which was forbidden by s 76A(1)(b) of the Act being engaged in a course of conduct being the operation of the plant to produce more than 150 tonnes per day/so that more than 12 trucks per day were accessing and exiting the site (being the land) at any one time, being a charge which did not disclose a criminal offence; and 3. not holding that the charge in the unamended summons was a nullity and therefore was incapable of amendment by reason of its failure to disclose the nature of the offence in a material respect or by reason of its failure to disclose an essential element of the offence."
Tropic reasoned as follows.
As initially pleaded, each charge alleged that Tropic had breached the relevant condition of consent by engaging in a "course of conduct" during the charge period between 15 January 2015 and 18 March 2015. However, this Court held in the earlier decision that the relevant contravention of each condition of consent is the carrying out of the relevant act stated in the condition on a particular day. Bathurst CJ said this at [59]: "[59] In my opinion, each breach of condition 4 and condition 6 constitutes a separate contravention of s 76A(1)(b) of the EPA Act because the relevant contravention is the carrying out of the relevant act stated in the condition on a particular day. A separate contravention occurs on each day that the plant produces more than 150 tonnes (the Second Charge) or where more than 12 trucks enter or leave the site of the plant on the day in question (the Third Charge). This is consistent with the plain language of each of the conditions, which refer in terms to the particular limitations being imposed 'per day'."
Tropic therefore submitted, first, that the charges as initially pleaded did not disclose an offence known to the law, because the pleaded act of engaging in a course of conduct over a charge period extending beyond a single 24-hour period was incapable of constituting a contravention of either condition of consent. Secondly, the charges as originally pleaded did not include an essential element of the offence, namely the particular day or days on which it was alleged that Tropic had contravened each condition of consent. The charges were accordingly a nullity and could not be amended pursuant to s 21(1) of the Criminal Procedure Act or s 68 of the Land and Environment Court Act or otherwise. Thirdly, the amendments (so called) were impermissible because they did not seek merely better to particularise or clarify each charge, but sought instead to formulate new and different charges. Unless these qualified as amendments in fact, they would have been out of time by reason of the limitation period imposed by s 127(5) of the Environmental Planning and Assessment Act.
Tropic submitted that his Honour did not in these circumstances have power to permit the amendment that he granted and that his leave to amend each charge to allege breach of the relevant condition of consent on a nominated date should be set aside. Tropic should be granted leave to appeal upon the basis that his Honour's decision was "clearly erroneous".

Tropic's submissions in response to Snowy Monaro's application for leave

Tropic submitted that Snowy Monaro's Grounds 1, 2, and 3 were without merit. In short, Tropic contended that his Honour did not have power to permit amendments to plead multi-count charges for the same reason that he did not have the power to permit amendments to plead single-day charges. Even assuming that he did have that power, the proposed multi-count amendments had the potential to cause injustice to Tropic and should not have been allowed.
