That does not mean, however, that I think the complaint was properly drawn. Clearly, in my view, it was not. The pleader has been curiously selective. In my view, if it is intended to allege that the postal article in question possesses more than one of the forbidden characteristics, then they should be mentioned conjunctively, not disjunctively, and if any of those characteristics is not intended to be alleged it should not be mentioned at all . I could, perhaps, conceive of a rare case where the prosecutor was really in doubt as to which of the forbidden characteristics was present but thought that he could prove that at least one of them must have been, as if, for example, he was not really sure whether an inability to exercise effective control over a car was due to drink or to drugs but was sure that it must have been due to one of them. Even then I should have thought it might ordinarily be better to allege the two conjunctively instead of disjunctively.
…
At common law an indictment which alleged in the same count two offences was bad in all circumstances if they were alleged disjunctively and bad also when they were alleged conjunctively unless the same act could constitute more than one offence.
…
Probably, in strictness, counts improperly joined conjunctively are bad for duplicity, and counts improperly joined disjunctively are bad for uncertainty ". (See Bastin v Davies [1950] 2 KB 579, at 581 per Lord Goddard CJ).
Manwaring
31 The New South Wales Court of Criminal Appeal dealt with the question in R v Manwaring [1983] 2 NSWLR 82. The principal majority judgment was delivered by Miles J, and Street CJ concurred. Begg J generally agreed, but dissented on grounds not relevant to the present question.
32 Section 89 of the Crimes Act 1900 provided:
" Whosoever by force takes away, or detains against her will, any female of any age, with intent to marry or carnally know her, or to cause her to be married to or carnally known by any person, shall be liable to penal servitude for fourteen years".
33 The court held that the language used when seen within the context of the Act, indicated an intention on the part of the legislature that two offences were intended to be created, one of forcibly taking or detaining the woman by the accused with the intent of marrying or carnally knowing her himself, and the other of forcibly taking or detaining a woman with the intent of causing her to be married or carnally known by someone else.
34 The court applied Bray CJ's test in Romeyko, but held that to charge that the accused did by force take a woman against her will with intent to cause her to be carnally known by him and other persons or any of them, was bad for duplicity and uncertainty.
35 Miles J said (at 88G - 89E):
" In my view there is no great difficulty in regarding an overt act combined with a particular intent as constituting a different offence from the same act done with a different intent. A wounding with intent to kill under s 27 is clearly a different offence from a wounding with intent to do grievous bodily harm under s 33. Further, there are examples in the Crimes Act of different offences created within the same section according to the intent accompanying the overt act. For instance s 33 penalizes not only malicious wounding done with intent to cause grievous bodily harm but also malicious wounding done with intent to resist lawful apprehension, and although it may be said that on the face of it the malicious wounding is in either case the same overt act, it is the specific intent which accompanies the act which characterizes that act for the purposes of the criminal law. Accordingly in my view a count alleging malicious wounding with intent to cause grievous bodily harm or with intent to resist lawful apprehension in the alternative would be bad for uncertainty. Likewise in my view the language used in s 89 seen within the context of the Act indicates an intention on the part of the legislature that two (at least two) offences were intended to be created, one the forcible taking or detaining of a woman by the accused with the intent of marrying or carnally knowing her himself and the other the forcible taking or detaining of a woman by the accused with the intent of causing her to be married or carnally known by someone else. Had the legislature intended that the intent necessary to accompany that forcible taking or detaining was that the woman be carnally known by anybody, including the accused, it would have been simple to say so. It may be observed that that was exactly what was done in the United Kingdom where the Sexual Offences Act, 1956, s 17, now provides that: "It is an offence for a person to take away or detain a woman against her will with the intention that she shall marry or have unlawful sexual intercourse with that or any other person ...".
Empress Car Co
36 The House of Lords considered the relevant principles in Empress Car Co (Abertillery) Ltd v National Rivers Authority ("Empress") [1998] 1 All ER 481. This was a "pollute waters" case, in which there was an appeal against conviction. It involved an allegation of "causing" a pollutant to enter controlled waters. The court held that one must actively do something to produce a situation in which the polluting material can escape, even though what was done was not the immediate cause of the pollution. The principal judgment was that of Lord Hoffmann, who quoted the section as follows: "A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter into controlled waters". His Lordship found a conceptual distinction between "causing" and "knowingly permitting", so as to create two alternative offences.
Hardt
37 The correspondence between the parties referred to Hardt (see [13] above). The Defendant was charged that "he, being the owner of land that could not lawfully be used as a waste facility, permitted the land to be used as a waste facility". He was convicted by Preston ChJ ([2008] NSWLEC 438; 148 LGERA 61), his Honour finding that the appellant intentionally allowed waste to be brought on to and disposed of on the land. At no stage was the charge or the argument in the case against the polluter broadened beyond the concept of "permit the land to be used" (the then formulation of the section), so the question of duplicity was not raised. The Court of Criminal Appeal reported counsel for the appellant Defendant to the Bar Association, but dealt with the appeal on its merits, and unanimously dismissed it. I do not find the decision of much assistance on the question presently before the court.
Davis
38 A more relevant case for the present purposes is Davis v Regina [2006] NSWCCA 392. Among the charges brought against Davis was an offence against s 86(2) of the Crimes Act, as it stood at the relevant time, namely an aggravated kidnapping offence. He was charged with taking the complainant, without her consent and with intent to obtain advantage, namely to have her company, and that, at the time of the taking, he occasioned her actual bodily harm. Basten JA and Whealy J agreed with the judgment of Howie J. The court found that the use of verbs in the alternative in the statutory provision, namely "takes" or "detains" did not create separate offences. The appeal was based on an argument that, although Davis was charged with taking her, the evidence and conviction was based not only on the taking, but also on the detaining. He argued that the conviction was bad for duplicity. The court said that the statutory provision did not create two offences, but rather provided for two ways of committing one offence.
39 Howie J did not refer to Romeyko, but did refer (at [45]) to Manwaring, on the question of interpretation of abduction offences (s 89 as it then applied had been repealed before Davis). He quoted (in [46]) some of the comments Miles J made in Manwaring (at 88), which occurred prior to the passage I quoted above (in [34]), relevantly (at 88E - 88F):
" If different types of forcible abduction had been provided for in separate sections, then it would not be difficult to conclude that Parliament intended that an offence provided for in one section should be regarded as separate and distinct from that provided for in another section. It does not necessarily follow, however, that, by bringing all forms of forcible abduction into one section, Parliament intended that one offence only was thereby to be created. There are numerous examples in the Crimes Act of single sections which penalise more than one distinct type of behaviour and thereby create multiple offences, for instance the various types of attempt to murder provided for in ss 27 to 29."
40 Howie J then said, at [51]:
"It is true, as the appellant submits, that the word "detains" effected a change to the common law offence of kidnapping. But that is not so significant in my mind in light of the fact that the concepts of taking away and detaining had both been included in most of the statutory abduction charges that were clearly the precursor of the actus reus of s 90A and that every kidnapping involved a detention. As has been noted, the policy behind s 90A was not the prevention of the asportation of the person away from a particular place or the protection of a particular class of person, but rather the interference with the liberty of the person for the purpose of obtaining an advantage. "
41 His Honour went on to examine second reading speeches etc, and then said, at [56] and [65]:
"The history of the present offence of kidnapping in s 86 of the Crimes Act seems to confirm my initial impression that the section contains only one offence but provides that it can be committed in one of two ways so far as the actus reus of the offence is concerned: by taking or detaining the victim. As at common law, every taking will include a detention, but not every detention will involve a taking. In any event it is the interference with the liberty of the person that is the conduct at the heart of the modern day concept of kidnapping. I can see no policy consideration that would warrant an interpretation of the section as giving rise to two distinct offences as the appellant asserts .
…
In my opinion the words "takes or detains" do not create two offences but merely provide for two ways of committing the offence in s 86. This is how the abduction offences were considered upon which the original section, s 90A, was modelled and it is the only practical and logical way of considering the conduct at which the section is directed. Such an interpretation does not deprive the word "detention" of any work to do, because clearly there can be a detention without a taking and yet there will be in such a case an interference with the victim's liberty".