Tropic submitted that Snowy Monaro's submissions did not engage with all of the matters identified by his Honour, but were limited or restricted to his finding that the proposed multi-count amendments would have exposed Tropic to the potential risk of higher financial penalties while ignoring the principle of totality. Tropic contended that these submissions ignored what his Honour said at [42]-[49] of his decision as follows: "The extent of the penalty exposure [42] I have earlier set out, at [37], the maximum penalty exposure of the Company if both multi-count amendments were to be permitted. It is not necessary to repeat those figures here. It is, however, blindingly obvious that a radically higher maximum penalty exposure would be faced by the Company for each charge if the multi-count amendments were to be permitted. [43] It is sufficient, for my present consideration, to set out only one example of the response of the Prosecutor on this point. During the course of the Prosecutor's reply submissions on 18 September 2019, the transcript records the following …: IRELAND: … The principle of totality is a reply to the defendant's submission that there's injustice or unfairness arising from the amendment that is sought. The maximum penalty that would apply for these charges alleging a contravention of s 76A at the relevant time was $1.1 million, it was 1,000 penalty units in the Act as it was at that particular point in time and so to that extent I correct the reference to $1 million at para 39 of my written note of 4 September but of course the reality of the potential sentence that the defendant is exposed to if the charges are broken up and considering the matter hypothetically if the defendant were convicted on each of the 40 or 41 separate days for charges 2 and 3 the sentence that the defendant would face bears no relationship to the addition for example firstly of the absolute maximum $1.1 million figure. This is for two reasons. Firstly, the principle of totality. Secondly, the nature of the charges, the conduct alleged and the subject matter of these proceedings. We're dealing with particular breaches on particular days of conditions of a development consent dealing with the, serious of course, but dealing with the production of material from a national batching plant. It is simply not the kind of case where in any way the maximum would be approached either in relation to a rolled up charge or in relation to a sentence imposed for a conviction of a breach of a condition on a particular day. So as a matter of reality the theoretical spectre of prejudice that may be said to arise due to the breaking up of the charges and the fact that there's an individual theoretical maximum applying to each and every separate offence does not arise as a matter of reality and as a matter of law it can't arise due to the principle of totality which ensures that in such a case where there are multiple alleged offences dealing with a course of conduct or ongoing conduct by a defendant that the sentence that is ultimately imposed by the Court must properly reflect the overall criminality of the defendant but no more. It's been said that the principle of totality requires a sentencing judge who sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the defendant and that's a reference to the judgment of Kirby J in the Postiglione case … The principle of totality is that because that is the overall criminality of the conduct that is involved here and firstly that doesn't change, the overall criminality does not change or increase because the charges are broken up. The second proposition is that the principle of totality requires the overall sentence to reflect at all times the overall criminality. So the overall amount, the addition if you like of the you know the X thousand dollars for charge 1 and a $500 if it be that for the subsequent breaches of condition 4 or condition 6, the principle of totality simply means that that must still reflect the same thing, the same constant, the same overall criminality. So it would be to contravene the principle of totality for there to be an additional monetary imposition in my submission. So it can't consistently with the principle of totality occur. So that is not one element of prejudice that in my submission the defendant can properly rely upon because the proper application of the principle of totality removes it. … the prosecutor submits that the amendments achieve the interests of justice. The amendments can be effected without injustice. There's also reliance on the broad and unfettered power of amendment in s 20 and the particular power in s 68 of the Land and Environment Court Act. Rather the interests of justice are all in favour of this amendment being made, in particular order 1, to capture this defendant's alleged overall criminality. [44] It is entirely without doubt that, if the two multi-count proposed repleadings are permitted and, after trial, the Company is convicted and stands to be sentenced on multiple counts, the principle of totality necessarily arises as part of the overall sentence determination process for each conviction. In this context, it would not matter whether the sentencing process had been triggered by pleas of guilty or whether the sentencing process was triggered by findings of guilt made after a contested criminal trial. Equally, it would not matter whether, for each count, conviction and sentence was to flow from the establishing of guilt on all the proposed multiple counts for Charge 2 and Charge 3, or merely for some smaller selection of them. [45] In Georges River Council v WK Strong Pty Limited; Georges River Council v Awada [2019] NSWLEC 97, Preston CJ set out, concisely, the effect of the principle of totality. He said, at [80] and [81]: 80 The effect of the totality principle is to require the Court, which passes a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In relation to fines for multiple offences, an appropriate result may be reached by reducing the amounts of the fine for each offence. 81 Care must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality or the sentence for any individual offence to become disproportionate to the objective gravity of that offence. [46] The necessary inference of what his Honour wrote is that an accumulation of sentences for a series of individual offences, even if of generally the same typology, will necessarily reflect an aggregate sentence commensurate with the total criminality of the actions of the particular defendant. [47] In this instance, if the Company was to be convicted of all of the offences pressed for each of the multi-count charges, there could be absolutely no doubt that the total penalties which would be appropriate to be imposed would be significantly higher than the penalty which would be likely to be imposed if the Company was convicted on a single-count charge in each of these proceedings. This would be an injustice (and one of significance) in the sense envisaged by the use of that word in s 21(1) of the Criminal Procedure Act. [48] Although I have set out above the submissions made for the Prosecutor concerning why the principle of totality in sentencing would be ameliorative of this position, I reject those submissions in light of the significantly higher maximum penalty exposure that would arise. [49] Whatever might be the application of the principle of totality (if all counts resulted in findings of guilt), the necessary outcome would be a penalty on each charge significantly higher than could be expect after a finding of guilt on a single charge."