42 Mr Howard contends that the reasoning which was appropriate in Davis, cannot properly be applied in this present case, where the alternative concepts nominated by alternative verbs are mutually exclusive.
B v R
43 I return now to B v R (see [21] - [23] above). At [49] and [51] of his judgment, the Chief Justice likened the reference to terrorist act or acts in the relevant section of the code to the reference to "one or more forbidden characteristics within the analysis adopted by Bray CJ in Romeyko" (at 552), and found that "there is no element of duplicity by (sic) pleading the statutory provision identifying 'forbidden characteristics', to use Bray CJ's words".
44 His Honour went on to express a preference for the term "latent ambiguity" over the term "latent duplicity", and said (at [53]):
" Latent ambiguity can be identified when an indictment does not suggest duplicity on its face, but the way in which the Crown case is to be, or has been, conducted can be seen to subject the accused to the possibility of being convicted of one of a number of distinct offences. In the context of a charge of conspiracy this principle involves the exposure of an accused to being convicted of more than one conspiracy ".
45 His Honour also said (at [61] and [62]):
" That the appropriate step upon finding even latent duplicity is to put the prosecutor to an election or to provide particulars or to require appropriate directions has long been the position …
None of the applicants came before this Court seeking an order in the nature of requiring an election, nor for a stay by reason of inability to provide a fair trial. The sole order sought in this regard is an order to quash the indictment. On the latent duplicity argument, this was said to be based on the alleged impossibility, in view of the complexity of the matters that fall to be determined, of remedying the alleged defects in any manner, whether by means of election or particulars or directions".
46 In the result, the court (per Spigelman CJ, with James and Howie JJ agreeing) refused leave to appeal on the ground of duplicity.
Altaranesi
47 In the recent NSW Supreme Court case of Altaranesi v Whalan [2010] NSWSC 149, Harrison J applied the Romeyko principles. This was a private criminal prosecution in the local court against the plaintiff's former co-workers. There were several proceedings, but Harrison J was hearing an appeal from the Sutherland Local Court (Schurr LCM). Her Honour had made a finding of duplicity. A multitude of offences was/were alleged against four respondents. The information clearly related to more than one act, or more than one series of acts, and certainly to different acts at different times by different people. The particulars alleged multiple criminal enterprises, namely that each respondent committed more than one offence. Harrison J referred, with approval, to both Romeyko (at [32]) and Manwaring (at [33]).
48 In [59], Harrison J noted that although none of the errors promoted by the plaintiff had been made out, the plaintiff "might reasonably have anticipated he would have been given an opportunity to make an election or to amend the application so as to put it in a proper form".
Submissions
49 Mr Seymour says that an allegation of "patent duplicity" must source the complaint to the actual terms of the statute and the charge. It would need to be shown that the terms of the charge offend against the rule that an information or indictment can contain only one single allegation. He says that Spigelman CJ's reasoning in B v R suggests that this question is one of construction of the actual offence. (See also Jordan CJ's explanation in Polley.)
50 Mr Seymour goes on to submit that if the Defendant's complaint is of "latent duplicity", ie the possibility that a Defendant may be convicted or punished for more than one offence, that claim is inherently directed towards the facts alleged against the Defendant, rather than the terms of the statutory charge itself (B v R at [53]).
51 Mr Seymour put to the court (submissions at pars 15-16) that if the complaint were one of latent duplicity, the motion by the Defendant is premature. "… if, on the close of the Prosecutor's case (at trial) or submissions (on penalty) it is apparent to the Court that the Prosecutor is infringing the rule against latent duplicity, then it will be appropriate for a direction to be made that the Prosecutor make an election. The other alternative remedy is to direct the Prosecutor to provide further and better particulars. However, the Prosecutor would submit that fulsome particulars have already been provided and the Defendant should have a clear understanding of the case it is required to meet or accept".