Tropic made the following written submission: "50. In particular, [Snowy Monaro's] submissions on this issue appear to treat the initial unamended charges as if those charges validly charged 40 or 41 separate offences, and therefore that 'breaking up' the charges into 40 or 41 separate charges is in effect alleging exactly the same offending against [Tropic], and therefore any sentence imposed on [Tropic] if convicted on the initial unamended charges would have been the same as that imposed if [Tropic] was convicted on the multi-count amended charges. However, the initial unamended charges were found to be invalid. The principle of totality in sentencing cannot be invoked by [Snowy Monaro] to consider the sentence that might have been imposed if [Tropic] was convicted on the initial unamended charges as if those charges validly charged 40 or 41 discrete offences. They did not do so. Rather, each initial unamended charge purported to charge a single offence, which attracted a maximum penalty of $1.1 million. However, by reason of the proposed 'multi-count amendments' of each charge, [Snowy Monaro] was seeking to charge [Tropic] with an additional 39 or 40 offences, with each additional offence giving rise to an additional $1.1 million possible penalty. In such circumstances, and notwithstanding the principle of totality in sentencing, there could be no doubt that [Tropic] would face a 'radically higher maximum penalty exposure' if convicted on all 40 or 41 charges rather than the single charge…Moore J's reasoning [at [44]-[49]] on this issue is plainly correct and [Snowy Monaro's] submissions should be rejected."
With respect to Snowy Monaro's Grounds 4 and 5, Tropic submitted that leave should be refused upon the basis that they concern his Honour's ruling as to the admissibility of evidence in the hearing, to which s 5F has no application: see Liristis v Director of Public Prosecutions [2018] NSWCCA 196 at [15]-[18].
Alternatively, Tropic submitted that his Honour was correct to conclude that the evidence that Snowy Monaro wished to lead had no relevance to its application to amend the charge in each proceeding. The question of whether leave should be granted to amend concerned the application of s 21(1) of the Criminal Procedure Act and s 68 of the Land and Environment Court Act. That question did not raise any issue about whether or not there was evidence to establish the conduct upon which the charges were based. That was the only purported relevance of the evidence identified by Snowy Monaro. Snowy Monaro has not in any event identified any error of law or mistake in the application of principle which is required if it asks this Court to overturn an interlocutory decision on a matter of practice or procedure such as the admissibility of evidence: see, for example, DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [53]-[59]; Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [4]-[24].
Finally, with respect to Ground 6, Tropic submitted that his Honour's apparent failure to deal with s 68 did not cause an injustice to Snowy Monaro. Tropic submitted that in the present case it would not be in the interests of justice to permit Snowy Monaro to amend the charges to plead new and different charges in an attempt to avoid the limitation period. The matter should not be remitted to his Honour for further consideration as the application for leave to amend pursuant to s 68 would be doomed to fail.

Snowy Monaro's response to Tropic's application for leave to appeal

Snowy Monaro contended that his Honour's grant of leave to amend should not be disturbed except to the extent that leave should be granted to allow the multi-day amendment which is the subject of its own s 5F application.
Snowy Monaro emphasised that Tropic required leave under s 5F(1)(c) and (3) of the Criminal Appeal Act: his Honour's grant of leave to amend was an interlocutory decision and the standard of appellate review to be applied is that in House v The King. Not only must Tropic point to an error of principle: Tropic must also demonstrate the possibility of substantial injustice or a point of public importance.
Snowy Monaro submitted that it was "self-evident" that no substantial miscarriage of justice was occasioned to Tropic by the amendment allowed by his Honour. His decision raised no issue of public importance, was "plainly sound" and unaffected by wrong principle or irrelevant matters. Nor did his Honour overlook any relevant considerations or mistake the facts. His Honour's decision was not unreasonable or plainly unjust.
Snowy Monaro's submissions then proceeded to address the obvious tension between the approbation of its own application and its reprobation of the Tropic application, as the following paragraph reveals: "[Snowy Monaro], unlike Tropic [sic], does not challenge the correctness of the primary judge's core decision to grant leave to amend. Rather, [Snowy Monaro] asks for it to be altered at the margins and merely contends that once the decision was made to grant leave to amend, the primary judge should have gone further and allowed not merely the reduction of the original pleaded charges to a single day's alleged contravention, but multiple counts in each proceeding each dealing with a single day, rather than the one count extending over the whole of the charge period in each original summons."

Consideration

It is convenient to deal with Tropic's contentions first.
Tropic's central proposition is that when the proceedings were remitted to Moore J, at least two things were clear. First, his Honour had no power to grant leave to Snowy Monaro to amend the charges because they were a nullity, were never viable and were therefore incapable of amendment. Tropic contended that the Condition 4 and Condition 6 charges as originally framed or worded did not disclose offences known to the law, did not disclose the nature of the offences in a material respect and failed to disclose an essential element of each offence. Secondly, the relevant limitation period for the commencement of a criminal prosecution against it for alleged offences committed in 2015 had expired.
The principles that govern the exercise of the Court's power to permit amendment in circumstances such as the present pursuant to s 21(1) of the Criminal Procedure Act were summarised by Bathurst CJ in Area Concrete Plumbing Pty Ltd v Inspector Childs (2012) 223 IR 86; [2012] NSWCA 208 at [44]-[49] and in Attorney-General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102; [2013] NSWCCA 299 at [117]-[125] as follows: "[117] Section 16(2) must be considered in conjunction with s 17(2), s 20 and s 21 of the CPA, which respectively gives the court power to cause the indictment to be amended, to grant leave to amend the indictment or to amend the indictment to meet the circumstances of the case. [118] However, it is clear that not all defects in the charge can be saved by s 16. [119] The extent of the operation of s 16 of the CPA has generally been considered in the context of charges which were defective by virtue of the omission of an essential factual or legal element of the offence. [120] In Rockdale Beef supra, Spigelman CJ stated at [27] that s 16 did not apply to save a charge that omitted an essential legal element of an offence. However, Basten JA, with whom Mason P agreed, took a somewhat different view. His Honour, after citing Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261, made the following comments at [123]: '[123] These remarks are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of 'amendment' itself may be inconsistent with such a conclusion. Accordingly, so long as a defect can be remedied by amendment, the informations are not 'void' in the sense that the 'defects cannot be removed by amendment or otherwise put aside', adopting the terminology of Mahoney JA in Boral Gas at 518C-D; 36-37, nor are the proceedings based on them a nullity.' [121] In Doja v The Queen supra, the appellant was convicted of a number of counts of making a false statement to obtain financial advantage contrary to s 178BB of the Crimes Act 1900. He appealed on grounds including that the indictment in relation to two counts was defective in failing to allege knowledge or recklessness. Spigelman CJ emphasised at [3] that it is a fundamental principle of criminal law that an indictment must disclose an offence punishable by law. At [26] his Honour referred to the paragraph from the judgment of Basten JA in Rockdale Beef which I have set out above, emphasising the use of the word 'necessarily' and stating that Basten JA was not considering the jurisdictional role of an indictment. [122] In John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 the statement of charge was said to be defective because it failed to identify the act or omission which constituted a contravention of s 8 of the OH&S Act. Spigelman CJ at [45], with whom Beazley JA agreed and Giles JA agreed with additional reasons, noted that the proceedings potentially raised the issue left open in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [30], namely, whether and how s 