52 Mr Howard made clear during Mr Seymour's final argument that the Defendant put its case on the motions on the basis of "patent duplicity", but he preferred to allege "uncertainty" or "ambiguity", as in Romeyko. He submitted that the application of the Romeyko test, as approved by NSW superior courts in Manwaring, B v R, and Altaranesi, if not also Davis, means that s 141(1) clearly penalises three separate types of conduct, not one act possessing one or more forbidden characteristics. Alternatives within one provision do not preclude the charging of separate offences, but it is a question of whether there are separate characteristics, or separate types of conduct involved. Mental elements are relevant in some cases, and not in others.
Consideration
53 The court accepts that "patent duplicity" is a question of the proper construction of the relevant provision upon which the charge is based, and that "latent duplicity" flows more from the factual basis underlying the charge.
54 In a case such as the present, the conflict appears to be more one of ambiguity and uncertainty, and the court would normally expect such an impasse to be likely resolved by particulars properly sought and provided. However, in the present case the particulars provided, and the attempted "without prejudice" discussions, have not succeeded in achieving a resolution which would allow the matter to proceed on a fair, equitable, and expeditious basis.
55 The charge as framed, and the particulars provided (in par 1.1.2 quoted in [9] above), express the offence in the alternative, despite the assertion to the contrary (in par 1.1.1 in [9]), and do not distinguish between the three "activities" created as offences (namely using, causing, or permitting), even asserting that they were/are "indistinguishable" (see [11]).
56 As noted above (see [13] and [37]), the offence at the time of the first instance trial in Hardt was framed in terms of "permitting". A check of the court's records of cases brought under s 144, following the 2006 amendment (noted above in [3]) indicates that prosecutors have adopted the practice of framing charges under s 144(1) in terms of only one of its now three alternative elements - see "use" in Environment Protection Authority v Hogan [2008] NSWLEC 125, Environment Protection Authority v Gossayan [2009] NSWLEC 181, and Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160; and "cause to be used" in Environment Protection Authority v Smart Skip Pty Ltd [2009] NSWLEC 204.
Conclusion
57 On balance, I consider that that practice, and the position articulated by Mr Howard in argument, and by the Defendant's solicitor in correspondence (see [12] above), better reflect the weight of authority (Romeyko, Manwaring, and Empress, c.f. Polley, B v R, and Davis). The section as now framed creates three separate offences.
58 The Prosecutor should be granted leave to amend, but ordered to elect upon which of the three available formulations of a charge under s 144(1) it will proceed. If more than one, they should be separately charged against the Defendant.
59 The court expects the Prosecutor to comply with any reasonable further request(s) for particulars, and will expect the Defendant to enter a plea at the next directions hearing, so that the matter can be fixed for hearing.
60 As the Defendant has succeeded in the argument it has put to the Prosecutor since at least the time of the first directions hearing on 27 August 2010, an argument it put in detail in its solicitor's letter of 7 September 2010, and sought to resolve without motions, it is entitled to an order that the Prosecutor pay at least some of the costs it has incurred.
Orders
61 The court, therefore, makes the following orders and directions:
1. The notice of motion brought by the Prosecutor on 20 September 2010 is upheld to the extent that the Prosecutor is given leave to amend the charge, if it chooses, to allege an offence of " cause the land to be used ".
2. The notice of motion brought by the Defendant on 20 September 2010, seeking an order or direction, is upheld to the extent that the Prosecutor is ordered to elect from among the three formulations available in s 144(1) the Protection of the Environment Operations Act 1997, and, if it elects more than one, is further ordered to charge them as separate offences.
3. The Prosecutor is ordered to pay the Defendant's costs of the hearing on 29 September, but all other costs on the motions are to be each party's costs in the cause.
4. The Prosecutor is to file, and serve on the Defendant's solicitor, its amended charge/summons within 7 days of these orders.
5. If further particulars are required, the Defendant is to request them within a further 7 days, and the Prosecutor is to provide them within a further 7 days thereafter.
6. The prosecution is stood over to the List Judge's list, for plea and further directions, on Friday 19 November 2010, with a view to its being set down for hearing.
7. The parties are to have liberty to apply to Sheahan J or the List Judge on 3 working days' notice.