6(1) of the Summary Jurisdiction Act (the equivalent of s 16(2)) might affect the right to certiorari if an application to quash the charge was made prior to it being heard. After referring to s 246(2) of the CPA and r 217B of the Industrial Relations Commission Rules 1996 (the equivalent of r 26) he made the following comments at [47]: '[47] These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer 'to the offence charged in the order'. Section 246(2) and r 217B, as noted, both use the word 'must'. The reasoning in Kirk gives these mandatory requirements specific content.' [123] However, his Honour found the charge was not invalid and did not have to deal finally with the issue. [124] In GPI (General) Pty Ltd supra at [32]-[26] Hodgson JA, with whom Allsop P agreed, stated that whilst the High Court in Kirk supra decided that the requirement that a statement of offence in the case of omission under s 8 of the OH&S Act required identification of the measures that should have been taken to address the relevant risks, it did not decide this requirement displaced s 16(2) of the CPA or rule when particularisation had to occur. At [78]-[79], Basten JA adhered to the views he espoused in Rockdale Beef. [125] In Area Concrete Pumping Pty Ltd supra, I endeavoured to summarise the authorities and concluded that a failure to adequately particularise a charge will not, without more, render it a nullity as defects can be cured by amendment of the charge or subsequent particularisation, at least provided that the charge disclosed an offence known to law and that procedural unfairness had not occurred. I also concluded at [47]-[49] that this could extend to an inadequately described offence, but not one that does not disclose an offence known to law. Basten JA at [113] and Hoeben JA at [117] agreed with my reasoning on this issue."
Tropic also relied upon what was said by Nettle JA in Director of Public Prosecutions v Kypri (2011) 33 VR 157; [2011] VSCA 257 at [23]-[24]: "23 The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period. 24 A charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the charge may be amended under s 50 (even out of time) to include the missing element; on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge."
It is instructive to recall the precise terms of the relevant conditions of consent: "4. The plant production must not exceed 150 tonnes per day at any time during operations. Reason: Production above this threshold would result in the proposal being designated development and would require substantially more environmental impact assessment. 6. The number of trucks accessing and/or exiting the site is not exceed twelve (12) per day at any one time. Reason: To ensure the traffic impacts from the development do not exceed SEPP 3 Guideline thresholds."
Implicit or inherent in the charges that this Court found to be duplicitous, but which it did not find to be a nullity, is the notion that Tropic had committed a breach of both conditions on all working days during the charge period. The charges did not say so in terms. The failure to specify that allegation was fatal: as the summonses alleged a course of offending conduct without specifying the day or days upon which the alleged breaches are said to have been committed, the charges were duplicitous and Tropic could not have been required to respond to charges framed in that way.
The unspecified day or days upon which Tropic is alleged to have breached the conditions was or were necessarily within the certain charge period. Tropic contends in these circumstances that, framed only by reference to that period and without further particulars, it could not have known, and could not be expected to have known, the true nature of the charges that were alleged against it. I disagree.
Faced with the decision of this Court, Snowy Monaro has in my opinion permissibly sought to do no more than clarify the charges, by either nominating a single day upon which a breach of each condition is alleged to have been committed or by particularising every day upon which a breach of each condition is alleged to have been committed. I do not consider this to be an attempt to formulate a new or different charge: the offences alleged, being breaches of the relevant conditions of consent, stay the same.
The true nature of the offence is apparent from the face of the charge in its original form. Because of the terms of the conditions of consent, it is obvious that Snowy Monaro was contending that the 150 tonne and 12 trucks daily limits had been exceeded: the daily limits could therefore only have been referable to discrete 24-hour periods, even if the particular 24-hour periods were not indicated. The proposed amendments in my opinion provide what Nettle JA referred to in Director of Public Prosecutions v Kypri as "the missing element". To adopt his Honour's words again, the "amendment does no more than clarify what is already apparent from the face of the charge".
Nor in my opinion is Tropic's contention, that the decision in Walsh v Tattersall is dispositive of the present proceedings, correct. The opening paragraph of the joint judgment of Gaudron and Gummow JJ at 87 in that case should be noted: "The question upon which the appeal turns is not whether in a single count the appellant was charged with more than one offence. It turns on an anterior question. This is whether the appellant was charged with any offence created by the Workers Rehabilitation and Compensation Act 1986…In our view the appellant was not so charged and his appeal succeeds." [Emphasis added]
As I have already attempted to indicate, the offences alleged against Tropic were clearly referable to conduct within a particular 24-hour period: a breach of Condition 4 or Condition 6 could only be committed if the limits imposed by those conditions were exceeded on a single day. The charges as originally framed did not lack an essential element and were not a nullity: they merely failed to specify or to particularise the days or dates upon which the offences were alleged to have been committed. The proposed amendments do no more than clarify what is already apparent on the face of the charge. This approach accords with one of the usual remedies when a prosecutor presents an indictment, summons or charge which is held to be duplicitous. That is, to put the prosecution to its election: see, for example, S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at 269, 273 and 287.
It is also my opinion that, in rejecting the application for leave to amend to include the multi-day counts, his Honour did not deny Snowy Monaro procedural fairness and did not fail to determine a principal contested issue upon which his decision to grant leave to appeal depended.
So far as concerns Snowy Monaro's applications for leave to appeal, the charges as originally formulated by Snowy Monaro, which were the subject of consideration by this Court in 2018, were set aside for the reasons encapsulated in the judgment of the Chief Justice at [59] already quoted. In short, this Court upheld Moore J's decision that the charges were bad for duplicity, because they each nominated a range of dates on which the offending conduct, being breaches of Conditions 4 and 6 respectively, was alleged to have occurred rather than only a single day at any one time. This Court ordered that the applications were thereafter to be remitted to the Land and Environment Court to be dealt with according to law.
Although presumably content with his Honour's grant of leave to amend to substitute the single-day count in the summonses, Snowy Monaro was not similarly content to accept his Honour's rejection of the application to include multi-day counts. Although not explained in terms, inherent in that discontent must have been Snowy Monaro's concern or perception that some other or different result might follow if Tropic were convicted of the proposed multi-day counts as opposed to convictions only upon the single-day counts that his Honour allowed. Tropic's concern was that this other or different result would at least be its exposure to the possibility of an increased sentence. Snowy Monaro's argument before Moore J and in this Court was that by reason of the application of the principle of totality, such an unfairness could never be occasioned to Tropic if the multi-day amendments were also allowed because, howsoever the charges were framed, no sentence could ever be imposed that was disproportionate to Tropic's overall criminality.
Snowy Monaro's complaint is that his Honour disregarded or failed properly to understand or apply the totality principle. In my opinion, his Honour did no such thing. At best, Snowy Monaro's reference to the totality principle was a theoretical argument raised in aid of the concurrent submission that Tropic would suffer no prejudice if the multi-day amendments were allowed. To start with, it is clear from his Honour's judgment both that Snowy Monaro had every opportunity to articulate its argument in this respect and that his Honour completely understood and appreciated that argument. However, in my opinion, it is incorrect to assert that his Honour somehow misapplied the totality principle. In truth, he was not required to apply it at all. Its relevance was only analogical in the sense that Snowy Monaro urged his Honour to take comfort from the proposition that it was no more likely that Tropic would be exposed to a greater penalty if convicted on the multi-day counts than it would have been if sentenced upon the original rolled-up charges. His Honour was entirely justified in rejecting that submission. His reasons make it clear why he did so. His Honour's decision cannot and should not by this analogy be compared or likened to the failure of a sentencing judge to apply the totality principle. Indeed, Snowy Monaro's argument effectively proceeds upon the basis that correct application of that principle will necessarily lead to only one sentencing outcome. That is not correct. His Honour's reasons properly recognise that there is a range of "correct" sentences in any particular case, and the totality principle does not say otherwise. I do not accept that "it can intuitively be seen", even without resort to the totality principle, that the likely penalties would be similar as the factual basis for Tropic's liability remains unchanged. His Honour's discretion to disallow the multi-day amendment did not miscarry.
His Honour did not in my view erroneously fail to consider or to determine whether a materially higher penalty would be imposed upon conviction on the original rolled-up charge, incorporating the multiple daily offences, compared to a conviction on all of the separated counts in the multi-day amendment. There was a theoretical possibility that the differently framed charges, even if based upon the same facts, could produce a different sentencing outcome. His Honour's view to that effect cannot be said to be wrong, in the sense that it was unavailable to him. I accept that Snowy Monaro is dissatisfied with the decision, but it cannot be shown to have resulted from a flawed exercise of discretion and is not otherwise vitiated by House v The King error.
Nor do the different considerations in s 21(1) and s 68 alter this conclusion.
Section 21 of the Criminal Procedure Act provides as follows: 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
Section 68 of the Land and Environment Court Act is in these terms: 68 Amendments and irregularities (1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.
The effective burden of Snowy Monaro's contentions concerning these provisions is twofold. First, the words "without injustice" in s 21(1) invite consideration only of the interests of a party in Tropic's position, whereas the words "in the interests of justice" in s 68 have a wider reach. A failure to refer to s 68 unfairly favoured Tropic. Secondly, because (or at least if) his Honour gave no proper consideration to s 68, he inevitably dealt only with matters favourable to Tropic so that his discretion miscarried for failing to take account of a material consideration.
As will also be clearly apparent, his Honour simultaneously permitted Snowy Monaro to amend the summonses to plead the single-day allegations. Presumably, that decision was influenced by an appreciation of "the interests of justice" test in s 68 in not allowing Tropic completely to escape criminal prosecution for serious misconduct, which would have occurred if all amendments had been disallowed. In doing so his Honour rejected Tropic's s 21(1) line of reasoning that it would be not be "without injustice" to permit the amendment of the charges in a way that alleged new offences after the expiration of the limitation period. It is in my opinion artificial and erroneous to maintain that Snowy Monaro somehow lost the chance of a different outcome because his Honour did not also take account of the s 68 test in forming his conclusions about the multi-day amendments. Uncontroversially, the "interests of justice" test calls for a balancing exercise. His Honour was obviously not prepared on balance to expose Tropic to the possibility (not the certainty) of an increased sentence by allowing the multi-day amendments, even if there was a corresponding chance that Tropic might avoid the full consequences of its accumulated criminality as a result. Put another way, his Honour's decision aligns with the proposition that the interests of justice did not mandate a conclusion that the multi-day amendments should be allowed.
It follows from what I have already said that I do not consider that his Honour failed to give proper or adequate reasons for his decision.
It is doubtful that cases like Liristis are concerned with the admissibility of evidence sought to be tendered on interlocutory proceedings, as opposed to evidence rejected in the substantive proceedings. However, in view of my conclusions concerning the Bradbury affidavit, it is unnecessary to consider that submission further.
I would not grant leave to Snowy Monaro to raise Grounds 4 and 5. His Honour's failure or refusal to read the Bradbury affidavit was neither of any consequence nor a denial of procedural fairness. The affidavit appears to have been directed to supporting the proposition that Snowy Monaro had available and wanted to rely upon further evidence to prove the allegations against Tropic. His Honour dealt with this issue as follows at [27]-[32] and [71] of his judgment as follows: "[27] As I had not undertaken any further pre-trial preparation and, as a consequence, had not examined Mr Bradbury's affidavit, I caused it to be separated from the papers in the Court file and placed in an envelope. [28] When the matter came before me again on 8 August 2019, it was not only necessary to deal with the two substantive Notices of Motion seeking to amend Charges 2 and 3 in the alternative fashions earlier outlined, but also to deal with the Prosecutor's application to reopen and, in doing so, to rely on the terms of Mr Bradbury's 28 June 2019 affidavit. For the purposes of dealing with the application to reopen, Mr Hale tendered a copy of Mr Bradbury's affidavit of 28 June 2019, in redacted form, with the redactions obscuring the elements in the affidavit to which the Company objected. The redacted version became Exhibit 1. [29] The redacted copy of Mr Bradbury's affidavit was tendered for the Company as part of the contest as to whether or not leave to reopen and rely on the unredacted affidavit of Mr Bradbury and of the material annexed to it. [30] One basis upon which the Company objected to me reading the unredacted version of Mr Bradbury's affidavit, or having regard to the material annexed to it, was that the material had been obtained from the Company by the Prosecutor unlawfully. It is unnecessary to determine, for the purposes of these proceedings dealing solely with the question of amendment to the charges, whether that complaint is valid or not. The question of whether or not any or all of the material is admissible at trial for any purpose is a matter which necessarily must await trial on the two charges for which I have determined it is appropriate to grant leave for amendment. [31] The question of whether there is potentially available (subject to issues of admissibility) material demonstrating that each of the counts in the proposed multi-count amendment would be able to be established, is a matter of irrelevance. For the reasons later explained, it would be entirely unjust (and hence contrary to s 21(1) of the Criminal Procedure Act) to permit the multi‑count amendment to each charge to be made. [32] Even if I was to assume, solely for the purposes of these amendment proceedings, that the unredacted version of Mr Bradbury's affidavit, and the material annexed to it, was admissible at trial and demonstrated that the Company had breached each of the conditions on the multiple occasions sought to be relied upon in the proposed multi-count amendment to each charge (that is, taking the Bradbury material at its highest in favour of the Prosecutor), such an assumption does not displace the matters I later discuss in reaching my conclusion that it would impose significant injustice on the Company if either charge was to be permitted to be amended in the multi‑count fashion proposed by the Prosecutor. … [71] That affidavit, and the material exhibited to it, has no part to play in my consideration of whether leave should be granted, in each matter, to substitute a single amended, particularised charge in each matter. It is, therefore, self-evident that the Notice of Motion seeking leave to reopen to rely on this material is to be dismissed. It is equally self-evident that, although I have set out the assumptions I have made about that affidavit and the exhibited material for the purposes of determining the first proposal in each of the Notices of Motion seeking leave to amend, I have, in fact, made no rulings of any substantive nature with respect to that material as, obviously, I am unaware of its content."
The issue before his Honour was whether or not to permit Snowy Monaro to amend the charges. It is evident that Snowy Monaro wished to rely upon the material in the Bradbury affidavit in order to support the proposition that its case against Tropic was strong and in that way better to persuade his Honour of the higher likelihood of securing a conviction. Snowy Monaro contended that this was somehow relevant to his Honour's principled assessment of whether to allow the amendments that were sought was in the interests of justice. His Honour's rejection of that contention was unexceptionable.

Conclusion

In my opinion, the following orders should be made: 1. Grant leave to Snowy Monaro Regional Council pursuant to s 5F of the Criminal Appeal Act 1912 to appeal on Grounds 1, 2, 3 and 6 in its amended notices of application for leave to appeal against an interlocutory judgment or order of Moore J on 27 November 2019 filed on 4 February 2020 but dismiss the appeals on those grounds. 2. Refuse leave to Snowy Monaro Regional Council to appeal pursuant to s 5F of the Criminal Appeal Act 1912 on Grounds 4 and 5 in its amended notices of application for leave to appeal against an interlocutory judgment or order of Moore J on 27 November 2019 filed on 4 February 2020. 3. Grant leave to Tropic Asphalts Pty Ltd pursuant to s 5F of the Criminal Appeal Act 1912 to appeal on Grounds 1, 2 and 3 in its application for leave to appeal against an interlocutory judgment or order of Moore J on 27 November 2019 filed on 30 January 2020 but dismiss the appeal.
HAMILL J: I agree with Harrison J.
WILSON J: I agree with Harrison J.

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